REPORTS OF CASES

DETERMINED BY THE

SUPREME COURT
OF THE

STATE OF NEV ADA Volume 125

REPORTS OF CASES
DETERMINED BY THE

SUPREME COURT
OF THE

STATE OF NEV ADA Volume 125

MICHAEL LYNN STROMBERG, PETITIONER, v. THE SECOND JUDICIAL DISTRICT COURT OF THE STATE OF NEV ADA, IN AND FOR THE COUNTY OF WASHOE, AND THE HONORABLE PATRICK FLANAGAN, DISTRICT JUDGE, RESPONDENTS, AND THE STATE OF NEV ADA, REAL PARTY IN INTEREST.
No. 50079 January 29, 2009 200 P.3d 509

Original petition for a writ of mandamus challenging a district courts decision to deny petitioners request to apply for treatment pursuant to NRS 484.37941. Defendant charged with third-offense driving under the influence (DUI) moved to plead guilty and applied for treatment, pursuant to statute allowing a district court to accept a plea of guilty to third-offense DUI and subsequently enter a judgment for a secondoffense DUI if the offender successfully completes a treatment program. The district court denied defendants request for treatment and stayed the matter. Defendant filed petition for writ of mandamus, seeking to require district court to consider his request to plead guilty and apply for treatment pursuant to statute. The supreme court, CHERRY, J., held that: (1) statute allowed defendant to apply for treatment, and (2) statute did not violate separationof-powers doctrine. Petition granted.

Stromberg v. Dist. Ct.

[125 Nev.

Jeremy T. Bosler, Public Defender, and John Reese Petty, Chief Deputy Public Defender, Washoe County, for Petitioner. Catherine Cortez Masto, Attorney General, Carson City; Richard A. Gammick, District Attorney, and Terrence P. McCarthy, Deputy District Attorney, Washoe County, for Real Party in Interest.
1. MANDAMUS. The supreme 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 or where discretion has been manifestly abused or exercised arbitrarily or capriciously. NRS 34.160. 2. MANDAMUS. The decision to entertain a mandamus petition lies within the discretion of the supreme court, which considers whether judicial economy and sound judicial administration militate for or against issuing the writ. NRS 34.160. 3. MANDAMUS. Supreme court may exercise its discretion to grant mandamus relief where an important issue of law requires clarification. 4. CRIMINAL LAW. Statute allowing a district court to accept a plea of guilty to thirdoffense driving under the influence (DUI) and subsequently enter a judgment for a second-offense DUI if the offender successfully completes a treatment program allowed defendant entering a plea of guilty after the statutes effective date to apply for treatment, even though offense occurred before statutes effective date. NRS 484.37941. 5. CONSTITUTIONAL LAW; CRIMINAL LAW. Statute allowing a district court to accept a plea of guilty to thirdoffense driving under the influence (DUI) and subsequently enter a judgment for a second-offense DUI if the offender successfully completes a treatment program did not give district court powers reserved to prosecutor and, thus, did not violate separation-of-powers doctrine; district courts decision to grant or deny an offenders application for treatment followed the prosecutors decision to charge an offender for a third-time DUI, and statute did not limit the prosecutors unfettered discretion to determine whether to charge an offender for a third-time DUI or for a lesser offense. NRS 484.37941.

Before the Court EN BANC.1 OPINION By the Court, CHERRY, J.: In this original petition for a writ of mandamus, we address two issues related to NRS 484.37941, which allows a district court to
1 THE HONORABLE KRISTINA PICKERING, Justice, did not participate in the decision of this matter.

Jan. 2009]

Stromberg v. Dist. Ct.

accept a plea of guilty to a third-offense DUI and subsequently enter a judgment for a second-offense DUI if the offender successfully completes a treatment program.2 First, we consider whether the plain language of NRS 484.37941 allows an offender entering a plea of guilty on or after that statutes effective date to apply for treatment. We conclude that it does, reaffirming our recent decision in Picetti v. State, 124 Nev. 782, 192 P.3d 704 (2008). Second, we reject the States contention that NRS 484.37941 is unconstitutional because it violates the separation-ofpowers doctrine by giving the district court powers that are reserved to the prosecutor. Because we conclude that the district court manifestly abused its discretion when it refused to consider petitioner Michael Lynn Strombergs request to plead guilty and apply for treatment, we grant Strombergs petition and direct the district court to consider Strombergs request to plead guilty and apply for treatment pursuant to NRS 484.37941.3 FACTS AND PROCEDURAL HISTORY On May 29, 2007, Stromberg was charged with one count of driving under the influence (DUI), third offense within seven years, a class B felony. On June 1, 2007, Stromberg made his first appearance in the district court and requested that his arraignment be continued to June 8, 2007, so that he and the State could resolve an issue regarding his blood alcohol test. On June 8, 2007, Stromberg made an appearance in district court and entered a plea of not guilty and stated that it was his intention to plead guilty after July 1, 2007, so that he would be eligible to participate in a threeyear treatment program pursuant to NRS 484.37941, which be2 Under NRS 484.37941, a third-time DUI offender may seek to undergo a program of treatment for a minimum of three years. Pursuant to the statute, the State may oppose the offenders application and request a hearing on the matter. If the district court grants the application for treatment, it must suspend the proceedings and place the offender on probation for a period not to exceed five years. Probation is conditioned upon the offenders acceptance for treatment by a treatment facility and the completion of that treatment and any other conditions as ordered by the district court. If the offender is not accepted for treatment or if he or she fails to complete any of the district courts conditions, the court will enter a judgment of conviction for a violation of NRS 484.3792(1)(c), a category B felony, and the district court may reduce the amount of time in prison by a time equal to that which the offender spent in treatment. On the other hand, if the offender successfully completes treatment, the district court will enter a judgment of conviction for a violation of NRS 484.3792(1)(b), which is a misdemeanor. 3 To the extent the State argued at oral argument that NRS 484.37941 is unconstitutional because it takes away the States power to engage in plea bargaining and allows offenders entering guilty pleas to obtain a benefit not offered to offenders who plead not guilty and proceed to trial, we decline to address this issue here as it is not presented under the facts of this case.

Stromberg v. Dist. Ct.

[125 Nev.

came effective on July 1, 2007. 2007 Nev. Stat., ch. 288, 6, at 1064. On July 20, 2007, Stromberg returned to the district court, moved to change his plea to guilty, and applied for treatment. The State opposed Strombergs application, arguing that NRS 484.37941 does not apply retroactively to offenses that occurred prior to July 1, 2007. Stromberg argued that the plain language of the statute allows defendants who enter a plea after July 1, 2007, the opportunity to apply for the treatment program. The district court ordered briefing on Strombergs request and on the applicability of NRS 484.37941 and set the matter for hearing. On August 15, 2007, the district court held a hearing regarding Strombergs application for treatment. The district court determined that the statutes language did not clearly indicate legislative intent to apply the statute retroactively and therefore denied Strombergs request. Strombergs counsel indicated that his client had not yet entered a plea and requested the district court to stay the matter pending this courts review of the issue.4 The district court granted a stay, and this original petition for a writ of mandamus followed. DISCUSSION
[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 or where discretion has been manifestly abused or exercised arbitrarily or capriciously. Redeker v. Dist. Ct., 122 Nev. 164, 167, 127 P.3d 520, 522 (2006); see also NRS 34.160. The writ will issue where the petitioner has no plain, speedy and adequate remedy in the ordinary course of law. NRS 34.170; Redeker, 122 Nev. at 167, 127 P.3d at 522. The decision to entertain a mandamus petition lies within the discretion of this court, and [t]his court considers whether judicial economy and sound judicial administration militate for or against issuing the writ. Redeker, 122 Nev. at 167, 127 P.3d at 522. Additionally, this court may exercise its discretion to grant mandamus relief where an important issue of law requires clarification. Id. While we acknowledge that writ review is rarely appropriate when a petitioner has an adequate remedy at law through a direct appeal, we conclude that writ review is appropriate here because this case involves important questions of law which require clarification and
4 The State contends that Stromberg pleaded guilty on July 20, 2007. However, the submissions before this court demonstrate that Stromberg has not yet pleaded guilty.

Jan. 2009]

Stromberg v. Dist. Ct.

because public policy interests militate in favor of resolving these questions. Cf. State of Nevada v. Justice Court, 112 Nev. 803, 805 n.3, 919 P.2d 401, 402 n.3 (1996) (electing to entertain petition for writ of prohibition even though relief should have been sought first in district court due to the exigent circumstances presented and because this case presented an unsettled issue of statewide importance). Therefore, we exercise our discretion to consider the merits of the petition. Retroactivity and NRS 484.37941
[Headnote 4]

Stromberg argues persuasively that the plain language of NRS 484.37941 applies to offenders who enter guilty pleas on or after July 1, 2007, the statutes effective date. The State contends that Stromberg is not entitled to apply for treatment pursuant to NRS 484.37941 because his DUI occurred prior to the statutes effective date. At oral argument, the State contended that in order for an offender to apply for treatment pursuant to NRS 484.37941 he or she must have committed the crime after the statutes effective date and pleaded guilty after the statutes effective date. The State further asserted that this courts recent decision in State v. District Court (Pullin), 124 Nev. 564, 188 P.3d 1079 (2008), mandates such a result. We disagree. In Pullin, this court determined that ameliorative amendments to criminal statutes would not apply retroactively unless the Legislature indicated its intent otherwise. Id. at 571, 188 P.3d at 1083. This court further concluded that because the Legislature had failed to indicate its intent to apply ameliorative amendments to NRS 193.165 retroactively, Nevada law required the application of the penalty in effect at the time Pullin committed his crime. Id. at 567, 188 P.3d at 1081. In contrast, as we recently explained in Picetti v. State, the plain language of NRS 484.37941 indicates the Legislatures intent to apply that statute to all offenders pleading guilty on or after July 1, 2007. 124 Nev. 782, 793, 192 P.3d 704, 711 (2008) (citing 2007 Nev. Stat., ch. 288, 6, at 1064). In particular, as this court observed in Picetti, NRS 484.37941 provides that [a]n offender who enters a plea of guilty or nolo contendere to a violation of NRS 484.379 or NRS 484.379778 that is punishable pursuant to paragraph (c) of subsection 1 of NRS 484.3792 may, at the time he enters his plea, apply to the court to undergo a program of treatment. Id. at 794, 192 P.3d at 712. This statutory language, as we explained in Picetti, provides that anyone entering a plea of guilty or nolo contendere after the statutes effective date is eligible to apply for treatment. Id. We reaffirm that

Stromberg v. Dist. Ct.

[125 Nev.

decision. Because Stromberg attempted to plead guilty after the statutes effective date, we conclude that the district court manifestly abused its discretion when it refused to consider his request to plead guilty and apply for treatment pursuant to NRS 484.37941. Accordingly, we grant Strombergs petition and direct the district court to consider the merits of Strombergs request to plead guilty and apply for treatment pursuant to NRS 484.37941. NRS 484.37941 and the separation-of-powers doctrine
[Headnote 5]

Because we conclude that if the district court grants Strombergs request to plead guilty he may apply for treatment under NRS 484.37941, we find it necessary to address the States assertion that NRS 484.37941 violates the separation-of-powers doctrine. In its answer to the petition, the State argues that NRS 484.37941 violates the separation-of-powers doctrine by giving the district court the power to determine how to charge a DUI offender, a decision that is exclusively within the province of the executive branch of government represented by the prosecutor. For the reasons set forth below, we disagree with the States contention. At the outset, we reject the States contention that the United States Supreme Courts decision in Bordenkircher v. Hayes, 434 U.S. 357 (1978), supports its argument that NRS 484.37941 impermissibly allows the district court to assume the powers of the prosecution. The States reliance on Bordenkircher is misplaced because that case addressed an entirely different legal question than the one raised here. In Bordenkircher, the Supreme Court addressed a defendants claim that a state prosecutor violated due process when he carried out a threat, made during negotiations, to have the defendant reindicted on more serious charges that were supported by the evidence in the case. Id. at 358. The Supreme Court rejected the defendants claim, determining instead that the prosecutors actions did not violate due process because [i]n our system, so long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion. Id. at 364. Thus, while Bordenkircher certainly made clear that a prosecutor has broad discretion in charging a defendant, it did not offer any guidance on whether a provision similar to NRS 484.37941 invades that charging discretion.5
5 The State also cites this courts decision in Schoels v. State, 114 Nev. 981, 966 P.2d 735 (1998), in support of its argument that NRS 484.37941 is unconstitutional and thus invalid. We have reviewed this case, and it is unclear how Schoels supports the States argument regarding the constitutionality of NRS 484.37941.

Jan. 2009]

Stromberg v. Dist. Ct.

Instead, we find the California Supreme Courts decisions in Esteybar v. Municipal Court for Long Beach Judicial District, 485 P.2d 1140 (Cal. 1971), and People v. Superior Court of San Mateo County, 520 P.2d 405 (Cal. 1974), to be instructive on the issue of whether NRS 484.37941 is unconstitutional because it violates the separation-of-powers doctrine. In those cases, the California Supreme Court considered the interplay between prosecutorial and judicial authority in circumstances similar to those created by NRS 484.37941. We find particularly compelling the California Supreme Courts analysis drawing a line between the prosecutors decision in how to charge and prosecute a case and the courts authority to dispose of a case after its jurisdiction has been invoked. In Esteybar, the California Supreme Court considered the question of whether a magistrate was permitted to convict an offender as a misdemeanant without first obtaining the permission of the prosecuting attorney. 485 P.2d at 1141. In that case, the State presented an argument similar to what the State argues here and contended that the magistrates decision to convict the offender as a misdemeanant, without first obtaining the prosecutors permission, constituted an invasion of the charging process because it interfered with prosecutorial discretion in deciding what crime to charge. Id. at 1145. The court rejected the States argument, noting that it ignored the crucial fact that the magistrates determination followed the district attorneys decision to prosecute. Id. The court stated that [w]hen the decision to prosecute has been made, the process which leads to acquittal or to sentencing is fundamentally judicial in nature. Id. (quoting People v. Tenorio, 473 P.2d 993, 996 (Cal. 1970)). In San Mateo County, the California Supreme Court reviewed the States challenge, through a petition for writ of mandamus, to a trial courts order of diversion in a drug case. 520 P.2d 405, 406-07 (Cal. 1974). In particular, the court addressed the question of whether it was constitutional for a district attorney to exercise veto power over the trial judges decision to order a defendant charged with a narcotics offense to be diverted into a pretrial treatment program. Id. at 407. In that case, much like the case at bar, the State argued that the decision to divert is an extension of the charging process, which falls entirely within the prosecutors discretion. Id. at 409. The court rejected the States argument concluding instead that when the jurisdiction of a court has been properly invoked by the filing of a criminal charge, the disposition of that charge becomes a judicial responsibility. Id. at 410. The court acknowledged that while trial courts usually dispose of cases by either sentencing or acquitting offenders, those are not the only options for the disposition of a case. Id. The court recognized that new and more sophisticated choices for disposition, such as pro-

Stromberg v. Dist. Ct.

[125 Nev.

bation, had been developed to deal with crime and concluded that the trial courts decision to allow an offender to enter a treatment program was a specialized form of probation and therefore a matter fully within the discretion of the judiciary. Id. Thus, the court held that a prosecutor did not possess the power to veto a decision that fell within the purview of the judiciary without violating the separation-of-powers doctrine. Id. at 409. We are persuaded by the reasoning in Esteybar and San Mateo County for two reasons. First, similar to the scenarios discussed above, the district courts decision to grant or deny an offenders application for treatment pursuant to NRS 484.37941 follows the prosecutors decision to charge an offender for a third-time DUI. After the charging decision has been made, any exercise of discretion permitted by NRS 484.37941 is simply a choice between the legislatively prescribed penalties set forth in the statute. Moreover, we conclude that the district courts decision to allow an offender to enter a program of treatment is analogous to the decision to sentence an offender to probation and therefore is a decision that properly falls within the discretion of the judiciary. Cf. NRS 176A.100 (giving the district court broad discretion to suspend a sentence and grant probation). Second, we conclude that NRS 484.37941 does not limit the prosecutors unfettered discretion to determine whether to charge an offender for a third-time DUI or for a lesser offense. This charging decision is important because even if an offender is convicted as a second-time DUI offender after successfully completing a treatment program under NRS 484.37941, the conviction is nonetheless treated as a third-time DUI for the purposes of enhancement in the event that the offender commits another DUI. See NRS 484.3792(2) (providing that person who has previously been convicted of DUI and sentenced under NRS 484.3792(1)(b) based on NRS 484.37941 and who commits another DUI is guilty of felony and subject to prison term of 2 to 15 years). Therefore, we conclude that NRS 484.37941 does not violate the separation-of-powers doctrine by giving the judiciary powers typically reserved to the executive branch. CONCLUSION We reaffirm our decision in Picetti that the plain language of NRS 484.37941 permits third-time DUI offenders who entered guilty pleas on or after July 1, 2007, to apply for treatment pursuant to the statute. We further conclude that NRS 484.37941 does not violate the separation-of-powers doctrine. Therefore, we conclude that the district court erroneously failed to consider the merits of Strombergs request to plead guilty and apply for treat-

Jan. 2009]

Savage v. Dist. Ct.

ment. Accordingly, we grant the petition. The clerk of this court shall issue a writ of mandamus instructing the district court to consider Strombergs request to plead guilty and apply for treatment pursuant to NRS 484.37941. HARDESTY, C.J., PARRAGUIRRE, DOUGLAS, SAITTA, and GIBBONS, JJ., concur.

LONNIE SA V AGE, PETITIONER, v. THE THIRD JUDICIAL DIS TRICT COURT OF THE STATE OF NEV ADA, IN AND FOR THE COUNTY OF LYON; THE HONORABLE ROBERT E. ESTES, DISTRICT JUDGE; AND THE HONORABLE LEON ABERASTURI, DISTRICT JUDGE, RESPONDENTS, AND THE STATE OF NEV ADA, REAL PARTY IN INTEREST.
No. 50445

MARCO ANTONIO HERNANDEZ, PETITIONER, v. THE FOURTH JUDICIAL DISTRICT COURT OF THE STATE OF NEV ADA, IN AND FOR THE COUNTY OF ELKO, AND THE HONORABLE ANDREW J. PUCCINELLI, DISTRICT JUDGE, RESPONDENTS, AND THE STATE OF NEV ADA, REAL PARTY IN INTEREST.
No. 51333 January 29, 2009 200 P.3d 77

Consolidated original petitions for writs of mandamus that challenge district court refusals to consider applications for treatment pursuant to NRS 484.37941. Defendants charged with third-time driving under the influence (DUI) filed mandamus petitions challenging the refusals of the district courts to consider merits of their applications for treatment pursuant to statute permitting third-time DUI offenders who plead guilty to apply for treatment as part of diversion program. The supreme court, CHERRY, J., held that: (1) mandamus review was appropriate, (2) trial court was required to consider merits of defendants applications for treatment, and (3) statute permitting third-time DUI offenders who plead guilty to apply for treatment for alcoholism as part of diversion program did not violate separation-of-powers doctrine. Petitions granted. Pederson and Kalter, P.C., and Wayne A. Pederson, Yerington, for Petitioner Lonnie Savage.

10

Savage v. Dist. Ct.

[125 Nev.

Frederick B. Lee, Jr., Public Defender, and Alina M. Kilpatrick, Deputy Public Defender, Elko County, for Petitioner Marco Antonio Hernandez. Catherine Cortez Masto, Attorney General, Robert E. Wieland, Senior Deputy Attorney General, and Heather D. Procter, Deputy Attorney General, Carson City, for Real Party in Interest in Docket No. 50445. Gary D. Woodbury, District Attorney, Mark D. Torvinen, Chief Deputy District Attorney, and Robert J. Lowe, Deputy District Attorney, Elko County, for Real Party in Interest in Docket No. 51333.
1. MANDAMUS. Supreme 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 or where discretion has been manifestly abused or exercised arbitrarily or capriciously. NRS 34.160. 2. MANDAMUS. A writ of mandamus will issue where the petitioner has no plain, speedy and adequate remedy in the ordinary course of law. NRS 34.170. 3. MANDAMUS. The decision to entertain a mandamus petition lies within the discretion of the supreme court, and in deciding whether to entertain a petition, the court considers whether judicial economy and sound judicial administration militate for or against issuing the writ. 4. MANDAMUS. Supreme court may exercise its discretion to grant mandamus relief where an important issue of law requires clarification. 5. MANDAMUS. Writ of mandamus was appropriate remedy for defendant charged with third-offense driving under the influence (DUI) to challenge trial courts refusal to consider his application for treatment for alcoholism, filed pursuant to statute permitting third-time DUI offenders who plead guilty to apply for treatment as part of diversion program; defendants guilty plea, which had not yet been entered, was intrinsically connected to whether he was allowed to apply for treatment, such that he should not be required to proceed to trial before he was allowed to challenge trial courts actions, and motion for bail would not adequately protect defendants interests because there was no guarantee that if defendant was convicted and filed application for treatment, it would be granted. NRS 484.37941. 6. MANDAMUS. Writ of mandamus was appropriate remedy for defendant charged with third-offense driving under the influence (DUI) to challenge trial courts refusal to consider his application for treatment for alcoholism, filed pursuant to statute permitting third-time DUI offenders who plead guilty to apply for treatment as part of diversion program, though defendant did not enter a guilty plea after trial court informed him it would not consider provisions of statute, as trial courts actions prevented defendant from entering guilty plea, such that it would be unfair to preclude him from writ relief on basis that he failed to enter plea. NRS 484.37941.

Jan. 2009]

Savage v. Dist. Ct.

11

7. MANDAMUS. Mandamus review of trial courts refusal to consider defendants applications for treatment for alcoholism, which had been filed pursuant to statute permitting third-time driving under the influence (DUI) offenders who plead guilty to apply for treatment as part of diversion program, was appropriate, as both defendants and the State raised important questions of law that required clarification, and public policy interests militated in favor of resolving these questions. 8. STATUTES. The court first examines the plain language of a statute to decipher its meaning. 9. SENTENCING AND PUNISHMENT. Trial court was required to consider merits of third-time driving under the influence (DUI) offenders applications for treatment for alcoholism, filed pursuant to statute permitting third-time DUI offenders who plead guilty to apply for treatment as part of diversion program, as statute reflected Legislatures intent that all third-time DUI offenders could apply for treatment; statute provided that, once offender applied for treatment program, the prosecuting attorney could oppose application, and statute further provided that, if prosecuting attorney opposed application, the trial court shall order a hearing on application, or, if hearing was not held, the trial court shall decide matter and other information before the court. NRS 484.37941. 10. SENTENCING AND PUNISHMENT. Counties do not have to create a program of treatment for alcoholism before allowing third-time driving under the influence (DUI) offenders to apply for treatment pursuant to statute permitting third-time DUI offenders who plead guilty to apply for treatment for alcoholism as part of diversion program. NRS 484.37941. 11. SENTENCING AND PUNISHMENT. To the extent that statute permitting third-time driving under the influence (DUI) offenders who plead guilty to apply for treatment as part of diversion program mandates that district court shall administer the program of treatment, this language refers to district court overseeing the procedures and conditions of probation imposed upon the offender at the time district court accepts the offenders application for treatment; district courts administration of the treatment program does not require it to establish or administer a separate program of treatment outside of its normal docket. NRS 484.37941(5). 12. SENTENCING AND PUNISHMENT. District court has authority to order the Division of Parole and Probation (DOPP) to supervise third-time driving under the influence (DUI) offenders who enter treatment programs pursuant to statute permitting third-time DUI offenders who plead guilty to apply for treatment for alcoholism as part of diversion program, as the statute requires the court to place an offender on probation while he is in treatment, and general statutes regarding probation require that an offender granted probation be placed under supervision of DOPP. NRS 176A.100, 176A.210(1), 176A.400(2), (4), 484.37941(4)(a). 13. CONSTITUTIONAL LAW; SENTENCING AND PUNISHMENT. Statute permitting third-time driving under the influence (DUI) offenders who plead guilty to apply for treatment for alcoholism as part of diversion program, which required district court to administer program of treatment by overseeing procedures and conditions of probation imposed on offender at time court accepted offenders application for treatment, did not violate separation-of-powers doctrine, as statute did not require

12

Savage v. Dist. Ct.

[125 Nev.

court to fulfill duties reserved to Division of Parole and Probation (DOPP), in that, pursuant to the statute, the actual supervision of offender still rested with the DOPP. NRS 458.320, 458.330, 484.37941(4)(a), (5).

Before the Court EN BANC.1 OPINION By the Court, CHERRY, J.: In these original proceedings, we primarily consider whether district courts in Elko County and Lyon County manifestly abused their discretion when they refused to consider petitioners applications for treatment pursuant to NRS 484.37941.2 In doing so, we also consider the following: (1) whether the statute requires counties to create a treatment program, (2) whether the district court has jurisdiction to order the Division of Parole and Probation (DOPP) to supervise offenders who enter a program of treatment pursuant to NRS 484.37941, and (3) whether NRS 484.37941 violates the separation-of-powers doctrine by requiring the district court to perform duties reserved to the executive branch. We conclude that the plain language of NRS 484.37941 requires the district court to consider the merits of an offenders application for treatment. In reaching this conclusion, we agree with the States argument that NRS 484.37941 does not require counties to create a program of treatment. Rather, a review of NRS 484.37941 reveals that the statute only requires district courts to oversee the procedures and conditions of probation imposed upon the offender at the time the district court accepts the offenders application for treatment; it does not require counties to create treatment facilities or a program of treatment. We further conclude that the district court has jurisdiction to order the DOPP
1 THE HONORABLE KRISTINA PICKERING, Justice, did not participate in the decision of these matters. 2 Under NRS 484.37941, a third-time DUI offender may seek to undergo a program of treatment for a minimum of three years. Pursuant to the statute, the State may oppose the offenders application and request a hearing on the matter. If the district court grants the application for treatment, it must suspend the proceedings and place the offender on probation for a period not to exceed five years. Probation is conditioned upon the offenders acceptance for treatment by a treatment facility and the completion of that treatment and any other conditions as ordered by the district court. If the offender is not accepted for treatment or if he or she fails to complete any of the district courts conditions, the court will enter a judgment of conviction for a violation of NRS 484.3792(1)(c), a category B felony, and the district court may reduce the amount of time in prison by a time equal to that which the offender spent in treatment. On the other hand, if the offender successfully completes treatment, the district court will enter a judgment of conviction for a violation of NRS 484.3792(1)(b), which is a misdemeanor.

Jan. 2009]

Savage v. Dist. Ct.

13

to supervise any offenders whose applications for treatment are granted pursuant to NRS 484.37941. And, finally, we conclude that NRS 484.37941 does not violate the separation-of-powers doctrine. The district courts manifestly abused their discretion by refusing to consider petitioners applications for treatment. We therefore grant these petitions and direct the district courts to consider petitioners applications for treatment.3 RELEVANT FACTS Savage v. District Court, Docket No. 50445 The State charged petitioner Lonnie Savage with a third-offense DUI. Savage initially pleaded not guilty but later attempted to change his plea from not guilty to guilty pursuant to a plea agreement with the State. In the plea agreement, the State indicated that it would not oppose Savage seeking treatment pursuant to NRS 484.37941. The district court refused to accept the guilty plea, noting that the treatment program set forth in NRS 484.37941 was not available in Lyon County because the DOPP would not oversee the program and the district court would not be able to run a program on its own. The district court informed Savages counsel that he should discuss the matter with his client and further concluded that the matter could not go forward and continued it until October 15, 2007. On that date, Savage appeared before the district court for a status hearing and announced that he would be filing a writ petition in this court challenging the district courts refusal to consider NRS 484.37941. Savage thereafter filed this original petition for a writ of mandamus. Hernandez v. District Court, Docket No. 51333 The State charged petitioner Marco Antonio Hernandez with a third-offense DUI. Subsequently, Hernandez and the State entered into a plea agreement in which Hernandez waived his right to a preliminary hearing and agreed to plead guilty to a third-offense DUI. The State reserved the right to litigate any application for treatment filed pursuant to NRS 484.37941. At Hernandezs arraignment, the district court advised Hernandezs counsel to file a motion for treatment, if he intended to file one, so that the State could have the opportunity to respond. The district court also solicited a response from a DOPP representative, Peggy Hatch, who was present in the district court, regarding the
3 Because both of the petitioners here attempted to enter guilty pleas after July 1, 2007, we conclude that both are entitled to apply for treatment pursuant to the statute. We therefore reject the States contention that petitioner Lonnie Savages petition is moot because he is subject to the punishment applicable at the time he committed his crime. Stromberg v. Dist. Ct., 125 Nev. 1, 200 P.3d 509 (2009); Picetti v. State, 124 Nev. 782, 793-94, 192 P.3d 704, 712 (2008).

14

Savage v. Dist. Ct.

[125 Nev.

DOPPs willingness to supervise a defendant under NRS 484.37941. Hatch indicated that she had been advised that the DOPP would not be supervising defendants diverted for treatment pursuant to NRS 484.37941. The district court noted that it was unable to supervise offenders diverted for treatment pursuant to NRS 484.37941. The district court further indicated that it believed that NRS 484.37941 was an unfunded mandate and that it would deny the application on the basis that the DOPP would not provide supervision. Nevertheless, the district court continued Hernandezs arraignment. On the day of his arraignment, Hernandez filed a motion for treatment pursuant to NRS 484.37941, even though he had yet to enter his guilty plea. The State opposed the motion. Shortly thereafter, the district court heard arguments on the motion for treatment, which it subsequently denied, stating that [o]ne, the Court, the way this statute is written, does not have jurisdiction to order Parole and Probation to supervise. There is community supervision under the normal rules of probation. It doesnt exist. The district court indicated that it did not have the infrastructure, or budget to properly establish the infrastructure, needed to properly supervise offenders diverted to treatment under NRS 484.37941. The district court further indicated that the Legislature did not require counties to create the treatment program established in the statute. Hernandez then filed this original petition for a writ of mandamus. DISCUSSION As an initial matter, the State has challenged the propriety of writ relief in the first instance. After addressing that threshold issue, we will turn to the merits of the claims raised in these writ proceedings. The propriety of writ relief
[Headnotes 1-4]

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 or where discretion has been manifestly abused or exercised arbitrarily or capriciously. Redeker v. Dist. Ct., 122 Nev. 164, 167, 127 P.3d 520, 522 (2006); see also NRS 34.160. The writ will issue where the petitioner has no plain, speedy and adequate remedy in the ordinary course of law. NRS 34.170; Redeker, 122 Nev. at 167, 127 P.3d at 522. But the decision to entertain a mandamus petition lies within the discretion of this court, and in deciding whether to entertain a petition, [t]his court considers whether judicial economy and sound judicial administration militate for or against issuing the writ. Redeker, 122 Nev. at 167,

Jan. 2009]

Savage v. Dist. Ct.

15

127 P.3d at 522. Additionally, this court may exercise its discretion to grant mandamus relief where an important issue of law requires clarification. Id.
[Headnote 5]

In regard to Hernandez, the State argues that he is not entitled to extraordinary relief because he has an adequate remedy at law by way of a direct appeal and by filing a motion for bail pursuant to NRS 177.105, which, if granted, would require a stay of his sentence of imprisonment. We disagree. Hernandez has not yet entered a guilty plea, nor did the district court set the matter for trial. To the contrary, Hernandez attempted to plead guilty to a thirdoffense DUI and filed a motion for treatment pursuant to NRS 484.37941. However, after hearing arguments on the motion for treatment, the district court indicated that it would deny the motion and invited Hernandez to file an emergency writ petition in this court. Because Hernandezs guilty plea is intrinsically connected to whether he is allowed to apply for treatment pursuant to NRS 484.37941, we conclude that in this narrow circumstance he should not be required to proceed to trial before he is allowed to challenge the actions of the district court. Moreover, we reject the States contention that a motion for bail would adequately protect Hernandezs interests because there is simply no guarantee that if Hernandez was convicted and filed such a motion, it would be granted. If the application were denied, it is likely that Hernandez would expire his sentence before the resolution of his direct appeal. Under these limited circumstances, we conclude that writ review is appropriate.
[Headnote 6]

In regard to Savage, the State contends that writ relief is inappropriate because he failed to enter a guilty plea after the district court informed him that it would not consider the provisions of NRS 484.37941, and therefore, he is ineligible for treatment. We find this argument to be wholly unpersuasive. Because the district courts actions prevented Savage from entering his guilty plea, it would be unfair to preclude him from writ relief on the basis that he failed to enter his plea. As explained above, the district court unequivocally indicated that it would not consider Savages application for treatment because the program did not exist in Lyon County and because the States agreement to allow Savage to enter a treatment program was the basis for his guilty plea, the district court would not allow the matter to go forward on that date. Under these circumstances, we conclude that Savages failure to enter a guilty plea does not preclude him from seeking extraordinary relief.

16
[Headnote 7]

Savage v. Dist. Ct.

[125 Nev.

Finally, we reject the States contention that petitioners failed to raise substantial issues of public policy that require this courts intervention. To the contrary, we conclude that writ review is appropriate here because both petitioners and the State have raised important questions of law that require clarification and because public policy interests militate in favor of resolving these questions. Cf. State of Nevada v. Justice Court, 112 Nev. 803, 805 n.3, 919 P.2d 401, 402 n.3 (1996) (electing to entertain petition for writ of prohibition even though relief should have been sought first in district court due to the exigent circumstances presented and because this case presented an unsettled issue of statewide importance). Therefore, we exercise our discretion to consider the merits of these petitions. The district court erred when it failed to consider the merits of the petitioners applications for treatment pursuant to NRS 484.37941 Petitioners argue that the district courts abused their judicial discretion by refusing to consider the merits of their applications for treatment pursuant to NRS 484.37941. We agree for three reasons. First, the plain language of the statute affords third-time DUI offenders the opportunity to apply for the diversion program. Second, while the statute does not require counties to create a program of treatment, or a treatment facility, it does require the district court to oversee the procedures and conditions of probation imposed upon the third-time DUI offender at the time the court accepts an application to enter a treatment program. Third, the district court has jurisdiction to order the DOPP to supervise thirdtime DUI offenders who enter treatment programs pursuant to the statute. We will address each of these conclusions in turn below. The plain language of NRS 484.37941 requires the district court to consider the merits of a third-time DUI offenders application for treatment
[Headnote 8]

This court has explained that [i]n construing a statute, our primary goal is to ascertain the legislatures intent in enacting it, and we presume that the statutes language reflects the legislatures intent. Moore v. State, 117 Nev. 659, 661, 27 P.3d 447, 449 (2001). Therefore, this court first examines the plain language of a statute to decipher its meaning. See id.
[Headnote 9]

The plain language of NRS 484.37941 reflects the Legislatures intent that all third-time DUI offenders may apply for treatment

Jan. 2009]

Savage v. Dist. Ct.

17

pursuant to the statute. Specifically, NRS 484.37941(1) provides that an offender who enters a plea of guilty or nolo contendere may, at the time he enters his plea, apply to the court to undergo a program of treatment for alcoholism, as long as he is properly diagnosed an addict or alcoholic by a professional qualified under the statute and agrees to pay the cost of treatment to the best of his ability. (Emphasis added.) Once an offender applies for the treatment program, the prosecuting attorney may oppose the application for treatment. NRS 484.37941(2). If the prosecuting attorney opposes the application, the district court shall order a hearing on the application. Id. (emphasis added). NRS 484.37941(3) states that [i]f a hearing is not held, the court shall decide the matter and other information before the court. (Emphasis added.) This statutory language dictates that the district court is required to consider the merits of a DUI offenders application for treatment as well as any opposition proffered by the prosecuting attorney.4 Counties do not have to create a program of treatment before allowing third-time DUI offenders to apply for treatment pursuant to NRS 484.37941
[Headnote 10]

In reaching our conclusion that the district courts manifestly abused their discretion by refusing to consider petitioners applications for treatment, we reject the States suggestion that to allow diversion under NRS 484.37941, counties must establish a treatment program or facility. There is nothing in the statute to suggest that the district court or county is responsible for creating a treatment facility or program. Instead, NRS 484.37941 allows an offender to apply to participate in a treatment program and requires that offender to be accepted for treatment by a treatment facility that is certified by the Health Division of the Department of Health and Human Services. If the offender fails to be accepted for treatment, the district court may enter a judgment of conviction for a
4 We reject the States contention that the legislative history supports the conclusion that the district court has the discretion to refuse to consider an offenders application for treatment. Instead, we conclude that the legislative history supports the conclusion that the Legislature intended the diversion program created in NRS 484.37941 to be available throughout the state. In fact, the Legislature seemed particularly concerned that the lack of treatment facilities available in rural counties would impact the ability of rural offenders to elect treatment under the statute and they would be forced to serve prison sentences instead. Hearing on S.B. 277 Before the Senate Comm. on the Judiciary, 74th Leg. (Nev., April 3, 2007); Hearing on S.B. 277 Before the Senate Comm. on the Judiciary, 74th Leg. (Nev., April 10, 2007). But the scarcity of treatment facilities in some counties does not lead to the conclusion that a qualified offender may not apply for treatment when a placement is available.

18

Savage v. Dist. Ct.

[125 Nev.

third-offense DUI. NRS 484.37941(4)(b)(2) (providing that [i]f [the defendant] is not accepted for treatment by such a treatment facility, or if he fails to complete the treatment satisfactorily, the court will enter a judgment of conviction for a violation of paragraph (c) of subsection 1 of NRS 484.3792).
[Headnote 11]

Moreover, to the extent that NRS 484.37941(5) mandates that the district court shall administer the program of treatment, we conclude that this language refers to the district court overseeing the procedures and conditions of probation imposed upon the offender at the time the district court accepts the offenders application for treatment. A review of NRS 484.37941(5) reveals that the administration of the treatment program does not require the district court to establish or administer a separate program of treatment outside of the district courts normal docket. Instead, NRS 484.37941(5) instructs the district court to administer the program of treatment pursuant to NRS 458.320 and 458.330. Importantly, neither of these two statutes requires counties to establish treatment programs. The first statute, NRS 458.320, requires the district court to: (1) order an approved facility to conduct an examination of the offender to determine his or her potential for rehabilitation and to provide a report on the results of the examination and recommend whether the offender should receive supervised treatment, (2) sentence the offender if the court determines that the offender is not a good candidate for treatment, (3) impose conditions of probation if the court determines that the offender is a good candidate for treatment, and (4) require whatever progress reports on the offenders treatment it deems necessary. NRS 458.320 also requires an offender to pay for his or her own treatment and requires the district court, to the extent that it is practicable, to arrange for an offender to be treated in a facility that receives state or federal funding. The statute further permits the district court to order the offender to perform community service in lieu of payment for the treatment program. The second statute, NRS 458.330, provides for the deferment of an offenders sentence pending treatment and sets forth the proper procedures for the district court to follow in the event an offenders treatment facility determines that he or she is not likely to benefit from further treatment. These procedures may include transferring the offender to another facility or terminating treatment and holding a hearing to determine whether the offender should be sentenced. Because neither of these provisions requires rural counties to create their own treatment facilities or programs, we conclude that the States contention that the establishment of a

Jan. 2009]

Savage v. Dist. Ct.

19

treatment program is discretionary is based on a misinterpretation of the requirements of NRS 484.37941.5 The district court has jurisdiction to order the DOPP to supervise third-time DUI offenders Petitioners contend that the district courts erred when they determined that NRS 484.37941 failed to provide the court with the means to supervise third-time DUI offenders who enter treatment programs pursuant to that statute. Specifically, petitioners contend that the district court has the authority to order the DOPP to supervise an offender undergoing treatment pursuant to NRS 484.37941. We agree.
[Headnote 12]

NRS 484.37941(4)(a) not only provides the district court with the authority to place an offender on probation while he is in treatment, the statute requires it. In particular, NRS 484.37941(4)(a) plainly states that if the district court decides to grant an offenders application for treatment, it must, without entering a judgment of conviction and with the consent of the offender, suspend further proceedings and place him on probation for not more than 5 years. In this respect, NRS 484.37941 is similar to other statutory provisions that allow the district court to divert an offender into treatment. See NRS 484.37937; NRS 484.3794; NRS 453.3363. Therefore, we conclude that NRS 484.37941 provides the district court with the authority to order the DOPP to supervise offenders who enter treatment pursuant to the statute. A review of other statutory provisions further supports our conclusion. As a starting point, NRS 176A.100 broadly authorizes the district court to place an offender on probation, and NRS 176A.400(2) gives the district court the authority to impose conditions of probation, including the power to require the person as a condition of probation to participate in and complete to the satisfaction of the court any alternative program, treatment or activity deemed appropriate by the court. Upon the entry of an order placing a defendant on probation, NRS 176A.210(1) provides that the defendant [s]hall be deemed accepted for probation for all purposes. And the Legislature further has directed that
5 Because we conclude that NRS 484.37941 requires neither the district court nor the counties to establish or administer a separate program of treatment outside of the district courts normal docket, we reject the district courts conclusion that NRS 484.37941 is an unfunded mandate. There is no language in this particular statute to suggest that the district court or the county is responsible for creating a program of treatment that would cost the county $5,000 or more. NRS 354.599; NRS 218.2479.

20

Savage v. Dist. Ct.

[125 Nev.

[i]n placing any defendant on probation or in granting a defendant a suspended sentence, the court shall direct that he be placed under the supervision of the Chief Parole and Probation Officer. NRS 176A.400(4). With these provisions, the Legislature has provided the district court ample authority to place an offender on probation. The plain language of NRS 484.37941 authorizes the district court to place a third-time DUI offender on probation while the offender is in a treatment program. And the general statutes regarding probation require that an offender granted probation be placed under the supervision of the DOPP. Therefore, we conclude that the district court erred when it determined that it lacked jurisdiction to require the DOPP to supervise offenders who enter treatment programs pursuant to NRS 484.37941. NRS 484.37941 does not violate the separation-of-powers doctrine
[Headnote 13]

We also reject the district courts conclusions that NRS 484.37941 violates the separation-of-powers doctrine because it requires the district court to fulfill duties reserved to the DOPP, which is part of the executive branch. NRS 484.37941 does not require the district court to fulfill the role of the DOPP. As discussed above, NRS 484.37941(5) only requires the district court to administer the program of treatment pursuant to . . . NRS 458.320 and 458.330 by overseeing the procedures and conditions of probation imposed upon the offender at the time the district court accepts the offenders application for treatment. Pursuant to NRS 484.37941(4)(a), the actual supervision of the offender still rests with the DOPP. Thus, there is no merging of the judicial and executive power which would offend the separation-of-powers doctrine; to the contrary, there is an overlapping of powers that is permitted by the Nevada Constitution. See Creps v. State, 94 Nev. 351, 357-58, 581 P.2d 842, 846-47 (1978) (observing that in context of probation, executive and judicial powers often overlap because Legislature has dually allocated such powers to a large extent). CONCLUSION We conclude that the plain language of NRS 484.37941, together with the legislative history, gives all third-time DUI offenders who enter a guilty plea the option to apply for treatment.6 We further
6 Because we conclude that the district court must consider the merits of a third-offense DUI offenders application for treatment pursuant to NRS 484.37941, we find it unnecessary to reach the merits of Hernandezs claim that NRS 484.37941 violates the Equal Protection Clause of the Fourteenth

Jan. 2009]

Stalk v. Mushkin

21

conclude that when the district court grants an offenders application for treatment, it has jurisdiction to order the DOPP to supervise those offenders pursuant to NRS 484.37941. Finally, we reject the district courts conclusion that NRS 484.37941 violates the separation-of-powers doctrine by requiring the district court to perform duties reserved to the executive branch. In these cases, the district courts erroneously refused to consider the merits of the petitioners requests to plead guilty and apply for treatment. Accordingly, we grant the petitions. The clerk of this court shall issue writs of mandamus instructing the district courts to consider the petitioners requests to plead guilty and apply for treatment pursuant to NRS 484.37941.7 HARDESTY, C.J., PARRAGUIRRE, DOUGLAS, SAITTA, and GIBBONS, JJ., concur.

MICHELLE STALK AND URBAN CONSTRUCTION COM PANY, LLC, A NEVADA LIMITED LIABILITY COMPANY, APPEL LANTS, v. MICHAEL MUSHKIN, RESPONDENT.
No. 48201 January 29, 2009 199 P.3d 838

Appeal from a district court summary judgment in a tort action. Eighth Judicial District Court, Clark County; Timothy C. Williams, Judge. Client sued attorney for negligence, intentional interference with prospective business advantage, intentional interference with contractual relations, and breach of fiduciary duty, all relating to actions taken by attorney on behalf of another company. The district court granted summary judgment to attorney on all claims. Client appealed. The supreme court, HARDESTY, C.J., held that: in matters of first impression, (1) claims for intentional interference with prospective business advantage and for contractual relations were subject to three-year limitations period, and (2) claim of breach of fiduciary duty against clients attorney was subject to four-year statute of limitations. Affirmed in part, reversed in part, and remanded.
Amendment because it allows offenders who reside in Washoe and Clark County to participate in a treatment program while excluding offenders who reside in rural counties from participating in that same treatment program. 7 We vacate the stay imposed by this courts November 9, 2007, order in Docket No. 50445.

22

Stalk v. Mushkin Kenneth L. Hall, Las Vegas, for Appellants.

[125 Nev.

Patti, Sgro & Lewis and Mark C. Hafer, Las Vegas, for Respondent.
1. APPEAL AND ERROR. The supreme court reviews a district court order granting a motion for summary judgment de novo. 2. JUDGMENT. Summary judgment is appropriate only when no genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law. 3. JUDGMENT. Summary judgment is proper when a cause of action is barred by the statute of limitations. 4. APPEAL AND ERROR. Issues of statutory interpretation are reviewed de novo. 5. ACTION; TORTS. Claims for interference with prospective business advantage and with contractual relations are recognized as actions in tort, not in contract, and will be governed by the statute of limitations relating to torts. 6. TORTS. Claims for intentional interference with a prospective business advantage and contractual relations seek compensation for damage to business interests, which are personal property. 7. TORTS. Plaintiffs claims for intentional interference with prospective business advantage and contractual relations were actions for taking personal property rather than actions for injuries to a person, and thus, such claims were subject to three-year statute of limitations. NRS 11.190(3)(c). 8. FRAUD. A breach of fiduciary duty claim seeks damages for injuries that result from the tortious conduct of one who owes a duty to another by virtue of the fiduciary relationship. 9. ATTORNEY AND CLIENT. Clients breach of fiduciary duty claim against its attorney, who, while representing another employer in a wrongful discharge matter, alerted plaintiff that client was an indispensable party as the true employer, was subject to limitations period for malpractice actions against attorneys, rather than an action for fraud subject to a three-year limitations period. NRS 11.190(3)(d), 11.207(1).

Before HARDESTY, C.J., PARRAGUIRRE and DOUGLAS, JJ. OPINION By the Court, HARDESTY, C.J.: In this appeal, we consider which statutes of limitation apply to claims for intentional interference with prospective business advantage, intentional interference with contractual relations, and breach of fiduciary duty arising from an attorney-client relation-

Jan. 2009]

Stalk v. Mushkin

23

ship. We determine that claims for intentional interference with prospective business advantage and contractual relations are claims for injuring personal property and are subject to the three-year statute of limitations in NRS 11.190(3)(c). A claim for breach of fiduciary duty arising from an attorney-client relationship is a legal malpractice claim and is therefore subject to the statute of limitations contained in NRS 11.207(1). Based on these determinations, we affirm the district courts summary judgment on the claims for intentional interference with prospective business advantage and contractual relations, and we reverse the district courts summary judgment on the claim for breach of fiduciary duty arising from the attorney-client relationship. FACTS AND PROCEDURAL HISTORY This case involves numerous legal and business relationships between respondent Michael Mushkin; appellants Michelle Stalk and her company, Urban Construction Company, LLC; and Allan Bird and his corporation, Real Property Services Corporation (RPSC). Bird and RPSC are not parties to this appeal. Mushkin, an attorney, served as legal counsel to Stalk, Bird, and their respective entities. Mushkin also had a business relationship with Bird, during which he presented Bird with investment opportunities. Stalk and Urban Construction also had a 30-year business relationship with Bird and RPSC developing various parcels of real property. Beginning in May 2001, Mushkin served as defense counsel for Stalk and Urban Construction in various mechanics lien matters. While the mechanics lien claims were being litigated, Mushkin began representing RPSC in an employment wrongful termination action. On behalf of RPSC, Mushkin filed a motion to dismiss or for summary judgment, arguing that the employee who brought the action actually had been employed by Urban Construction and that Stalk had made the decision to terminate that employee. Mushkin asserted that Stalk and Urban Construction were therefore indispensable parties to the employees suit for wrongful discharge. Although the motion was denied, in January 2002, the employee amended her complaint to name Urban Construction as a defendant. Subsequently, in May 2003, Stalk attended a settlement conference in the wrongful termination case. According to Stalk, it was at this conference that she learned that Urban Construction had been added as a defendant because of Mushkins summary judgment motion. Stalk ultimately settled with the employee for $2,000. In the meantime, Urban Construction and RPSC were parties to several contracts for the performance of construction services, and they had started the preliminary stages of development on two other projects. However, Bird later terminated Urban Construction

24

Stalk v. Mushkin

[125 Nev.

as general contractor for RPSC by letter dated June 7, 2001. Stalk and Urban Construction alleged that shortly before Bird terminated the general construction agreements it had with Urban Construction, Mushkin solicited a personal friend to bid on the construction projects that RPSC had contracted with Urban Construction to complete. According to Stalk and Urban Construction, Mushkins actions caused Bird to terminate its contracts with Urban Construction. Stalk and Urban Construction ultimately filed the underlying suit against Mushkin on August 26, 2004, asserting claims for negligence, intentional interference with prospective business advantage, intentional interference with contractual relations, and breach of fiduciary duty. The claims for intentional interference with prospective business advantage and contractual relations were predicated on Mushkins alleged interference with the contracts Urban Construction had with RPSC, and the breach of fiduciary duty claim was based on Mushkins actions in the employment action, specifically, alerting the employee that Stalk and Urban Construction were indispensible defendants. Finding that Stalk and Urban Construction sought damages for injuries caused by Mushkins negligence or wrongful acts, the district court granted summary judgment on the negligence cause of action for failure to state a claim and granted summary judgment on the three remaining claims on the ground that they were timebarred by the two-year statute of limitations under NRS 11.190(4)(e). Stalk and Urban Construction now appeal from the summary judgment as to the claims for intentional interference with prospective business advantage, intentional interference with contractual relations, and breach of fiduciary duty. DISCUSSION This matter presents two issues of first impression, as we have not previously announced the statutes of limitation applicable to claims for intentional interference with prospective business advantage and contractual relations or for breach of fiduciary duty in the context of an attorney-client relationship. We take this opportunity to do so. Standard of review
[Headnotes 1-4]

This court reviews a district court order granting a motion for summary judgment de novo. Sustainable Growth v. Jumpers, LLC, 122 Nev. 53, 61, 128 P.3d 452, 458 (2006). Summary judgment is . . . appropriate [only] when no genuine issues of material fact [exist] and the moving party is entitled to judgment as a matter of

Jan. 2009]

Stalk v. Mushkin

25

law. Clark v. Robison, 113 Nev. 949, 950, 944 P.2d 788, 789 (1997). Thus, [s]ummary judgment is proper when a cause of action is barred by the statute of limitations. Id. at 950-51, 944 P.2d at 789. We also review issues of statutory interpretation de novo. Torrealba v. Kesmetis, 124 Nev. 95, 101, 178 P.3d 716, 721 (2008). Claims for intentional interference with prospective business advantage and intentional interference with contractual relations are claims for injury to personal property and are therefore subject to the three-year statute of limitations in NRS 11.190(3)(c) Stalk and Urban Construction argue on appeal that NRS 11.190(2)(c)s four-year statute of limitations applies to both of their intentional interference claims because those claims are grounded on damage to intangible or inchoate interests in obtaining future benefits. In response, Mushkin maintains that the district court properly applied NRS 11.190(4)(e)s two-year statute of limitations. He alternatively argues that NRS 11.190(3)(c)s three-year limitation period applies because a contract right is personal property. Under either statute, Mushkin asserts that summary judgment was appropriate because more than three years elapsed before Stalk and Urban Construction filed their complaint. Here, the district court concluded that NRS 11.190(4)(e) applied to Stalk and Urban Constructions claims for intentional interference with a prospective business advantage and with contractual relations. NRS 11.190(4)(e) provides a two-year statute of limitations for action[s] to recover damages for injuries to a person . . . caused by the wrongful act or neglect of another. Although Mushkin asserts that this provision provides the statute of limitations for all wrongful act torts generally, we have previously addressed and rejected this argument.1 To determine the statute of limitations applicable to claims for intentional interference with prospective business advantage and contractual relations, we must first determine the true nature of those claims. See Hartford Ins. v. Statewide Appliances, 87 Nev. 195, 197, 484 P.2d 569, 571 (1971) (explaining that the object of the action, rather than the legal theory under which recovery is sought, governs when determining the type of action for statute of
1 In Hanneman v. Downer, we explained that NRS 11.190(4)(e) applies only to personal injury and wrongful death actions and that other tort causes of action, such as those for fraud and damage to real property, are governed by other, more specific statute of limitations provisions. 110 Nev. 167, 180 n.8, 871 P.2d 279, 287 n.8 (1994). Following the Hanneman court, we determine that NRS 11.190(4)(e) is limited to personal injury and wrongful death actions and does not apply to claims for intentional interference with prospective business advantage and contractual relations.

26

Stalk v. Mushkin

[125 Nev.

limitations purposes). Claims for intentional interference with a prospective business advantage and contractual relations seek compensation for damage to business interests. See Zimmerman v. Bank of America National T. & S. Assn, 12 Cal. Rptr. 319, 321 (1961) (The actionable wrong lies in the inducement to break the contract or to sever the relationship, not in the kind of contract or relationship so disrupted, whether it is written or oral, enforceable or not enforceable.). Business interests include intangible assets and inchoate rights, as well as other rights incidental to business ownership. See Teller v. Teller, 53 P.3d 240, 248 (Haw. 2002) (indicating that goodwill and trade secrets are intangible assets in which business owners have property rights). See also Clark v. Figge, 181 N.W.2d 211, 215 (Iowa 1970) (citing Liggett Co. v. Baldridge, 278 U.S. 105, 111 (1928), overruled on other grounds by North Dakota Pharmacy Bd. v. Snyders Stores, 414 U.S. 156, 167 (1973)). Such interests are personal property.
[Headnote 5]

Generally, claims for interference with prospective business advantage and with contractual relations are recognized as actions in tort, not in contract, and will be governed by the statute of limitations relating to torts. Maurice T. Brunner, Annotation, What Statute of Limitations Governs Action for Interference with Contract or Other Economic Relations, 58 A.L.R.3d 1027, 2[a] (1974). However, in some jurisdictions, including Nevada, where separate statutes govern injuries to persons and injuries to property, there is a split of authority as to which statute of limitations applies to claims for intentional interference with prospective business advantage and contractual relations. Id.; see also NRS 11.190(3)(c) and 11.190(4)(e). We therefore must determine whether Nevadas statute of limitations governing injuries to persons or the statute of limitations governing property damage apply to claims for intentional interference with a prospective business advantage and contractual relations.
[Headnote 6]

As explained above, claims for intentional interference with a prospective business advantage and contractual relations seek compensation for damage to business interests, which are personal property. See Teller, 53 P.3d at 248; see also Clark, 181 N.W.2d at 215 (citing Liggett, 278 U.S. at 111).
[Headnote 7]

Because we have determined that business interests are personal property, we conclude that intentional interference with these business interests are actions for taking personal property and not actions for injuries to a person. See Clark, 181 N.W.2d at 216 (concluding that a claim for interference in business relationships was

Jan. 2009]

Stalk v. Mushkin

27

fundamentally proprietary in character although incidental injuries may have been of a different nature). Thus, we conclude that intentional interference with business interests are subject to the three-year statute of limitations set forth in NRS 11.190(3)(c). Nevertheless, despite the district courts application of an incorrect two-year statute of limitations, summary judgment was appropriate on Stalk and Urban Constructions claims for intentional interference with a prospective business advantage and with contractual relations because those claims are time-barred by the correct three-year statute of limitations set forth in NRS 11.190(3)(c). In particular, the statutes of limitation began running on Stalk and Urban Constructions claims when Bird terminated Urban Construction as the general contractor for RPSC by letter dated June 7, 2001. While Stalk and Urban Construction offer various events as triggering the beginning of the limitations period on their claims for intentional interference with prospective advantage and contractual relations, the letter from Bird occurred last in time among the proposed triggering events. Stalk and Urban Construction filed this action on August 26, 2004, more than three years after Urban Construction was terminated as general contractor. Since Stalk and Urban Construction failed to file this action within three years of the triggering event, their claims are time-barred under NRS 11.190(3)(c), and the district court therefore properly entered summary judgment on their claims for intentional interference with a prospective business advantage and intentional interference with contractual relations. See Butler v. Bayer, 123 Nev. 450, 460 n.22, 168 P.3d 1055, 1062 n.22 (2007) ( [T]his court will affirm the order of the district court if it reached the correct result, albeit for different reasons. (quoting Rosenstein v. Steele, 103 Nev. 571, 575, 747 P.2d 230, 233 (1987))). A claim for breach of fiduciary duty arising from an attorney-client relationship is a legal malpractice claim subject to NRS 11.207(1)s limitation period The district court granted summary judgment on Stalk and Urban Constructions claim for breach of fiduciary duty on the ground that the claim was barred by the two-year statute of limitations in NRS 11.190(4)(e), which applies to claims for damages based on the defendants wrongful or negligent conduct. On appeal, pointing to this courts earlier decisions addressing breach of fiduciary duty claims, Urban Construction, Stalk, and Mushkin all maintain that NRS 11.190(3)(d)s three-year statute of limitations, which governs fraud claims, should apply to Urban Construction and Stalks breach of fiduciary duty claim. See Nevada State Bank v. Jamison Partnership, 106 Nev. 792, 799, 801 P.2d 1377, 1382 (1990); Golden Nugget, Inc. v. Ham, 98 Nev. 311, 313, 646 P.2d

28

Stalk v. Mushkin

[125 Nev.

1221, 1223 (1982); Shupe v. Ham, 98 Nev. 61, 64, 639 P.2d 540, 542 (1982). As explained above, however, we first must determine the true nature of the claim for breach of fiduciary duty before determining the applicable statute of limitations. See Hartford Ins. v. Statewide Appliances, 87 Nev. 195, 197, 484 P.2d 569, 571 (1971) (explaining that the object of the action, rather than the legal theory under which recovery is sought, governs when determining the type of action for statute of limitations purposes). In asserting a claim for breach of fiduciary duty, Stalk and Urban Construction claimed that Mushkin breached his fiduciary duty to them by disclosing information harmful to their interests while he was acting as their attorney and also representing RPSC in the employment discrimination action. In their complaint, Stalk and Urban Construction essentially alleged that Mushkin, as their attorney, owed them an undivided duty of loyalty and a duty of confidentiality. They claimed that Mushkin breached those duties when he revealed information that subjected them to tort liability during the employment action filed against Bird.
[Headnote 8]

Under the Restatement (Second) of Torts, a fiduciary relation exists between two persons when one of them is under a duty to act for or to give advice for the benefit of another upon matters within the scope of the relation. Restatement (Second) of Torts 874 cmt. a (1979). Thus, a breach of fiduciary duty claim seeks damages for injuries that result from the tortious conduct of one who owes a duty to another by virtue of the fiduciary relationship. Id. We previously have declared that Nevada Rule of Professional Conduct (RPC) 1.7 imposes a duty of loyalty on lawyers that prohibits representation of more than one client if the representation involves a concurrent conflict of interest or a significant risk that the dual representation will materially limit the lawyers ability to represent one or both clients.2 Ryan v. Dist. Ct., 123 Nev. 419, 430, 168 P.3d 703, 710 (2007). The duty of loyalty is based in the contractual relationship between attorney and client and correspondingly invokes the duty of confidentiality. See RPC 1.6; Warmbrodt v. Blanchard, 100 Nev. 703, 707, 692 P.2d 1282, 1285 (1984) (It is the contractual relationship creating a duty of due care upon an attorney [which is] the primary essential to a recovery for legal malpractice. (alteration in original) (quoting Ronnigen v. Hertogs, 199 N.W.2d 420, 421 (Minn. 1972))), su2 Although the codification of fiduciary duties in the Nevada Rules of Professional Conduct does not provide an individual with a private right of action, the rules serve as evidence of the duty of care owed by an attorney to his or her client. See Mainor v. Nault, 120 Nev. 750, 769, 101 P.3d 308, 321 (2004).

Jan. 2009]

Stalk v. Mushkin

29

perseded in part by statute, NRS 42.001, as explained in Countrywide Home Loans v. Thitchener, 124 Nev. 725, 741-43, 192 P.3d 243, 253-55 (2008); Smith v. Mehaffy, 30 P.3d 727, 733 (Colo. Ct. App. 2000). A cause of action for legal malpractice encompasses breaches of contractual as well as fiduciary duties because both concern[ ] the representation of a client and involve[ ] the fundamental aspects of an attorney-client relationship. 2 Ronald E. Mallen & Jeffrey M. Smith, Legal Malpractice 14:2 (2007). Thus, NRS 11.207, which sets forth the statute of limitations for [m]alpractice actions against attorneys, is applicable to legal malpractice claims, whether based on breach of contractual obligations or breach of fiduciary duties: An action against an attorney . . . to recover damages for malpractice, whether based on a breach of duty or contract, must be commenced within 4 years after the plaintiff sustains damage or within 2 years after the plaintiff discovers or through the use of reasonable diligence should have discovered the material facts which constitute the cause of action, whichever occurs earlier. NRS 11.207(1) (emphasis added). Such claims are subject to the statute of limitations in NRS 11.207(1). Here, Stalk and Urban Constructions breach of fiduciary duty claim is, in essence, a legal malpractice claim, since it is grounded on allegations that Mushkin breached certain duties, namely, confidentiality and loyalty, that would not exist but for the attorney-client relationship.
[Headnote 9]

Accordingly, the district courts conclusion that NRS 11.190(4)(e) applied to Stalks breach of fiduciary duty claim was in error. Based on our assessment of the true nature of Stalk and Urban Constructions claim, we likewise reject the parties contention that NRS 11.190(3)(d) governs the breach of fiduciary duty claim at issue here. While the parties rely on a line of Nevada cases holding that claims for breach of fiduciary duty are akin to claims for fraud and are therefore subject to the three-year limitation on actions in NRS 11.190(3)(d), those cases do not control our analysis here because none involved an attorney-client relationship. Nevada State Bank v. Jamison Partnership, 106 Nev. 792, 799, 801 P.2d 1377, 1382 (1990); Golden Nugget, Inc. v. Ham, 98 Nev. 311, 313, 646 P.2d 1221, 1223 (1982); Shupe v. Ham, 98 Nev. 61, 64, 639 P.2d 540, 542 (1982). Accordingly, we clarify now that claims for breach of fiduciary duty arising out of an attorney-client relationship are legal malpractice claims subject

30

Stalk v. Mushkin

[125 Nev.

to NRS 11.207(1)s limitation period, and claims for breach of fiduciary duty based on fiduciary relationships other than attorneyclient are akin to fraud claims, subject to the limitation period set forth under NRS 11.190(3)(d).3 Although we have determined that Stalk and Urban Constructions breach of fiduciary duty claim asserts legal malpractice, the question remains whether summary judgment was appropriate under the statute of limitations that governs such claims. In the district court, the parties disputed what event triggered the running of the statute of limitations. Specifically, Stalk and Urban Construction argued that the limitations period began to run in May 2003, when Stalk learned of the motion filed by Mushkin naming Stalk and Urban Construction as indispensable parties in the wrongful termination action that was filed against RPSC. Mushkin, on the other hand, argued that various earlier events triggered the statute of limitations and that Stalk and Urban Constructions claim would be time-barred if any of these events marked the beginning of the statute of limitations period. Because genuine issues of material fact exist concerning the date on which the statute of limitations began to run, and thus whether Stalk and Urban Constructions claim for breach of fiduciary duty is time-barred, the district court erred by entering summary judgment on that claim. CONCLUSION Although the district court erred by determining that Stalk and Urban Constructions claims for intentional interference with a prospective business advantage and intentional interference with contractual relations were barred by the two-year statute of limitations under NRS 11.190(4)(e), those claims nevertheless were time-barred under the appropriate three-year statute of limitations, and the district court therefore properly entered summary judgment on those claims. Claims for intentional interference with a prospective business advantage and intentional interference with contractual relations are claims for injury to personal property, subject to the three-year statute of limitations contained in NRS 11.190(3)(c). Accordingly, we affirm the summary judgment on the claims for intentional interference with a prospective business advantage and intentional interference with contractual relations.
3 Claims subject to NRS 11.190(3)(d) include those brought against attorneys in which the plaintiff alleges a breach of a fiduciary duty owed outside of the scope of an attorney-client relationship. That is, [w]hen an attorney becomes involved in nonlegal business activities, he may not claim protection of the legal malpractice statute because the basis for a legal malpractice action is a claim of professional negligence. Quintilliani v. Mannerino, 72 Cal. Rptr. 2d 359, 365 (Ct. App. 1998).

Jan. 2009]

State, Dept of Motor Vehicles v. Terracin

31

The district court also erred by finding that Stalk and Urban Constructions breach of fiduciary duty claim was subject to NRS 11.190(4)(e)s two-year statute of limitations. Instead, claims for breach of fiduciary duty arising from an attorney-client relationship are claims for legal malpractice subject to the statute of limitations contained in NRS 11.207(1). Because Stalk and Urban Construction allege that, by disclosing information harmful to their interests, Mushkin breached his duties of loyalty and confidentiality to them by virtue of the fact that he was their attorney, we conclude that the claim is essentially a legal malpractice claim, subject to NRS 11.207(1). Since genuine issues of material fact exist regarding when the statute of limitations began to run on that claim, summary judgment was not appropriate. Accordingly, we reverse the summary judgment on Stalk and Urban Constructions claim for breach of fiduciary duty arising from an attorney-client relationship, and remand this matter to the district court for further proceedings. PARRAGUIRRE and DOUGLAS, JJ., concur.

THE STATE OF NEVADA, DEPARTMENT OF MOTOR VEHICLES, APPELLANT, v. TRACY LYNN TERRACIN, RESPONDENT.
No. 48598

THE STATE OF NEVADA, DEPARTMENT OF MOTOR VEHICLES, APPELLANT, v. MATTHEW CASEY, RESPONDENT.
No. 50049 January 29, 2009 199 P.3d 835

Consolidated appeals from district court orders granting petitions for judicial review concerning the administrative revocation of respondents driving privileges. Eighth Judicial District Court, Clark County; Jessie Elizabeth Walsh, Judge (Docket No. 48598), and Michelle Leavitt, Judge (Docket No. 50049). Motorists who were convicted of driving under the influence of intoxicating liquor (DUI) as first-time offenders sought reduction in revocation of their respective drivers licenses from 1 year to 90 days. The district courts reduced the periods of revocation. State appealed. The supreme court, DOUGLAS, J., held that revocation of drivers licenses for DUI offenders was based on the level of pun-

32

State, Dept of Motor Vehicles v. Terracin

[125 Nev.

ishment assigned as opposed to the number of offenses within a 7year period. Affirmed. Catherine Cortez Masto, Attorney General, and Binu G. Palal and Kimberly A. Buchanan, Deputy Attorneys General, Carson City, for Appellant. Law Offices of John G. Watkins and John Glenn Watkins, Las Vegas, for Respondents.
1. STATUTES. The construction of a statute is a question of law, which is reviewed de novo, even in the administrative context. 2. STATUTES. When the language of a statute is plain and unambiguous, its intention must be deduced from such language, and the court has no right to go beyond it. 3. AUTOMOBILES. Motorists who were convicted as first-time driving while under the influence of intoxicating liquor (DUI) offenders, even though it was in each case the second offense in 7 years, were subject to revocation of their driving privileges for only 90 days, rather than for 1 year as applicable to second-time offenders; revocation was based on the punishment assigned rather than the number of offenses in a 7-year period. NRS 484.379, 484.3792.

Before the Court EN BANC.1 OPINION By the Court, DOUGLAS, J.: NRS 483.460 provides for the mandatory revocation of a persons drivers license if that person has been convicted of driving under the influence of intoxicating liquor (DUI). The length of the revocation period depends on the particular subsection of NRS 483.460 under which the conviction falls. In this case, respondents drivers licenses were revoked under NRS 483.460(1)(b)(5), which provides for a 1-year revocation period, because they previously had been convicted of DUIs. The 1-year revocation period was imposed even though respondents were most recently charged, convicted, and sentenced as first-time DUI offenders, which typically requires only a 90-day revocation period. Disagreeing that the statute required a 1-year revocation period under these circum1 THE HONORABLE KRISTINA PICKERING, Justice, did not participate in the decision of this matter.

Jan. 2009]

State, Dept of Motor Vehicles v. Terracin

33

stances, however, the district court granted respondents petitions for judicial review. These appeals followed. In these consolidated appeals, we consider whether NRS 483.460, as amended in 2005, bases the period of revocation on the number of DUI convictions within a 7-year period or on the level of punishment prescribed by NRS 484.3792. We conclude that the plain and unambiguous language of NRS 483.460 bases the period of revocation on the level of punishment prescribed by NRS 484.3792, and thus, we affirm the district courts orders granting judicial review and reducing the period of revocation of respondents drivers licenses from 1 year to 90 days. FACTS AND PROCEDURAL HISTORY These appeals have been consolidated because they each address the Nevada Department of Motor Vehicles (DMV) concern regarding the interpretation of recently amended NRS 483.460(1). In 2001, respondent Tracy Lynn Terracin was arrested and convicted of DUI. After receiving the record of Terracins first DUI conviction, appellant DMV revoked her drivers license for 90 days under the former version of NRS 483.460(1)(c), which imposed upon the DMV a mandatory duty to revoke an individuals driving privileges [f]or a period of 90 days, if the offense is a first violation within 7 years. 2003 Nev. Stat., ch. 206, 365, at 1154-55. Then, in 2005, shortly after the Legislature amended NRS 483.460(1), Terracin was again arrested for DUI. Despite this being her second DUI offense within a 7-year period, Terracin was charged, convicted, and sentenced as a first-time DUI offender under NRS 484.3792(1)(a). After receiving the record of Terracins second DUI conviction, the DMV revoked her driving privileges for 1 year under the amended version of NRS 483.460(1)(b)(5), which imposes upon the DMV a mandatory duty to revoke an individuals driving privileges [f]or a period of 1 year if the offense is . . . punishable pursuant to NRS 484.3792(1)(b). Similarly, in 2004, respondent Matthew Casey was arrested and convicted of DUI. Upon receiving the record of Caseys first DUI conviction, the DMV revoked his license for a period of 90 days under the former version of NRS 483.460(1)(c). Less than 2 years later, Casey was again arrested for driving under the influence. Following his second DUI offense, Casey was charged as a secondtime DUI offender under NRS 484.3792(1)(b). However, this charge was later reduced, and Casey was convicted as a first-time DUI offender under NRS 484.3792(1)(a). After receiving the

34

State, Dept of Motor Vehicles v. Terracin

[125 Nev.

record of Caseys second DUI conviction, the DMV revoked his driving privileges for 1 year pursuant to NRS 483.460(1)(b)(5). Review of revocation Respondents each requested an administrative hearing to review the 1-year revocation of their driving privileges. The DMV hearing officers upheld the 1-year revocations and concluded that the period of revocation under NRS 483.460(1) is based upon the number of DUI convictions within a 7-year period. Therefore, according to the hearing officers, respondents were subject to a 1-year revocation of their driving privileges because they had received two DUI convictions within a 7-year period. Respondents then filed petitions for judicial review with the district court, arguing that the hearing officers improperly interpreted NRS 483.460(1). The district court granted respondents petitions for judicial review and reduced the 1-year period of revocation to 90 days. In its orders, the district court concluded that NRS 483.460(1), as amended, bases the period of revocation not upon the number of DUI convictions within a 7-year period but upon the level of punishment prescribed by NRS 484.3792. Following their second DUI offenses, respondents were convicted as first-time DUI offenders under NRS 484.3792(1)(a). Under the amended version of NRS 483.460(1)(c), if the offense is punishable pursuant to NRS 484.3792(1)(a), the period of revocation is 90 days. Therefore, the district court found that respondents were subject to a 90day revocation of their driving privileges and granted these petitions for judicial review. These appeals followed. DISCUSSION
[Headnotes 1, 2]

The question before this court is purely one of statutory construction, namely, whether NRS 483.460(1) bases the period of revocation of an individuals drivers license on the number of DUI convictions within a 7-year period or on the level of punishment prescribed by NRS 484.3792. The construction of a statute is a question of law, which we review de novo, even in the administrative context. State, Dept of Mtr. Vehicles v. Lovett, 110 Nev. 473, 476, 874 P.2d 1247, 1249 (1994). When the language of a statute is plain and unambiguous, its intention must be deduced from such language, and the court has no right to go beyond it. Cirac v. Lander County, 95 Nev. 723, 729, 602 P.2d 1012, 1015 (1979) (quoting State of Nevada v. Washoe County, 6 Nev. 104, 107 (1870)). NRS 483.460(1) imposes upon the DMV a mandatory duty to revoke an individuals driving privileges for a specified period of

Jan. 2009]

State, Dept of Motor Vehicles v. Terracin

35

time upon receiving a record of conviction for DUI. Before NRS 483.460 was amended to its current form, this court, in Yohey v. State, Department of Motor Vehicles, reviewed the statute and concluded that the period of revocation was clearly and unambiguously based upon the number of DUI convictions within a 7year period. 103 Nev. 584, 586, 747 P.2d 238, 239 (1987). In that case, the driver had been convicted as a first-time DUI offender twice within a 7-year period. Id. at 585-86, 747 P.2d at 239. After receiving the record of the drivers second DUI conviction, the DMV revoked his driving privileges for 1 year. Id. at 586, 747 P.2d at 239. On appeal, this court affirmed the 1-year revocation of his drivers license because he had received two DUI convictions within a 7-year period. Id. at 587-88, 747 P.2d at 239-40. Subsequent to our decision in Yohey, in 2005, the Legislature amended NRS 483.460. 2005 Nev. Stat., ch. 193, 1, at 604-05. NRS 483.460 now reads, in pertinent part, as follows: 1. Except as otherwise provided by statute, the department shall revoke the license, permit or privilege of any driver upon receiving a record of his conviction . . . . (a) For a period of 3 years if the offense is: .... (2) A [third or subsequent violation within 7 years] violation of NRS 484.379 [.] that is punishable as a felony pursuant to NRS 484.3792. .... (b) For a period of 1 year if the offense is: .... (5) A [second violation within 7 years] violation of NRS 484.379 that is punishable pursuant to paragraph (b) of subsection 1 of NRS 484.3792 . . . . .... (c) For a period of 90 days, if the offense is a [first violation within 7 years] violation of NRS 484.379 [.] that is punishable pursuant to paragraph (a) of subsection 1 of NRS 484.3792. Id. (bold indicates language added and strikethrough indicates language removed). Thus, NRS 483.460 no longer bases the period of revocation on the number of DUI convictions within a 7-year period. Rather, the plain and unambiguous language of the statute, in its current form, bases the period of revocation on the level of punishment prescribed by NRS 484.3792. NRS 484.3792, in turn, provides a graduated penalty scheme for repeat DUI offenders.
[Headnote 3]

Under NRS 483.460(1) and the graduated penalty provisions of NRS 484.3792, the DMV must revoke an individuals driving

36

State, Dept of Motor Vehicles v. Terracin

[125 Nev.

privileges for 90 days if the driver is punishable as a first-time DUI offender pursuant to NRS 484.3792(1)(a). See NRS 483.460(1)(c). If the driver is punishable as a second-time DUI offender under NRS 484.3792(1)(b), the DMV must revoke the individuals drivers license for a period of 1 year. See NRS 483.460(1)(b)(5). Finally, if the driver is punishable pursuant to a felony under NRS 484.3792, the DMV must revoke the individuals drivers license for a period of 3 years. See NRS 483.460(1)(a)(2). Regarding these matters, Terracin was arrested for her first DUI offense in 2001. Then, in 2005, Terracin was again arrested for DUI. As this was Terracins second DUI offense within a 7-year period, Terracin could have been charged as a second-time DUI offender under NRS 484.3792(1)(b). However, Terracin was charged, convicted, and sentenced as a first-time DUI offender under NRS 484.3792(1)(a). Likewise, Casey was arrested for DUI in 2004. Then, approximately 1 years later, Casey was again arrested for DUI. Since this was Caseys second DUI offense within a 7-year period, Casey was charged as a second-time DUI offender under NRS 484.3792(1)(b). However, this charge was later reduced to a firsttime DUI offense under NRS 484.3792(1)(a). Casey was subsequently convicted and sentenced as a first-time DUI offender under NRS 484.3792(1)(a). In each of these cases, respondents were convicted as first-time DUI offenders under NRS 484.3792(1)(a). Therefore, respondents were punishable pursuant to NRS 484.3792(1)(a). The mandatory period of revocation under NRS 483.460(1)(c), following a violation that is punishable pursuant to NRS 484.3792(1)(a), is 90 days. See NRS 483.460(1)(c). Accordingly, as the Legislature has clearly set forth the period for which a license must be revoked for a DUI in terms of punishability, we conclude that it was improper for the DMV to revoke respondents driving privileges for 1 year. CONCLUSION Upon receiving records of conviction, the DMV must first determine whether the DUI offenders were punishable pursuant to NRS 484.3792(1)(a), (b), or (c). Then, the DMV must apply the level of punishment under NRS 484.3792(1) to the corresponding period of revocation under NRS 483.460(1). Here, respondents were punishable pursuant to NRS 484.3792(1)(a). The period of revocation under NRS 483.460(1)(c), following a DUI violation that is punishable pursuant to NRS 484.3792(1)(a), is 90 days. Therefore, the DMV was required to revoke respondents driving privileges for a period of

Jan. 2009]

Attorney General v. Dist. Ct. (Philip Morris)

37

90 days. For the foregoing reasons, we affirm the district courts orders granting judicial review. HARDESTY, C.J., PARRAGUIRRE, CHERRY, SAITTA, and GIBBONS, JJ., concur.

THE STATE OF NEVADA, BY ITS ATTORNEY GENERAL, CATHERINE CORTEZ MASTO, PETITIONER, v. THE SECOND JUDICIAL DISTRICT COURT OF THE STATE OF NEV ADA, IN AND FOR THE COUNTY OF WASHOE, AND THE HONORABLE BRENT T. ADAMS, DISTRICT JUDGE, RESPONDENTS, AND PHILIP MORRIS USA; R.J. REYNOLDS TOBACCO COMPANY; LORILLARD TOBACCO COMPANY; ANDERSON TOBACCO COM PANY LLC; CANARY ISLAND CIGAR COMPANY; CHANCELLOR TOBACCO COMPANY UK LIMITED; COMPANIA INDUSTRIAL DE TABACOS MONTE PAZ, S.A.; DAUGHTERS AND RYAN, INC.; FARMERS TOBACCO COMPANY; GENERAL TOBACCO; HOUSE OF PRINCE A/S; INTERNATIONAL TOBACCO GROUP (LAS VEGAS), INC.; JAPAN TOBACCO INTERNA TIONAL USA, INC.; KING MAKER MARKETING, INC.; KONCI G&D MANAGEMENT; KRETEK INTERNA TIONAL; LIBERTY BRANDS, LLC; LIGGETT GROUP, INC.; M/S DHANRAJ INTERNATIONAL, INC.; PACIFIC STANFORD MANUFACTURING CORPORA TION; PETER STOKKEBYE INTERNATIONAL A/S; PT DJARUM; SANTA FE NATURAL TOBACCO COMPANY, INC.; SHERMAN 1400 BROADWAY N.Y.C., INC.; TOP TOBACCO, L.P.; VIRGINIA CAROLINA CORPORATION, INC.; VON EICKEN GROUP; AND WIND RIVER TOBACCO COMPANY, LLC, REAL PARTIES IN INTEREST.
No. 49426 January 29, 2009 199 P.3d 828

Original petition for a writ of mandamus challenging a district court order granting a motion to compel arbitration. State filed complaint for an enforcement order or declaratory order under master settlement agreement (MSA) with tobacco companies to preclude application of a downward adjustment in monies owed to State for States failure to diligently enforce qualifying statutes that imposed certain escrow contributions on

38

Attorney General v. Dist. Ct. (Philip Morris) [125 Nev.

tobacco companies that did not participate in the MSA. Tobacco companies moved to compel State to arbitrate issue of whether qualifying statute was diligently enforced. The district court granted the motion, and State petitioned for writ of mandamus to vacate the order. The supreme court, CHERRY, J., held that: (1) plain language of arbitration clause included arbitration of dispute over States enforcement of its qualifying statute, and (2) plain language of MSA precluded State from submitting dispute over diligent enforcement of qualifying statute to state court. Petition denied. Catherine Cortez Masto, Attorney General, and Victoria Thimmesch Oldenburg, Senior Deputy Attorney General, Carson City, for Petitioner. Bailey Kennedy and Dennis L. Kennedy, Las Vegas; Kirkland & Ellis and Stephen R. Patton, Chicago, Illinois, for Real Party in Interest R.J. Reynolds Tobacco. Guild Russell Gallagher & Fuller and John K. Gallagher, Reno, for Real Parties in Interest Anderson Tobacco Company, Canary Island Cigar Company, Chancellor Tobacco Company UK, Compania Industrial de Tabacos Monte Paz, Daughters & Ryan, House of Prince, International Tobacco Group (Las Vegas), Japan Tobacco International USA, King Maker Marketing, Konci G&D Management, Kretek International, Liberty Brands, Liggett Group, M/S Dhanraj International, Pacific Stanford Manufacturing, Peter Stokkebye International, PT Djarum, Santa Fe Natural Tobacco Company, Sherman 1400 Broadway N.Y.C., Top Tobacco, Virginia Carolina Corporation, Von Eicken Group, and Wind River Tobacco Company. Holland & Hart, LLP, and J. Stephen Peek, Reno, for Real Party in Interest Lorillard Tobacco Company. McDonald Carano Wilson, LLP, and Thomas R.C. Wilson II, Reno, for Real Party in Interest Philip Morris USA. Shea & Carlyon and Candace C. Carlyon and Shawn W. Miller, Las Vegas, for Real Parties in Interest General Tobacco and Farmers Tobacco Company.
1. MANDAMUS. A writ of mandamus is available to compel the performance of an act that the law requires or to control a manifest abuse of discretion. 2. MANDAMUS. Mandamus is an extraordinary remedy, and the decision to entertain such a petition is addressed solely to the courts discretion.

Jan. 2009]

Attorney General v. Dist. Ct. (Philip Morris)

39

3. ALTERNATIVE DISPUTE RESOLUTION. Whether a dispute arising under a contract is arbitrable is a matter of contract interpretation, which is a question of law subject to de novo review. 4. CONTRACTS. In interpreting a contract, the court construes a contract that is clear on its face from the written language, and it should be enforced as written. 5. CONTRACTS. A contract is ambiguous only when it is subject to more than one reasonable interpretation. 6. ALTERNATIVE DISPUTE RESOLUTION. As a matter of public policy, Nevada courts encourage arbitration and liberally construe arbitration clauses in favor of granting arbitration. 7. ALTERNATIVE DISPUTE RESOLUTION; STATES. Plain language of arbitration clause in master settlement agreement (MSA) between State and tobacco companies included determination of whether State diligently enforced its qualifying statute to force nonparticipating manufacturers (NPM) to contribute to escrow fund as well as MSA companies, as required for State to avoid downward adjustment to annual payments from participating companies; arbitration clause broadly provided that all disputes arising out of or relating to annual payment audit be subject to arbitration. 8. ALTERNATIVE DISPUTE RESOLUTION; STATES. Plain language of master settlement agreement (MSA) between tobacco companies and settling states precluded State from submitting dispute over whether State was exempt from downward adjustment in annual payments to state court, as such dispute was subject to arbitration provision of the MSA.

Before the Court EN BANC.1 OPINION By the Court, CHERRY, J.: In 1997, the State of Nevada instituted an action against four major tobacco companies stemming from allegations of wrongdoing in the manner that the tobacco companies marketed and advertised their products. The parties ultimately settled during the litigation when, in 1998, they entered into a Master Settlement Agreement (MSA). The MSA is a settlement agreement between tobacco manufacturers and 46 states,2 including Nevada, which instituted similar actions against certain tobacco manufacturers. Under the MSA, tobacco companies that were party to the settlement were required to make annual payments to states that were
1 THE HONORABLE KRISTINA PICKERING, Justice, did not participate in the decision of this matter. 2 The District of Columbia, American Samoa, the Northern Mariana Islands, Guam, the United States Virgin Islands, and Puerto Rico are also parties to the MSA.

40

Attorney General v. Dist. Ct. (Philip Morris)

[125 Nev.

party to the settlement. The amount of the tobacco companies annual payment to a state depended, in part, on whether the state enacted and diligently enforced a so-called qualifying statute. Under the MSA, a qualifying statute is one that requires tobacco manufacturers selling cigarettes in a state to either join the MSA or place funds into an escrow account to help cover any of the states future tobacco-related liability. A states failure to enact and diligently enforce a qualifying statute may substantially reduce the annual payment it is otherwise entitled to receive under the MSA. In April 2006, in response to allegations by certain tobacco companies that Nevada was not diligently enforcing its qualifying statute during 2003 and, thus, subject to a reduction in the annual payment amount that it received under the MSA, the State filed a complaint for an enforcement order or a declaratory order. Specifically, the State sought an enforcement order or declaration that Nevada had diligently enforced its qualifying statute during the 2003 calendar year. In response, the tobacco companies moved the district court to compel arbitration to settle the matter. According to the tobacco companies, the clear terms of the MSA required the parties to arbitrate whether Nevada was diligently enforcing its qualifying statute. The district court ultimately granted the motion to compel arbitration. The State now petitions us for a writ of mandamus, directing the district court to vacate its order compelling arbitration and to consider the issues raised in the States complaint on their merits. In considering this petition, we determine whether Nevada state courts can resolve disputes arising under the MSA with respect to diligent enforcement of Nevadas qualifying statute or whether the MSA compels arbitration of such disputes. See generally NRS Chapter 370A and NRS 370A.140 (detailing that tobacco companies selling products in the State of Nevada must either become participating manufacturers under the MSA or must make deposits into a qualified escrow fund based on the number of units sold). In so doing, we first address the States argument that the MSAs arbitration clause does not include such issues within its scope. We next address the States corresponding contention that a separate provision of the MSA expressly requires that the parties submit such issues to state court. We conclude that under the MSAs plain language, issues concerning the adjustment of Nevadas annual payment from the tobacco companies based on Nevadas enforcement of its qualifying statute must be arbitrated. Accordingly, we deny the States petition.

Jan. 2009]

Attorney General v. Dist. Ct. (Philip Morris)

41

FACTS Nevada instituted an action against several major tobacco companies, real parties in interest R.J. Reynolds Tobacco Company, Philip Morris USA, and Lorillard Tobacco Company, in 1997.3 On December 10, 1998, the parties settled the litigation and entered into a consent decree that was essentially a stopgap measure until the MSA was formalized and that enjoined tobacco companies from targeting youth within the State of Nevada with their promotions, marketing, or advertising. Subsequently, Nevada participated in the formation of, and ultimately joined, the MSA, a settlement agreement between the tobacco companies and other states that had already instituted similar litigation against those and other tobacco companies. Under the MSA, the tobacco companies that are party to it are divided into two groups: (1) Original Participating Manufacturers, and (2) Subsequent Participating Manufacturers. The Subsequent Participating Manufacturers, as their designation suggests, agreed to be bound by the MSA after the Original Participating Manufacturers and settling states already had formed the agreement. The linchpin of the MSA is that the settling states agreed to release any future claims against participating tobacco companies, based on the health-care costs attributed to smoking, in exchange for the tobacco companies restricting the marketing of their products and making substantial annual payments to the settling states. With respect to each tobacco companys annual payment, under the MSA, the amount of each companys payment is determined on a nationwide basis by an independent auditor. To determine a tobacco companys annual payment, the independent auditor starts with a base payment amount set forth in the MSA, then makes adjustments to each companys annual payment as prescribed by the MSA. After the independent auditor determines each companys annual payment, it allocates the payments among the settling states, as the MSA sets forth. The NPM adjustment One MSA adjustment applied by the independent auditor that generally reduces a tobacco companys annual payment is the Non-Participating Manufacturer Adjustment (NPM adjustment), which essentially reduces a tobacco companys annual payment amount if that company, as a result of its participation in the MSA, loses its share of the tobacco market to a tobacco company
3 The original suit was also brought against Brown & Williamson, which has since merged with R.J. Reynolds Tobacco Company.

42

Attorney General v. Dist. Ct. (Philip Morris) [125 Nev.

that is not bound by the MSA. Specifically, section IX(d)(1) of the MSA provides that an NPM adjustment shall apply if: (a) the settling tobacco companies collectively lose market share to tobacco companies not subject to the MSAs payment obligations and marketing and other restrictions, and (b) an economic consulting firm determines that the MSA was a significant factor contributing to that loss. Nonetheless, under the MSA, a state can avoid an NPM adjustment by enacting, and diligently enforcing, a qualifying statute imposing certain payment obligations on tobacco companies doing business in that state that are not parties to the MSA. A qualifying statute is a statute that requires all tobacco manufacturers selling cigarettes in a state to either join the MSA or place funds into an escrow account for the benefit of the states future tobacco-related liabilities. Under the MSA, an NPM adjustment may be made when it is determined that a state fails to diligently enforce its qualifying statute. MSAs arbitration provision Additionally with respect to the independent auditor, under the MSAs terms, disputes regarding the independent auditors decision must be arbitrated. Under section XI(c) of the MSA, [a]ny dispute, controversy or claim arising out of or relating to the independent auditors calculations and determinations 4 shall be submitted to binding arbitration before a nationwide panel of three former federal judges. Dispute over the original participating manufacturers April 2006 payment obligations The present dispute concerns the independent auditors determination that a settling tobacco company experienced a nationwide market share loss for the 2003 calendar year. In March 2006, the independent auditor concluded that the MSA was a significant contributing factor to the loss and calculated the 2003 NPM adjustment to be approximately $1.2 billion. The tobacco companies thus requested that the independent auditor apply the 2003 NPM adjustment to their 2006 payments to Nevada, asserting that Nevada failed to diligently enforce its qualifying statute in 2003. The independent auditor refused to apply an NPM adjustment to the tobacco companies 2006 annual payments to Nevada because the independent auditor contended that it was not within the scope of his power under the MSA to make such a legal determination.
4 Specifically the MSA provides that settling states arbitrate any dispute concerning the operation or application of any of the adjustments made by the independent auditor, including the diligent enforcement exemption. See MSA XI(c).

Jan. 2009]

Attorney General v. Dist. Ct. (Philip Morris)

43

Thereafter, the tobacco companies withheld millions of dollars from their 2006 settlement payment to Nevada because of the independent auditors determination that the MSA was a significant contributing factor to the market share loss in 2003, the subsequent calculation of the NPM adjustment, and their belief that Nevada failed to diligently enforce its qualifying statute. In response, on April 20, 2006, the State filed a complaint for an enforcement order or a declaratory order under the MSA. In its cause of action, the State sought a declaration or enforcement order that Nevada had diligently enforced its qualifying statute during the 2003 calendar year, precluding the tobacco companies from applying the independent auditors NPM adjustment to their 2006 payment. The tobacco companies answered the States complaint and filed a motion to compel arbitration and to dismiss the States complaint or stay the litigation. The State opposed the tobacco companies motion to compel arbitration, asserting among other arguments, that the MSAs arbitration clause did not extend to issues with regard to a states enforcement of its qualifying statute. That is, the State argued that Nevada did not agree to arbitrate the diligent enforcement dispute. The district court ultimately granted the motion to compel arbitration. In reaching its decision, the district court found that Nevada courts encourage arbitration and liberally construe arbitration clauses in favor of granting arbitration. See Phillips v. Parker, 106 Nev. 415, 417, 794 P.2d 716, 718 (1990). The district court also found that the relevant arbitration clause was quite expansive. Thus, the parties were ordered to pursue arbitration pursuant to section XI(c) of the MSA. DISCUSSION The State now petitions this court for a writ of mandamus directing the district court to vacate its order granting the tobacco companies motion to compel arbitration. The tobacco companies have filed an answer to the petition, as directed.
[Headnotes 1, 2]

A writ of mandamus is available to compel the performance of an act that the law requires or to control a manifest abuse of discretion. See NRS 34.160; Round Hill Gen. Imp. Dist. v. Newman, 97 Nev. 601, 603-04, 637 P.2d 534, 536 (1981). Mandamus, moreover, is an extraordinary remedy, and the decision to entertain such a petition is addressed solely to our discretion. See Poulos v. District Court, 98 Nev. 453, 455, 652 P.2d 1177, 1178 (1982). In general, a writ may issue only when petitioner has no plain, adequate, and speedy legal remedy, such as an appeal. NRS 34.170;

44

Attorney General v. Dist. Ct. (Philip Morris) [125 Nev.

see Pan v. Dist. Ct., 120 Nev. 222, 224, 88 P.3d 840, 841 (2004) (noting that an appeal is generally an adequate legal remedy precluding writ relief). Importantly, then, as the order challenged herea district court order compelling arbitrationis not an appealable order, and as we conclude that our consideration of this important issue is appropriate at this time, we exercise discretion to consider this writ petition. Clark County v. Empire Electric, Inc., 96 Nev. 18, 19, 604 P.2d 352, 353 (1980); NRS 38.247. Whether the MSA compels arbitration by its plain language
[Headnotes 3-6]

Whether a dispute arising under a contract is arbitrable is a matter of contract interpretation, which is a question of law that we review de novo. Clark Co. Public Employees v. Pearson, 106 Nev. 587, 590, 798 P.2d 136, 137 (1990); Phillips v. Parker, 106 Nev. 415, 417, 794 P.2d 716, 718 (1990). In interpreting a contract, we construe a contract that is clear on its face from the written language, and it should be enforced as written. Canfora v. Coast Hotels & Casinos, Inc., 121 Nev. 771, 776, 121 P.3d 599, 603 (2005). A contract is ambiguous only when it is subject to more than one reasonable interpretation. Anvui, LLC v. G.L. Dragon, LLC, 123 Nev. 212, 215, 163 P.3d 405, 407 (2007). As a matter of public policy, Nevada courts encourage arbitration and liberally construe arbitration clauses in favor of granting arbitration. Phillips, 106 Nev. at 417, 794 P.2d at 718. With regard to the arbitrability of disputes concerning the independent auditors decisions, section XI(c) of the MSA provides the following: Any dispute, controversy or claim arising out of or relating to calculations performed by, or any determinations made by, the Independent Auditor (including, without limitation, any dispute concerning the operation or application of any of the adjustments, reductions, offsets, carry-forwards and allocations described in subsection IX(j) or subsection XI(i)) shall be submitted to binding arbitration before a panel of three neutral arbitrators, each of whom shall be a former Article III federal judge. Furthermore, subsection IX(j), referenced in that provision, details the order in which allocations, offsets, reductions, and adjustments, including the NPM adjustment and corresponding exception for a states diligent enforcement of its qualifying statute, will apply. Subsection XI(i) details the remedy for miscalculated or disputed payments, including that failure to dispute the independent auditors calculation is tantamount to agreement with the calculations.

Jan. 2009]
[Headnote 7]

Attorney General v. Dist. Ct. (Philip Morris)

45

In its petition, the State argues that the issue of whether Nevada diligently enforced its qualifying statute as required to avoid an NPM adjustment under the MSA is not within the scope of the MSAs arbitration clause, and thus, the district court erred in granting the tobacco companies motion to compel arbitration. According to the State, the MSAs arbitration clause is limited to review of calculations of the independent auditor, and the clause does not extend to the auditors resolution of mixed questions of law and fact, such as the question of whether Nevada diligently enforced its qualifying statute. The tobacco companies contend that the MSAs plain language does not limit arbitrable issues only to those of specific calculations made by the independent auditor because subsection IX(j), referenced in the arbitration clause, specifically includes the NPM adjustment and the diligent enforcement exemption. Moreover, the tobacco companies argue that the State has not overcome the wellsettled presumption in favor of arbitration. Here, section XI(c)s language is plain with regard to whether it requires that a dispute over an independent auditors decision concerning a states enforcement of its qualifying statute be arbitrated. Indeed, the MSAs arbitration clause broadly provides that all disputes arising out of or relating to the independent auditors determinations shall be submitted to arbitration.5 Certainly, as the arbitration clauses reference to section IX(j) suggests, an independent auditors decision regarding a states enforcement of its qualifying statute relates to the independent auditors determination whether to make an NPM adjustment to a tobacco companys annual payment amount and, if so, how much of an adjustment to make, as such a determination is fundamental to any NPM adjustment. And no language within the MSAs arbitration clause supports the States contention that arbitration is limited to calculations by the independent auditor. Thus, under the arbitration clauses clear language, disputes regarding diligent enforcement are subject to arbitration because of the clauses broad language. Moreover, this conclusion is supported by the vast majority of jurisdictions that have addressed this issue, and in so doing concluded that the plain and unambiguous language of the MSAs arbitration provision requires arbitration of the parties dispute concerning the NPM Adjustment, including the States diligent enforcement defense. People v. Lorillard Tobacco Co., 865
5 We are persuaded by the United States Court of Appeals for the Eighth Circuits decision in Fleet Tire Serv. v. Oliver Rubber, 118 F.3d 619, 621 (8th Cir. 1997), in which the court held that an arbitration clause containing the phrase relating to constitute[d] the broadest language the parties could reasonably use to subject their disputes to [arbitration].

46

Attorney General v. Dist. Ct. (Philip Morris) [125 Nev.

N.E.2d 546, 554 (Ill. App. Ct. 2007), appeal denied, 875 N.E.2d 1119 (Ill. 2007); see also State v. Lorillard Tobacco, 1 So. 3d 1, 5 (Ala. 2008); State v. Philip Morris, Inc., 905 A.2d 42, 51 (Conn. 2006); State, ex rel. Carter v. Philip Morris, 879 N.E.2d 1212, 1216 (Ind. Ct. App. 2008); Ieyoub v. Philip Morris, USA, Inc., 982 So. 2d 296, 300 (La. Ct. App. 2008), appeal denied, 992 So. 2d 942 (La. 2008); State v. Philip Morris, 944 A.2d 1167, 1182 (Md. Ct. Spec. App. 2008), cert. denied, 949 A.2d 653 (Md. 2008); State ex rel., Bruning v. R.J. Reynolds, 746 N.W.2d 672, 680 (Neb. 2008); State v. Philip Morris USA, Inc., 927 A.2d 503, 509 (N.H. 2007); State ex rel. N.M. Attorney General, 194 P.3d 749, 754 (N.M. Ct. App. 2008); State v. Philip Morris Inc., 813 N.Y.S.2d 71, 76 (App. Div. 2006), affd, 869 N.E.2d 636, 640 (N.Y. 2007); State v. Philip Morris USA, Inc., 666 S.E.2d 783, 792-93 (N.C. Ct. App. 2008); State v. Philip Morris, Inc., No. 06AP-1012, 2008 WL 2854536, at *10 (Ohio Ct. App., July 24, 2008); State v. Philip Morris USA Inc., 945 A.2d 887, 892 (Vt. 2008). Whether the MSA expressly excludes diligent enforcement disputes from the jurisdiction of state courts Notwithstanding the arbitration clauses plain language, the State contends that a separate provision of the MSA requires that state courts resolve issues regarding a states enforcement of its qualifying statute. Specifically, the State argues that section VII of the MSA broadly allows the parties to submit disputes arising under the MSA to state courts. The tobacco companies contend, however, that while section VII of the MSA allows the parties to submit certain disputes to state courts, it expressly excludes from state courts disputes concerning a states enforcement of its qualifying statute. MSA section VII(a) provides that: Each Participating Manufacturer and each Settling State acknowledge that the Court: (1) has jurisdiction over the subject matter of the action identified in Exhibit D in such Settling State and over each Participating Manufacturer; (2) shall retain exclusive jurisdiction for the purposes of implementing and enforcing this Agreement and the Consent Decree as to each Settling State; and (3) except as provided in subsections IX(d), XI(c) and XVII(d) and Exhibit O, shall be the only court to which disputes under this Agreement or the Consent Decree are presented as to such Settling State. (Emphasis added.)
[Headnote 8]

Contrary to the States argument, MSA section VIIs plain language precludes parties from submitting diligent enforcement dis-

Jan. 2009]

Attorney General v. Dist. Ct. (Philip Morris)

47

putes to state courts. Specifically, section VII broadly excludes the MSAs arbitration clause, section XI(c), from its scope. See also People v. Lorillard Tobacco Co., 865 N.E.2d at 552 (concluding that section VII excludes the MSAs arbitration clause from its scope, thus precluding the argument that the parties agreed to submit diligent enforcement disputes to state court). Moreover, section VII also excludes section IX(d), which determines both the NPM adjustment and the subsidiary diligent enforcement determination from its scope. The MSAs requirement that diligent enforcement disputes be arbitrated makes sense, given the inherently national character of payment related disputes. See id. at 554. Diligent enforcement is not an issue solely affecting an individual state; diligent enforcement disputes affect all of the settling states, as the amounts each state receives are dependent on the diligent enforcement of other states. Therefore, the MSA compels arbitration of diligent enforcement disputes and ensures that such disputes are not subject to state court jurisdiction under the plain language of the MSA. CONCLUSION We conclude that the plain language of the MSAs arbitration provision specifically includes within its scope disputes concerning a states diligent enforcement of its qualifying statute. The MSAs arbitration clause clearly pertains to disputes relat[ed] to the independent auditors calculation of a tobacco companys annual payment under the settlement agreement. As the auditors annual payment calculation takes into account whether a state has diligently enforced its qualifying statute, under the MSAs clear language, the determination whether a state has diligently enforced its qualifying statute is undoubtedly a determination relating to the auditors calculation. Further, the States contention, that the MSAs provision outlining the issues that the parties agreed to submit to state courts includes disputes regarding a states enforcement of its qualifying statute, is without merit. That provision clearly excludes from its scope the disputes covered by the MSAs arbitration clause and, as discussed, the MSAs arbitration clause plainly includes disputes pertaining to a states diligent enforcement of its qualifying statute. Accordingly, the district courts decision to compel the parties to arbitrate the dispute in this case is not a manifest abuse of its discretion, and thus, we deny the States petition. HARDESTY, C.J., PARRAGUIRRE, DOUGLAS, SAITTA, and GIBBONS, JJ., concur.

48

Garcia v. Scolaris Food & Drug KATHY GARCIA, APPELLANT, v. SCOLARIS FOOD & DRUG, RESPONDENT.
No. 50046 January 29, 2009

[125 Nev.

200 P.3d 514

Proper person appeal from a district court order denying a petition for judicial review in an occupational disease matter. Second Judicial District Court, Washoe County; Janet J. Berry, Judge. Workers compensation claimant sought judicial review of appeals officers decision that denied claim for occupational disease benefits. The district court denied claimants motion to present additional evidence and later denied petition for judicial review. Claimant appealed. The supreme court, HARDESTY, C.J., held that: (1) as a matter of first impression, for purposes of section of Administrative Procedure Act (APA) allowing district court to order that additional evidence be taken before an agency if good reasons exist for failing to present it during administrative proceeding, good reasons do not exist when a partys attorney deliberately decides not to present available evidence during the course of an administrative proceeding and that party then seeks remand; (2) as a matter of first impression, failures of claimants attorney to present functional capacity evaluation and doctors letter to appeals officer did not constitute good reasons for remand; and (3) substantial evidence supported appeals officers conclusion that claimant presented insufficient evidence to establish industrial causation of her medical condition. Affirmed. CHERRY, J., with whom SAITTA, J., agreed, dissented. Kathy Garcia, Reno, in Proper Person. McDonald Carano Wilson LLP and Timothy E. Rowe, Reno, for Respondent.
1. ADMINISTRATIVE LAW AND PROCEDURE. For purposes of section of Administrative Procedure Act (APA) allowing district court to order that additional evidence be taken before an agency if good reasons exist for failing to present it during administrative proceeding, good reasons do not exist when a partys attorney deliberately decides not to present available evidence during the course of an administrative proceeding and that party then seeks remand for reconsideration with that evidence after an adverse decision at the administrative level. NRS 233B.131(2). 2. WORKERS COMPENSATION. For purposes of section of Administrative Procedure Act (APA) allowing district court to order that additional evidence be taken before an agency if good reasons exist for failing to present it during administrative proceeding, failures of attorney for workers compensation claimant to

Jan. 2009]

Garcia v. Scolaris Food & Drug

49

3.

4.

5.

6.

7. 8. 9.

10.

11.

present functional capacity evaluation and doctors letter to appeals officer did not constitute good reasons to remand to appeals officer for reconsideration with additional evidence, though claimant alleged that attorneys failures constituted negligence; withheld evidence was available at time of hearing but was not presented due to attorneys trial strategy. NRS 233B.131(2). ADMINISTRATIVE LAW AND PROCEDURE. The two principal inquiries under section of Administrative Procedure Act (APA) allowing district court to order that additional evidence be taken before an agency are whether the evidence sought to be added is material and whether good reasons exist for the failure to present the evidence to the administrative agency. NRS 233B.131(2). ADMINISTRATIVE LAW AND PROCEDURE. Because section of Administrative Procedure Act (APA) allowing district court to order that additional evidence be taken before an agency provides that the district court may order that the additional evidence and any rebuttal evidence be taken before the agency, the decision to grant or deny a request to remand a matter for the consideration of additional evidence is reviewed for an abuse of discretion. NRS 233B.131(2). ADMINISTRATIVE LAW AND PROCEDURE. Under section of Administrative Procedure Act (APA) allowing district court to order that additional evidence be taken before an agency, that a partys attorney makes what could be characterized as a poor decision with regard to what evidence to present at an administrative proceeding will not suffice to justify remand to the appeals officer for consideration of additional evidence, especially after an adverse decision is issued by the appeals officer and when the evidence sought to be presented was available at the time of the administrative hearing. NRS 233B.131(2). WORKERS COMPENSATION. Substantial evidence supported appeals officers conclusion that workers compensation claimant, who suffered pain in arm and shoulders, presented insufficient evidence to establish industrial causation of her medical condition, and thus, claimant was not entitled to occupational disease benefits; evidence indicated that reports from claimants initial medical examinations did not connect her condition to her employment, and doctors independent medical evaluation stated that claimants current symptomatology was nonindustrial condition attributable to aging process rather than her employment. NRS 617.358(1), 617.440. ADMINISTRATIVE LAW AND PROCEDURE. Supreme court reviews an administrative decision in the same manner as the district court. ADMINISTRATIVE LAW AND PROCEDURE. When reviewing an agencys decision, supreme court, like the district court, decides purely legal questions de novo. ADMINISTRATIVE LAW AND PROCEDURE. In reviewing questions of fact when reviewing an agencys decision, both the supreme court and the district court are prohibited from substituting their judgment for that of the agency. ADMINISTRATIVE LAW AND PROCEDURE. On factual issues, the supreme court is limited to determining whether there is substantial evidence in the record to support the agencys decision. ADMINISTRATIVE LAW AND PROCEDURE. For purposes of reviewing whether substantial evidence supports an appeals officers conclusion on a factual issue, substantial evidence is

50

Garcia v. Scolaris Food & Drug

[125 Nev.

evidence that a reasonable mind might accept as adequate to support the appeals officers conclusion. 12. ADMINISTRATIVE LAW AND PROCEDURE. In reviewing an agencys decision, the reviewing court is confined to the record before the agency.

Before the Court EN BANC.1 OPINION By the Court, HARDESTY, C.J.: This appeal seeks our review of a district court order denying a petition for judicial review of an administrative decision that denied occupational disease benefits. During the district court proceedings, appellant sought to have the matter remanded to the appeals officer pursuant to NRS 233B.131(2), which provides that the district court may order additional evidence to be taken before an administrative agency if the evidence is material and good reasons exist for failing to present it during the administrative proceeding. Appellant argued that her attorney negligently failed to introduce material evidence during the administrative proceedings. The district court denied appellants request, however, after determining that appellant had failed to establish good reasons. We take this opportunity to provide guidance on the good reasons standard set forth in NRS 233B.131(2). We conclude that good reasons do not exist when a partys attorney deliberately decides not to present available evidence during the course of an administrative proceeding and that party then seeks remand for reconsideration with that evidence after an adverse decision by the administrative agency. Here, appellant did not establish good reasons for her failure to present the additional evidence to the appeals officer, and therefore, the district court did not abuse its discretion in denying appellants motion to remand the matter for consideration of additional evidence. Moreover, having reviewed the record, we conclude that the appeals officer did not commit clear error or an abuse of discretion in determining that appellant had failed to show that her condition was work-related. We therefore affirm the district court order denying appellants petition for judicial review. FACTS In April 2005, proper person appellant Kathy Garcia submitted an occupational disease claim for pain in her arms and shoulders to her employer, respondent Scolaris Food & Drug. After reporting her claim, Garcias condition was evaluated on several occa1 THE HONORABLE KRISTINA PICKERING, Justice, did not participate in the decision of this matter.

Jan. 2009]

Garcia v. Scolaris Food & Drug

51

sions. None of the physicians or nurse practitioners who evaluated Garcia during these initial visits connected the pain in her arms and shoulders to her employment at Scolaris. Garcia subsequently was referred for an independent medical evaluation by Donald S. Huene, M.D. Dr. Huene offered nonindustrial diagnoses of lateral epicondylitis, myofascitis, possible fibromyalgia, and possible radial tunnel syndrome. Dr. Huene attributed the cause of Garcias condition to the aging process, concluded that the condition was not work-related, and stated that work has aggravated [Garcias] symptoms but is not the primary cause. Based on this evaluation by Dr. Huene, Garcias claim for occupational disease benefits was denied. Garcia, through counsel, administratively appealed, and a hearing was held before an appeals officer. The only evidence Garcia presented at the hearing was her own testimony. Apparently relying on the medical evidence provided by Scolarisin particular, the portion of Dr. Huenes report describing Garcias symptoms as having been aggravated by her workGarcias attorney argued that the work-related aggravation of a nonindustrial condition is compensable. Scolaris argued, however, that Dr. Huenes report did not establish a compensable claim because the doctor concluded that Garcia did not have an occupational disease. At the conclusion of the hearing, the appeals officer indicated that the parties would be allowed additional time to submit further information before a decision was made. Although not specifically reflected in the record, both parties acknowledge that the appeals officer delayed issuing a decision in this matter to allow Garcias attorney to submit two additional documents: a functional capacity evaluation confirming that Garcia had cervical/shoulder/scapular issues and a letter from Dr. Glenn Miller that purportedly connected Garcias condition to her employment, both of which were available at the time of the hearing. When no further evidence was submitted, however, the appeals officer concluded that Garcia had failed to meet her statutory burden of establishing industrial causation and denied Garcias claim for benefits. In explaining the decision, the appeals officer noted that, based on the submitted evidence, none of the physicians who had seen or treated Garcia suggested that Garcias condition was caused by her employment. The appeals officer also noted that while Dr. Huene had indicated in his report that Garcias employment had aggravated her nonindustrial condition, under NRS 617.366, such an aggravation is not compensable unless an occupational disease is also independently established. Garcia subsequently filed, in proper person, a petition for judicial review in the district court, contending that the appeals officers decision was improper and rendered without the benefit of all the relevant evidence. Garcia then moved the district court for leave

52

Garcia v. Scolaris Food & Drug

[125 Nev.

to present additional evidence under NRS 233B.131(2). The district court denied Garcias motion to present additional evidence, concluding that she had failed to establish good reasons for failing to submit the evidence during the administrative proceeding. The district court subsequently denied Garcias petition for judicial review, and this proper person appeal followed. As directed, respondent has filed a response. DISCUSSION On appeal, Garcia asserts that the attorney who represented her during the administrative proceedings was neglectful of her claim and negligently failed to present any medical evidence to support her claim. Specifically, Garcia points to the functional capacity evaluation confirming that she had cervical/shoulder/scapular issues and Dr. Millers letter, which she claims connected her arm and shoulder condition to her employment. Garcia argues that she relied on her attorney to provide this medical evidence, especially after the appeals officer allowed additional time to do so, and she asserts that she was unaware of her attorneys failure to provide this evidence until she received the appeals officers decision denying her claim. In its response, Scolaris argues that the above evidence is not material and that Garcia failed to demonstrate good reasons for her failure to present the evidence to the appeals officer in the first instance. Scolaris notes that the evidence was available at the time of the hearing and asserts that attorney negligence should not excuse Garcias failure to present the evidence. Scolaris also contends that substantial evidence supports the appeals officers decision to deny Garcias claim.
[Headnote 1]

We conclude that good reasons do not exist when a partys attorney deliberately decides not to present available evidence during the course of an administrative proceeding and that party then seeks remand for reconsideration with that evidence after an adverse decision at the administrative level. Accordingly, the district court did not abuse its discretion in determining that good reasons did not exist under NRS 233B.131(2) to remand this matter to the appeals officer for consideration of additional evidence. Further, based upon the evidence presented in the record, substantial evidence supports the appeals officers decision denying Garcias occupational disease claim. Denial of Garcias request to supplement the record
[Headnotes 2-4]

Under NRS 233B.131(2), when a party to an administrative proceeding seeks to present additional evidence that was not pre-

Jan. 2009]

Garcia v. Scolaris Food & Drug

53

sented to the agency during the administrative hearing, the district court may order that such evidence be taken by the agency: [i]f, before submission to the court, an application is made to the court for leave to present additional evidence, and it is shown to the satisfaction of the court that the additional evidence is material and that there were good reasons for failure to present it in the proceeding before the agency. Thus, the two principal inquiries under NRS 233B.131(2) are whether the evidence sought to be added is material and whether good reasons exist for the failure to present the evidence to the administrative agency. Because NRS 233B.131(2) provides that the district court may order that the additional evidence and any rebuttal evidence be taken before the agency (emphasis added), the decision to grant or deny a request to remand a matter for the consideration of additional evidence is reviewed for an abuse of discretion. See Minton v. Board of Medical Examiners, 110 Nev. 1060, 1081, 881 P.2d 1339, 1354 (1994) (explaining that the use of the word may in a statute usually gives the district court discretion to act). Here, we are concerned with the second prong of the analysis whether the district court properly found that no good reasons existed for Garcias failure to present the functional capacity evaluation and Dr. Millers letter to the appeals officer. Although this court has not yet considered what constitutes a good reason for failing to present evidence at an administrative hearing under this statute, this issue has been addressed in a number of other states with similar statutes. See, e.g., Salmon v. Department of Public Health, 788 A.2d 1199, 1220-21 (Conn. 2002) (granting relief, under a good reason standard, for ineffective representation by counsel); Northern Illinois Gas v. Industrial Comn, 498 N.E.2d 327, 332 (Ill. App. Ct. 1986) (finding, under a good cause standard, it was proper for lower court to refuse to supplement the record to include additional evidence in a workers compensation matter); Pannoni v. Board of Trustees, 90 P.3d 438, 449-50 (Mont. 2004) (concluding, under a good reasons standard, that good reasons had not been established when the failure to present the evidence was due to a tactical decision); Breedon v. Maryland State Dept. of Ed., 411 A.2d 1073, 1080 (Md. Ct. Spec. App. 1980) (finding, under a good reasons standard, that a request to present additional evidence to an administrative agency was sufficient); McDowell v. Citibank, 734 N.W.2d 1, 11 (S.D. 2007) (declining, under a good reasons standard, to provide relief in a workers compensation matter). We find two such cases, McDowell and Northern Illinois Gas, particularly applicable to our resolution of this matter.

54

Garcia v. Scolaris Food & Drug

[125 Nev.

In McDowell, the South Dakota Supreme Court considered, in a workers compensation matter, whether the good reasons standard had been satisfied. 734 N.W.2d 1. The appellant sought to add evidence that allegedly bolstered the testimony of a witness, arguing that the evidence was not admitted at the administrative hearing because the evidence became significant only when the opposing counsel, to the surprise of the appellant, challenged the witnesss truthfulness on cross-examination. Id. at 11. The court concluded that there was no question that this particular witnesss testimony was the central point of the appellants claim to reopen her workers compensation settlement, and that, therefore, the appellant could not reasonably argue surprise that the witnesss credibility would be attacked as a good reason for the failure to produce the evidence before the administrative body. Id. As the court explained, a party may not wait to submit evidence at an administrative hearing until after the party learns how the hearing examiner will rule. Id. Additionally, in Northern Illinois Gas, the Appellate Court of Illinois considered, under a good cause standard, a request to supplement the record to include additional evidence in a workers compensation matter. 498 N.E.2d 327. The Northern Illinois Gas court noted that the omitted evidence was available at the time of the administrative hearing but apparently was not presented because counsel believed that the opposing party had presented insufficient proof to prevail. Id. at 332. After considering this situation, the court decided that [a] party cannot choose one trial strategy and then, faced with an adverse decision, supply additional evidence on review, absent, for example, the need to prevent injustice by correcting the arbitrators misunderstanding of the evidence, or other good cause. Id. Finding that good cause had not been established, the court held that the lower tribunal did not abuse its discretion when it declined the request to present the additional evidence. Id. Here, the district court found that Garcias attorney failed to present any medical evidence during the proceedings before the appeals officer, even though the functional capacity evaluation and the letter from Dr. Miller were available prior to the hearing. Even after the appeals officer gave Garcias attorney additional time to present further evidence, the attorney failed to submit that evidence. A review of the administrative hearing transcript reveals that Garcias attorney decided to rely solely on the medical evidence introduced by Scolaris, Dr. Huenes independent medical evaluation.2 Scolaris introduced this report, presumably, because
2 We note that while Garcia claims that her attorney misled her by indicating that he was prepared to present her case before the appeals officer and that he had obtained all of the necessary relevant medical records to do so, these

Jan. 2009]

Garcia v. Scolaris Food & Drug

55

Dr. Huene expressly concluded that Garcias condition was not work-related. The transcript from the hearing, however, suggests that Garcias attorney thought either that the burdens of proof and persuasion were on the employer or that Dr. Huenes independent medical evaluation established a compensable claim, since Dr. Huene concluded that Garcias employment aggravated her symptoms. The appeals officer disagreed with this interpretation, however, determining that NRS 617.366(1)s aggravation provision was not applicable when an occupational disease has not been established.3 Regardless of the attorneys reasons for failing to submit the evidence, it is clear that Garcias attorney pursued a deliberate, though unsuccessful, trial strategy. As the McDowell and Northern Illinois Gas cases explain, the type of relief sought here is generally inappropriate when a party waits to submit evidence until learning how a hearing examiner will rule or pursues one strategy at trial and then, after an adverse result, seeks to pursue another strategy with additional evidence. See McDowell, 734 N.W.2d at 11; Northern Illinois Gas, 498 N.E.2d at 332. Although Garcia argues that her attorneys failure to present the additional medical evidence constitutes negligence or neglectfulness that should entitle her to relief, we conclude that these actions do not constitute good reasons to remand the matter to the appeals officer under NRS 233B.131(2) because they were undertaken as part of a deliberate trial strategy by Garcias attorney.
[Headnote 5]

The fact that a partys attorney makes what could be characterized as a poor decision with regard to what evidence to present at an administrative proceeding will not suffice to justify remand for consideration of additional evidence, especially after an adverse decision is issued by the appeals officer and when the evidence sought to be presented was available at the time of the administrative hearing. See McDowell, 734 N.W.2d at 11; Northern Illinois Gas, 498 N.E.2d at 332. Thus, even if we were to accept Garcias argument that her attorneys actions constituted negligence or neallegations appear to represent a disagreement between Garcia and her attorney over what should have been presented to the appeals officer and what medical records were relevant, as opposed to a misrepresentation about the status of Garcias claim or which evidence was going to be presented. 3 NRS 617.366(1) provides that a resulting condition of an employee who (a) has a preexisting condition that did not arise out of and in the course of employment; and (b) thereafter contracts an occupational disease that aggravates, precipitates or accelerates the preexisting condition, shall be deemed to be a compensable occupational disease unless the insurer can establish, by a preponderance of the evidence, that the occupational disease is not a substantial contributing cause of the resulting condition.

56

Garcia v. Scolaris Food & Drug

[125 Nev.

glectfulness, her attorneys actions nonetheless do not constitute good reasons for not presenting the evidence during the administrative proceeding. We agree, therefore, with the district court that good reasons to have this matter remanded to the appeals officer for reconsideration with the additional evidence were not established, since the withheld evidence was available at the time of the hearing but was not presented due to counsels trial strategy. See McDowell, 734 N.W.2d at 11; Northern Illinois Gas, 498 N.E.2d at 332. Accordingly, we conclude that the district court did not abuse its discretion in denying Garcias motion for leave to present additional evidence under NRS 233B.131(2).4 The appeals officers denial of Garcias claim
[Headnotes 6-12]

This court reviews an administrative decision in the same manner as the district court. Riverboat Hotel Casino v. Harolds Club, 113 Nev. 1025, 1029, 944 P.2d 819, 822 (1997). We, like the district court, decide purely legal questions de novo. Id. In reviewing questions of fact, however, both this court and the district court are prohibited from substituting their judgment for that of the agency. Id. Therefore, on factual issues, this court is limited to determining whether there is substantial evidence in the record to support the agencys decision. Grover C. Dils Med. Ctr. v. Menditto, 121 Nev. 278, 283, 112 P.3d 1093, 1097 (2005). Substantial evidence is evidence that a reasonable mind might accept as adequate to support the appeals officers conclusion. Id. The reviewing court is confined to the record before the agency. Id. at 284, 112 P.3d at 1097. Having reviewed the administrative record, we conclude that substantial evidence supports the appeals officers conclusion that Garcia presented insufficient evidence to establish industrial causation of her medical condition. See NRS 617.358(1) (providing that, to receive occupational disease benefits, an employee must show by a preponderance of the evidence that her disease arose out of and in the course of her employment); NRS 617.440 (setting forth the requirements for an occupational disease to be deemed to arise out of and in the course of employment). The reports from Garcias initial medical examinations do not connect her condition to her employment, and Dr. Huenes independent medical evaluation states that [Garcias] current symptomatology is a nonindustrial condition attributable to the aging process rather than her
4 Because we conclude that Garcia has not established good reasons under NRS 233B.131(2), we need not address NRS 233B.131(2)s materiality requirement.

Jan. 2009]

Garcia v. Scolaris Food & Drug

57

employment.5 Accordingly, we conclude that the appeals officers decision is supported by substantial evidence.6 CONCLUSION We conclude that good reasons do not exist to remand an administrative matter to the appeals officer for reconsideration with additional evidence when a partys attorney deliberately or negligently decides not to present available evidence during the course of the administrative proceeding and that party then seeks to have that evidence considered after an adverse decision has issued at the administrative level. Thus, we further conclude that the district court did not abuse its discretion in determining that good reasons did not exist under NRS 233B.131(2) to remand this matter to the appeals officer. Further, based upon the evidence presented in the record, substantial evidence supports the appeals officers decision denying Garcias occupational disease claim. Accordingly, we affirm the district courts order denying Garcias petition for judicial review.7 PARRAGUIRRE, DOUGLAS, and GIBBONS, JJ., concur. CHERRY, J., with whom SAITTA, J., agrees, dissenting: The majority concludes that NRS 233B.131(2)s good reasons standard is not satisfied when an attorney either deliberately or negligently fails to present available evidence at an administrative hearing. Because I believe that this approach to
5 We have also considered Garcias alternative argument that relief should be granted because of general broad supervisory powers the district courts hold over administrative agencies and conclude it is without merit. 6 While Garcias attorney argued at the hearing before the appeals officer that Dr. Huenes evaluation shifted the burden in this matter to Scolaris under NRS 617.366, Garcia does not challenge the appeals officers conclusion that an aggravation under NRS 617.366(1)(b) is compensable only when it is aggravated by a subsequent occupational disease. Because the appeals officers interpretation of the statute appears reasonable, we need not further address this issue. See SIIS v. Miller, 112 Nev. 1112, 1118, 923 P.2d 577, 581 (1996) (setting forth the rule that the interpretation of a statute by an agency charged with the duty of administering the statute is entitled to deference). 7 Our dissenting colleagues argue that negligent representation of a workers compensation claimant at the administrative level warrants remand under NRS 233B.131(2) to the administrative tribunal by a district court exercising judicial review. We reject such a rule as overbroad and believe their reliance on Salmon v. Department of Public Health to support this conclusion is misplaced. 788 A.2d 1199 (Conn. 2002). First, we find no support in Salmon for the proposition that the right to an ineffective-assistance-of-counsel argument exists in civil cases. Second, although the Salmon court concluded that attorney incompetence can support a finding that good reasons exist for the failure

58

Garcia v. Scolaris Food & Drug

[125 Nev.

NRS 233B.131(2) fails to sufficiently account for the more flexible and informal nature of administrative proceedings, I respectfully dissent. Administrative forums in Nevada permit greater flexibility than proceedings taking place in courts of law. See Minton v. Board of Medical Examiners, 110 Nev. 1060, 1082, 881 P.2d 1339, 1354 (1994). We have recently noted, for instance, that there is not a state or federal constitutional right to prehearing discovery in administrative hearings and that the Nevada Rules of Civil Procedure do not apply to administrative proceedings. Dutchess Bus. Servs. v. State, Bd. of Pharm., 124 Nev. 701, 713, 191 P.3d 1159, 1167 (2008). Nevada is hardly alone in this approach to administrative proceedings. See, e.g., Arkansas Dept. of Human Services v. A.B., 286 S.W.3d 712, 717 (Ark. 2008) (explaining that specialization, experience, and more informal procedures allow agencies to better resolve certain disputes than courts of law); Foley v. Metropolitan Sanitary Dist., 572 N.E.2d 978, 984 (Ill. App. Ct. 1991) (noting that [a]dministrative procedure is simpler, less formal and less technical than judicial procedure); Highland Town Sch. v. Review Bd. IN Dept., 892 N.E.2d 652, 656 (Ind. Ct. App. 2008) (explaining that proceedings before an administrative law judge are more informal than proceedings in a court of law and noting that proper person litigants are given greater leeway in administrative proceedings); Stone v. Errecart, 675 A.2d 1322, 1325-26 (Vt. 1996) (noting the more informal nature of administrative agencies); Nelson County Schools v. Woodson, 613 S.E.2d 480, 483 (Va. Ct. App. 2005) (stating that rigid[,] technical rules of pleading are unnecessary in the administrative context so long as substantial rights are protected (quotation and citation omitted)). Important reasons exist for not gradually layering administrative agencies with the formalities that accompany courts of law. For example, the adversarial nature of administrative proceedings is often less pronounced than in courts of law and parties are not always represented by counsel. See Richard E. Levy & Sidney A. Shapiro, Administrative Procedure and the Decline of the Trial, 51 U. Kan. L. Rev. 473 (2003); Phyllis E. Bernard, The Administrative Law Judge as a Bridge Between Law and Culture, 23 J. Natl Assn Admin. L. Judges 1 (2003). Moreover, administrative agencies generally strive to provide a quicker, less expensive, and more accessible form of adjudication. Levy & Shapiro, supra, at 494-502; Bernard, supra, at 5-7, 18-19, 34. Thus, a more informal approach
to present evidence at an administrative hearing, justifying a remand to the agency for reconsideration with the additional evidence, unlike the present case, in Salmon a remand was warranted because the evidence was not available at the time of the hearing. Id. at 1219.

Jan. 2009]

Garcia v. Scolaris Food & Drug

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may make better use of an agencys particular expertise. Levy & Shapiro, supra, at 494-502; Bernard, supra, at 5-7, 18-19, 34. Because of the more flexible nature of proceedings before administrative agencies, I believe that an equally flexible approach should be used to determine when good reasons exist for failure to present evidence at an administrative hearing. Here, it appears from the transcript of the November 8, 2005, administrative hearing that Garcias attorney failed to present any medical evidence even though such evidence was available prior to the hearing. Even after the appeals officer gave Garcias attorney additional time to present that evidence, the attorney failed to submit the evidence for consideration by the appeals officer. Therefore, Garcias attorneys neglectful or negligent handling of this case has effectively denied Garcia her full day in court with a truly informed adjudication of her claim. The majoritys interpretation of NRS 233B.131(2)s broadly worded good reasons standard unnecessarily limits the statutes use as a potential remedy. All Garcia seeks is a determination of her claim based on medical evidence, which would have been presented at the administrative hearing but for the negligence of the attorney she relied on to represent her. The use of a more flexible approach in such cases is supported by the Connecticut Supreme Courts decision in Salmon v. Department of Public Health, 788 A.2d 1199 (Conn. 2002). The Salmon court considered whether a party should have been allowed to introduce impeachment evidence not presented during an administrative proceeding due to the asserted incompetence of the appellants attorney. Id. at 1219-21. In making this determination, the Salmon court addressed whether the failure to introduce such evidence, due to an attorneys alleged incompetence, constituted a good reason for failing to introduce the evidence at the administrative proceeding under Connecticuts version of NRS 233B.131(2).1 The Salmon court noted that hearings before an administrative agency are unlike those before a court of law and are more flexible and informal. 788 A.2d at 1220. Relying in part on the more flexible nature of administrative proceedings, the Salmon court concluded that the incompetence of ones attorney can rep1 The relevant Connecticut statute, Conn. Gen. Stat. 4-183(h) (2007), provides: [i]f, before the date set for hearing on the merits of an appeal, application is made to the court for leave to present additional evidence, and it is shown to the satisfaction of the court that the additional evidence is material and that there were good reasons for failure to present it in the proceeding before the agency, the court may order that the additional evidence be taken before the agency upon conditions determined by the court.

60

Collins v. State

[125 Nev.

resent a good reason for failing to present evidence during an administrative proceeding. Id. at 1220-21. In light of the more informal nature of administrative proceedings, I would adopt a rule, similar to the one set forth in Salmon, providing that the negligence or neglectfulness of ones attorney can constitute a good reason for failing to present evidence at an administrative hearing under NRS 233B.131(2). I would therefore conclude that the district court abused its discretion in determining that the negligence or neglectfulness of Garcias attorney in representing her before the appeals officer did not constitute a good reason to remand this matter to the appeals officer for consideration of additional evidence. As a result, I would reverse the district courts decision with instructions to remand the matter to the appeals officer for reconsideration with the additional evidence Garcia seeks to present.

MAURICE COLLINS, APPELLANT, v. THE STATE OF NEV ADA, RESPONDENT.

No. 50104 March 5, 2009 203 P.3d 90

Appeal from a judgment of conviction, pursuant to a jury verdict, of one count each of robbery, intimidating a public officer, and battery with substantial bodily harm. Eighth Judicial District Court, Clark County; Valerie Adair, Judge. The supreme court, PARRAGUIRRE, J., held that statute that defined substantial bodily harm as prolonged physical pain provided sufficient notice of prohibited conduct and was not so lacking in specific standards as to allow arbitrary or discriminatory enforcement and, thus, was not unconstitutionally vague. Affirmed. Philip J. Kohn, Public Defender, and Audrey Mary Conway, Deputy Public Defender, Clark County, for Appellant. Catherine Cortez Masto, Attorney General, Carson City; David J. Roger, District Attorney, and Steven S. Owens, Chief Deputy District Attorney, Clark County, for Respondent.
1. ASSAULT AND BATTERY; CONSTITUTIONAL LAW. The phrase prolonged physical pain must necessarily encompass some physical suffering or injury that lasts longer than the pain immediately resulting from the wrongful act, and as a result, phrase prolonged physical pain had a well-settled and ordinarily understood meaning,

Mar. 2009]

Collins v. State

61

2. 3.

4.

5.

6.

7.

8.

and accordingly, statute that defined substantial bodily harm as prolonged physical pain provided sufficient notice of prohibited conduct and was not so lacking in specific standards as to allow arbitrary or discriminatory enforcement and, thus, was not unconstitutionally vague. NRS 0.060(2). CRIMINAL LAW. The constitutionality of a statute is a question of law that the supreme court reviews de novo. CONSTITUTIONAL LAW. Statutes are presumed to be valid, and the challenger bears the burden of showing that a statute is unconstitutional; and in order to meet that burden, the challenger must make a clear showing of invalidity. CRIMINAL LAW. A statute is deemed to be unconstitutionally vague if it (1) fails to provide notice sufficient to enable persons of ordinary intelligence to understand what conduct is prohibited and (2) lacks specific standards, thereby encouraging, authorizing, or even failing to prevent arbitrary and discriminatory enforcement. CRIMINAL LAW. The first prong of the vagueness test is designed to provide notice of conduct that is prohibited under the statute so that ordinary citizens can conform their conduct to comport with the law; however, notice is insufficient if the statute is so imprecise, and vagueness so permeates its text, that persons of ordinary intelligence cannot understand what conduct is prohibited. CRIMINAL LAW. When drafting statutes, the Legislature is not required to exercise absolute precision, but, at a minimum, it must draft statutes that delineate the boundaries of prohibited conduct. CRIMINAL LAW. In instances where the Legislature does not define each term it uses in a statute, the statute will not be deemed unconstitutional if the term has a well-settled and ordinarily understood meaning. CRIMINAL LAW. A statute is unconstitutionally vague if it lacks specific standards, thereby encouraging, authorizing, or even failing to prevent arbitrary and discriminatory enforcement.

Before HARDESTY, C.J., PARRAGUIRRE and DOUGLAS, JJ. OPINION By the Court, PARRAGUIRRE, J.: In this appeal, we address whether NRS 0.060(2)s definition of substantial bodily harm as prolonged physical pain is unconstitutionally vague. In light of the well-settled and ordinarily understood meaning of the phrase prolonged physical pain, we conclude that NRS 0.060(2) is not unconstitutionally vague. FACTS AND PROCEDURAL HISTORY After being asked to leave the victims convenience store, appellant Maurice Collins struck Ahmad Peyghambarav in the face,

62

Collins v. State

[125 Nev.

knocking him unconscious. While Ahmad was unconscious, Collins rifled through Ahmads pockets and took his cellular phone. A short time later, with Ahmads cell phone in his possession, Collins was apprehended and transported to a detention center. During these events, Collins became extremely irate and threatened multiple public officers with physical violence. In the meantime, after regaining consciousness, Ahmad experienced an extreme amount of pain in his head and drove to a local hospital for medical attention. Based on a CT scan image, the examining neurosurgeon concluded that Ahmad had suffered a right temple fracture as a result of trauma. Although he seemed alert and coherent, Ahmad was prescribed a one-week course of anticonvulsant medication due to the risk of seizures associated with his closed head injury. For the next few weeks, Ahmad experienced dizziness and could not bend over without almost losing consciousness. Moreover, for a month and a half following the incident, Ahmad experienced intermittent headaches. However, despite these symptoms, and doctor instructions for ongoing checkups, Ahmad never sought further medical attention regarding his injuries. Collins was charged with one count of battery with substantial bodily harm, one count of robbery, and three counts of intimidating public officers. Following a two-day trial, Collins was found guilty on all but two counts of intimidating a public officer. After being adjudicated a habitual criminal, Collins was sentenced to two concurrent prison terms of 240 months with parole eligibility after 96 months on the robbery and battery counts to run concurrent with a 12-month jail term on the intimidating a public officer count. This appeal followed. DISCUSSION
[Headnote 1]

On appeal, Collins contends that NRS 0.060(2), which defines substantial bodily harm as prolonged physical pain, is unconstitutionally vague. We disagree and conclude that the phrase prolonged physical pain has a well-settled and ordinarily understood meaning and, as a result, is not unconstitutionally vague.
[Headnotes 2, 3]

The constitutionality of a statute is a question of law that we review de novo. Statutes are presumed to be valid, and the challenger bears the burden of showing that a statute is unconstitutional. In order to meet that burden, the challenger must make a clear showing of invalidity. Silvar v. Dist. Ct., 122 Nev. 289, 292, 129 P.3d 682, 684 (2006).

Mar. 2009]
[Headnote 4]

Collins v. State

63

A statute is deemed to be unconstitutionally vague if it (1) fails to provide notice sufficient to enable persons of ordinary intelligence to understand what conduct is prohibited and (2) lacks specific standards, thereby encouraging, authorizing, or even failing to prevent arbitrary and discriminatory enforcement. Id. at 293, 129 P.3d at 685. Notice of prohibited conduct
[Headnotes 5-7]

The first prong of the vagueness test is designed to provide notice of conduct that is prohibited under the statute so that ordinary citizens can conform their conduct to comport with the law. Gallegos v. State, 123 Nev. 289, 293, 163 P.3d 456, 459 (2007). Notice is insufficient, however, if the statute is so imprecise, and vagueness so permeates its text, that persons of ordinary intelligence cannot understand what conduct is prohibited. Id. (internal quotations omitted). When drafting statutes, the Legislature is not required to exercise absolute precision but, at a minimum, it must draft statutes that delineate the boundaries of prohibited conduct. Id. In instances where the Legislature does not define each term it uses in a statute, the statute will not be deemed unconstitutional if the term has a well-settled and ordinarily understood meaning. Id. In this case, Collins argues that NRS 0.060(2)s definition of prolonged physical pain fails to provide notice because it does not delineate any temporal period of how long the pain must last, the severity of the pain, or the frequency with which it occurs, and is so imprecise that an ordinary person has to guess at its meaning. For support, he cites statutes from other jurisdictions that, in his opinion, use more precise language to define serious or substantial bodily harm or injury.1 Problematically, in making this argument, Collins ignores the fact that NRS 0.060 provides two alternate definitions of the term
1 See, e.g., Ariz. Rev. Stat. Ann. 13-105 (2008) (defining serious physical injury as physical injury that creates a risk of death, or that causes serious and permanent disfigurement, serious impairment of health or loss or protracted impairment of the function of any bodily organ or limb); Minn. Stat. 609.02 (2004) (defining substantial bodily harm as bodily injury which involves a temporary but substantial disfigurement, or which causes a temporary but substantial loss or impairment of the function of any bodily member or organ, or which causes a fracture of any bodily member); Model Penal Code 210.0 (defining serious bodily injury as bodily injury that (1) creates a substantial risk of death, (2) causes serious permanent disfigurement, or (3) causes protracted loss or impairment of the functions of any bodily member or organ).

64

Collins v. State

[125 Nev.

substantial bodily harm.2 The first definition is set forth in NRS 0.060(1) and uses language substantially similar to the language utilized by the Arizona and Minnesota Legislatures, as well as the Model Penal Code, to define substantial bodily harm. Specifically, NRS 0.060(1) defines substantial bodily harm as [b]odily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ. It is the second definition of substantial bodily harm as prolonged physical pain that Collins challenges as unconstitutional. As a result, Collins state-by-state comparison does not assist us in resolving his claim that the term prolonged physical pain, as set forth in NRS 0.060(2), is unconstitutionally vague. In contrast, the State argues that the phrase prolonged physical pain has a well-settled and ordinarily understood meaning. Although it acknowledges that pain may very well be subjective, the State argues that there must be something more than mere pain under the statuteit must also be of a physical nature and of sufficient duration. Conceding that there is no precise way to determine the temporal standard for prolonged pain, the State alleges that the plain meaning of prolonged, at a minimum, rules out any pain or suffering that is of an immediate or short duration. For the reasons set forth below, we agree with the State. The term pain has multiple meanings, rang[ing] from mild discomfort or dull distress to acute often unbearable agony. Websters Third New International Dictionary 1621 (4th ed. 1976). Therefore, by its very nature, the term pain is necessarily subjective and cannot be defined further. Cf. Matter of Phillip A., 400 N.E.2d 358, 359 (N.Y. 1980) (Pain is, of course, a subjective matter. Thus, touching the skin of a person who has suffered third degree burns will cause exquisite pain, while the forceful striking of a gymnast in the solar plexus may cause him no discomfort at all.). The term prolonged means to lengthen in time[;] to extend in duration or to lengthen in extent, scope, or range. Websters, supra, at 1815. In NRS 0.060(2), the term prolonged, a temporal term, modifies physical pain. Consequently, the phrase prolonged physical pain must necessarily encompass some physical suffering or injury that lasts longer than the pain immediately resulting from the wrongful act.3 As a result, prolonged physical
2 The jury was instructed under both definitions of substantial bodily harm, and the prosecutor argued for the battery with substantial bodily harm conviction under both definitions. However, on appeal, Collins only challenges the definition of substantial bodily harm under the second definition, NRS 0.060(2). 3 In a battery, for example, the wrongdoer would not be liable for prolonged physical pain for the touching itself. However, the wrongdoer would be liable for any lasting physical pain resulting from the touching.

Mar. 2009]

Collins v. State

65

pain under NRS 0.060(2) has a well-settled and ordinarily understood meaning. Accordingly, we conclude that NRS 0.060(2) provides sufficient notice of prohibited conduct. Existence of specific standards
[Headnote 8]

Under the second prong of the test, a statute is unconstitutionally vague if it lacks specific standards, thereby encouraging, authorizing, or even failing to prevent arbitrary and discriminatory enforcement. Gallegos, 123 Nev. at 296, 163 P.3d at 460-61 (internal quotations omitted). This prong is designed to prevent standardless sweep[s], which would allow the police, prosecutors, and juries to pursue their personal predilections. Id. (internal quotations omitted). Because the phrase prolonged physical pain has a wellsettled and ordinarily understandable meaningi.e., there must be at least some physical suffering that lasts longer than the pain immediately resulting from the wrongful actit is not so lacking in specific standards as to allow arbitrary or discriminatory enforcement. Accordingly, we conclude that NRS 0.060(2) is not unconstitutionally vague.4 CONCLUSION In this appeal, we conclude that NRS 0.060(2), which defines substantial bodily harm as prolonged physical pain, is not unconstitutionally vague. Accordingly, we affirm the judgment of conviction. HARDESTY, C.J., and DOUGLAS, J., concur.
4 In addition to the constitutional question addressed in this opinion, Collins also alleges that (1) juror bias prevented him from receiving a fair trial, (2) insufficient evidence supported his robbery and battery with substantial bodily harm convictions, (3) his charge of intimidating a public officer should have been severed from his robbery and battery charges, (4) the district court improperly provided the jury with an instruction on flight, (5) his sentence amounted to cruel and unusual punishment, (6) the district court violated Apprendi v. New Jersey, 530 U.S. 466 (2000), in adjudicating him a habitual offender, and (7) the presentence investigation report contained inaccurate and prejudicial information. Having carefully reviewed these contentions, we conclude that none warrant reversal.

66

Terracon Consultants v. Mandalay Resort

[125 Nev.

TERRACON CONSULTANTS WESTERN, INC.; TERRACON, INC.; LOCHSA, LLC; AND KLAI-JUBA ARCHITECTS, LTD., APPELLANTS, v. MANDALAY RESORT GROUP, FKA CIRCUS CIRCUS ENTERPRISES, INC.; MANDALAY DEVELOPMENT, FKA CIRCUS CIRCUS DEVELOPMENT CORP.; AND MANDALAY CORPORATION, RESPONDENTS.
No. 47844 March 26, 2009 206 P.3d 81

Certified questions, pursuant to NRAP 5, regarding the scope of Nevadas economic loss doctrine. United States District Court for the District of Nevada; Robert C. Jones, Judge. The supreme court, GIBBONS, J., held that: (1) economic loss doctrine applies to preclude negligence-based claims against design professionals, such as engineers and architects, who provide services in the commercial property development or improvement process, when the plaintiffs seek to recover purely economic losses; and (2) because property owner suffered only economic loss without any attendant personal injury or property damage, the economic loss doctrine barred property owner from proceeding with its negligence-based claims against design professional. Questions answered. Holland & Hart, LLP, and Gregory S. Gilbert and Sean D. Thueson, Las Vegas; McDowell, Rice, Smith & Buchanan and Thomas R. Buchanan, Kansas City, Missouri, for Appellants Terracon Consultants Western, Inc., and Terracon, Inc. Weil & Drage, APC, and Jean A. Weil, Colin R. Harlow, and Anthony D. Platt, Las Vegas, for Appellants Lochsa, LLC, and KlaiJuba Architects, Ltd. Haney, Woloson & Mullins and Wade B. Gochnour, Las Vegas; Santoro, Driggs, Walch, Kearney, Holley & Thompson and Dennis R. Haney and Shemilly A. Briscoe, Las Vegas; Niddrie, Fish & Buchanan and Martin N. Buchanan, San Diego, California; Girardi & Keese and David R. Lira and Shahram A. Shayesteh, Los Angeles, California, for Respondents. Beckley Singleton, Chtd., and Daniel F. Polsenberg, Las Vegas; Morris Polich Purdy, LLP, and Nicholas M. Wieczorek, Las Vegas, for Amici Curiae.
1. NEGLIGENCE. The economic loss doctrine bars professional negligence claims against design professionals who provide services in the process of developing or improving commercial property when the plaintiffs damages are purely financial.

Mar. 2009]

Terracon Consultants v. Mandalay Resort

67

2. FEDERAL COURTS. Supreme court has discretion in determining whether to accept and answer a question certified by a federal court, and in deciding whether to exercise that discretion, supreme court looks to whether (1) the certified questions answer may be determinative of part of the federal case, (2) there is controlling Nevada precedent, and (3) the answer will help settle important questions of law. NRAP 5. 3. FEDERAL COURTS. In exercising its discretion to answer certified questions from federal court, supreme court nevertheless must constrain itself to resolving legal issues presented in the parties pleadings, and in that regard, supreme court avoids answering academic or abstract matters that a certifying court may have included in posing its questions to supreme court. NRAP 5. 4. FEDERAL COURTS. When federal court certified two questions to supreme court, asking whether economic loss doctrine precluded tort claims brought against contractors who solely provide services and whether doctrine precluded tort claims against design professionals, supreme court reframed federal courts two questions as one in order to address precisely the particular negligence claim and factual scenario that led to certification order and to avoid any overly broad conclusions about claims against contractors, a term that federal court did not define in certification order, and thus, supreme court would answer following question: whether economic loss doctrine applied to preclude negligence-based claims against design professionals who provide services in commercial property development or improvement process when plaintiffs seek to recover purely economic losses. NRAP 5. 5. NEGLIGENCE. The economic loss doctrine draws a legal line between contract and tort liability that forbids tort compensation for certain types of foreseeable, negligently caused, financial injury. 6. NEGLIGENCE; TORTS. The economic loss doctrine expresses the policy that the need for useful commercial economic activity and the desire to make injured plaintiffs whole is best balanced by allowing tort recovery only to those plaintiffs who have suffered personal injury or property damage. 7. ACTION. When economic loss occurs as a result of negligence in the context of commercial activity, contract law can be invoked to enforce the quality expectations derived from the parties agreement. 8. NEGLIGENCE. In addition to balancing economic activity incentives against providing compensation to negligence victims, the economic loss doctrine is driven by financial considerations, and in that regard, the doctrine works to reduce the cost of tort actions, but still provides tort victims with a remedy because less expensive alternative forms of compensation, such as insurance, generally are available to a financially injured party. 9. TORTS. Exceptions to the economic loss doctrine exist in broad categories of cases in which the policy concerns about administrative costs and a disproportionate balance between liability and fault are insignificant, or other countervailing considerations weigh in favor of liability. 10. FRAUD. Exception to the economic loss doctrine exists for negligent misrepresentation; negligent misrepresentation is a special financial harm claim for which tort recovery is permitted because without such liability the law would not exert significant financial pressures to avoid such negligence.

68

Terracon Consultants v. Mandalay Resort

[125 Nev.

11. NEGLIGENCE. The economic loss doctrine applies to preclude negligence-based claims against design professionals, such as engineers and architects, who provide services in the commercial property development or improvement process, when the plaintiffs seek to recover purely economic losses. 12. ACTION. The work provided by construction contractors or the services rendered by design professionals in the commercial building process are both integral to the building process and impact the quality of building projects, and therefore, when the quality is deemed defective, resulting in economic loss, remedies are properly addressed through contract law. 13. ACTION. In the commercial property development and improvement process, design professionals duties typically are prescribed by the parties contract, and therefore, any duty breached arises from the contractual relationship only, which necessitates an analysis of the damages that were within the contemplation of the parties when framing their agreement. 14. NEGLIGENCE. The economic loss doctrine cuts off tort liability when no personal injury or property damage occurred, with traditionally recognized exceptions for certain classes of claims, and negligence claims against design professionals do not fall within those traditional exceptions. 15. NEGLIGENCE. Because commercial property owner suffered only economic loss without any attendant personal injury or property damage, the economic loss doctrine barred property owner from proceeding with its negligence-based claims against company that provided professional engineering advice. 16. NEGLIGENCE. In a commercial property construction defect action in which the plaintiffs seek to recover purely economic losses through negligence-based claims, the economic loss doctrine applies to bar such claims against design professionals who have provided professional services in the commercial property development or improvement process.

Before the Court EN BANC. OPINION By the Court, GIBBONS, J.: The United States District Court for the District of Nevada has certified, under NRAP 5, the following questions to this court. Does the economic loss doctrine apply to contractors who solely provide services in construction defect cases? Does the economic loss doctrine apply in construction defect cases to design professionals, such as engineers and architects, who solely provide services, regardless of whether the services are rendered before or during construction? Although we accept the federal courts referral, we do so by reframing its two questions as one in order to address precisely the particular negligence claim and factual scenario that led to

Mar. 2009]

Terracon Consultants v. Mandalay Resort

69

the certification order and to avoid any overly broad conclusions about claims against contractors, a term that the federal district court did not define in its certification order. Thus, we answer the following question. Does the economic loss doctrine apply to preclude negligence-based claims against design professionals, such as engineers and architects, who provide services in the commercial property development or improvement process, when the plaintiffs seek to recover purely economic losses?
[Headnote 1]

The answer to the question is yes. Purely economic loss has been defined as the loss of the benefit of the users bargain . . . including . . . pecuniary damage for inadequate value, the cost of repair and replacement of [a] defective product, or consequent loss of profits, without any claim of personal injury or damage to other property. Calloway v. City of Reno, 116 Nev. 250, 257, 993 P.2d 1259, 1263 (2000) (first and second alterations in original) (quoting American Law of Products Liability (3d) 60:36, at 66 (1991)), overruled on other grounds by Olson v. Richard, 120 Nev. 240, 241-44, 89 P.3d 31, 31-33 (2004). After examining relevant authority and contemplating the policy considerations behind the economic loss doctrine, we have determined that the doctrines purposeto shield defendants from unlimited liability for all of the economic consequences of a negligent act, particularly in a commercial or professional setting, and thus to keep the risk of liability reasonably calculablewould be furthered by applying it to preclude the professional negligence claims at issue here. Thus, we conclude that the economic loss doctrine bars professional negligence claims against design professionals who provided services in the process of developing or improving commercial property when the plaintiffs damages are purely financial. PROCEDURAL HISTORY AND FACTS This matter arises from a removed diversity case in which a property owner brought a breach of contract and professional negligence action against certain design professionals (engineering and architectural firms). The property owner alleged that the design professionals provided negligent design advice upon which the property owner relied in making major improvements to its commercial real property, causing the property owner economic losses. Respondents Mandalay Resort Group, Mandalay Development, and Mandalay Corporation (collectively, Mandalay) managed the construction of the approximately $1 billion Mandalay Resort and Casino (the resort) in Las Vegas. To complete the resort, Mandalay hired various subcontractors, including appellants Terracon Con-

70

Terracon Consultants v. Mandalay Resort

[125 Nev.

sultants Western, Inc., Terracon, Inc. (collectively, Terracon), Lochsa, LLC, and Klai-Juba Architects, Ltd. Mandalay entered into a written contract with Terracon, under which Terracon agreed to provide geotechnical engineering advice about the subsurface soil conditions and recommended a foundation design for the property. The parties do not dispute that Terracons work was limited to providing professional engineering advice and that Terracon was not involved in physically constructing the property. Although Mandalay did not have written agreements with Klai-Juba or Lochsa, those firms, apparently acting in accordance with an oral arrangement with Mandalay, provided architectural and engineering services, respectively, by designing parts of the resorts structure. As with Terracon, Klai-Juba and Lochsa played no role in the resorts physical construction. In accordance with the written contracts terms, Terracon prepared a geotechnical report with its foundation design recommendations, which Mandalay implemented as it began erecting the resort. Based upon Terracons soil analysis and the anticipated weight of the building, Terracon predicted a certain amount of settling underneath the foundation. According to Mandalays complaint, however, the ultimate amount of settling exceeded Terracons projections. Because Clark County believed that the settling presented a potential danger to the resorts structural integrity, the county required Mandalay to repair and reinforce the foundation before proceeding with the construction. Consequently, Mandalay sued Terracon for damages in state court, alleging that the deficient engineering advice caused the resorts foundation problems.1 Mandalays theories of recovery included breach of contract, breach of the covenant of good faith and fair dealing, and professional negligence. Terracon removed the matter to the United States District Court for the District of Nevada and, thereafter, moved for partial summary judgment on Mandalays professional negligence claim, arguing that the claim was barred under the economic loss doctrine. Mandalay opposed the motion, arguing, among other things, that as a matter of law the economic loss doctrine did not apply to negligence claims against design professionals or contractors who solely provide services. Terracon also filed a third-party complaint against, among others, Lochsa and Klai-Juba for negligence, contribution, and equitable indemnity. Terracon argued that if the economic loss doctrine did not bar Mandalays negligence claim, then the doctrine likewise would not bar its claims against Lochsa and Klai-Juba. In response, Lochsa
1 Although, according to Mandalays complaint, Terracons negligence also caused property damage to the resort structure itself, we do not address that aspect of Mandalays claim because the U.S. District Court asked this court only whether tort recovery is permitted assuming the losses are purely economic.

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and Klai-Juba argued that the economic loss doctrine applied and moved the federal court to dismiss Terracons third-party complaint on that basis. The U.S. District Court denied without prejudice the motion for partial summary judgment and the motion to dismiss the third-party complaint, after determining that Nevada law was unclear on whether the economic loss doctrine applied to bar a claim grounded on allegations that design professionals negligently rendered services when the plaintiffs sought to recover purely economic losses.2 The federal court thus asked this court to address the scope of Nevadas economic loss doctrine and, in particular, whether it applies to preclude negligence-based claims against engineers, architects, or other design professionals in construction defect cases, when the plaintiff seeks to recover purely economic losses. Acknowledging that our caselaw addressing this doctrine contains nuanced ambiguities, we accept the federal courts referral. We reframe the questions presented therein, however, to answer directly whether the economic loss doctrine bars professional negligence claims against design professionals who provide only their services in the commercial property development or improvement process, when the plaintiffs are seeking to recover purely economic losses. In doing so, we point out that this opinion has no bearing on NRS Chapter 40s provisions governing actions brought based on construction defects in newly constructed residential property.3 Appellants and respondents have briefed the issue, as directed, and we permitted certain professional organizations to file a brief as amici curiae.4
2 The U.S. District Court, in presenting the certified questions, pointed out that this courts jurisprudence suggests that the economic loss doctrine might not extend to preclude tort-based claims against design professionals even when the plaintiffs are seeking to recover only financial losses. See Calloway v. City of Reno, 116 Nev. 250, 273 n.3, 993 P.2d 1259, 1274 n.3 (2000) (MAUPIN, J., concurring in part and dissenting in part) (pointing out, in dictum, that economic losses without property damage or personal injury have been deemed recoverable in tort in connection with various types of professional malpractice/negligence claims), overruled on other grounds by Olson v. Richard, 120 Nev. 240, 241-44, 89 P.3d 31, 31-33 (2004). 3 In Olson, 120 Nev. 240, 89 P.3d 31, this court determined that the economic loss doctrine does not apply to preclude tort-based claims in which the plaintiffs seek to recover purely economic losses resulting from alleged construction defects in newly constructed residential properties. That decision was based, in part, on this courts reasoning that NRS Chapter 40 preserved the discrete right of a purchaser of a newly constructed residence to sue in tort to recover purely economic losses. 4 The amici curiae brief was submitted on behalf of the American Institute of Architects (AIA), AIA Nevada; AIA Las Vegas; the American Council of Engineering Companies; the American Council of Engineering Companies of Nevada; the Design Professionals Coalition of the American Council of Engineering Companies; the National Society of Professional Engineers; the

72

Terracon Consultants v. Mandalay Resort DISCUSSION

[125 Nev.

NRAP 5
[Headnote 2]

This court has discretion in determining whether to accept and answer a question certified by a federal court. NRAP 5; Volvo Cars of North America v. Ricci, 122 Nev. 746, 749-51, 137 P.3d 1161, 1163-64 (2006). In deciding whether to exercise that discretion, this court looks to whether (1) the certified questions answer may be determinative of part of the federal case, (2) there is controlling Nevada precedent, and (3) the answer will help settle important questions of law. See Volvo Cars, 122 Nev. at 749, 137 P.3d at 1163.
[Headnotes 3, 4]

As noted, the federal district court certified two questions. The first question asked whether the economic loss doctrine precluded tort claims brought against contractors who solely provide services. As the defendants here were design professionals, namely engineers and architects, any issue concerning contractors would not fit within the scope of the unresolved legal issue raised in the parties pleadings. The second question asked whether the economic loss doctrine precluded tort claims against design professionals. That question, however, did not address the commercial aspect of the project, and thus, it was too broad. Consequently, we have reframed the federal courts two questions as one question. In so doing, we point out that, in exercising our discretion to answer certified questions, we nevertheless must constrain ourselves to resolving legal issues presented in the parties pleadings. In that regard, we avoid answering academic or abstract matters that a certifying court may have included in posing its questions to this court. In restating the federal courts questions into one more precise question, it now fits within the three criteria outlined in Volvo Cars. Id. Accordingly, we answer it. The economic loss doctrine The economic loss doctrine is a judicially created rule that primarily emanates from products liability jurisprudence. Calloway v. City of Reno, 116 Nev. 250, 257, 993 P.2d 1259, 1263 (2000), overruled on other grounds by Olson v. Richard, 120 Nev. 240, 241-44, 89 P.3d 31, 31-33 (2004). This court has explained that [t]he economic loss doctrine marks the fundamental boundary between conNevada Society of Professional Engineers; ASFE/The Best People on Earth; the American Society of Civil Engineers; and the Nevada Section of the American Society of Civil Engineers.

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tract law, which is designed to enforce the expectancy interests of the parties, and tort law, which imposes a duty of reasonable care and thereby [generally] encourages citizens to avoid causing physical harm to others. Id. at 256, 993 P.2d at 1263 (quoting Sidney R. Barrett, Jr., Recovery of Economic Loss in Tort for Construction Defects: A Critical Analysis, 40 S.C. L. Rev. 891, 894-95 (1989)). Applying the economic loss doctrine to accomplish its general purpose, this court has concluded that the doctrine bars unintentional tort actions when the plaintiff seeks to recover purely economic losses. See Local Joint Exec. Bd. v. Stern, 98 Nev. 409, 411, 651 P.2d 637, 638 (1982). Nevertheless, as set forth below, exceptions to the doctrine apply in certain categories of cases when strong countervailing considerations weigh in favor of imposing liability. See generally Barber Lines A/S v. M/V Donau Maru, 764 F.2d 50 (1st Cir. 1985). As indicated, for purposes of the certified question, the U.S. District Court has determined that any losses that Mandalay suffered were purely economic.5 Thus, while we typically begin analyzing economic loss doctrine matters by ascertaining whether the damages are purely economic in nature, Arco Prods. Co. v. May, 113 Nev. 1295, 1297, 948 P.2d 263, 265 (1997), we need not undertake that analysis here. Accordingly, we proceed to consider whether the particular professional negligence claims at issue here are within the economic loss doctrines scope. Our answer begins with a discussion of the economic loss doctrines purpose, and then we discuss the policy behind the doctrine. Next, we discuss the recognized exceptions to the economic loss doctrine. Finally, we apply our interpretation of the doctrine to the current case. The economic loss doctrines purpose The seminal Nevada decision concerning the economic loss doctrine is Stern, 98 Nev. 409, 651 P.2d 637. In Stern, we considered an action brought by MGM Grand Hotel employees against those involved in the hotels design and construction to recover lost wages and employment benefits after a fire damaged the hotel. The plaintiffs in Stern sued under negligent interference with contractual relations and prospective economic advantage theories, among others. In Stern, we began our analysis by pointing out that purely economic losses are recoverable in actions for tortious interference with contractual relations or prospective economic advantage when the alleged interference is intentional. Id. at 411, 651 P.2d at 638. In that regard, we rejected the minority view that permitted recovery for
5 This opinion is not intended to address any property damage-based claims Mandalay may have raised in the district court, as such claims are beyond the scope of the question addressed here.

74

Terracon Consultants v. Mandalay Resort

[125 Nev.

negligent interference with economic expectancies under limited circumstances, stating that: [W]e believe the tests that have been developed to determine who should recover for negligent interference with contract or prospective economic advantage are presently inadequate to guide trial courts to consistent, predictable, and fair results. The foreseeability of economic loss, even when modified by other factors, is a standard that sweeps too broadly in a professional or commercial context, portending liability that is socially harmful in its potential scope and uncertainty. We therefore decline to adopt the minority view allowing such recovery. Id. Thus, we focused on crafting a predictable, fair articulation of the economic loss doctrine. With that focus in mind, we reasoned that allowing the plaintiffs to sue under a negligence theory for purely economic losses, without accompanying personal injury or property damage, would have defeated the primary purpose of the economic loss doctrine: to shield a defendant from unlimited liability for all of the economic consequences of a negligent act, particularly in a commercial or professional setting, and thus to keep the risk of liability reasonably calculable. Id. at 411, 651 P.2d at 638. We expressed our conclusion about the economic loss doctrines application to negligence claims, stating that unless there is personal injury or property damage, a plaintiff may not recover in negligence for economic losses.6 Id. at 410-11, 651 P.2d at 638. Applying the rule to the facts presented in Stern, we determined that, although the plaintiffs suffered financial injury, namely, lost wages, benefits, and union dues, they had no possessory or proprietary interest in the hotel property and they suffered no accompanying personal injuries as a result of the fire that would permit them to recover in tort. Id.; see also Robins Dry Dock & Repair Co. v. Flint, 275 U.S. 303, 309 (1927) (explaining the general rule that a party cannot recover in tort for its economic losses unless that party suffers an accompanying physical injury or damage to its property). Accordingly, we concluded that the eco6 The full statement of the economic loss doctrines scope in Stern provided that absent privity of contract or an injury to person or property, a plaintiff may not recover in negligence for economic loss. 98 Nev. at 410-11, 651 P.2d at 638. Although that statement suggested that recovery was permitted for purely economic losses if the parties had a contractual arrangement, the doctrine has never been applied in that way and the law, including the cases to which Stern cites, does not support such a broad conclusion. In pointing out this misstatement in Stern, we also point out that, while privity of contract is not a proper legal criterion for allowing tort recovery for purely economic losses in and of itself, that does not mean that the presence of contractual privity between litigants universally prevents such recoveries.

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nomic loss doctrine barred the employees from recovering under a negligence theory.7 Stern, 98 Nev. at 411, 651 P.2d at 638. While the doctrine generally provides that purely economic losses are not recoverable in tort absent personal injury or property damage, courts have made exceptions to allow such recovery in certain categories of cases, such as negligent misrepresentation and professional negligence actions against attorneys, accountants, real estate professionals, and insurance brokers. See, e.g., Goodrich & Pennington v. J.R. Woolard, 120 Nev. 777, 101 P.3d 792 (2004); Hewitt v. Allen, 118 Nev. 216, 43 P.3d 345 (2002); Choi v. Chase Manhattan Mortg. Co., 63 F. Supp. 2d 874, 883-85 (N.D. Ill. 1999); 2314 Lincoln Park West Condo. v. Mann, 555 N.E.2d 346, 353 (Ill. 1990). In determining whether an exception to the economic loss doctrine should be made to allow negligence-based claims against professionals who provide design-related services in the commercial property development or improvement process, we first examine the policy considerations underlying the doctrine and then any countervailing policy reasons that weigh against applying it. Policy considerations underlying the economic loss doctrine
[Headnotes 5-7]

The economic loss doctrine draws a legal line between contract and tort liability that forbids tort compensation for certain types of foreseeable, negligently caused, financial injury. Barber Lines A/S v. M/V Donau Maru, 764 F.2d 50, 52 (1st Cir. 1985). The doctrine expresses the policy that the need for useful commercial economic activity and the desire to make injured plaintiffs whole is best balanced by allowing tort recovery only to those plaintiffs who have suffered personal injury or property damage. Public Service Ent. Group v. Philadelphia Elec., 722 F. Supp. 184, 211 (D.N.J. 1989). And it has been reasoned that such useful commercial activity could be deterred if those involved in it were subject to tort liability. Id. Instead, when economic loss occurs as a result of negligence in the context of commercial activity, contract law can be invoked to enforce the quality expectations derived from the parties agreement. See Calloway v. City of Reno, 116 Nev. 250, 260-61, 993 P.2d 1259, 1265-66 (2000) (determining, in the context of a residential property construction defect action, initiated before the pertinent portions of NRS Chapter 40 were enacted, that when a plaintiff seeks to recover its purely economic losses related to a construction
7 Stern also addressed the plaintiffs strict products liability theory of recovery, explaining that it had been widely held that recovery under such a theory was unavailable for purely economic losses. 98 Nev. at 411-12, 651 P.2d at 638. Strict products liability is not within the scope of the certified question we are answering here, and regardless, controlling precedent is clear on that point, so we do not further address it.

76

Terracon Consultants v. Mandalay Resort

[125 Nev.

defect, such harm is properly addressed by the policies underlying contract, not tort, law).8
[Headnote 8]

In addition to balancing economic activity incentives against providing compensation to negligence victims, the economic loss doctrine is driven by financial considerations. In that regard, the doctrine works to reduce the cost of tort actions, but still provides tort victims with a remedy because less expensive alternative forms of compensation, such as insurance, generally are available to a financially injured party. See Barber Lines A/S, 764 F.2d at 54-55 (pointing out that typically, a financial plaintiff is a business firm that usually will buy insurance that may compensate it for its first party loss, while other victims may sue under tort principles if they suffered some physical harm to their person or property, or under contract principles if an agreement exists). Thus, when applied to foreclose tort liability at a certain point, the economic loss doctrine dispels the fear of creating victim compensation costs that are unnecessarily high, at least from an administrative standpoint. Id. at 55. Another consideration behind the economic loss doctrine is balancing the disproportion between liability and fault. Id. To that end, cutting off tort liability at the point where only economic loss is at stake without accompanying physical injury or property damage provides . . . incentives and disincentives to engage in economic activity or to make it safer. Id. On the other hand, imposing unbounded tort liability for pure financial harm could result in incentives that are perverse, such as insurance premiums that are too expensive for the average economic actor to afford. Id. For those reasons, courts have been reluctant to impose tort liability for purely financial harm. Id. Exceptions to the economic loss doctrine
[Headnotes 9, 10]

Nevertheless, as pointed out above, exceptions to the economic loss doctrine exist in broad categories of cases in which the policy concerns about administrative costs and a disproportionate balance between liability and fault are insignificant, or other countervailing considerations weigh in favor of liability. For example, negligent misrepresentation is a special financial harm claim for which tort recovery is permitted because without such liability the law would not
8 Subsequently, we addressed whether a residential property owner could assert a negligence claim in a construction defect action brought under NRS Chapter 40 when purely economic losses were at stake and determined that, notwithstanding our decision in Calloway, such a claim could be maintained if initiated under NRS 40.640. See Olson v. Richard, 120 Nev. 240, 89 P.3d 31 (2004) (creating a statutory right to sue for losses related to construction defects in residential properties).

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exert significant financial pressures to avoid such negligence. Id. at 56. An exception also has been created for commercial fishermen, who generally are permitted to sue for economic losses as favorites of admiralty law. Id. With regard to the particular type of claim at issue here, those jurisdictions that have made exceptions to the economic loss doctrine to permit tort-based claims against design professionals when only economic loss is at issue, reason that the economic loss doctrine does not apply to bar tort claims grounded on negligently rendered services. See, e.g., McCarthy Well Co. v. St. Peter Creamery, 410 N.W.2d 312 (Minn. 1987) (concluding that under Minnesota law, the economic loss doctrine barred tort actions only in cases governed by the Uniform Commercial Code and was thus not applicable in cases where the alleged negligence involved the performance of services rather than the sale of goods). Other courts have reasoned that tort claims against design professionals where only economic losses occurred are permissible when design professionals owe duties beyond the terms of the contract. See Griffin Plumbing & Heating v. Jordan, 463 S.E.2d 85 (S.C. 1995) (holding that the economic loss doctrine did not apply to the particular negligence claim against the engineer defendant, after concluding that an engineer owes a professional duty to the plaintiff arising separate and distinct from any contractual duties between the parties or with third parties); Eastern Steel v. City of Salem, 549 S.E.2d 266 (W. Va. 2001) (concluding that a contractor may recover purely economic damages in an action alleging professional negligence on the part of a design professional because such a professional owes a duty of care to a contractor due to the special relationship that exists between the two). Still other courts allow recovery on the basis that such claims are foreseeable. See Ins. Co. of North America v. Town of Manchester, 17 F. Supp. 2d 81, 84 (D. Conn. 1998). The economic loss doctrine applies to preclude Mandalays professional negligence claim
[Headnote 11]

Guided by the doctrines purposeto shield [defendants] from unlimited liability for all of the economic consequences of a negligent act, particularly in a commercial or professional setting, and thus to keep the risk of liability reasonably calculable, Local Joint. Exec. Bd. v. Stern, 98 Nev. 409, 411, 651 P.2d 637, 638 (1982) and, after contemplating the competing policy reasons set forth above, we conclude that the economic loss doctrine should apply to bar the professional negligence claim at issue here. In the context of engineers and architects, the bar created by the economic loss doctrine applies to commercial activity for which contract law is better suited to resolve professional negligence claims. This legal line between contract and tort liability promotes

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Terracon Consultants v. Mandalay Resort

[125 Nev.

useful commercial economic activity, while still allowing tort recovery when personal injury or property damage are present. Further, as in this case, contracting parties often address the issue of economic losses in contract provisions. Based on the same policy considerations that guide our decision here, other jurisdictions have reached the same conclusion. See, e.g., Holden Farms, Inc. v. Hog Slat Inc., 347 F.3d 1055 (8th Cir. 2003) (determining that when a financial injury reflects disappointed expectations, negligent design claims are barred by the economic loss doctrine because contract law is better suited to the nature of the loss); Maine Rubber Intern. v. Environ. Management Group, 298 F. Supp. 2d 133 (D. Me. 2004) (concluding that negligent design claims present a breach of express or implied warranty issue, properly addressed by contract law); BRW, Inc. v. Dufficy & Sons, Inc., 99 P.3d 66 (Colo. 2004) (holding that the economic loss doctrine barred the plaintiffs tort claim against an engineering firm because the parties contracts defined the engineering firms duties, and pointing out that policy considerations weighed against permitting tort and contract remedies to overlap, particularly in the construction industry, where it is important to maintain a precise allocation of risk secured by contract); City Exp., Inc. v. Express Partners, 959 P.2d 836 (Haw. 1998) (applying the economic loss doctrine to preclude negligence claims against design professionals based in part on the policy of promoting certainty and predictability in allocating risk so that future business activity is not impeded); see also, e.g., Firemans Fund Ins. v. SEC Donohue, Inc., 679 N.E.2d 1197 (Ill. 1997); Prendiville v. Contemporary Homes, Inc., 83 P.3d 1257 (Kan. Ct. App. 2004); Lempke v. Dagenais, 547 A.2d 290 (N.H. 1988); Floor Craft v. Parma Com. Gen. Hosp., 560 N.E.2d 206 (Ohio 1990); Goose Creek Sch. Dist. v. Jarrars Plumbing, 74 S.W.3d 486 (Tex. App. 2002); American Towers Owners v. CCI Mechanical, 930 P.2d 1182 (Utah 1996); Carlson v. Sharp, 994 P.2d 851 (Wash. Ct. App. 1999); 1325 North Van Buren v. T-3 Group, 716 N.W.2d 822 (Wis. 2006) (all forbidding negligence claims against design professionals when only economic loss was at stake).
[Headnotes 12, 13]

We perceive no significant policy distinction that would drive us to permit tort-based claims to recover economic losses against design professionals, such as architects and engineers, who provided their professional services in the commercial property development and improvement process, when we have concluded that such claims are barred under the economic loss doctrine if brought against contractors and subcontractors involved in physically constructing improvements to real property. See Calloway v. City of Reno, 116 Nev.

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250, 993 P.2d 1259 (2000).9 The work provided by construction contractors or the services rendered by design professionals in the commercial building process are both integral to the building process and impact the quality of building projects. Therefore, when the quality is deemed defective, resulting in economic loss, remedies are properly addressed through contract law. See id.10 In that regard, we point out that economic losses for which no tort action will lie generally involve a buyers disappointed economic expectations. Sensenbrenner v. Rust, Orling & Neale, 374 S.E.2d 55, 56-58 (Va. 1988). In the commercial property development and improvement process, design professionals duties typically are prescribed by the parties contract, and therefore, any duty breached arises from the contractual relationship only, which necessitates an analysis of the damages which were within the contemplation of the parties when framing their agreement. Id. at 58.
[Headnote 14]

While the loss alleged here arguably was foreseeable, we do not read the rule as necessarily being dependent on foreseeability notions. See Barber Lines A/S v. M/V Donau Maru, 764 F.2d 50, 52 (1st Cir. 1985). Instead, the economic loss doctrine cuts off tort liability when no personal injury or property damage occurred, with traditionally recognized exceptions for certain classes of claims. Id. at 55-56. Negligence claims against design professionals do not fall within those traditional exceptions, and we decline to make an exception here.
[Headnote 15]

In this case, for purposes of the certified question, Mandalay suffered only economic loss without any attendant personal injury or property damage, and therefore, the economic loss doctrine bars Mandalay from proceeding with their negligence-based claims against Terracon. Thus, adhering to our general policy of applying
9 We again point out that Calloway was not decided in the context of NRS Chapter 40, as the underlying action was initiated before the effective date of the pertinent portions of that chapter, and, at any rate, the discrepancies between Calloway and NRS Chapter 40 were resolved in Olson v. Richard, 120 Nev. 240, 89 P.3d 31 (2004). Regardless, our decision today in no way implicates NRS Chapter 40, as the property at issue here is not residential. 10 In Calloway, we cited with approval Casa Clara v. Charley Toppino and Sons, 620 So. 2d 1244 (Fla. 1993), in which the Florida Supreme Court determined that the economic loss doctrine applied to foreclose tort-based claims in construction defect cases brought against construction contractors. 116 Nev. at 261, 993 P.2d at 1266. Notwithstanding Casa Clara, the Florida Supreme Court later refused to apply the economic loss doctrine to a negligence claim in a construction defect action brought against a design professional, after reasoning that Florida law allowed recovery of pure economic losses in the context of

80

Mack v. Estate of Mack

[125 Nev.

the economic loss doctrine in a predictable and fair way, we answer the federal courts question affirmatively. CONCLUSION
[Headnote 16]

We conclude that, in a commercial property construction defect action in which the plaintiffs seek to recover purely economic losses through negligence-based claims, the economic loss doctrine applies to bar such claims against design professionals who have provided professional services in the commercial property development or improvement process. Accordingly, we answer the U.S. District Courts certified question in the affirmative. HARDESTY, C.J., PARRAGUIRRE, DOUGLAS, CHERRY, SAITTA, and PICKERING, JJ., concur.

DARREN ROY MACK, APPELLANT, v. ESTATE OF CHARLA MACK, RESPONDENT.

No. 49754 March 26, 2009 206 P.3d 98

Appeal from a district courts nunc pro tunc order regarding the division of marital assets. Second Judicial District Court, Washoe County; David A. Huff, Judge. Husband who shot and killed wife during pending divorce proceedings sought review of nunc pro tunc order of the district court memorializing an oral order entered by the former presiding judge who was also shot by husband. The supreme court, CHERRY, J., held that: (1) supreme court could take judicial notice of events that occurred in husbands criminal proceedings; (2) trial court acted appropriately in issuing order nunc pro tunc as to render the record truthful as to the acts done or intended to be done by the prior court; (3) substantial evidence existed to establish a meeting of the minds between the parties, such that trial court could enter nunc pro tunc order acknowledging settlement; (4) third-party waivers as to various claims against marital estate were not an unmet condition precedent to divorce settlement agreement between parties; (5) trial court isprofessional negligence claims of all kinds, including claims brought by those who were not a party to the original professional services contract. Moransais v. Heathman, 744 So. 2d 973 (Fla. 1999). Given the policy considerations that support restricting liability for certain types of foreseeable, negligently caused financial injury, we cannot agree with the Florida courts holding in Moransais, especially since the claims against the design professional in Moransais involved statutory negligence and negligent misrepresentation, issues that are not present here.

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sued a valid qualified domestic relations order (QDRO) during wifes lifetime, such that husbands pension plan was subject to distribution under ERISA; and (6) states slayer statute prohibiting convicted murderers from benefiting from their wrongful acts was not preempted by ERISA as to prohibit distribution of husbands pension plan. Affirmed. [Rehearing denied May 19, 2009] Law Offices of Mark Wray and Julia Vohl Islas and Mark Wray, Reno, for Appellant. Kreitlein & Walker, Ltd., and Egan K. Walker, Reno, for Respondent.
1. EVIDENCE. In divorce action in which husband shot wife and presiding judge during pending proceedings, killing wife and injuring judge, the supreme court took judicial notice of events that occurred in husbands criminal proceedings, namely his conviction; deceased wifes estate acted as substitute party, and absent facts of criminal trial, husband stood to gain financially from his own wrongdoing in taking the life of another. NRS 47.130(2)(b), 47.150(1). 2. APPEAL AND ERROR. On appeal, a court can only consider those matters that are contained in the record made by the court below and the necessary inferences that can be drawn therefrom. 3. APPEAL AND ERROR. Supreme court will generally not consider on appeal statements made by counsel portraying what purportedly occurred below. 4. EVIDENCE. Supreme court may take judicial notice of facts generally known or capable of verification from a reliable source, whether requested to or not; further, the court may take judicial notice of facts that are capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned, so that the fact is not subject to reasonable dispute. NRS 47.130(2)(b), 47.150(1). 5. EVIDENCE. As a general rule, the supreme court will not take judicial notice of records in another and different case, even though the cases are connected; however, this rule is flexible in its application and, under some circumstances, the court will invoke judicial notice to take cognizance of the record in another case. NRS 47.130(2)(b), 47.150(1). 6. EVIDENCE. To determine if a particular circumstance falls within the exception allowing supreme court to invoke judicial notice to take cognizance of the record in another case, the court examines the closeness of the relationship between the two cases. 7. EVIDENCE. Supreme court will take judicial notice of other state court and administrative proceedings when a valid reason presents itself. 8. DIVORCE. Trial court assigned to dissolution action after husband shot wife and presiding judge during pending proceedings, killing wife and injuring judge,

82

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[125 Nev.

9.

10. 11.

12. 13.

14.

15.

16.

acted appropriately in issuing order nunc pro tunc as to render the record truthful as to the acts done or intended to be done by the prior court, without changing the actual judgment rendered; trial court did not change the divorce decree, but instead used the nunc pro tunc order to relate back to the hearings in which the divorce decree was adjudicated and entered orally on the record by the presiding judge, prior to the shooting incident. APPEAL AND ERROR; MOTIONS. The grant or denial of an order nunc pro tunc is within the trial courts discretion and will not be disturbed on appeal absent an abuse of that discretion. MOTIONS. Purpose of an order nunc pro tunc is to make a record speak the truth concerning acts done. DIVORCE. Based on husbands clear assent to the terms of the divorce settlement agreement, as evinced in the transcript of two hearings, substantial evidence existed to establish a meeting of the minds between the parties, such that trial court could enter nunc pro tunc order acknowledging the settlement, in divorce action in which husband shot wife and presiding judge during pending proceedings, killing wife and injuring judge. APPEAL AND ERROR. Contract interpretation is subject to a de novo standard of review. APPEAL AND ERROR. The question of whether a contract exists is one of fact, requiring supreme court to defer to the district courts findings unless they are clearly erroneous or not based on substantial evidence. HUSBAND AND WIFE. A settlement agreement in a divorce action is governed by principles of contract law; as such, a settlement agreement will not be an enforceable contract unless there is an offer and acceptance, meeting of the minds, and consideration. DIVORCE; HUSBAND AND WIFE. Third-party waivers as to various claims against marital estate were not an unmet condition precedent to enforcement of divorce settlement agreement between parties, and thus, fact that third parties had failed to sign waivers prior to shooting incident in which husband shot wife and presiding judge, killing wife and injuring judge, did not preclude subsequent entry of nunc pro tunc order memorializing presiding judges oral judgment adopting agreement; husband acquiesced to terms of settlement on record at two hearings prior to shooting incident, meaning trial court did not alter terms of settlement agreement but merely accepted terms that had already been approved of by both parties. DIVORCE. Trial court issued a valid qualified domestic relations order (QDRO) during wifes lifetime, prior to shooting incident in which husband shot wife and presiding judge during pending divorce proceedings, killing wife and injuring judge, such that husbands pension plan was subject to equitable distribution, by wifes estate, upon entry of judgment nunc pro tunc, in accordance with Employee Retirement Income Security Act (ERISA); presiding judge had issued an oral order prior to shooting incident, creating a recognized existence in wife and the right to receive a portion of husbands pension plan. Employee Retirement Income Security Act of 1974, 206(d)(3)(B)(i)(I), 29 U.S.C. 1056(d)(3)(B)(i)(I).

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17. DIVORCE. Whether an order constitutes a valid qualified domestic relations order (QDRO) under Employee Retirement Income Security Act (ERISA) is a question of law that is reviewed de novo. 18. LABOR AND EMPLOYMENT; STATES. Nevadas slayer statute prohibiting convicted murderers from benefiting from their wrongful acts was not preempted by Employee Retirement Income Security Act (ERISA), and thus, husband who shot wife and presiding judge during pending divorce proceedings, killing wife and injuring judge, could not use ERISA rules and regulations as a way of avoiding payment to wifes estate of lump-sum payment from his ERISA pension plan, as reflected in trial courts oral judgment, prior to shooting incident, and memorialized in subsequent nunc pro tunc order; application of slayer statute could not affect determination of eligibility for benefits or affect method of calculating benefits due. NRS 41B.200. 19. STATES. Whether a state law is preempted by a federal statute is a question of Congressional intent.

Before the Court EN BANC.1 OPINION By the Court, CHERRY, J.: In this appeal we address four issues. First, we will examine whether we may take judicial notice of the outcome of proceedings in which one spouse was adjudged to have murdered the other. Next, we will discuss whether a nunc pro tunc order 2 was appropriate in this case when one spouse died before the oral record was memorialized in an order, and we examine whether the procedure of entering the oral order nunc pro tunc was appropriate and the merits of the underlying order. We next address whether the district court issued a Qualified Domestic Relations Order (QDRO) during Charlas lifetime. Last, we will discuss the effect of the Employee Retirement Income Security Act of 1974 (ERISA) on the district court order being appealed, namely, whether the order is a QRDO under ERISA and whether ERISA preempts application of Nevadas slayer statute. We conclude that: (1) we may take judicial notice of appellant Darren Mack (Darren) being adjudged his wife Charla Macks (Charla) killer, (2) the nunc pro tunc order was proper to memorialize Judge Wellers oral orders, (3) the district court properly issued the QDRO during Charlas lifetime, and (4) Nevadas slayer statute
1 THE HONORABLE JAMES HARDESTY, Chief Justice, voluntarily recused himself from participation in the decision of this matter. THE HONORABLE KRISTINA PICKERING, Justice, did not participate in the decision of this matter. 2 A nunc pro tunc order is an order that is entered retroactive to a certain date.

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[125 Nev.

is not preempted by ERISA. As such, we affirm the district courts order. FACTS AND PROCEDURAL HISTORY This is an appeal of a district courts nunc pro tunc order memorializing an oral order entered by the former presiding judge, Judge Weller, in the divorce of Charla and Darren. Charla and Darren were married on May 13, 1995, in Lake Tahoe, California. Their union produced one child, Erika Nicole Mack, born on December 22, 1997. Charla filed the initial divorce complaint on February 8, 2005. Darren filed an answer and counterclaim on March 23, 2005. One of the main areas of contention between Charla and Darren was the distribution of property upon their divorce. On January 9, 2006, the district court held a hearing on the issue of property settlement. During the hearing, the district court recited several oral orders. In part, the district court mandated that within 48 hours of the agreement being reduced to writing, Darren must pay Charla $480,000; of that amount, $50,000 was made available to be used for whatever purpose Charla desired, with the balance going towards the purchase of a vehicle and a home for herself. The district court also mandated that a QDRO was to be executed, which would result in Charla receiving spousal support from Darrens pension fund in the amount of $10,000 per month for a period of five years. The court also entered several orders regarding certain other issues. The only issue worthy of note is as follows: releases would be signed between and among Charla, Darrens mother Joan Mack (Joan), and the entities owned by Darren and JoanPalace, Mack & Mack I, and Mack & Mack IIwaiving their respective rights to sue. At the conclusion of the courts oral orders, Darren stated that he needed to take the agreement to the people Im borrowing it from and I can get it within forty-eight hours. I dont have any money. The court approved and asked that Charlas attorney, Shawn Meador, write up the agreement by January 20, 2006, so that the parties could sign it. Thereafter, the court paused the proceedings to ensure that each spouse had the opportunity to discuss the terms of the agreement with their counsel. Finally, the court canvassed the parties as to their understanding of the courts order. Because the issue of understanding is at the heart of this appeal, we include the entire colloquy: THE COURT: All right. Mr. Mack, have you had an opportunity to discuss this property agreement that weve been talking about here on the record with your attorney to the full extent that you would like?

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MR. MACK: Yes. THE COURT: Do you have any remaining questions? MR. MACK: I dont, your Honor. THE COURT: Is there anything you wish to add? MR. MACK: Huh-uh. No, sir. THE COURT: Is there anything you wish to subtract? MR. MACK: No. THE COURT: Do you agree to be bound by this agreement? MR. MACK: I do. THE COURT: Maam? MRS. MACK: Yes. THE COURT: Mrs. Mack, have you heard the entire agreement spoken on the record? MRS. MACK: I have. THE COURT: Do you understand it? MRS. MACK: Yes, I do. THE COURT: Have you had an opportunity to discuss it with your attorney to the full extent that you would like? MRS. MACK: Yes, I have. THE COURT: Do you have any remaining questions? MRS. MACK: Let me just check. Let me just check, look at this. (Reading.) No. THE COURT: Is there anything you would like to add? MRS. MACK: No. THE COURT: Is there anything you would like to take away? MRS. MACK: No. THE COURT: Do you agree to be bound? MRS. MACK: Yes. THE COURT: Okay. Next the court ensured that counsel had a clear understanding of the agreement and adequately informed their clients about the agreement. THE COURT: . . . Counsel for Mr. Mack, have you heard the agreement? MR. SHAW: I have, your Honor. THE COURT: Okay. Do you think it is in your clients best interests to enter into this agreement? MR. SHAW: Yes.

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THE COURT: Okay. Counsel for Mrs. Mack, have you heard the entire agreement? MR. MEADOR: I have, your Honor. THE COURT: Do you think its in your clients best interests to enter into this agreement? MR. MEADOR: Yes, I do. THE COURT: Then this agreement is accepted by the Court and shall be the order of the Court and shall be binding on the parties. Following the hearing, each party submitted a proposed order, and the proposed orders were inconsistent with each other. Charla filed a formal objection on the record in order to preserve her objections to Darrens proposed order. Among other issues, Charla objected to Darrens post-hearing contention that he did not have authority to bind Palace or Joan to a release agreement; Charla contended that if Darren did not have the authority to make such an agreement at the time, he should not have indicated he did. In turn, Darrens attorney, Jan Shaw, filed an affidavit in response to Charlas formal objection. In his affidavit, Shaw conceded that the parties submitted different versions of a written form of the agreement to the court and asserted that the problem was whether Joan, Palace, and the Mack & Mack entities would or would not sign waivers and releases of all claims against Charla, with Charla waiving the same. Moreover, Shaw attested that, [t]he parties have done all that they are required to do, and your Affiant believes both assume this case is settled. Certainly it is the belief of [Darren] that this case is settled; that there is a binding agreement between the parties that he is to honor. Finally, Shaw contended that, all the Plaintiff [Charla] had to do was get appropriate releases and waivers to counsel for the non-parties, do so promptly, and determine whether or not they were going to be executed . . . [Charlas contentions have] nothing to do with the Defendant [Darren] who wanted this case settled, who believes it is settled, and who is prepared to comply with the settlement. Thereafter, Charla filed an emergency motion for order to show cause or, in the alternative, to enforce the settlement agreement, motion for order shortening time to respond, and a motion for an award of attorney fees and costs. In her motion, Charla argued that Darren was carrying out the exact threat he previously posed to her, which was to create delay and problems post-settlement and to force Charla to spend as much as possible out of the settlement awards on attorney fees and costs. Further, Charla argued that there was no support in the record that the responsibility for procuring waivers from Joan, Palace, and the Mack & Mack entities was Charlas obligation, although she diligently pursued obtaining the waivers.

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Darren responded via another affidavit filed by Shaw on February 15, 2006. Darren contended that the proposed written orders of both parties clearly stated that the waivers are an issue between Charla and the third parties of Joan, Palace, and the Mack entities, without Darrens involvement. Thereafter, several motions were filed by both parties. Charla filed a notice of acceptance of settlement and request for entry of order. In her motion, Charla asked that the court finalize the settlement, with Charla agreeing to waive the requirement that Joan and Palace dismiss their lawsuits 3 and, in turn, Charla would reserve any claims or defenses she may have against Joan and Palace because they seemed unwilling to enter into mutual waivers and releases. However, Charla also offered that if Joan and Palace were willing to sign the releases, she would honor that part of the agreement and in turn execute waivers. Darren filed an objection to Charlas request for entry of order on the basis that: (1) the offer of settlement was an earlier version of a settlement offer that was no longer in Darrens best interest; (2) the motion did not comply with the Nevada Rules of Civil Procedure, the District Court Rules, or the Local Rules of Practice for the Second Judicial District Court as to motion pleading; and (3) the court was without jurisdiction to issue the requested relief based on caselaw. Charla thereafter replied, refuting Darrens claims. The district court held a hearing regarding the issues hindering settlement on May 24, 2006. At this hearing, Judge Weller reaffirmed his oral order of January 9, 2006. As to the issue regarding settlement of claims between Charla and Joan, Palace, and the Mack & Mack entities, the court stated that it read the settlement to be as follows: That theres a requirement that Mrs. Mack, the mother, the grandmother, drop [the] pending lawsuit, shes testified twice today under oath her willingness to do that. I also read that language to say that Mr. and Mrs. Mack are granting each other as part [of] the settlement a full and final settlement of all their financial rights and obligations arising out of their relationship, marital or otherwise. I also read that language as saying that Mrs. Mack, the litigant, Charla Mack, will not initiate any lawsuit against Mr. Macks mother or the business, which I understand to be Palace. And Im willing to consider that more broadly if the parties agree that that includes Mack & Mack I, I dont think I knew at the time [of] the settlement of the existence of Mack &
3 The record does not include any documents regarding lawsuits filed by Joan or Palace against Charla. However, based on this motion, it appears that Charla had entered into some agreement whereby Joan and Palace agreed to drop the lawsuits that they had filed against Charla.

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Mack I, I dont recall it specifically, or Mack & Mack II, or the mother alluded to the southern properties that might be in another entity. But what I understand that language on Page 13 to say is that Mrs. Mack, Charla Mack, is not going to initiate a lawsuit against anyone involved in Palace or Mr. Mack or anyone. I dont read it as saying that she cant respond to a lawsuit or counter-claim if she is sued, but I do read it as saying that she is not going to initiate a lawsuit. In relation to Mr. Macks obligation, I very specifically remember Mr. Mack leaving this courtroom in the negotiation, probably before we were on the record, we were talking about the deal that we had reached and put on the record, and he went outside to find out if it was okay to enter into the agreement, and he came back and he entered into the agreement. I read the language on Page 13 of the transcript to say that Mr. Mack will use his best effort to ensure that the business and his mother will not sue Charla Mack. They were the only parties here, and I read that language to talk about the agreement between the only parties who were here. And I think that that also, best efforts is one way of expressing it, another way of expressing it is in every contract in Nevada is an implied covenant of good faith and fair dealing. And I read that language to require Mr. Mack to in good faith and in fair dealing to do everything he could to keep the business and his mother from initiating a lawsuit against Charla Mack. I also read that pagethe language on that page as saying that by saying that it resolves all claims among the business, the mother, Mr. Mack and Mrs. Mack, I read that as meaning to the extent of the parties who were in the courtroom and made that agreement on the record have within their control, that it didnt obligate them to do anything that was impossible, and it didnt obligate anybody who wasnt part of the agreement to do anything at all. Although, I took what Mr. Mack said in the courtroom to be his representation on behalf of those other parties, they werent party to the agreement, and the only parties who were bound were Mr. and Mrs. Mack, and it obligated them to the extent thatspecifically Mr. Mack to the extent that he was able to obtain the cooperation to his mother and the business. I also find that the language for the release was for her benefit, and I guess this is redundant because this is part of your argument to Mr. Meador that I told you Id adopt. I think the best thing I can do for you is to set a hearing date on the custody issues and get them over with as quickly as possible. As I stated to you earlier, if you dont like what I do on custody its easy to turn that around.

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The court also resolved another issue at Darrens requestto know Charlas physical address on the basis that he should know where Erika was living. Charla argued in part that she should not have to reveal her address to Darren because [Darren] gets so angry and so worked up that I just dont feel comfortable right now of him knowing personally where I live. The court offered Charla the options of either obtaining a temporary restraining order or petitioning the secretary of states office to obtain a fictitious address for all court proceedings. At the end of the hearing, Charla disclosed her address to Darren on the record and the court ordered that neither party, nor an agent of either party, was to be within 100 yards of the other except during custody exchanges, nor would there be any interference with the other party electronically via telephone or e-mail. On June 12, 2006, Charla was killed, and Judge Weller was shot.4 Darren was later convicted of both Charlas murder and the attempted murder of Judge Weller. On September 19, 2006, the district court issued an order allowing the Estate of Charla Mack (the Estate) to substitute for Charla in the remainder of the divorce proceedings. Thereafter, on December 5, 2006, the Estate filed a motion for entry of an order nunc pro tunc, seeking to have the oral orders entered by Judge Weller at the hearings on January 9, 2006, and May 24, 2006, codified in a written order. The Estate made three main arguments in support of its motion. First, the Estate argued that Charla had a property interest in Darrens retirement benefits and business holdings because they were community assets, therefore, belonging in half to her per statutory authority. Second, the Estate argued that it had a valid claim to her property because an action for divorce survives the death of a party insofar as property distribution issues remain following the death. Finally, the Estate argued that the settlement agreement agreed upon on January 9, 2006, was valid and enforceable as ruled by Judge Weller, and therefore a nunc pro tunc order must be memorialized. Darren filed an opposition to the motion for entry of an order nunc pro tunc along with a motion to dismiss. Darren argued that a nunc pro tunc order was not appropriate because: (1) the district court did not have jurisdiction to force a settlement on terms to which Darren never agreed; (2) there was no agreement because there was no meeting of the minds on a material term (specifically, the release agreements); (3) even if there was an enforceable settlement agreement, one of the terms of the agreement included settlement with third parties, and that specific condition precedent never occurred; (4) the district court lacked the authority to alter the settlement by eliminating the condition regarding resolution of third4 We note that Judge Huff assumed responsibility for this case after these events.

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party claims; (5) the district court had no jurisdiction to issue an order affecting Darrens ERISA-qualified pension plan; and (6) Darren objected to the admissibility of evidence concerning alleged community property interests. As to his motion to dismiss, Darren argued that the divorce action must be dismissed upon the death of one of the parties, inclusive of all property rights as they are incidental to a final decree. The Estate filed a reply to Darrens opposition along with an opposition to Darrens motion to dismiss. In its opposition to the motion to dismiss, the Estate argued that Nevada has long recognized that although the divorce decree becomes a nullity upon a partys death, property issues do not abate at death, contrary to Darrens contentions. Additionally, the Estate noted that there was a decision on the merits of this case, and the decision was deemed enforceable, and therefore a nunc pro tunc is appropriate. The Estate made the following reply arguments as to the pending motion for an order nunc pro tunc: (1) an order nunc pro tunc must be entered in this case to reflect the decision rendered by the court; (2) the enforceability of the settlement agreement had already been adjudicated at the May 24, 2006, hearing and need not be addressed; and (3) the district court had jurisdiction to issue orders affecting ERISAqualified pension plans. Thereafter the district court entered an order nunc pro tunc. In its order, the district court relied on our opinion in Finley v. Finley, 65 Nev. 113, 118, 189 P.2d 334, 336 (1948), overruled on other grounds by Day v. Day, 80 Nev. 386, 395 P.2d 321 (1964), for authority to enter an order nunc pro tunc to render the record truthful as to the acts done or intended to be done by the district court without changing the actual judgment rendered. Further, the district court found that, based on the January 9, and May 24, 2006, hearings, the facts were clear that Judge Weller made a decision on the facts of the case concerning the property settlement and would have signed an order immediately had a written order been available. Some of the facts that the district court found persuasive in its finding that a factual basis for a nunc pro tunc order existed are: (1) Judge Wellers canvass of the parties and the parties subsequent agreement to the settlement, (2) Judge Wellers statement on the record that the settlement shall be the order of the court, (3) Judge Wellers assignment to Charlas attorney at both hearings to draft the order for his signature and filing, and (4) Judge Wellers statement on the record that if the parties were unhappy with his ruling they were free to appeal to the Nevada Supreme Court. Based on these factual findings and pursuant to Finley, the district court found that an actual order was entered by the court, and therefore it granted the Estates motion and entered an order nunc pro tunc. Darren has timely appealed.

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DISCUSSION Darren raises several issues on appeal. Because of the applicability to the other issues raised by Darren, we begin by considering whether we may take judicial notice of the fact that Darren was adjudged Charlas killer. We will then address whether the entry of a nunc pro tunc order was proper in this case and whether the merits of that order were valid. Next, we will address whether the district court properly issued a valid QDRO. Last, we will address the applicability of Nevadas slayer statute to ERISA. Judicial notice
[Headnote 1]

Darren argues that events that occurred in his criminal proceedings and events that occurred after the filing of this appeal are not matters of the record in this appeal. As such, he contends that this court may not consider these matters.
[Headnotes 2, 3]

On appeal, a court can only consider those matters that are contained in the record made by the court below and the necessary inferences that can be drawn therefrom. Toigo v. Toigo, 109 Nev. 350, 350, 849 P.2d 259, 259 (1993) (citing Lindauer v. Allen, 85 Nev. 430, 433, 456 P.2d 851, 853 (1969)). We will generally not consider on appeal statements made by counsel portraying what purportedly occurred below. Wichinsky v. Mosa, 109 Nev. 84, 87, 847 P.2d 727, 729 (1993) (citing Lindauer, 85 Nev. at 433, 456 P.2d at 852-53).
[Headnote 4]

However, we may take judicial notice of facts generally known or capable of verification from a reliable source, whether we are requested to or not. NRS 47.150(1). Further, we may take judicial notice of facts that are [c]apable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned, so that the fact is not subject to reasonable dispute. See NRS 47.130(2)(b).
[Headnote 5]

As a general rule, we will not take judicial notice of records in another and different case, even though the cases are connected. Occhiuto v. Occhiuto, 97 Nev. 143, 145, 625 P.2d 568, 569 (1981) (citing Giannopulos v. Chachas, 50 Nev. 269, 270, 257 P. 618, 618 (1927)). However, this rule is flexible in its application and, under some circumstances, we will invoke judicial notice to take cognizance of the record in another case. Id.
[Headnotes 6, 7]

To determine if a particular circumstance falls within the exception, we examine the closeness of the relationship between the two

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cases. Id. We have taken judicial notice of other state court and administrative proceedings when a valid reason presented itself. See, e.g., id.; Cannon v. Taylor, 88 Nev. 89, 92, 493 P.2d 1313, 131415 (1972); State Farm Mut. v. Commr of Ins., 114 Nev. 535, 539, 958 P.2d 733, 735 (1998). Because Darrens murder trial occurred after the nunc pro tunc order was issued, the record on appeal is silent regarding the person responsible for Charlas death. As such, Darren contends that we cannot take judicial notice of the outcome of his murder trial for Charlas death and its application to this appeal as it relates to the ERISA pension plan. We hold that judicial notice may be taken of the outcome of a murder trial in which the deceased stood to gain financially from the killer because of the close relationship between the murder trial and the benefits to which the deceaseds estate is entitled. This relationship is close and serious enough that the legislature of almost every state has addressed it in state slayer statutes, which prohibit a persons financial gain from their own wrongdoing in taking the life of another.5 Based on this close relationship, we conclude that these particular circumstances fall within the exception and that we may take judicial notice of the outcome of Darrens murder trial for Charlas death because it falls within the exception to the general rule of judicial notice, as Charla stood to gain financially from Darrens ERISA pension plan. The nunc pro tunc order
[Headnote 8]

Darren argues that the district courts nunc pro tunc order should not be upheld because the entering of such an order was not appropriate and that the district courts underlying decision was invalid. We disagree.
[Headnote 9]

The grant or denial of an order nunc pro tunc is within the trial courts discretion and will not be disturbed on appeal absent an abuse of that discretion. Allen v. Allen, 70 Nev. 412, 415, 270 P.2d 671, 672 (1954). Entering the nunc pro tunc order was appropriate Darren argues that the nunc pro tunc order entered by the district court does not meet the standard for issuance of such an order because the Estate did not allege a clerical error, nor did it seek to amend a prior judgment. Rather, the Estate sought to create a written order where none existed before and to modify that order from that which was previously part of the record. Specifically, Darren
5

Nevadas slayer statute will be discussed later in this opinion.

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contends that because Judge Weller did not enter a written order from the January 9, 2006, hearing, there was no order for the district court to amend nunc pro tunc.
[Headnote 10]

The purpose of an order nunc pro tunc is to make a record speak the truth concerning acts done. Finley v. Finley, 65 Nev. 113, 118, 189 P.2d 334, 336 (1948) (citing Talbot v. Mack, 41 Nev. 245, 255, 169 P. 25, 27 (1917)), overruled on other grounds by Day v. Day, 80 Nev. 386, 395 P.2d 321 (1964). Further, we have held that an order nunc pro tunc cannot be made use of nor resorted to, to supply omitted action. Power to order the entry of judgment nunc pro tunc cannot be used for the purpose of correcting judicial errors or omissions of the court. Nor can this procedure be employed to change the judgment actually rendered to one which the court neither rendered nor intended to render. Finley, 65 Nev. at 118, 189 P.2d at 336 (citing Wright v. Curry, 187 S.W.2d 880, 881 (Ark. 1945); Schroeder v. Superior Court, 239 P. 65, 66 (Cal. Ct. App. 1925)). The nunc pro tunc order entered by the district court was used to memorialize the oral records from the hearings held on January 9, 2006, and May 24, 2006. As such, and because the nunc pro tunc order was not used for any of the purposes we previously disapproved of in Finley, we conclude that the nunc pro tunc order meets the standard for issuing such an order. We further conclude that the district court did not abuse its discretion in entering this order because it was not used to supply omitted action, nor to correct judicial errors or an omission of the court or to change the judgment actually rendered. As noted, the nunc pro tunc order here was used to memorialize the oral orders made on the record by Judge Weller. Darren also contends that the case relied upon by the district court, Koester v. Estate of Koester, 101 Nev. 68, 693 P.2d 569 (1985), is distinguishable from this case. Instead, Darren contends that this case should be adjudicated in the same manner as McClintock v. McClintock, 122 Nev. 842, 138 P.3d 513 (2006). In Koester, 101 Nev. at 70-71, 693 P.2d at 571, the district court entered a nunc pro tunc order memorializing a decree of divorce, which was not filed before Mrs. Koesters death. We held that, because Mrs. Koester had died after the district court entered its decision, the district court had the power to enter the judgment nunc pro tunc after Mrs. Koesters death. Id. at 71-72, 693 P.2d at 572. Further, we also adopted the general principle regarding relating back a final divorce decree following the death of one party. Id. at 73-74, 693 P.2d at 572. Specifically, we stated that a district court could properly relate back a divorce decree to a point in time before

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the death of one of the parties [i]f the facts justifying the entry of a decree were adjudicated during the lifetime of the parties to a divorce action, so that a decree was rendered or could or should have been rendered thereon immediately, but for some reason was not entered as such on the judgment record . . . . Id. at 73, 693 P.2d at 572. In McClintock, 122 Nev. at 843, 138 P.3d at 514, we held that a district court could not enter a nunc pro tunc order to change the date of a divorce to a date prior to the date the district court entered its decision. We thus concluded that [t]he district court abused its discretion by moving the date of the . . . divorce decree, nunc pro tunc, to a date before the district courts adjudication of the matter. Id. at 846, 138 P.3d at 516. Darren argues that Koester is distinguishable because the nunc pro tunc order involved in that case served to validate a decree of divorce that was voidable based solely on the date entered on the original order following Mrs. Koesters death. Darren argues that the district court abused its discretion and violated our holding in McClintock, 122 Nev. at 843, 138 P.3d at 514, by backdating the nunc pro tunc order. Based on our reading of these two cases, we disagree with Darrens contentions because the district court did not change the divorce decree. It was not the case here, as it was in McClintock, that the district court changed the date the divorce decree was entered. As such, we conclude that, as in Koester, the district court did not abuse its discretion because the district court used the nunc pro tunc order to relate back to the hearings held on January 9, 2006, and May 24, 2006, where the divorce decree was adjudicated and entered orally on the record by Judge Weller. The merits of the order were valid
[Headnote 11]

Darren contends that even if the nunc pro tunc procedure was proper, the order constituted an abuse of discretion because the district court did not apply the law to the facts shown by the record in the divorce case. Darren specifically argues that the merits of the order entered by the district court were invalid because there was no meeting of the minds to support the settlement agreement and the condition precedent of obtaining waivers was not met. First, Darren argues that the underlying decision of the district court to grant the nunc pro tunc order was an abuse of discretion because the settlement agreement memorialized in the order was invalid and not enforceable. Darren specifically contends that the settlement agreement was invalid because there was no meeting of the minds as to a material term of the agreement. That is, the execution of release agreements between and amongst Charla, Joan, Palace,

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and the Mack & Mack entities did not lead to a meeting of the minds.
[Headnotes 12, 13]

Contract interpretation is subject to a de novo standard of review. May v. Anderson, 121 Nev. 668, 672, 119 P.3d 1254, 1257 (2005) (citing Diaz v. Ferne, 120 Nev. 70, 73, 84 P.3d 664, 665-66 (2004); Grand Hotel Gift Shop v. Granite St. Ins., 108 Nev. 811, 815, 839 P.2d 599, 602 (1992)). However, the question of whether a contract exists is one of fact, requiring this court to defer to the district courts findings unless they are clearly erroneous or not based on substantial evidence. May, 121 Nev. at 672-73, 119 P.3d at 1257 (citing James Hardie Gypsum, Inc. v. Inquipco, 112 Nev. 1397, 1401, 929 P.2d 903, 906 (1996), overruled on other grounds by Sandy Valley Assocs. v. Sky Ranch Estates, 117 Nev. 948, 955 n.6, 35 P.3d 964, 968-69 n.6 (2001)).
[Headnote 14]

A settlement agreement, which is a contract, is governed by principles of contract law. May, 121 Nev. at 672, 119 P.3d at 1257. As such, a settlement agreement will not be an enforceable contract unless there is an offer and acceptance, meeting of the minds, and consideration. Id. (citing Keddie v. Beneficial Insurance, Inc., 94 Nev. 418, 421, 580 P.2d 955, 956 (1978) (BATJER, C.J., concurring)). We conclude that, based on Darrens clear assent to the terms of the settlement agreement at the hearings held by Judge Weller on January 9, 2006, and May 24, 2006, substantial evidence exists that shows a meeting of the minds between the parties. As such, we affirm the order of the district court with respect to the settlement agreement because the record indicates an understood settlement between the parties.
[Headnote 15]

Second, Darren argues that Joan, Palace, and the Mack & Mack entities signatures on the waivers were a condition precedent to the valid execution of the settlement agreement, and because the condition was never met, the settlement agreement cannot be enforced. Darren further argues that the district court was without any legal authority to alter the terms of the settlement agreement because a settlement is a matter of a private contract between two parties. See Travis v. Nelson, 102 Nev. 433, 434, 725 P.2d 570, 571 (1986). Likening the instant case to Travis, Darren argues that the district court should have determined there was no settlement between the parties rather than allow the courts own frustration with the parties to take over and improperly substitute the courts judgment. Accordingly, Darren argues that the district courts elimination of the settlement provision, which called for waivers to be signed between

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and among Charla, Joan, Palace, and the Mack & Mack entities, effectively subjected Darren to paying approximately $1 million to Charla without Darren receiving the important benefit of the bargain for which he entered. In Travis, 102 Nev. at 434, 725 P.2d at 571, we held that a district court did not have the authority to alter the terms of an agreement. Further, we stated that a district court did have the authority to approve terms of an agreement, which were beneficial to an estate, but could not order the parties to agree to a settlement that included terms which were not agreed upon. Id. Because Darren acquiesced to the terms of the settlement agreement on the record at the hearings on January 9, 2006, and May 24, 2006, and because the determination by the district court that the waiver terms were not a condition precedent was not clearly erroneous, we conclude that the waivers were not an unmet condition precedent and the agreement should be enforced. As such, the district court did not alter the terms of the settlement agreement but merely accepted the terms that were already approved of by both parties. The district court issued a valid QDRO
[Headnote 16]

Darren contends that the district court erred in issuing a QDRO to Charlas estate because the QDRO was issued in violation of ERISA. Darren points out that under ERISA, in order for Charla to collect from his pension plan, she was required to obtain a valid QDRO. However, Darren contends that ERISA precludes Charla from receiving payments from his retirement account because she does not qualify as an alternate payee. Darren further argues that in order for there to be a QDRO, the court must issue a domestic relations order (DRO) and the plan administrator must then determine if it is qualified. Because the district court never signed a DRO, Darren argues that the administrator had nothing to qualify.
[Headnote 17]

Whether an order constitutes a valid QDRO under ERISA is a question of law. Branco v. UFCW-Northern California Employers, 279 F.3d 1154, 1158 (9th Cir. 2002) (citing Stewart v. Thorpe Holding Co. Profit Sharing Plan, 207 F.3d 1143, 1150 n.5 (9th Cir. 2000)). We review questions of law de novo. Sheriff v. Burcham, 124 Nev. 1247, 1253, 198 P.3d 326, 329 (2008). ERISA provides protection for beneficiaries of employee pension and welfare benefit plans offered in the private workplace. ERISA includes a spendthrift provision, restricting a plan participants ability to assign his or her benefits under a pension plan covered by this act. 29 U.S.C. 1056(d)(1) (2006). ERISA expressly preempts state law and makes the regulation of pension plans a matter of exclusive federal interest. Id. 1144(a).

Mar. 2009]

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97

Because concerns that ERISAs spendthrift and preemption provisions affected the validity of state court DROs, Congress enacted the Retirement Equity Act of 1984 to exempt QDROs from those provisions. Id. 1056(d)(3)(A). Congress provided that the spendthrift provision shall not apply if the order is determined to be a qualified domestic relations order [QDRO]. Id. Consistent with this language, Congress added an exception to the express ERISA preemption provision, stating that the preemption provision shall not apply to [QDROs]. Id. 1144(b)(7). Under a QDRO, an alternative payee is treated as a plan beneficiary. Id. 1056(d)(3)(J). A DRO is qualified if it creates or recognizes the existence of an alternate payees right to, or assigns to an alternate payee the right to, receive all or a portion of the benefits payable with respect to a participant under a plan. Id. 1056(d)(3)(B)(i)(I). The QDRO provisions define alternate payee to mean any spouse, former spouse, child, or other dependent of a participant who is recognized by a domestic relations order as having a right to receive all, or a portion of, the benefits payable under a plan with respect to such participant. Id. 1056(d)(3)(K). The district court issued a valid QDRO during Charlas lifetime. In the January 9 hearing, Judge Weller stated that within 48 hours, a QDRO will be executed which will transfer to Mrs. Mack the sum of five hundred thousand dollars with any appreciation that is distributed to that five hundred thousand dollars and more or less equal installments over a period of five years. Here, the court issued a QDRO, because Judge Wellers oral order created a recognized existence in Charla, the right to receive a portion of Darrens ERISA pension plan. See id. 1056(d)(3)(B)(i)(I). Because the district court issued a DRO, which was qualified, and it recognized Charla as an alternate payee with the right to receive a $500,000 payment from Darrens ERISA pension plan, we conclude that the QDRO was valid and affirm the order of the district court. Slayer-beneficiaries cannot benefit from their wrongdoing in the ERISA context
[Headnote 18]

As we have determined that we may take judicial notice of the fact that Darren has been adjudged to have murdered Charla, the issue now becomes whether Darren may benefit from his murderous act and not have to pay Charlas estate the lump-sum payment from his ERISA pension plan. We have decided to address this issue because of the grave importance it presents to the functioning of Nevadas slayer statute. Because we conclude that Nevadas slayer statute does not fall within the category of laws that have been recognized as preempted by ERISA, we hold that Darren cannot benefit from his wrongdoing and stop Charlas estate from obtaining payments from his ERISA-qualified pension plan.

98

Mack v. Estate of Mack

[125 Nev.

Darren argues that the district court created a fiction by backdating the settlement agreement by a year and a half. Darren claims that the district court had to do so because, otherwise, his order would violate ERISA law and the federal preemption doctrine.
[Headnote 19]

Whether a state law is preempted by a federal statute is a question of Congressional intent. Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 45 (1987). While it is an issue of first impression in Nevada, several federal district courts have determined that Congress did not intend ERISA to preempt state laws that prohibit murderers from reaping financial benefits because of their crimes. See, e.g., Mendez-Bellido v. Bd. of Tr. of Div. 1181, A.T.U., 709 F. Supp. 329, 331 (E.D.N.Y. 1989); Atwater v. Nortel Networks, Inc., 388 F. Supp. 2d 610, 614 (M.D.N.C. 2005); Connecticut Gen. Life Ins. Co. v. Riner, 351 F. Supp. 2d 492, 497 (W.D. Va. 2005); UNUM Ins. Co. of America v. Locke, No. 2:06 CV 0861, 2006 WL 2457106 (W.D. La. Aug. 22, 2006); Administrative Committee for the H.E.B. v. Harris, 217 F. Supp. 2d 759, 761 (E.D. Tex. 2002); New Orleans Elec. Pension Fund v. Newman, 784 F. Supp. 1233, 1236 (E.D. La. 1992). Today, we approve of the holdings of these courts and adopt the framework set out in Mendez-Bellido. 709 F. Supp. at 331. State laws that relate to any employee benefit plan are preempted by ERISA. Mendez-Bellido, 709 F. Supp. at 331 (quoting 29 U.S.C. 1144(a)). In the context of ERISA, [t]he words relate to must be interpreted broadly to effectuate Congress purpose of establish[ing] pension plan regulation as exclusively a federal concern. Id. (quoting Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 98 (1983)). While there is no concrete rule to determine whether a state law is preempted by ERISA, the United States Court of Appeals for the Second Circuit provided some guidance in Aetna Life Ins. Co. v. Borges, 869 F.2d 142, 146 (2d Cir. 1989), when it stated that [W]e find that laws that have been ruled preempted are those that provide an alternative cause of action to employees to collect benefits protected by ERISA, refer specifically to ERISA plans and apply solely to them, or interfere with the calculation of benefits owed to an employee. Those that have not been preempted are laws of general applicationoften traditional exercises of state power or regulatory authoritywhose effect on ERISA plans is incidental. We conclude that the Nevada slayer statute is not preempted by ERISA, as the application of this statute will not affect the determination of an employees eligibility for benefits, compare Gilbert v. Burlington Industries Inc., 765 F.2d 320, 327 (2d Cir. 1985), or the

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impact on the method of calculating benefits due. See Mackey v. Lanier Collection Agency & Serv., 486 U.S. 825, 829-30 (1988). At common law, convicted murderers were not stopped from benefiting from their wrongful acts and were able to inherit from the estate of the person whom they had killed. Holliday v. McMullen, 104 Nev. 294, 296, 756 P.2d 1179, 1179 (1988). However, we have noted that [s]tate legislatures, rightfully resolving that killers should not profit from their heinous deeds, began passing laws that have come to be known as slayer statutes. Id. The Nevada slayer statute, NRS 41B.200, provides that a killer cannot profit or benefit from his wrong. NRS 41B.200(1) states that [n]otwithstanding any other provision of law, the provisions of this chapter apply to any appointment, nomination, power, right, property, interest or benefit that accrues or devolves to a killer of a decedent based upon the death of the decedent. Since we hold that the Nevada slayer statute is not preempted by ERISA, it follows that Darren should not be allowed to benefit from his wrongdoing in murdering Charla. As such, we affirm the order of the district court with respect to the settlement agreement that gave Charla a lump-sum payment from Darrens ERISA pension plan. CONCLUSION We conclude that we may take judicial notice of the outcome of a murder trial in which the deceased stood to gain financially from her killer because of the close relationship between the murder trial and the benefits to which the deceaseds estate is entitled. Futher, the district court did not abuse its discretion in entering the nunc pro tunc order to memorialize the oral records made at the hearings of January 9, 2006, and May 24, 2006, because the entering of the nunc pro tunc order was proper and the district courts underlying basis for issuing the order was valid. Also, we conclude that the district court properly issued a QDRO during Charlas lifetime which gave Charla a recognized right to receive a portion of Darrens ERISA pension plan. Finally, because we hold that Nevadas slayer statute is not preempted by ERISA, Darren may not benefit from his wrongful act of killing Charla. Thus, we affirm the order of the district court with respect to the lump-sum payment to Charla from Darrens ERISA pension plan. PARRAGUIRRE, DOUGLAS, SAITTA, and GIBBONS, JJ., concur.

100

In re Application of Shin IN
THE

[125 Nev.

MATTER

OF THE APPLICATION OF SANG FOR AN ORDER TO SEAL RECORDS.

MAN SHIN

SANG MAN SHIN, APPELLANT, v. THE STATE OF NEV ADA, DEPARTMENT OF PUBLIC SAFETY, RESPONDENT.
No. 47995 March 26, 2009 206 P.3d 91

Appeal from a district court order setting aside as void an order sealing a criminal record. Eighth Judicial District Court, Clark County; Michelle Leavitt, Judge. The supreme court, SAITTA, J., held that movant enjoyed no right to have his criminal record sealed. Affirmed. Amesbury & Schutt and John P. Parris and David C. Amesbury, Las Vegas, for Appellant. Catherine Cortez Masto, Attorney General, and Robert G. Kilroy, Deputy Attorney General, Carson City, for Respondent.
1. PARDON AND PAROLE. A Presidential pardon blots out the existence of the offenders guilt, and thus removes all existence of a prior criminal conviction. 2. CRIMINAL LAW. The supreme court reviews de novo a district courts legal conclusions, including matters of statutory constitutionality and statutory interpretation. 3. CONSTITUTIONAL LAW. Statutes are presumptively valid, and the burden is on those attacking them to show their unconstitutionality. 4. CRIMINAL LAW; PARDON AND PAROLE. Statute regulating criminal-record expunction of convicted sex offenders did not improperly impinge on executive pardoning power, and thus, although movant was granted a pardon on prior conviction for attempted lewdness with a minor, he enjoyed no right to have his criminal record sealed. Const. art. 5, 14; NRS 179.245(5).

Before the Court EN BANC.1 OPINION By the Court, SAITTA, J.: We are asked to determine whether NRS 179.245(5), which prohibits Nevada courts from sealing records concerning sexually based offenses, improperly impinges upon the power of the State Board of
1 THE HONORABLE KRISTINA PICKERING, Justice, did not participate in the decision of this matter.

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Pardons Commissioners to issue pardons. While the pardoning powers reach is expansive, it does not extend to removing the historical fact that a conviction occurred, and it cannot bequeath innocence. Instead, a pardon is an act of forgiveness that restores civil rights and removes most legal consequences of a criminal conviction. We find nothing in Article 5, Section 14 of the Nevada Constitution that creates a civil right to expunge a criminal record. Only the Legislature can remove the historical fact of a criminal conviction by authorizing the expunction of the criminal record. Therefore, we conclude that the district court did not abuse its discretion when it set aside a prior order sealing a criminal record, and accordingly, we affirm. FACTS AND PROCEDURAL HISTORY The record indicates that in 1987, law enforcement officers arrested appellant Sang Man Shin for attempted lewdness with a minor, to which he subsequently pleaded guilty. The district court sentenced him to two years imprisonment and then suspended the sentence, imposing probation. Shin successfully served his probation. After maintaining a clean criminal record for approximately 15 years, Shin sought a pardon. Following his request, in 2002, the State Board of Pardons Commissioners (Pardons Board) granted him a pardon, restoring all of his civil rights except for the right to keep firearms. In 2006, Shin moved to have his criminal record sealed pursuant to NRS 179.245, to which the Clark County District Attorney stipulated. Thereafter, the district court granted the motion and ordered Shins criminal record sealed. Upon receiving notice of the district courts order, respondent State of Nevada, Department of Public Safety (DPS) moved to set it aside. During the district court proceedings, the DPS argued that Shins record had been erroneously sealed because, as a convicted sex offender, NRS 179.245(5) expressly precluded the court from sealing his record since it relat[ed] to a conviction of a crime against a child or a sexual offense. The district court agreed and ordered Shins record unsealed. Contending that his pardon not only restored his civil rights but entitled him to his records expunction, Shin appealed. DISCUSSION
[Headnote 1]

On appeal, Shin principally contends that this court should follow the U.S. Supreme Courts decision in Ex parte Garland, which stated that a Presidential pardon blots out the existence of the offenders guilt, and thus removes all existence of a prior criminal conviction. 71 U.S. 333, 380 (1866). More specifically, Shin con-

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[125 Nev.

tends that his pardon not only cleared the civil rights restrictions attendant with his conviction, but further included the right to seal his criminal records. Pursuant to this reasoning, Shin asserts that NRS 179.245(5) is unconstitutional because the Legislature does not have the power to prevent him from sealing his criminal record. We disagree. Standard of review
[Headnotes 2, 3]

We review de novo a district courts legal conclusions, including matters of statutory constitutionality and statutory interpretation. Douglas Disposal, Inc. v. Wee Haul, LLC, 123 Nev. 552, 557, 170 P.3d 508, 512 (2007); Walker v. Dist. Ct., 120 Nev. 815, 819, 101 P.3d 787, 790 (2004). Statutes are presumptively valid, and the burden is on those attacking them to show their unconstitutionality. Sheriff v. Vlasak, 111 Nev. 59, 61-62, 888 P.2d 441, 443 (1995) (quoting Wilmeth v. State, 96 Nev. 403, 405, 610 P.2d 735, 737 (1980)). Nevadas constitutional and statutory scheme governing pardons and record expunction In Nevada, the Pardons Boards constitutional power to grant pardons and commutations of sentences is exclusive. Nev. Const. art. 5, 14. The Nevada Constitution provides that [t]he governor, justices of the supreme court, and attorney general, or a major part of them, of whom the governor shall be one, may . . . grant pardons, after convictions. Id. Article 5, Section 14 of the Nevada Constitution specifically requires the Governor to be involved in the pardoning process as part of the executive function but is silent as to many of a pardons effects, including the availability of record expunction. In furtherance of this constitutional provision, NRS 213.090 states that [a] person who is granted a full, unconditional pardon by the Board is restored to all civil rights and is relieved of all disabilities incurred upon conviction. No other constitutional or statutory provision addresses the effects of a pardon. The Nevada Constitution does not expressly address the expunction of criminal records. In the absence of a specific constitutional limitation to the contrary, the power to enact laws is vested in the Legislature. Nev. Const. art. 4, 1; see Cramer v. Peavy, 116 Nev. 575, 582, 3 P.3d 665, 670 (2000). The Legislature has addressed the expunction of criminal records in NRS 179.245.2 Although
2 NRS 179.245 explicitly delineates those crimes that constitute a sexual offense (including attempted lewdness with a child, of which Shin was convicted). Effective July 1, 2008, NRS 179.245 was amended to adjust where crime against a child is defined (NRS 179.245(7)(a)). See 2007 Nev. Stat., ch. 485, 8, at 2751-53. The language relevant to our analysis in this opinion was not altered.

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NRS 179.245 generally grants the district court discretion to seal records of criminal conviction, it expressly prohibits the sealing of records pertaining to a sexual offense: A person may not petition the court to seal records relating to a conviction of a crime against a child or a sexual offense. NRS 179.245(5). NRS 179.245(5) is silent regarding whether a pardon may nevertheless require sealing a sex offenders record. Resolving this question requires us to determine the scope of the pardoning powerparticularly, whether a pardon erases the offenders guilt and the historical fact of the crime, or merely relieves all conviction-imposed civil disabilities. In addressing the scope of the pardoning power in Nevada, we begin by examining our precedent. Because our jurisprudence does not resolve the question of whether a pardon includes the attendant right to seal a criminal record, we consider the United States Supreme Courts precedent, caselaw from the United States Courts of Appeals, and finally, other states jurisprudence. Nevada decisional law In an 1880 decision, State of Nevada v. Foley, this court considered the scope of the pardoning power. 15 Nev. 64 (1880). In Foley, the State sought to introduce a witness who was a convicted and pardoned felon. Id. at 66. The defense objected on competency grounds. Id. The district court overruled the objection and allowed the witness to testify, finding that the pardon restored the witnesss competency. Id. at 66-67. On appeal, this court agreed, concluding that the authorities are uniform to the effect that a full and unconditional pardon of an offense removes all disabilities resulting from conviction thereof. Id. at 67. In reaching this conclusion, this court relied on the similar authorities and language as utilized in Garland to explain that the purpose of a pardon was to make the offender a new man; to acquit him of all corporal penalties and forfeitures annexed to the offense for which he obtains his pardon, and not so much to restore his former, as to give him a new credit and capacity. Id. at 69 (quoting William Blackstone, 4 Commentaries *402); see Ex parte Garland, 71 U.S. at 380-81. While this explanation suggested that the pardoning powers reach was expansive, this court ultimately reversed the district court and remanded for a new trial, concluding that the witnesss competency had not been legally established, as he had been convicted of an additional crime that was not expressly addressed by the pardon. Foley, 15 Nev. at 67, 74. Following Foley, this court later indirectly considered the scope of the pardoning power in Pinana v. State, 76 Nev. 274, 352 P.2d 824 (1960). In Pinana, the appellant was found guilty of firstdegree murder and sentenced to life imprisonment without the possibility of parole. Id. at 278, 352 P.2d at 827. Asserting a variety of errors on appeal, the appellant contended that the sentence was un-

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[125 Nev.

constitutional in part because it permitted the jury to abridge her eligibility for parole. Id. at 281, 352 P.2d at 828. More specifically, the appellant contended that Article 5, Section 14 of the Nevada Constitution, empowering the Pardons Board to grant pardons and commute punishments, precluded the Legislature from granting the judiciary the power to parole. Id. This court explained that a parole and a pardon are different legal concepts and are derived and governed by different provisions of law. Id. at 281-83, 352 P.2d at 828-29. Thereafter, this court concluded that the Executives constitutional power to grant pardons was not unconstitutionally abridged by a statute providing for an administrative system of parole or by statutes granting the judiciary the power over paroles. Id. at 282, 352 P.2d at 829. While Pinana did not involve a factual predicate of a pardoned criminal, this court nevertheless distinguished parole from a pardon, explaining in dicta the legal effects of a pardon. Id. at 282-83, 352 P.2d at 829. Quoting the Supreme Court of Pennsylvania, we tacitly adopted its holding that: [a] pardon is the exercise of the sovereigns prerogative of mercy. It completely frees the offender from the control of the state. It not only exempts him from further punishment but relieves him from all the legal disabilities resulting from his conviction. It blots out the very existence of his guilt, so that, in the eye of the law, he is thereafter as innocent as if he had never committed the offense. Id. at 282, 352 P.2d at 829 (quoting Commonwealth v. Cain, 28 A.2d 897, 899 (Pa. 1942)). Accordingly, we concluded that NRS 200.030 was not unconstitutional because the Legislature had the power to establish the appropriate punishment for a felony conviction, see Nev. Const. art. 4, 1, and thus, acted within its powers when it delegated to the judiciary the power to eliminate the possibility of parole. Pinana, 76 Nev. at 283, 352 P.2d at 829. These Nevada cases accord with early U.S. Supreme Court interpretations of the federal clemency power, which, as explained below, is no longer the prevailing view of the gubernatorial pardoning power in the majority of other courts around the nation. United States Supreme Court decisions The definition of a pardon, as first articulated by Chief Justice Marshall in United States v. Wilson, suggested that acceptance of a pardon might imply guilt. 32 U.S. 150 (1833). Justice Marshall stated that [a] pardon is an act of grace, id. at 160, the validity of which . . . is not complete without acceptance. Id. at 161. Furthermore, Justice Marshall indicated that it might be rejected by the person to whom it was offered and that the court could not force it upon him. Id.

Mar. 2009]

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105

Ex parte Garland, an 1866 decision, represents the U.S. Supreme Courts articulation of the presidential pardoning power in several reconstruction era cases, holding that a pardon obliterates both the conviction and guilt and thus places the offender in the same position as if she had never committed the offense. 71 U.S. 333; see also Osborn v. United States, 91 U.S. 474, 477 (1875); Carlisle v. United States, 83 U.S. 147, 153 (1873). Following the Courts resolution of the dispositive issue in the case, the Court went on to explain that a pardon reaches both the punishment prescribed for the offence and the guilt of the offender; and when the pardon is full, it releases the punishment and blots out of existence the guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offence. If granted before conviction, it prevents any of the penalties and disabilities consequent upon conviction from attaching; if granted after conviction, it removes the penalties and disabilities, and restores him to all his civil rights; it makes him, as it were, a new man, and gives him a new credit and capacity. Garland, 71 U.S. at 380-81. After undertaking this expansive articulation of the pardoning power, the Court thereafter acknowledged that the power did have some limitations, as it could not restore offices forfeited, or property or interests vested in others in consequence of the conviction and judgment. Id. at 381. While the U.S. Supreme Court has never expressly overruled Garland, since that decision the Court has eroded its broad articulation of the power by narrowing its scope in Angle v. Chicago, St. Paul, Minneapolis & Omaha Railway Co., 151 U.S. 1 (1894), Burdick v. United States, 236 U.S. 79 (1915), and Carlesi v. New York, 233 U.S. 51 (1914). In Angle, the Court held that a third-party civil right of action to recover damages remains regardless of a pardon. Angle, 151 U.S. at 19. In Burdick, the Court implicitly acknowledged that the mere act of accepting a preconviction pardon carried an unremovable social stigma, an acknowledgment that is inconsistent with a position that a pardon blots out all existence of guilt. 236 U.S. at 90-91 (reversing a defendants contempt conviction for the refusal to testify before a grand jury even after receiving a presidential pardon and explaining that the grace of a pardon, though good its intention, may be only in pretense or seeming, . . . involving consequences of even greater disgrace than those from which it purports to relieve). In Carlesi, the Court held that a sentencing board may consider the pardoned offenders prior actions when determining the punishment for a new offense. 233 U.S. at 59. This holding impliedly indicates that the offenders pardon did not completely erase all the attendant consequences and considerations following the fact of conviction. See id.

106

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[125 Nev.

The Supreme Court later backed away from the theory of a pardon as an admission of guilt or that a pardon could be rejected by the recipient in Biddle v. Perovich.3 274 U.S. 480 (1927). Biddle involved a certified question from a circuit appellate court regarding whether the President had the authority to commute a sentence from the death penalty to life in prison. Justice Holmes, writing for the Supreme Court, answered in the affirmative, holding that it was the public welfare, not his consent, [that] determines what shall be done and that Biddle could not refuse the pardon. Id. at 486. The Court emphasized the broad plenary power conferred to the President by Article II, Section 2, Clause 2 of the United States Constitution to allow the forgiveness of a convicted person, in part or entirely, or to reduce or alter the penalty. Signaling a clear departure from Justice Marshalls prior characterization of a pardon, Justice Holmes intimated that a pardon does not blot out all guilt associated with a conviction, stating that: [a] pardon in our days is not a private act of grace from an individual happening to possess power. It is a part of the Constitutional scheme. When granted it is the determination of the ultimate authority that the public welfare will be better served by inflicting less than what the judgment fixed. Id. at 486; see Cook v. Freeholders of Middlesex, 26 N.J.L. 326, 333 (N.J. 1857) (The power of pardoning is founded on considerations of the public good, and is to be exercised on [that] ground.). United States Courts of Appeals decisions The United States Courts of Appeals for the Third Circuit, Seventh Circuit, and the District of Columbia Circuit have not followed Garlands broad articulation of the presidential pardoning power. U.S. v. Noonan, 906 F.2d 952, 958, 960 (3d Cir. 1990) (concluding that a pardon can only remove the punishment for a crime, not the fact of the crime itself, and holding that the United States Supreme Courts decision in Burdick implicitly rejected its prior sweeping conception of the pardoning power in Garland ); Bjerkan v. United States, 529 F.2d 125, 128 n.2 (7th Cir. 1975); In re North, 62 F.3d 1434, 1437 (D.C. Cir. 1994) (concluding that the United States Supreme Courts articulation of the pardoning power in Garland was uncontrolling dictum and further holding that the Burdick decision implicitly rejected the overly broad position). Rather, they have concluded that the explanation was mere dictum because the Court had already decided the dispositive issue of whether a particular oath was constitutional and was also implicitly overruled by Burdick.
3 In Biddle v. Perovich, the Court did not overrule Burdick, but rather stated the reasoning . . . is not to be extended to the present case. 274 U.S. at 488.

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107

Focusing on the scope of the Texas executives pardoning power, in Groseclose v. Plummer, the Ninth Circuit Court of Appeals reached a similar conclusion. 106 F.2d 311 (9th Cir. 1939). In Groseclose, the Ninth Circuit rejected the defendants contention that the Texas pardons wiped out his prior convictions as though they had never occurred, analogizing that [t]his is the same as saying that executive clemency clears the boards as thoroughly as the granting of a new trial and subsequent acquittal would do. Id. at 313. While recognizing that some authorities supported the proposition that a pardon obliterated the underlying conviction and guilt, the Ninth Circuit disagreed, concluding that the great weight of authority support[s] the more realistic view that a pardon, to the extent of its terms, does nothing more than to abolish all restrictions upon the liberty of the pardoned one, and upon his civil rights that follow a felony conviction and sentence. Id. The court acknowledged that while a Texas pardon may have the effect of prohibiting the Texas courts from considering the act giving rise to the pardoned offense, the pardon could not turn back the hand of time[;] . . . the stubborn fact remains that the habit of crime was upon him. Id. Other courts authority Lower courts have similarly taken the position that a pardons power does not include the ability to abrogate a convictions underlying guilt and have concluded that Garlands interpretation of the power was mere dictum. For instance, the New York Court of Appeals, in People v. Brophy, held that a pardon could wipe out the legal consequences flowing from an adjudication of guilt, but concluded that Garlands blotting out language was merely used as a metaphor to encourage support for a contentious decision in a tumultuous time in our nations history, when passions roused by the rebellion still clouded the judgment of most citizens. 38 N.E.2d 468, 470 (N.Y. 1941). In the case of In re Abrams, the District of Columbia Court of Appeals agreed that the pardon discussion in Garland was dictum and concluded that a pardon did not blot out of existence the guilt associated with one who committed a crime. 689 A.2d 6, 18-19 (D.C. 1997) (citing Brophy, 38 N.E.2d at 470). To illustrate the implications of concluding that a pardon blots out the existence of guilt, the District of Columbia Court of Appeals offered the following analogy: Suppose that an alcoholic surgeon performs an operation while intoxicated. He botches the surgery. The patient dies. The surgeon is convicted of manslaughter and is sentenced to imprisonment. The President grants him a full and unconditional

108

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[125 Nev.

pardon. According to Abrams, the surgeon now has the right, as a result of the pardon, to continue to operate on other patients, without any interference from the medical licensing authorities. Id. at 10-11. The District of Columbia Court of Appeals concluded that this result would be altogether unacceptable and even irrational. Id. at 11. Although the pardon did away with the consequences of the conviction, it could not and did not require the court to close its eyes to the fact that Abrams did what he did. Id. at 7. In Dixon v. McMullen, the United States District Court for the Northern District of Texas addressed whether a police academy applicant who had initially pleaded guilty to a case that was subsequently dismissed, and then received a gubernatorial pardon, could be eligible to serve as a police officer. 527 F. Supp. 711 (N.D. Tex. 1981). Because the pardon was not issued on the basis of proof of innocence, the underlying guilt of the offense remained regardless of the pardon. Id. at 718. The Dixon court recognized that separation of powers was an issue and stated that [t]he undisputed legal effect of a pardon is to restore the civil rights to an ex-felon (suffrage, jury service, and the chance to seek public office). However, the Governor cannot overrule the judgment of a court of law. He has no appellate jurisdiction. . . . Regardless of the post-judgment procedural maneuvering, a final conviction does not disappear. A pardon implies guilt. Texas Courts may forgive, but they do not forget. The fact is not obliterated and there is no wash. . . . Moreover, the granting of a pardon does not in any way indicate a defect in the process. It may remove some disabilities, but does not change the common-law principle that a conviction of an infamous offense is evidence of bad character. Id. at 717-18 (internal citations omitted). Florida imposes conditions on the eligibility of an individual seeking to expunge or seal her criminal record. The Supreme Court of Florida, in R.J.L. v. State, 887 So. 2d 1268, 1270 (Fla. 2004), concluded that the issuance of a pardon did not remove the historical fact that the individual was convicted. Id. at 1281. Additionally, the court reaffirmed that statutory requirements governing record expunction were not a violation of the separation of powers doctrine, in part because the courts authority was derived from a statutory grant of power. Id. at 1271 (citing with approval State v. D.H.W., 686 So. 2d 1331, 1335 (Fla. 1996)). Therefore, the court held that the legislature could require certain conditions be met before granting a petition for record expunction. Id.

Mar. 2009]

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109

Having examined several cases and numerous other legal authorities, the R.J.L. court concluded that the effect of a pardon generally fell into two categories. Id. at 1278. In the first category, three courts had expressly adopted the reasoning of Garland and concluded that a pardon remov[ed] an adjudication of guilt so that the person is treated as if he never committed the crime and, therefore, a pardon would carry with it the attendant right of records expunction. Id. at 1278-79 (citing State v. Bergman, 558 N.E.2d 1111, 1114 (Ind. Ct. App. 1990); State v. Cope, 676 N.E.2d 141, 143 (Ohio Ct. App. 1996); Com. v. C.S., 534 A.2d 1053, 1054 (Pa. 1987)). The second category of decisions involved cases which had held that although a pardon may remove punishment or restore civil rights, it did not remove the adjudication of guilt. Id. (citing People v. Thon, 746 N.E.2d 1225 (Ill. App. Ct. 2001); Storcella v. State, Dept. of Treasury, 686 A.2d 789, 792 (N.J. Super. Ct. App. Div. 1997); People v. Brophy, 38 N.E.2d 468 (N.Y. 1941); Prichard v. Battle, 17 S.E.2d 393, 397 (Va. 1941)). The R.J.L. court determined that only nine jurisdictions had directly addressed the issue of whether a pardon entitles an individual to record expunction and that a majority of those courts agreed, based principally on the reasoning that a pardon does not blot out the existence of guilt, id. at 1279 (quoting State v. Skinner, 632 A.2d 82, 87 (Del. 1993)), that a pardoned individual is not entitled to record expunction. Id. (citing Skinner, 632 A.2d at 87; People v. Glisson, 372 N.E.2d 669, 671 (Ill. 1978); Com. v. Vickey, 412 N.E.2d 877, 883 (Mass. 1980); State v. Bachman, 675 S.W.2d 41, 52 (Mo. Ct. App. 1984); State v. Blanchard, 100 S.W.3d 226, 228 (Tenn. Crim. App. 2002); State v. Aguirre, 871 P.2d 616, 620 (Wash. Ct. App. 1994)). After considering the split of authorities that had confronted the issue, the Florida Supreme Court initially determined that, while a pardon removes punishment and disability and restores civil rights, expunction is not a civil right. R.J.L., 887 So. 2d at 1280. The Florida Supreme Court then reasoned that a pardons power to forgive the legal consequences of a criminal act did not confer innocence or remove the historical fact that the crime occurred. Id. The pardon did not include expunction in this case
[Headnote 4]

Based upon the reasoning expressed in Angle v. Chicago, St. Paul, Minneapolis & Omaha Railway Co., United States v. Wilson, Burdick v. United States, and Carlesi v. New York, we conclude that the U.S. Supreme Court has sub silentio retreated from Garlands sweeping articulation of the pardoning power. 151 U.S. 1, 19 (1894); 32 U.S. 150, 159-61 (1833); 236 U.S. 79, 90-91 (1915); 233 U.S. 51, 59 (1914). The United States Court of Appeals for the Seventh Circuit in Bjerkan v. United States, 529 F.2d 125, 128 n.2 (7th Cir. 1975), the Third Circuit in U.S. v. Noonan, 906 F.2d 952,

110

In re Application of Shin

[125 Nev.

958, 960 (3d Cir. 1990), the District of Columbia Circuit in In re North, 62 F.3d 1434, 1437 (D.C. Cir. 1994), and the Ninth Circuit in Groseclose v. Plummer, 106 F.2d 311, 313 (9th Cir. 1939), as well as the United States District Court for the Northern District of Texas in Dixon v. McMullen, 527 F. Supp. 711, 718 (N.D. Tex. 1981), have all reached a similar conclusion and held that Garlands recitation of the power was noncontrolling dictum. The majority of the state courts that have addressed the issue, including the New York Court of Appeals in People v. Brophy, 38 N.E.2d 468, 470 (N.Y. 1941), the District of Columbia Court of Appeals in In re Abrams, 689 A.2d 6, 19 (D.C. 1997), and the Supreme Court of Florida in R.J.L. v. State, 887 So. 2d 1268, 1270 (Fla. 2004), have all concluded that the pardoning power does not bequeath innocence or erase the historical fact of the underlying criminal act and conviction. We adopt the reasoning of these cases limiting the scope of a pardon because the rationale is consistent with Nevadas Constitution. As we have observed, there is nothing in Nevadas Constitution that creates a civil right to expunge a criminal record. The authorities cited are in accord: expunction is not a civil right. Based upon these well-reasoned authorities, we hereby retreat from our prior decisions in State of Nevada v. Foley, 15 Nev. 64, 69 (1880), and Pinana v. State, 76 Nev. 274, 282, 352 P.2d 824, 829 (1960), to the extent that they imply that a pardon blots out guilt and erases the historical fact of the underlying conviction. In doing so, we acknowledge that Pinanas quotation of the Supreme Court of Pennsylvania, which concluded that a pardon blots out the very existence of his guilt, was merely dictum because Pinana did not involve a pardoned criminal. 76 Nev. at 282, 352 P.2d at 829 (citing Commonwealth v. Cain, 28 A.2d 897, 899 (Pa. 1942)). Because we conclude that the effect of the pardon does not erase the historical fact of the conviction, we hold that there is nothing in the Nevada Constitution that creates a civil right to an expunction of the record of a criminal conviction. Additionally, we hold that the Legislatures enactment of NRS 213.090, addressing those circumstances in which the historical fact of a criminal conviction may be expunged from public view, does not abridge the pardoning power in Article 5, Section 14 of the Nevada Constitution. CONCLUSION As NRS 179.245(5) regulates the expunction of a criminal record of convicted sex offenders, and as expunction is not a civil right contemplated within the scope of the constitutional pardoning power, we conclude that NRS 179.245(5) does not improperly impinge on the Pardons Boards power. Accordingly, we hold that Shin is unable to demonstrate that the statute unconstitutionally abridges the Executives pardoning power pursuant to Article 5, Section 14 of the

Apr. 2009] Karcher Firestopping v. Meadow Valley Contr.

111

Nevada Constitution. As a result, we conclude that the district court did not abuse its discretion when it unsealed Shins criminal record, and accordingly, we affirm the courts decision. HARDESTY, C.J., PARRAGUIRRE, DOUGLAS, CHERRY, and GIBBONS, JJ., concur.

KARCHER FIRESTOPPING, A DIVISION OF KARCHER INSULATION, INC., A CALIFORNIA CORPORATION, APPEL LANT, v. MEADOW VALLEY CONTRACTORS, INC., A NEVADA CORPORATION; TECHNICOAT WATERPROOF ING SPECIALISTS, A LIMITED PARTNERSHIP; ROBERT COFFMAN, INDIVIDUALLY; AND UNITED STATES GUAR ANTY COMPANY, RESPONDENTS.
No. 49291 April 16, 2009 204 P.3d 1262

Appeal from a district court order granting a motion to vacate an arbitration award, referring the matter back to arbitration for further proceedings, and denying a motion to confirm the award. Eighth Judicial District Court, Clark County; Elizabeth Goff Gonzalez, Judge. The supreme court, PARRAGUIRRE, J., held that order of trial court that vacated arbitration award while directing a rehearing was not appealable, notwithstanding that order also denied confirmation of award, which, on its own, would be appealable. Dismissed. McDonald Carano Wilson, LLP, and Timothy E. Rowe, Reno; Lax & Stevens and Donna E. Kirkner, Los Angeles, California, for Appellant. Kevin B. Christensen, Chtd., and Evan L. James, Las Vegas, for Respondents Meadow Valley Contractors and United States Guaranty Company. Lewis & Roca, LLP, and Dan R. Waite and Daniel F. Polsenberg, Las Vegas, for Respondent Technicoat Waterproofing Specialists.
1. APPEAL AND ERROR. The supreme court has jurisdiction to consider an appeal only when the appeal is authorized by statute or court rule. 2. APPEAL AND ERROR. Questions of statutory construction are reviewed de novo.

112

Karcher Firestopping v. Meadow Valley Contr.

[125 Nev.

3. STATUTES. The goal of statutory interpretation is to effectuate the Legislatures intent. 4. STATUTES. If a statutes language is clear and unambiguous, the supreme court will apply its plain language. 5. STATUTES. Plain meaning of a statute may be ascertained by examining the context and language of the statute as a whole. 6. STATUTES. The supreme court generally avoids statutory interpretation that renders language meaningless or superfluous. 7. ALTERNATIVE DISPUTE RESOLUTION. Order of trial court that vacates arbitration award while directing a rehearing is not appealable, notwithstanding that order also denies confirmation of award, which, on its own, would be appealable; appeals are only permitted from orders that bring element of finality to arbitration process. NRS 38.247(1).

Before the Court EN BANC.1 OPINION By the Court, PARRAGUIRRE, J.: This appeal seeks our review of a district court order that granted a motion to vacate an arbitration award, referred the matter back to arbitration for further proceedings, and denied a motion to confirm the award. The Legislature has authorized appeals from certain arbitration-related orders as set forth in NRS 38.247(1). Under this statutory scheme, if the order challenged on appeal had only denied appellants motion to confirm the arbitration award, it would be appealable under NRS 38.247(1)(c). Similarly, if the challenged order had vacated the award without directing a rehearing, the order would be appealable under NRS 38.247(1)(e). In this case, however, the district court order denied the motion to confirm the award, vacated the award, and directed a rehearing. Thus, we must determine whether such an order is appealable under NRS 38.247(1). We conclude that, under the plain language of NRS 38.247(1)(e), we lack jurisdiction to consider appeals challenging such orders. Accordingly, we dismiss this appeal. FACTS AND PROCEDURAL HISTORY Appellant Karcher Firestopping was the prevailing party at arbitration. Thereafter, respondent Technicoat Waterproofing Specialists
1 THE HONORABLE MICHAEL CHERRY, Justice, and THE HONORABLE NANCY SAITTA, Justice, did not participate in the decision of this matter.

Apr. 2009]

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filed a motion, joined by respondents Meadow Valley Contractors and United States Guaranty Company, to vacate and modify the arbitration award, and Karcher filed a countermotion to confirm the arbitrators award. The district court denied Karchers countermotion to confirm the award, granted Technicoats motion to vacate the arbitration award, and referred the matter back to arbitration for supplemental proceedings. Karcher then appealed from the district courts order. This courts preliminary review of the case, however, raised concerns regarding the orders appealability under NRS 38.247(1). Accordingly, we directed Karcher to show cause as to whether the district court order was substantively appealable. Karcher has filed a response to the show cause order, and respondents have filed a reply. DISCUSSION
[Headnotes 1-6]

This court has jurisdiction to consider an appeal only when the appeal is authorized by statute or court rule. Taylor Constr. Co. v. Hilton Hotels, 100 Nev. 207, 678 P.2d 1152 (1984). In Nevada, appeals from arbitration orders are governed by statute, specifically NRS 38.247(1); therefore, determining whether this court has jurisdiction to consider this appeal involves interpretation of that statute. Questions of statutory construction are reviewed de novo. Leven v. Frey, 123 Nev. 399, 402, 168 P.3d 712, 714 (2007). The goal of statutory interpretation is to effectuate the Legislatures intent. Savage v. Dist. Ct., 125 Nev. 9, 16, 200 P.3d 77, 82 (2009). If a statutes language is clear and unambiguous, this court will apply its plain language. Leven, 123 Nev. at 403, 168 P.3d at 715. Plain meaning may be ascertained by examining the context and language of the statute as a whole. Redl v. Secretary of State, 120 Nev. 75, 78, 85 P.3d 797, 799 (2004); see also McKay v. Bd. of Supervisors, 102 Nev. 644, 650-51, 730 P.2d 438, 443 (1986). This court generally avoids statutory interpretation that renders language meaningless or superfluous. Southern Nev. Homebuilders v. Clark County, 121 Nev. 446, 449, 117 P.3d 171, 173 (2005); see also Harris Assocs. v. Clark County Sch. Dist., 119 Nev. 638, 642, 81 P.3d 532, 534 (2003). Additionally, as Nevada has adopted the Uniform Arbitration Act (UAA),2 in construing the UAA, consideration must be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it. NRS 38.248. NRS 38.247(1)(c) provides that an appeal may be taken from [a]n order confirming or denying confirmation of an [arbitration]
2 In 2001, Nevada adopted the Uniform Arbitration Act of 2000. See NRS 38.206.

114

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[125 Nev.

award. NRS 38.247(1)(e) provides that an appeal may be taken from [a]n order vacating an [arbitration] award without directing a rehearing.3 While this court has never addressed whether an order that both denies confirmation of an arbitration award and vacates the award, while directing a rehearing, is substantively appealable under NRS 38.247(1), a number of other courts have addressed this issue under similar provisions of the UAA.4 Because consideration must be given to the need to promote uniformity of the law when construing the UAA, NRS 38.248, we look to these decisions for guidance regarding the appealability of such orders. First, we examine decisions from courts holding that such orders are not appealable, and then we address decisions from those courts that have concluded that such orders can be appealed. Decisions concluding that no jurisdiction exists The majority of courts that have considered this jurisdictional issue regarding orders that deny confirmation of an arbitration award and also vacate the award while directing rehearing have determined that such orders are not appealable. See Connerton, Ray & Simon v. Simon, 791 A.2d 86 (D.C. 2002); Kowler Associates v. Ross, 544 N.W.2d 800 (Minn. Ct. App. 1996); Thrivent Financial for Lutherans v. Brock, 251 S.W.3d 621 (Tex. App. 2007); Prudential Securities, Inc. v. Vondergoltz, 14 S.W.3d 329 (Tex. App. 2000). The primary approach taken by courts concluding that such orders are not appealable is to focus on the plain language of their statute providing that orders vacating an arbitration award without directing a rehearing are appealable. See, e.g., Simon, 791 A.2d at 87-88 (interpreting a statute that provides for appeals from orders confirming or denying confirmation of an arbitration award and orders vacating an award without directing a rehearing); Ross, 544 N.W.2d at 801-02 (same); Vondergoltz, 14 S.W.3d at 330-31 (same). Because these statutes provide for appeals only from orders vacating arbitration awards that do not also direct a rehearing, these courts concluded that the plain language of the statutes provide that orders vacating an award and directing a rehearing cannot be appealed. See Simon, 791 A.2d at 87-88; Ross, 544 N.W.2d at 801; Vondergoltz, 14 S.W.3d at 331.
3 NRS 38.247(1) also provides for appeals from arbitration-related orders denying motions to compel arbitration, granting motions to stay arbitration, modifying or correcting an arbitration award, and arbitration-related orders that constitute a final judgment. 4 See Connerton, Ray & Simon v. Simon, 791 A.2d 86 (D.C. 2002); Kowler Associates v. Ross, 544 N.W.2d 800 (Minn. Ct. App. 1996); National Ave. Bldg. Co. v. Stewart, 910 S.W.2d 334 (Mo. Ct. App. 1995); Thrivent Financial for Lutherans v. Brock, 251 S.W.3d 621 (Tex. App. 2007); Werline v. East Texas Salt Water Disp. Co., 209 S.W.3d 888 (Tex. App. 2006); Prudential Securities, Inc. v. Vondergoltz, 14 S.W.3d 329 (Tex. App. 2000).

Apr. 2009]

Karcher Firestopping v. Meadow Valley Contr. 115

Relying on this conclusion, these courts have held that the addition of a ruling denying a motion to confirm the award to an order vacating the award and directing a rehearing does not render that order appealable even though the denial of a motion to confirm an arbitration award is independently appealable under their applicable statutes. Simon, 791 A.2d at 88; Ross, 544 N.W.2d at 801-02; Vondergoltz, 14 S.W.3d at 331. The rationale behind this conclusion is that allowing such orders to be appealed simply because a portion of the order denies confirmation of an arbitration award renders the without directing a rehearing language of these states versions of NRS 38.247(1)(e) superfluous. See Simon, 791 A.2d at 87-88; Ross, 544 N.W.2d at 801; Vondergoltz, 14 S.W.3d at 331. Thus, in order to give full effect to each of the statutory provisions governing appeals from arbitration-related orders, these courts concluded that orders vacating an arbitration award while directing rehearing, and that also deny confirmation of the award, may not be appealed. Several courts have further concluded that the uniform language set forth in their version of NRS 38.247(1), when read as a whole, implicitly contains a policy choice of permitting appellate review only when there is a sufficient degree of finality to the arbitration proceedings. See Simon, 791 A.2d at 88; Ross, 544 N.W.2d at 802; Thrivent Financial for Lutherans v. Brock, 251 S.W.3d 621, 622, 627 (Tex. App. 2007) (interpreting a statute that provides for appeals from orders confirming or denying confirmation of an award and orders vacating an award without directing a rehearing); see also Dept. of Transp. v. State Employ. Assn, 581 A.2d 813, 814-15 (Me. 1990) (same, and determining that the court lacked jurisdiction to consider an order that vacated an arbitration award and directed rehearing but discussing in dicta an approach to an order similar to the one at issue here); Nebraska Dept. of Health v. Struss, 623 N.W.2d 308, 313-14 (Neb. 2001) (interpreting a statute that provides for appeals from orders confirming or denying confirmation of an award and orders vacating an award without directing a rehearing, and concluding that the court lacked jurisdiction over an appeal that challenged an order vacating an award and directing rehearing). Indeed, the Nebraska Supreme Court commented in Struss that the purpose of Nebraskas version of NRS 38.247(1) is to distinguish between orders that conclude the arbitration process, and are thus suitable for appellate review, and those that do not conclude the arbitration process, rendering appellate review premature. 623 N.W.2d at 314-15. Decisions concluding that jurisdiction exists Only two courts have interpreted language similar to that of NRS 38.247(1) as permitting appellate jurisdiction over orders that both deny confirmation of an arbitration award and vacate the award

116

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[125 Nev.

while directing rehearing. National Ave. Bldg. Co. v. Stewart, 910 S.W.2d 334, 337-41 (Mo. Ct. App. 1995) (interpreting a statute that provides for appeals from orders confirming or denying confirmation of an award and orders vacating an award without directing a rehearing); Werline v. East Texas Salt Water Disp. Co., 209 S.W.3d 888, 893-96 (Tex. App. 2006) (same). In reaching this result, these courts emphasize the fact that their version of NRS 38.247(1)(c) expressly permits appeals from orders denying confirmation of an arbitration award. Stewart, 910 S.W.2d at 340-41; Werline, 209 S.W.3d at 895-96. Additionally, the Stewart court also noted that no subsection of the applicable statutes explicitly acts to bar the appealability of an order made appealable under another subsection when that order also contains a ruling that would not otherwise be independently appealable. 910 S.W.2d at 341. In Stewart, the court further noted that if their states legislature had intended an order, such as the one at issue here, not to be appealable, it would have added the qualifier without directing a rehearing to their statute providing for appeals from orders denying confirmation of an award. Id. at 341. Emphasis is also placed on the conclusion that interpreting the language of their versions of NRS 38.247(1) as not allowing appeals from orders that deny confirmation and vacate the award while directing rehearing could allow the arbitration process to continue indefinitely. Stewart, 910 S.W.2d at 340; Werline, 209 S.W.3d at 896. Further, the Werline court asserted that not reading Texass version of NRS 38.247(1)(c) as allowing an appeal from an order that both denies confirmation and vacates the award while directing rehearing renders the second half of subsection (c), which authorizes appeals from orders denying confirmation, almost meaningless. 209 S.W.3d at 895. The Werline court based this conclusion on its belief that if such orders could not be appealed, appellate jurisdiction would only exist in the rare situation when the trial court denies a motion to confirm, but fails to vacate the award.5 Id. This court lacks jurisdiction to consider this appeal
[Headnote 7]

Having reviewed these alternative interpretations of analogous versions of NRS 38.247(1), we find the decisions concluding that appellate courts lack jurisdiction to review orders denying confirmation of an arbitration award and vacating the award while directing a rehearing better reasoned and more persuasive. In particular, we agree with the various courts that have concluded that the plain language of their version of NRS 38.247(1)(e), which provides for an appeal from orders vacating an arbitration award without direct5 It appears that the Werline court believed that an order vacating the arbitration award would necessarily also involve referring the matter back to arbitration. 209 S.W.3d at 895.

Apr. 2009]

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ing a rehearing, bars appellate review of orders vacating an award while directing a rehearing, even if the order also denies confirmation of the award, which, on its own, would be appealable under a statute analogous to NRS 38.247(1)(c). See, e.g., Connerton, Ray & Simon v. Simon, 791 A.2d 86, 87-88 (D.C. 2002); Kowler Associates v. Ross, 544 N.W.2d 800, 801-02 (Minn. Ct. App. 1996); Prudential Securities, Inc. v. Vondergoltz, 14 S.W.3d 329, 331 (Tex. App. 2000). As noted in these decisions, because in this matter the district court directed a rehearing, permitting appellate review at this point would render NRS 38.247(1)(e)s without directing a rehearing language superfluous. Further, we agree with the conclusion reached by several courts that the statutory structure providing for appeals from arbitrationrelated orders, when read as a whole, is designed to permit appeals only from orders that bring an element of finality to the arbitration process. See Simon, 791 A.2d at 88; Dept. of Transp. v. State Employ. Assn, 581 A.2d 813, 814-15 (Me. 1990); Nebraska Dept. of Health v. Struss, 623 N.W.2d 308, 314 (Neb. 2001); Thrivent Financial for Lutherans v. Brock, 251 S.W.3d 621, 627 (Tex. App. 2007). Here, the district courts order vacating the arbitration award and remanding for supplemental proceedings extended, rather than concluded, the arbitration process, and has not been identified by NRS 38.247(1) as sufficiently final to be suitable for appellate review. Accordingly, finding no statutory basis for an appeal from the district court order, we conclude that this court lacks jurisdiction over this appeal. CONCLUSION After reviewing the plain text of NRS 38.247(1)(e), as well as the implicit policy contained in NRS 38.247(1) favoring finality of the arbitration proceedings prior to appellate review, we conclude that this court lacks jurisdiction to review a district court order that vacates an arbitration award, directs rehearing, and denies a motion to confirm the award. Accordingly, we dismiss this appeal. HARDESTY, C.J., DOUGLAS, GIBBONS, and PICKERING, JJ., concur.

118

Scarbo v. Dist. Ct.

[125 Nev.

CHRISTOPHER JOHN SCARBO, PETITIONER, v. THE EIGHTH JUDICIAL DISTRICT COURT OF THE STATE OF NEV ADA, IN AND FOR THE COUNTY OF CLARK, AND THE HONORABLE JACKIE GLASS, DISTRICT JUDGE, RESPONDENTS, AND THE STATE OF NEV ADA, REAL PARTY IN INTEREST.
No. 51151

SCOTT DA VID ROEBKE, PETITIONER, v. THE EIGHTH JUDI CIAL DISTRICT COURT OF THE STATE OF NEV ADA, IN AND FOR THE COUNTY OF CLARK, AND THE HONORABLE JACKIE GLASS, DISTRICT JUDGE, RESPON DENTS, AND THE STATE OF NEVADA, REAL PARTY IN INTEREST.
No. 51152 April 30, 2009 206 P.3d 975

Consolidated original petitions for writs of mandamus challenging district court orders denying petitioners requests for competency reports. The supreme court, DOUGLAS, J., held that prior to a hearing on a defendants competency to stand trial, full and complete copies of competency examination reports must be delivered to defense counsel. Petitions granted. Philip J. Kohn, Public Defender, and Howard S. Brooks, Deputy Public Defender, Clark County, for Petitioners. Catherine Cortez Masto, Attorney General, and Jill Carol Davis, Senior Deputy Attorney General, Carson City, for Respondents. David J. Roger, District Attorney, Steven S. Owens, Chief Deputy District Attorney, and James R. Sweetin, Deputy District Attorney, Clark County, for Real Party in Interest.
1. MANDAMUS. The decision to entertain a mandamus petition lies within the discretion of the supreme court. NRS 34.160. 2. MANDAMUS. The supreme court may entertain mandamus petitions when judicial economy and sound judicial administration militate in favor of writ review; additionally, the court may exercise its discretion and entertain a writ petition when an important issue of law requires clarification.

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3. CONSTITUTIONAL LAW; MENTAL HEALTH. The right not to be tried while incompetent is grounded in fundamental principles such as the right to a fair trial and the right to due process under the Fourteenth Amendment of the United States Constitution. U.S. CONST. amend. 14; NRS 178.400 et seq. 4. CRIMINAL LAW. Accuracy in the competency process is best served when the district court and any appointed experts consider a wide scope of relevant evidence at every stage of the competency proceeding, including initial doubts as to the defendants competency, the experts evaluation, and the hearing after the evaluation. NRS 178.400 et seq. 5. CONSTITUTIONAL LAW. Prior to a hearing on a defendants competency to stand trial, fundamental notions of due process under the United States and Nevada Constitutions demand that full and complete copies of the competency examination reports must be forwarded to the court that ordered the examination, and the court must cause copies of the report to be delivered forthwith to the office of the district attorney and to defense counsel, or to the defendant personally if not represented by counsel. Const. art. 1, 8(5); U.S. CONST. amend. 14; NRS 178.415. 6. CONSTITUTIONAL LAW. The Due Process Clause requires notice and an opportunity to be heard before the government deprives a person of his or her liberty. Const. art. 1, 8(5); U.S. CONST. amend. 14. 7. CONSTITUTIONAL LAW. Commitment to a psychiatric facility constitutes a deprivation of liberty, regardless of whether the commitment occurs as a result of a court order or referral, or an involuntary commitment proceeding; consequently, statutory competency proceedings must afford the defendant with proper notice and a meaningful opportunity to be heard for purposes of affording due process under the United States and Nevada Constitutions. Const. art. 1, 8(5); U.S. CONST. amend. 14.

Before the Court EN BANC.1 OPINION By the Court, DOUGLAS, J.: In this first of two related cases involving competency proceedings in the Eighth Judicial District Court, we must determine whether defense counsel is entitled to full and complete copies of the courtappointed examiners competency reports prior to a competency hearing held pursuant to NRS 178.415.2
1 THE HONORABLE KRISTINA PICKERING, Justice, did not participate in the decision of this matter. 2 Today, we also decide the related case of Sims v. Dist. Ct., 125 Nev. 126, 206 P.3d 980 (2009).

120

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[125 Nev.

We conclude that prior to a competency hearing held pursuant to NRS 178.415, full and complete copies of the competency examination reports shall be delivered to the office of the district attorney and to defense counsel, or to the defendant personally if not represented by counsel. Accordingly, we grant these petitions for extraordinary relief. FACTS In January 2008, the State filed criminal charges against petitioners Christopher John Scarbo and Scott David Roebke. Scarbo was charged with felony possession of a stolen vehicle, a violation of NRS 205.273. Roebke was charged with felony first-degree arson, a violation of NRS 205.010. Shortly thereafter, defense counsel expressed doubt about the petitioners competency to stand trial. The proceedings were suspended, and pursuant to the competency procedures adopted by the Eighth Judicial District Court, the cases were assigned to respondent Eighth Judicial District Court Judge Jackie Glass (Department 5) for resolution of the competency issues. Thereafter, Department 5 appointed three psychologists to evaluate and prepare reports regarding the petitioners competency. Subsequently, defense counsel submitted requests to receive full and complete copies of the competency examination reports prior to the competency hearing, which was being held pursuant to NRS 178.415. Department 5 denied defense counsels requests to receive copies of the competency examination reports and indicated that defense counsel would only receive a summary of the reports. Following the competency examinations, at a hearing in open court, Department 5 received and reviewed the competency examination reports and found the petitioners competent to stand trial. According to the reports, two of the three psychologists that examined the petitioners found that they were competent to stand trial. Shortly thereafter, defense counsel renewed their requests for full and complete copies of the competency examination reports. Once again, Department 5 denied defense counsels requests. Defense counsel then moved for a stay of proceedings in order to challenge Department 5s refusal to provide full and complete copies of the competency examination reports. These motions were also denied. At this point, defense counsel filed these original petitions for writs of mandamus and moved to stay the proceedings in the district court pending resolution of the instant petitions. On February 27, 2008, we entered temporary stays. DISCUSSION In recent years, this court has been called upon to consider an increasing number of issues regarding Nevadas competency procedure. In these consolidated writ petitions, we must determine

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whether a criminal defendant in a competency proceeding is entitled to a full and complete copy of his or her competency examination report. Standard for writ relief
[Headnote 1]

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 or where discretion has been manifestly abused or exercised arbitrarily or capriciously. Redeker v. Dist. Ct., 122 Nev. 164, 167, 127 P.3d 520, 522 (2006); see NRS 34.160. The writ will not issue, however, when the petitioner has a plain, speedy and adequate remedy . . . in the ordinary course of law. Hickey v. District Court, 105 Nev. 729, 731, 782 P.2d 1336, 1338 (1989); NRS 34.170. The decision to entertain a mandamus petition lies within the discretion of this court. Hickey, 105 Nev. at 731, 782 P.2d at 1338.
[Headnote 2]

When exercising its discretion, this court may entertain mandamus petitions when judicial economy and sound judicial administration militate in favor of writ review. See State v. Babayan, 106 Nev. 155, 175-76, 787 P.2d 805, 819 (1990). Additionally, this court may exercise its discretion and entertain a writ petition when an important issue of law requires clarification. State v. Dist. Ct. (Epperson), 120 Nev. 254, 258, 89 P.3d 663, 665-66 (2004) (quotation marks omitted). These consolidated writ petitions present such an issue, and therefore, we begin by clarifying in this opinion Nevadas competency procedure. Competency proceedings
[Headnote 3]

Among the myriad of rights enjoyed by criminal defendants is the right not to be tried while incompetent. This right is grounded in fundamental principles such as the right to a fair trial and the right to due process under the Fourteenth Amendment of the United States Constitution. Olivares v. State, 124 Nev. 1142, 1147, 195 P.3d 864, 868 (2008); see NRS 178.400; see also U.S. Const. amend. XIV. In Nevada, the Legislature has devised a procedure for determining competency to stand trial, thereby preventing the prosecution of mentally incompetent defendants. NRS 178.400 et seq. Under Nevadas competency procedure, if any doubt arises as to the competence of the defendant, the court shall suspend the proceedings, the trial or the pronouncing of the judgment, as the case may be, until the question of competence is determined. NRS 178.405(1). The court shall then hold a hearing to fully consider

122

Scarbo v. Dist. Ct.

[125 Nev.

those doubts and to determine whether further competency proceedings under NRS 178.415 are warranted.3 Olivares, 124 Nev. at 1149, 195 P.3d at 869. In Olivares, we recognized that further competency proceedings under NRS 178.415 are warranted when there is reasonable doubt regarding a defendants competency. Id. at 1148, 195 P.3d at 868. Competence shall be measured by the defendants ability to understand the nature of the criminal charges and the nature and purpose of the court proceedings, and by his or her ability to aid and assist his or her counsel in the defense at any time during the proceedings with a reasonable degree of rational understanding. Calvin v. State, 122 Nev. 1178, 1182-83, 147 P.3d 1097, 1100 (2006); Dusky v. United States, 362 U.S. 402, 402 (1960); see NRS 178.400(2)(a)-(c).
[Headnote 4]

If the court finds that further competency proceedings are warranted, it shall appoint two [certified] psychiatrists, two psychologists, or one psychiatrist and one psychologist, to examine the defendant. NRS 178.415(1). During the competency examination, defense counsel may meet with the court-appointed competency examiners and discuss the defendants ability to assist them up to that time.4 Calvin, 122 Nev. at 1183-84, 147 P.3d at 1100. This is be3 Under the competency procedures adopted by the Eighth Judicial District Court, all competency matters are assigned to a particular district court judge. In Fergusen v. State, this court reviewed the Eighth Judicial Districts competency procedures and concluded that the district court may assign initial competency determinations to a particular district court judge. 124 Nev. 795, 797, 192 P.3d 712, 714 (2008). However, any ongoing competency issue must vest with the trial judge who has been assigned to hear the matter. Id. Finally, the determination of all competency matters that arise during trial must vest with the trial judge who has been assigned to hear the matter. Id. 4 Petitioners contend that Department 5 violated this courts directive in Calvin by limiting defense counsels ability to communicate with courtappointed competency examiners. In Calvin, we concluded that accuracy in the competency process is better served by allowing defense counsel the opportunity to meet with competency examiners and to discuss the defendants competency. 122 Nev. at 1183-84, 147 P.3d at 1100. Nevertheless, we upheld the courts finding as to competency in that case because Calvin failed to provide us with any statements from his counsel [that] would have led the appointed experts or the district court to determine that he was not competent. Id. at 1184, 147 P.3d at 1100. Here, the petitioners have again failed to provide us with any statements from their counsel that would have led the appointed experts or Department 5 to determine that they were not competent. Additionally, the petitioners failed to demonstrate that Department 5 limited the communication between defense counsel and competency examiners. This court clearly indicated in Calvin that defense counsels ability to communicate with court-appointed competency examiners is vital to ensuring accuracy within the competency proceedings. Therefore, Department 5 lacked authority to deny the petitioners the opportunity to communicate with the competency examiners.

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cause accuracy in the competency process is best served when the district court and any appointed experts consider a wide scope of relevant evidence at every stage of the competency proceeding, including initial doubts as to the defendants competency, the experts evaluation, and the hearing after the evaluation. Id. at 1183, 147 P.3d at 1100. After the examination is completed, at a hearing in open court, the court that orders the examination must receive the report of the examination. NRS 178.415(2). After receiving the report of the examination, the court shall permit counsel for both sides to examine the person or persons appointed to examine the defendant. NRS 178.415(3). The court shall also permit counsel to introduce other evidence and cross-examine one anothers witnesses.5 Id. At the conclusion of the hearing, the court shall enter its findings as to competence. NRS 178.415(4). Following the hearing, [i]f the court finds that the defendant is competent, the trial must proceed, or judgment may be pronounced, as the case may be. NRS 178.420. If the court finds that the defendant is incompetent, the court shall order psychiatric treatment, consistent with NRS 178.425, which may include the involuntary administration of medication. NRS 178.425(1). After a defendant is found incompetent, [u]pon the completion of the evaluation and treatment of the defendant, the Administrator [of the Division of Mental Health and Developmental Services of the Department of Health and Human Services] or his designee shall report to the court in writing his specific findings and opinion as to whether the defendant is now competent to stand trial. NRS 178.455(1). Additionally, the Administrator or his designee shall maintain a copy of the report and send a copy of the report to counsel for both sides after the competency treatment is completed. NRS 178.455(3). After counsel receives a copy of the Administrators report, the court shall hold a hearing, if such hearing is requested within ten days of receiving the report. NRS 178.460; see Fergusen v. State, 124 Nev. 795, 797, 192 P.3d 712, 714 (2008). Competency examination reports Having addressed our competency procedure, we turn now to the merits of these writ petitionsnamely, whether defense counsel is entitled to full and complete copies of the competency examination
5 The requirement that [t]he court that receives the report of the examination shall permit counsel for both sides to examine the person or persons appointed to examine the defendant does not compel the participation of the courtappointed competency examiners at the competency hearing. See NRS 178.415(3). Nevertheless, the court-appointed competency examiners must appear at the competency hearing upon receiving a subpoena.

124

Scarbo v. Dist. Ct.

[125 Nev.

reports prior to the competency hearing held pursuant to NRS 178.415.

[Headnote 5]

Initially, we note that after a defendant has been found incompetent and received treatment, pursuant to NRS 178.455(3), full and complete copies of the competency examination reports must be sent to the district attorney and to the defense counsel prior to any further competency hearings. See NRS 178.455(3). Unfortunately, however, the statutory competency procedure set forth in NRS 178.415, which governs the district courts initial inquiry into a defendants competence, is silent with respect to whether full and complete copies of the competency examination reports must be sent to counsel prior to the competency hearing. Nevertheless, we conclude that fundamental notions of due process demand that prior to a competency hearing held pursuant to NRS 178.415, the competency examination report must be forwarded to the court that ordered the examination, and the court must cause copies of the report to be delivered forthwith to the office of the district attorney and to defense counsel, or to the defendant personally if not represented by counsel. See Vitek v. Jones, 445 U.S. 480, 494-96 (1980) (concluding that notice of the competency hearing was essential to afford the defendant an opportunity to challenge the contemplated action and to understand the nature of what is happening to him); see also Wolff v. McDonnell, 418 U.S. 539, 564 (1974) (concluding that the function of the notice requirement is to afford the defendant an opportunity to marshal the facts and to prepare a response).
[Headnotes 6, 7]

The United States and Nevada Constitutions provide that no person shall be deprived of liberty without due process of law. U.S. Const. amend. XIV, 1; Nev. Const. art. 1, 8(5). The Due Process Clause requires notice and an opportunity to be heard before the government deprives a person of his or her [liberty]. Maiola v. State, 120 Nev. 671, 675, 99 P.3d 227, 229 (2004). Commitment to a psychiatric facility constitutes a deprivation of liberty, regardless of whether the commitment occurs as a result of a court order or referral, or an involuntary commitment proceeding. See Maniccia v. State, 931 So. 2d 1027, 1029-30 (Fla. Dist. Ct. App. 2006). Consequently, our statutory competency proceedings must afford the defendant with proper notice and a meaningful opportunity to be heard. In this case, defense counsel for the petitioners submitted a request to receive full and complete copies of the competency examination reports prior to a competency hearing held pursuant to NRS 178.415. Department 5 denied defense counsels request for full and

Apr. 2009]

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complete copies of the competency examination reports prior to the competency hearing. By denying defense counsels request for full and complete copies of the competency examination reports prior to the competency hearing, Department 5 denied the petitioners a meaningful opportunity to be heard. Accordingly, we conclude that prior to a competency hearing held pursuant to NRS 178.415, the court that ordered the examination shall cause full and complete copies of the competency examination reports to be delivered forthwith to the office of the district attorney and to defense counsel, or the defendant personally if not represented by counsel. By providing counsel for both sides with full and complete copies of the competency examination reports, the prosecuting attorney and the defense counsel will be afforded a meaningful opportunity to be heard during the competency hearing. CONCLUSION NRS 178.415 is silent with respect to whether defense counsel is entitled to complete copies of the competency examination reports. Nevertheless, we conclude that full and complete copies of the competency examination reports must be sent to the district attorney and to defense counsel prior to a competency hearing pursuant to NRS 178.415 to comport with fundamental notions of due process. For the reasons stated above, we grant these consolidated writ petitions. The clerk of this court shall issue writs of mandamus directing the district court to vacate its prior competency findings and conduct new competency hearings pursuant to NRS 178.415. The writ shall further direct the district court to provide the district attorney and the defense counsel with full and complete copies of the competency examination reports in a manner that is consistent with this opinion. HARDESTY, C.J., PARRAGUIRRE, CHERRY, SAITTA, and GIBBONS, JJ., concur.

126

Sims v. Dist. Ct.

[125 Nev.

CAROLINE MARIE SIMS, PETITIONER, v. THE EIGHTH JUDI CIAL DISTRICT COURT OF THE STATE OF NEV ADA, IN AND FOR THE COUNTY OF CLARK, AND THE HON ORABLE JACKIE GLASS, DISTRICT JUDGE, RESPONDENTS, AND THE STATE OF NEV ADA, REAL PARTY IN INTEREST.
No. 51188

KANOHEA SAMUEL HEAUKULANI, PETITIONER, v. THE EIGHTH JUDICIAL DISTRICT COURT OF THE STATE OF NEV ADA, IN AND FOR THE COUNTY OF CLARK, AND THE HONORABLE JACKIE GLASS, DISTRICT JUDGE, RESPONDENTS, AND THE STATE OF NEV ADA, REAL PARTY IN INTEREST.
No. 51189 April 30, 2009 206 P.3d 980

Consolidated original petitions for writs of mandamus challenging district court orders denying petitioners requests to present evidence during competency hearings. The supreme court, DOUGLAS, J., held that independent competency evaluations submitted by relators were admissible at competency hearings. Petitions granted. Philip J. Kohn, Public Defender, and Christy L. Craig and Howard S. Brooks, Deputy Public Defenders, Clark County, for Petitioners. Catherine Cortez Masto, Attorney General, and Jill Carol Davis, Senior Deputy Attorney General, Carson City, for Respondent. David J. Roger, District Attorney, Steven S. Owens, Chief Deputy District Attorney, and James R. Sweetin, Deputy District Attorney, Clark County, for Real Party in Interest.
1. CRIMINAL LAW. The determination of all competency matters that arise during trial must vest with the trial judge who has been assigned to hear the matter. 2. 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 a manifest abuse of discretion or an arbitrary or capricious exercise of discretion; a writ of mandamus will not issue, however, if the petitioners have a plain, speedy, and adequate remedy in the ordinary course of law. NRS 34.160, 34.170.

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3. MANDAMUS. Mandamus is an extraordinary remedy, and it is within the discretion of the supreme court to determine whether mandamus petitions will be considered. NRS 34.160, 34.170. 4. APPEAL AND ERROR. Statutory interpretation is a question of law, and a trial courts interpretation of a statute is therefore reviewed de novo. 5. STATUTES. In examining a statute, supreme court will look first to the statutes plain language; if the plain language of the statute is ambiguous, or if the plain meaning of the statute was clearly not intended by the Legislature, the court will then turn to legislative intent for guidance. 6. CRIMINAL LAW. Both sides in a criminal prosecution may introduce other evidence during a competency hearing, including independent competency evaluations. NRS 178.415(3). 7. CRIMINAL LAW. While the district court has the discretionary authority to admit or exclude evidence during a competency hearing, the competency process will be much better served when the district court and any appointed experts consider a wide scope of relevant evidence at every stage of the competency proceeding; this does not compel the district court to consider every record and hear testimony from every witness the State or defense may wish to present, as all evidence must still be relevant to the ultimate issues of whether the defendant understands the nature of the proceedings against him and can assist his counsel in his defense. 8. CRIMINAL LAW. Probative value of independent competency evaluations was not substantially outweighed by considerations of undue delay, waste of time, or needless presentation of cumulative evidence, and evaluations were thus admissible at competency hearings in criminal prosecutions; the independent competency evaluations were relevant to petitioners competency to stand trial, and independent competency evaluations could not be said to be a waste of time or a needless presentation of cumulative evidence when the independent competency evaluations came to different conclusions than those submitted by court-appointed competency examiners. NRS 48.035(2), 178.415(3).

Before the Court EN BANC.1 OPINION By the Court, DOUGLAS, J.: In this second of two related cases involving competency procedures in the Eighth Judicial District Court, the petitioners challenge the district courts refusal to allow defense counsel the opportunity to present independent competency evaluations during the compe1 THE HONORABLE KRISTINA PICKERING, Justice, did not participate in the decision of this matter.

128

Sims v. Dist. Ct.

[125 Nev.

tency hearing.2 We conclude that defense counsel may introduce these independent evaluations if they are relevant to the issue of the defendants competency and their probative value is not substantially outweighed by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. Because the petitioners independent competency evaluations are relevant to the issue of competency, and their probative value is not substantially outweighed by considerations of undue delay, waste of time, or needless presentation of cumulative evidence, we grant these consolidated petitions. FACTS In early 2007, petitioner Caroline Marie Sims was charged with one count each of home invasion while in possession of a deadly weapon, carrying a concealed weapon, and burglary while in possession of a deadly weapon. In March 2007, petitioner Kanohea Samuel Heaukulani was charged with one count of open or gross lewdness. Shortly after these charges were filed, concerns were raised at the justice court level regarding the petitioners competency to stand trial. The justice court, acting under the competency procedures adopted by the Eighth Judicial District Court, bound the petitioners over to respondent Eighth Judicial District Court Judge Jackie Glass (Department 5) for resolution of the competency issues. Thereafter, the court appointed two psychologists to evaluate the petitioners. Following the evaluations, Department 5 received and reviewed the competency reports. According to the reports, the petitioners were competent to stand trial. Consequently, Department 5 entered formal findings of competence, and the cases proceeded to trial. Despite Department 5s findings of competence, defense counsel for the petitioners remained concerned about the petitioners competency to stand trial. As a result, defense counsel ordered independent competency evaluations for both petitioners. Each of the independent competency examiners were properly certified to evaluate competency by the Division of Mental Health and Developmental Services of the Department of Health and Human Services. See NRS 178.417. The results from the independent competency evaluations were unanimous in their conclusion that the petitioners were not competent to stand trial.
[Headnote 1]

Shortly after receiving the results from the independent competency evaluations, defense counsel for the petitioners again raised the issue of competency to stand trial. The trial judges suspended the
2 Today, we also decide the related case of Scarbo v. Dist. Ct., 125 Nev. 118, 206 P.3d 975 (2009).

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proceedings and transferred the ongoing competency matters back to Department 5.3 The petitioners were again evaluated by courtappointed competency examiners. Subsequent to the competency examinations, but prior to the competency hearings, defense counsel for the petitioners moved to admit the results from the independent competency evaluations at the competency hearings. Those motions were denied and these consolidated writ petitions followed. DISCUSSION
[Headnotes 2, 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, or to control a manifest abuse of discretion or an arbitrary or capricious exercise of discretion. NRS 34.160; Round Hill Gen. Imp. Dist. v. Newman, 97 Nev. 601, 603-04, 637 P.2d 534, 536 (1981). A writ of mandamus will not issue, however, if the petitioners have a plain, speedy, and adequate remedy in the ordinary course of law. See NRS 34.170. Mandamus is an extraordinary remedy, and it is within the discretion of this court to determine whether these petitions will be considered. Poulos v. District Court, 98 Nev. 453, 455, 652 P.2d 1177, 1178 (1982). The issue raised by these writ petitions concerns whether defense counsel is permitted under NRS 178.415(3) to introduce independent competency evaluations during the competency hearing. This important legal issue needs clarification. Therefore, we exercise our discretion to consider petitioners arguments. Business Computer Rentals v. State Treas., 114 Nev. 63, 67, 953 P.2d 13, 15 (1998) (noting that when an important issue of law needs clarification and public policy is served by this courts invocation of its original jurisdiction, [the] consideration of a petition for extraordinary relief may be justified (citing Ashokan v. State, Dept of Ins., 109 Nev. 662, 667, 856 P.2d 244, 247 (1993))).
[Headnotes 4, 5]

Department 5 interprets NRS 178.415(3) to limit the admissibility of evidence during the competency hearing to that which is related to treatment to competency and the possibility of ordering the involuntary administration of medication. Statutory interpretation is
3 Under the competency procedures recently adopted by the Eighth Judicial District Court, all competency matters are assigned to a particular district court judge. In Fergusen v. State, this court reviewed the Eighth Judicial District Courts competency procedures and concluded that the district court may assign initial competency determinations to a particular district court judge. 124 Nev. 795, 803, 192 P.3d 712, 718 (2008). However, any ongoing competency issue must vest with the trial judge who has been assigned to hear the matter. Id. Finally, the determination of all competency matters that arise during trial must vest with the trial judge who has been assigned to hear the matter. Id.

130

Sims v. Dist. Ct.

[125 Nev.

a question of law, and we review Department 5s interpretation of NRS 178.415(3) de novo. Firestone v. State, 120 Nev. 13, 16, 83 P.3d 279, 281 (2004). In examining a statute, this court will look first to the statutes plain language. Id. If the plain language of the statute is ambiguous, or if the plain meaning of the statute was clearly not intended by the Legislature, this court will then turn to legislative intent for guidance. Id.; see State v. Quinn, 117 Nev. 709, 713, 30 P.3d 1117, 1120 (2001) (citing State v. State, Employees Assoc., 102 Nev. 287, 289-90, 720 P.2d 697, 699 (1986) (determining that plain and unambiguous language within a statute must be given effect unless from the language of the statute it clearly appears that such [an interpretation] was not so intended)). NRS 178.415(3) provides that, upon receiving the competency reports from the court-appointed competency examiners, the court shall permit counsel for both sides to examine the person or persons appointed to examine the defendant. Additionally, [t]he prosecuting attorney and the defendant may: (a) Introduce other evidence including, without limitation, evidence related to treatment to competency and the possibility of ordering the involuntary administration of medication; and (b) Cross-examine one anothers witnesses. NRS 178.415(3)(a), (b). The plain and unambiguous language of NRS 178.415(3) is expansive and in no way limits the prosecuting attorneys or defense counsels ability to introduce evidence during the competency hearing. The plain meaning of the statute is evidenced by the phrases other evidence and without limitation, which denote expansive legislative intent. See Alsenz v. Clark Co. School Dist., 109 Nev. 1062, 1065, 864 P.2d 285, 287 (1993); see also St. Paul Mercury Ins. Co. v. Lexington Ins. Co., 78 F.3d 202, 206-07 (5th Cir. 1996) (word including is generally given expansive reading, even without additional language of without limitation).
[Headnote 6]

Despite the statutes plain language, Department 5 contends that this court must look to legislative intent for guidance. We are not convinced by this argument because the statutes plain meaning clearly supports an expansive interpretation. Nevertheless, we have canvassed the legislative history and find no intent beyond that which is clearly delineated in the plain language of the statute. Therefore, we conclude that Department 5s limited interpretation of NRS 178.415(3) is incorrect because both sides may introduce other evidence during the competency hearing, including independent competency evaluations. In this case, while Department 5 found that petitioners independent competency evaluations were relevant, it determined that their probative value was substantially outweighed by considera-

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131

tions of undue delay, waste of time, or needless presentation of cumulative evidence. Department 5 explained that the petitioners independent competency evaluations were needlessly cumulative because the court had already received competency reports from court-appointed competency examiners. We must now determine whether the petitioners independent competency evaluations were properly excluded as an undue delay, waste of time, or needless presentation of cumulative evidence. This court recently addressed a similar issue in Calvin v. State, 122 Nev. 1178, 147 P.3d 1097 (2006).
[Headnote 7]

In Calvin, we considered whether the district court improperly limited the information the court-appointed competency examiners could consider during the competency examination and the subsequent competency hearing. Id. at 1183, 147 P.3d at 1100. We concluded that while the district court has the discretionary authority to admit or exclude evidence during the competency hearing, the competency process will be much better served when the district court and any appointed experts consider a wide scope of relevant evidence at every stage of the competency proceeding. Id. This does not compel the district court to consider every record and hear testimony from every witness the State or defense may wish to present; all evidence must still be relevant to the ultimate issues of whether the defendant understands the nature of the proceedings against him and can assist his counsel in his defense. Id. Even if the evidence being proffered is relevant, the district court may still exclude the evidence if its probative value is substantially outweighed by considerations of undue delay, waste of time or needless presentation of cumulative evidence. NRS 48.035(2).
[Headnote 8]

In light of our decision in Calvin, we conclude that Department 5s line of reasoning was an arbitrary and capricious exercise of discretion because accuracy in the competency process is much better served when the district court considers a wide scope of relevant evidence. Calvin, 122 Nev. at 1183, 147 P.3d at 1100. Here, the petitioners independent competency evaluations were, without question, relevant to the issue of competency. Furthermore, the district courts consideration of a single additional competency evaluation will not cause undue delay. Neither will the petitioners independent competency evaluations be a waste of time nor will they constitute needless presentation of cumulative evidence. This is because the independent competency evaluations came to different conclusions than those submitted by the court-appointed competency examiners. Accordingly, we conclude that the probative value of the petitioners independent competency evaluations is not substantially outweighed by considerations of undue delay, waste of time or needless presen-

132

Allstate Insurance Co. v. Fackett

[125 Nev.

tation of cumulative evidence. NRS 48.035(2). Therefore, we conclude that Department 5 manifestly abused its discretion in excluding this evidence. CONCLUSION NRS 178.415(3) provides that the prosecuting attorney and defense counsel may introduce other evidence, including independent competency evaluations, if the evidence is relevant to the issue of competency. Consequently, the petitioners are entitled to introduce their independent competency evaluations during the competency hearing since the evaluations are relevant to the issue of competency and the probative value of this information is not outweighed by NRS 48.035(2). Accordingly, we grant these consolidated writ petitions. The clerk of this court shall issue writs of mandamus instructing the district court to consider petitioners independent competency evaluations at their competency hearings. HARDESTY, C.J., PARRAGUIRRE, CHERRY, SAITTA, and GIBBONS, JJ., concur.

ALLSTATE INSURANCE COMPANY, APPELLANT, v. DEBORAH ANN FACKETT, RESPONDENT.

No. 49884 April 30, 2009 206 P.3d 572

Appeal from a district court summary judgment in a declaratory relief action regarding an uninsured/underinsured motorist insurance matter. Eighth Judicial District Court, Clark County; James M. Bixler, Judge. After insured made a demand under her automobile policy for uninsured/underinsured motorist (UM) benefits for the death of her mother, who died from severe injuries suffered in a car accident, insurer filed a declaratory relief action seeking a declaration that the policy was valid and enforceable, that insureds mother was not an insured and, thus, that insured could not recover for her mothers death. The district court granted insureds motion for summary judgment. Insurer appealed. The supreme court held that: (1) policy limited recovery to insureds who suffered bodily injury, and thus insured, who did not suffer any bodily injury, was not entitled to UM benefits for the death of her mother, who was not an insured; (2) UM statute provides UM coverage for insureds who suffer bodily injury in an auto accident and does not provide coverage for legal claims an insured may have regarding a noninsured third party who

Apr. 2009]

Allstate Insurance Co. v. Fackett

133

is injured by an uninsured/underinsured driver; and (3) policy limitation was consistent with UM statute, and thus policy limitation was enforceable. Reversed and remanded. Prince & Keating and Dennis M. Prince and Douglas J. Duesman, Las Vegas, for Appellant. Rogers, Mastrangelo, Carvalho & Mitchell and Daniel E. Carvalho and Charles A. Michalek, Las Vegas, for Respondent.
1. APPEAL AND ERROR. Supreme court reviews a district courts grant of summary judgment de novo. 2. JUDGMENT. Summary judgment is appropriate when there is no genuine issue of material fact and, viewing all evidence and inferences from the evidence in a light most favorable to the nonmoving party, the moving party is entitled to a judgment as a matter of law. NRCP 56(c). 3. INSURANCE. Automobile insurance policy provision stating that insurer would pay damages which an insured person was legally entitled to recover from the owner or operator of an uninsured auto because of bodily injury sustained by an insured person limited recovery to insureds who suffered bodily injury, and thus insured, who did not suffer any bodily injury, was not entitled to uninsured/underinsured motorist benefits for the death of her mother, who was not an insured. 4. JUDGMENT. When a contract is unambiguous and neither party is entitled to relief from the contract, summary judgment based on the contractual language is proper. 5. APPEAL AND ERROR; INSURANCE. When there are no disputed material facts, supreme court reviews construction of an insurance policy as purely a question of law and construes any ambiguities in an insurance policy in favor of the insured. 6. STATUTES. To determine legislative intent, supreme court first looks at the plain language of a statute. 7. STATUTES. Supreme court only looks beyond the plain language of a statute if it is ambiguous or silent on the issue in question. 8. STATUTES. Supreme court reads statutes within a statutory scheme harmoniously with one another to avoid an unreasonable or absurd result. 9. INSURANCE. The two statutes that comprise Nevadas uninsured/underinsured motorist statutory scheme are incorporated into all applicable Nevada auto insurance policies. NRS 687B.145(2), 690B.020. 10. INSURANCE. Any auto insurance policy or provision that contravenes uninsured/ underinsured motorist statutory scheme is void and unenforceable. NRS 687B.145(2), 690B.020.

134

Allstate Insurance Co. v. Fackett

[125 Nev.

11. INSURANCE. The purpose of the uninsured/underinsured motorist statutory scheme is to mitigate losses sustained by no-fault insureds who sustain injuries in a collision with an underinsured or uninsured driver through first-party benefits. NRS 687B.145(2), 690B.020. 12. INSURANCE. Uninsured/underinsured motorist (UM) statute provides UM coverage for insureds who suffer bodily injury in an auto accident and does not provide coverage for legal claims an insured may have regarding a noninsured third party who is injured by an underinsured/uninsured driver. NRS 687B.145(2). 13. INSURANCE. Automobile policy limiting uninsured/underinsured motorist (UM) coverage to insureds who suffered bodily injury was consistent with the plain language of UM statute, which did not extend coverage to noninsured third parties, and thus policy limitation was enforceable. NRS 687B.145(2).

Before HARDESTY, C.J., PARRAGUIRRE, DOUGLAS, CHERRY, SAITTA, GIBBONS and PICKERING, JJ. OPINION Per Curiam: Respondent Deborah Ann Facketts mother, Barbara Testa, suffered severe injuries when her car collided with Benjamin Bellvilles car. Bellville was an underinsured driver, and Testa was insured under her own auto insurance policy. Fackett was insured with appellant Allstate Insurance Company. A few weeks after the accident, Testa died from her injuries. Fackett sued Bellville for the wrongful death of her mother and received his $1,000,000 policy limit. Fackett then made a demand under her Allstate insurance policy (Policy) for uninsured/underinsured motorist (UM) benefits for the death of her mother. Allstate denied coverage because Testa was not an insured person under the Policy. Allstate then filed a declaratory relief action, requesting that the court find that (1) the Policy was valid and enforceable and (2) Testa was not an insured, and therefore Fackett could not recover for Testas death. Both parties moved for summary judgment. The district court granted Facketts motion, denied Allstates motion, and ruled as a matter of law that the Policys provision requiring that the injured be an insured violated NRS 687B.145(2) because the statute does not require that the bodily injury be sustained by an insured. Therefore, the district court found that Fackett was entitled to UM benefits for Testas death. We must determine whether Allstates UM policy provision, which limits recovery to insureds who suffer bodily injury, is enforceable and whether the district court erred in granting summary judgment in favor of Fackett. Our analysis of the district courts ruling has two prongs.

Apr. 2009]

Allstate Insurance Co. v. Fackett

135

First, we must determine whether the Policy provision limiting recovery to insureds who suffer bodily injury is ambiguous. We conclude that the Policy is clear and unambiguous and limits recovery to insureds who suffer bodily injury. Second, we must determine whether the Policy limitations contravene Nevadas UM statutory scheme or public policy. We conclude that neither NRS 687B.145(2) nor public policy requires that UM coverage provide recovery for injury to uninsured third parties. Thus, Allstates Policy provision limiting recovery to insureds who suffer bodily harm is unambiguous, does not contravene NRS 687B.145(2), and therefore is enforceable. Accordingly, we reverse. FACTS AND PROCEDURAL HISTORY Accident and insurance policy Barbara Testa, respondent Deborah Facketts mother, was a faultfree passenger in a vehicle that collided with Benjamin Bellvilles vehicle. Testa was severely injured and died a few weeks later from her injuries. She was insured under her own policy and was not insured under Facketts Allstate policy. At the time of the accident and Testas death, Fackett had an insurance policy with Allstate. The UM coverage provided that [Allstate] will pay damages which an insured person is legally entitled to recover from the owner or operator of an uninsured auto because of bodily injury sustained by an insured person. (Emphasis added.) According to the Policy, insured persons are: 1. [The named insured] and any relative who resides in [the named insureds] household. 2. Any person while in, on, getting into or out of [the named insureds] insured auto with [the named insureds] permission. 3. Any other person who is legally entitled to recover because of bodily injury to [the named insured], a relative who resides in [the named insureds] household, or an occupant of [the named insureds] insured auto with [the named insureds] permission. The parties agree that Testa was not an insured person under the Policy. In addition, the Policy defines an uninsured auto as, among other things, an underinsured motor vehicle which has liability protection in effect and applicable at the time of the accident but less than the applicable damages the insured person is legally entitled to recover. Fackett asserted a wrongful death claim against Bellville and ultimately settled with Bellvilles insurance company for his $1,000,000 policy limit. The district court found that Bellville was

136

Allstate Insurance Co. v. Fackett

[125 Nev.

insured but lacked sufficient insurance to cover all claims involved in the accident. After the settlement, Facketts attorney informed Allstate of his representation and requested a copy of Facketts policy that was in effect at the time of the accident. Allstate then informed Facketts attorney, in writing, that Testa was not an insured person under the Policy, and therefore UM benefits were not available to Fackett. Fackett then made a formal demand for her UM Policy limits. She argued that NRS 687B.145 entitled her to recover any damages for which she is legally entitled to recover from the other driver. Because she was legally entitled to recover from Bellville for the wrongful death of her mother, Fackett reasoned that she was entitled to recover UM benefits as well. Allstate did not reconsider its earlier denial of the claim. District court proceedings Allstate filed a declaratory relief action seeking an order declaring that the Policy was valid and enforceable, and that Testa was not an insured person under the Policy, and therefore Fackett was not entitled to UM benefits for Testas death. Allstate moved for summary judgment on its claim for declaratory relief. Fackett filed an opposition and a countermotion for summary judgment. Fackett argued that she was entitled to summary judgment because (1) the UM statute must be construed broadly and strictly in favor of the insured, and (2) the Policy was void and unenforceable because it violated public policy by restricting coverage to injuries suffered by insureds.1 The district court granted Facketts summary judgment motion and denied Allstates motion. The district court found that states having UM statutes and public policies similar to Nevada allowed recovery in similar cases. As a result, the district court concluded that (1) NRS 687B.145 must be strictly construed in favor of the insured, (2) the statute does not require that the insured suffer physical bodily injury, and (3) the Policys requirement that the injured be an insured contravenes the statute.2 Therefore, the district court found that Fackett was entitled to UM benefits for Testas death.
1 Fackett also argued that bodily injury includes emotional harm such as grief and sorrow. We do not reach the issue of whether bodily injury includes emotional harm, such as claims for negligent infliction of emotional distress or wrongful death, because the decision is not necessary to the determination of this appeal. Fackett was not involved in the accident, she was not present at the scene, and did not witness the accident, so she could not have suffered any harm in the accident. 2 We commend the district court for making specific findings of fact and conclusions of law, which greatly assisted this court by defining and clarifying the issues.

Apr. 2009]

Allstate Insurance Co. v. Fackett

137

DISCUSSION Allstate argues that the district court erred in granting Fackett summary judgment because the Policy language restricting recovery to injured insureds is consistent with Nevadas public policy and the plain language of the UM statute. Therefore, the limitation of recovery to insureds who are injured in an auto accident with an uninsured/underinsured motorist is enforceable. Fackett, however, argues that this court must strictly construe the UM statute in favor of the insured. This would require that UM coverage include any legal claims that an insured person has against an uninsured/ underinsured driver, even when the person injured in the auto accident was not covered under the policy in question. We agree with Allstates position because the Policy is unambiguous, it comports with the plain language of Nevadas UM statutory scheme, and is enforceable. Standard of review
[Headnotes 1, 2]

This court reviews a district courts grant of summary judgment de novo. Wood v. Safeway, Inc., 121 Nev. 724, 729, 121 P.3d 1026, 1029 (2005). Summary judgment is appropriate when there is no genuine issue of material fact and, viewing all evidence and inferences from the evidence in a light most favorable to the nonmoving party, the moving party is entitled to a judgment as a matter of law. Id.; NRCP 56(c). In this case, the parties agree that there are no disputed material facts and only dispute whether Fackett is entitled to judgment as a matter of law under the applicable statutory and contractual provisions. The Policy provision requiring that an insured sustain bodily injury or death
[Headnote 3]

Allstate argues that the express terms of the Policys UM provision require that an insured sustain injury or death and therefore do not provide coverage for Facketts mother.3 We agree because the Policy is unambiguous and limits recovery to injured insureds.
[Headnotes 4, 5]

When a contract is unambiguous and neither party is entitled to relief from the contract, summary judgment based on the contractual language is proper. Chwialkowski v. Sachs, 108 Nev. 404, 406-07,
3 Fackett argues that her original Allstate insurance policy provided coverage for damages because of bodily injury which an insured person is legally entitled to recover from the owner or operator of an uninsured auto. Allstate then sent a Policy Endorsement that limited recovery by adding bodily injury

138

Allstate Insurance Co. v. Fackett

[125 Nev.

834 P.2d 405, 406 (1992). When there are no disputed material facts, this court reviews construction of an insurance policy as purely a question of law and construes any ambiguities in an insurance policy in favor of the insured. Estate of Delmue v. Allstate Ins. Co., 113 Nev. 414, 417, 936 P.2d 326, 328 (1997). At the time of the accident, Facketts Policy stated, [Allstate] will pay damages which an insured person is legally entitled to recover from the owner or operator of an uninsured auto because of bodily injury sustained by an insured person. (Emphasis added.) This language is unambiguous and clearly states that any injury for which the insured will receive UM benefits must be a bodily injury suffered by the insured. Thus, we conclude Fackett was not entitled to UM benefits for the death of her mother because Fackett, the insured, did not suffer any bodily injury. NRS 687B.145(2) does not entitle insureds to recover UM benefits for injuries to uninsured third parties Allstate argues that the plain language of NRS 687B.145(2) only applies to bodily injury suffered by the insured. Fackett, on the other hand, argues that this court must strictly construe the UM statute in favor of recovery by insureds. Under this construction, Fackett reasons that the statutory scheme applies to bodily injury suffered by anyone whose injury gives the insured a legal claim against the uninsured driver. We conclude that Allstates position is correct.
[Headnotes 6-8]

To determine legislative intent, this court first looks at the plain language of a statute. Salas v. Allstate Rent-A-Car, Inc., 116 Nev. 1165, 1168, 14 P.3d 511, 513-14 (2000). We only look beyond the plain language if it is ambiguous or silent on the issue in question. Id. We read statutes within a statutory scheme harmoniously with one another to avoid an unreasonable or absurd result. Torrealba v. Kesmetis, 124 Nev. 95, 101, 178 P.3d 716, 721 (2008).
[Headnotes 9, 10]

NRS 687B.145(2) and 690B.020 comprise Nevadas UM statutory scheme and are incorporated into all applicable Nevada auto insurance policies. Continental Ins. Co. v. Murphy, 120 Nev. 506, 509, 96 P.3d 747, 750 (2004) (describing these two statutes as the UM statutory scheme); Hampton v. Brewer, 103 Nev. 73, 74, 733 P.2d 852, 853 (1987) (noting that statutes must be construed in light of
sustained by an insured person. Because the endorsed policy was effective at the time of the accident, we do not address the pre-endorsement policy language.

Apr. 2009]

Allstate Insurance Co. v. Fackett

139

their purpose as a whole (citation omitted)); Ippolito v. Liberty Mutual, 101 Nev. 376, 378-79, 705 P.2d 134, 136 (1985) (incorporating the UM scheme into Nevada auto insurance policies). Any auto insurance policy or provision that contravenes this statutory scheme is void and unenforceable. Continental, 120 Nev. at 507, 96 P.3d at 748. NRS 687B.145(2) provides, in pertinent part, that [u]ninsured and underinsured vehicle coverage must include a provision which enables the insured to recover up to the limits of his own coverage any amount of damages for bodily injury from his insurer which he is legally entitled to recover from the owner or operator of the other vehicle to the extent that those damages exceed the limits of the coverage for bodily injury carried by that owner or operator. (Emphases added.) The plain language of the statute indicates that the insured can only recover for bodily injuries the insured personally suffers. The language bodily injury from his insurer which he is legally entitled to recover is referring to bodily injury suffered by the insurednot by any person whose injury may give rise to a legal claim by the insured against the uninsured motorist. Fackett argues a strict construction in which any person who has a claim against the uninsured motorist could recover under this statute. This interpretation strains the statute beyond its plain meaning.
[Headnote 11]

The plain meaning requirement that an insured suffer bodily injury is consistent with our prior interpretations of this statutory scheme and comports with other states interpretations of similar statutes. The purpose of the UM statutory scheme is to mitigate losses sustained by no-fault insureds who sustain injuries in a collision with an underinsured or uninsured driver through first-party benefits. State Farm Mut. Auto. Ins. Co. v. Fitts, 120 Nev. 707, 709, 99 P.3d 1160, 1161 (2004); Siggelkow v. Phoenix Ins. Co., 109 Nev. 42, 44, 846 P.2d 303, 304 (1993). Our previous interpretations of the UM scheme presuppose that the insured was involved in a car accident and suffered damages in the accident. Thus, this court has interpreted these statutes as applying to insureds involved in car accidents and not to insureds who had a legal claim regarding an uninsured third person who was injured by an uninsured or underinsured driver. Our plain-language reading of the UM statute is supported by the holdings of a growing number of states on the same issue, while Facketts position is supported by only a shrinking minority of

140

Allstate Insurance Co. v. Fackett

[125 Nev.

states. Fackett points to seven jurisdictions4 that once allowed insureds to recover UM benefits for the death of an uninsured third party.5 However, four of the legislatures in these seven states have amended their statutes to disallow such recovery.6 Nebraskas law is unclear because its statute requiring UM coverage is ambiguous, but its statutes defining an uninsured and underinsured motor vehicle refer to the injuries of an insured. Neb. Rev. Stat. 44-6405, 44-6406, 44-6408 (2004). Also, Nebraska has legislation pending that would extend coverage to anyone occupying an insured vehicle with the consent of the insured and who is not entitled to UM coverage under any other policy. Legis. Bill 152, 101st Leg., 1st Reg. Sess. (Neb. 2009). Thus, only two of the seven jurisdictions cited by respondent, Iowa and New Mexico, still definitively allow recovery by insureds for the death of an uninsured third party. See Waits v. United Fire & Cas. Co., 572 N.W.2d 565, 574 (Iowa 1997); Hinners v. Pekin Ins. Co., 431 N.W.2d 345, 346-47 (Iowa 1988); State Farm Mut. Auto. Ins. Co. v. Luebbers, 119 P.3d 169, 176 (N.M. Ct. App. 2005). Many states have UM statutes almost identical to Nevadas statutes, and Allstate points to 16 jurisdictions with the same legal entitlement language as Nevadas scheme.7 Courts in these states have held that UM coverage only applies to insureds who sustain bodily injury in an auto accident that was the fault of an uninsured motorist and have denied coverage for injury to uninsured third parties.8 This trend comports with the plain language meaning of Nevadas UM statutory scheme.
4 These states include Georgia, Iowa, Maine, Maryland, Nebraska, New Mexico, and Ohio. 5 Gordon v. Atlanta Cas. Co., 611 S.E.2d 24, 25 (Ga. 2005); Hinners v. Pekin Ins. Co., 431 N.W.2d 345, 346-47 (Iowa 1988); Butterfield v. Norfolk & Dedham Ins. Co., 860 A.2d 861, 866-67 (Me. 2004); Forbes v. Harleysville Mutual, 589 A.2d 944, 953-54 (Md. 1991); State Farm Mutual Automobile Ins. Co. v. Selders, 190 N.W.2d 789, 792 (Neb. 1971); State Farm Mut. Auto. Ins. Co. v. Luebbers, 119 P.3d 169, 176 (N.M. Ct. App. 2005); Sexton v. State Farm Mut. Auto. Ins. Co., 433 N.E.2d 555, 559 (Ohio 1982). 6 Ga. Code Ann. 33-7-11 (2008) (amended to allow recovery for the death of an insured, 2006 Ga. Laws 816); Me. Rev. Stat. Ann. tit. 24-A, 2902 (2008) (amended to clarify that injury must be sustained by the insured, 2005 Me. 1573); Md. Code Ann., Ins. 19-509 (West 2008) (amended to clarify that recovery for wrongful death is only available when insured suffers wrongful death, 1991 Md. Laws 3422); Ohio Rev. Code Ann. 3937.18 (LexisNexis 2002) (amended to specifically allow exclusions for [w]hen the person actually suffering the bodily injury . . . is not an insured under the policy, 2001 Ohio Laws 784-85). 7 These states include Alaska, Arizona, California, Colorado, Delaware, Florida, Illinois, Indiana, Louisiana, Mississippi, Missouri, Oklahoma, Rhode Island, South Dakota, Washington, and Wisconsin. 8 Delancey v. State Farm Mut. Auto. Ins. Co., 918 F.2d 491, 495 (5th Cir. 1990) (holding that neither Mississippis wrongful death statute nor its UM

Apr. 2009]
[Headnote 12]

Allstate Insurance Co. v. Fackett

141

The plain language of NRS 687B.145(2) provides UM coverage for insureds who suffer bodily injury in an auto accident and does not provide coverage for legal claims an insured may have regarding a noninsured third party who is injured by an underinsured/uninsured driver. This plain language reading is consistent with our prior interpretations of Nevadas UM statutory scheme as well as the law of a growing majority of states. CONCLUSION
[Headnote 13]

We conclude that Allstates Policy was unambiguous and its provision limiting UM coverage to insureds who suffer bodily injury is consistent with the plain language of NRS 687B.145(2), which does not extend coverage to noninsured third parties. Thus, Allstates Policy limitation is enforceable, and the district court erred in granting
statute allows an insured to recover for the death of an uninsured third party); State Farm Mut. Ins. Co. v. Wainscott, 439 F. Supp. 840, 844 (D. Alaska 1977) (denying father recovery under UM coverage for wrongful death of uninsured daughter); Bartning v. State Farm Fire & Cas., 793 P.2d 127, 129 (Ariz. Ct. App. 1990) (holding that the legislature did not intend to provide coverage under a UM policy for injuries to third parties); Smith v. Royal Ins. Co. of America, 230 Cal. Rptr. 495, 497 (Ct. App. 1986) (denying insured UM recovery for wrongful death of her uninsured father); Farmers Ins. Exchange v. Chacon, 939 P.2d 517, 520, 522 (Colo. App. 1997) (denying insured childrens recovery for uninsured mothers wrongful death); Temple v. Travelers Indemnity Co., No. 98C-08-088 WCC, 2000 WL 33113814, at *4-*6 (Del. Super. Ct. Nov. 30, 2000) (interpreting UM statute as only applying to insureds injured in accidents); Valiant Ins. Co. v. Webster, 567 So. 2d 408, 410 (Fla. 1990) (denying father UM recovery for death of uninsured son), receded from on other grounds in Government Employees Ins. Co. v. Douglas, 654 So. 2d 118 (Fla. 1995); State Farm Mut. Auto. Ins. Co. v. George, 762 N.E.2d 1163, 1165-66 (Ill. App. Ct. 2002) (denying insureds UM claim on behalf of child for loss of society of childs uninsured mother); Ivey v. Massachusetts Bay Ins. Co., 569 N.E.2d 692, 695 (Ind. Ct. App. 1991) (denying husband UM recovery for uninsured wifes wrongful death because husband did not suffer bodily injury); Spurlock v. Prudential Ins. Co., 448 So. 2d 218, 219 (La. Ct. App. 1984) (holding insured could not recover for wrongful death of uninsured third party); Livingston v. Omaha Property & Cas. Ins. Co., 927 S.W.2d 444, 446 (Mo. Ct. App. 1996) (denying coverage of insured mothers claim under UM policy as decedent daughter was not an insured under the policy); London v. Farmers Ins. Co., Inc., 63 P.3d 552, 556 (Okla. Civ. App. 2002) (holding that allowing UM coverage to be extended for injuries sustained by a person who is not an insured under the claimants policy would create coverage under the statute where none previously existed); Terilli v. Nationwide Mut. Ins. Co., 641 A.2d 1321, 1322 (R.I. 1994) (denying childs UM claim for loss of consortium of severely injured parent); Gloe v. Iowa Mut. Ins. Co., 694 N.W.2d 238, 249 (S.D. 2005) (denying recovery to insured for uninsured parents deaths); Allstate Ins. Co. v. Hammonds, 865 P.2d 560, 564 (Wash. Ct. App. 1994) (holding insured could not recover loss of consortium for severe injury of uninsured son); Ledman v. State Farm Mut. Auto. Ins. Co., 601 N.W.2d 312, 317 (Wis. Ct. App. 1999) (denying recovery because emotional harm is not bodily injury).

142

Hannon v. State

[125 Nev.

Facketts summary judgment motion. Accordingly, we reverse and remand to district court with instructions to enter summary judgment in favor of Allstate.

SEAN ANDREW HANNON, APPELLANT, v. THE STATE OF NEV ADA, RESPONDENT.

No. 50594 May 21, 2009 207 P.3d 344

Appeal from a judgment of conviction, pursuant to a plea of nolo contendere, of one count of possession of a controlled substance. Second Judicial District Court, Washoe County; Jerome Polaha, Judge. The supreme court, PARRAGUIRRE, J., held that reported domestic disturbance to which officer responded did not represent an emergency of the sort justifying a warrantless entry into the residence, abrogating Geary v. State, 91 Nev. 784, 544 P.2d 417 (1975), and State v. Hardin, 90 Nev. 10, 518 P.2d 151 (1974). Reversed. [Rehearing denied July 31, 2009] [En banc reconsideration denied September 15, 2009] Dennis A. Cameron, Reno, for Appellant. Catherine Cortez Masto, Attorney General, Carson City; Richard A. Gammick, District Attorney, and Joseph R. Plater, Deputy District Attorney, Washoe County, for Respondent.
1. SEARCHES AND SEIZURES. Under the circumstances, viewed objectively and regardless of officers subjective motivations, reported domestic disturbance involving defendant and his girlfriend, to which officer responded to learn from girlfriend, through an opened door, that nobody inside the home was injured and that nobody else was inside except defendant, who was visible to officer, did not represent an emergency of the sort justifying a warrantless entry into the residence, abrogating Geary v. State, 91 Nev. 784, 544 P.2d 417 (1975), and State v. Hardin, 90 Nev. 10, 518 P.2d 151 (1974). U.S. CONST. amend. 4. 2. CRIMINAL LAW. In cases involving use of the emergency exception to the warrant requirement, while supreme court defers to the factual findings supporting the district courts ruling on a motion to suppress evidence, it reviews de novo whether the emergency exception justifies a warrantless entry. U.S. CONST. amend. 4. 3. SEARCHES AND SEIZURES. Warrantless home entries, the chief evil against which the Fourth Amendment protects, are presumptively unreasonable unless justified by a

May 2009]

Hannon v. State

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well-delineated exception, such as when exigent circumstances exist. U.S. CONST. amend. 4. 4. SEARCHES AND SEIZURES. One exigency that serves as an exception to the warrant requirement is the need to render emergency assistance to an injured occupant or to protect an occupant from imminent injury. U.S. CONST. amend. 4. 5. SEARCHES AND SEIZURES. Unlike hot pursuit situations or the need to preserve evidence, warrantless entries for emergency reasons do not require probable cause. U.S. CONST. amend. 4. 6. SEARCHES AND SEIZURES. For purposes of applying the emergency exception to the warrant requirement, a law enforcement officers subjective motivation is irrelevant; rather, the reasonableness of an emergency home entry depends on whether the circumstances, viewed objectively, justify the action or, more specifically, whether law enforcement had an objectively reasonable basis to believe that there was an immediate need to protect the lives or safety of themselves or others. U.S. CONST. amend. 4.

Before PARRAGUIRRE, DOUGLAS and PICKERING, JJ. OPINION By the Court, PARRAGUIRRE, J.: In this appeal, we consider whether an emergency reason existed for a warrantless entry into a private residence. In resolving this issue, we bring our standard for emergency home entries into conformity with the recent United States Supreme Court decision in Brigham City v. Stuart, 547 U.S. 398, 404 (2006). Under that standard, the warrantless entry into appellants apartment was unlawful as there was no objectively reasonable basis to believe that the two occupants or any undisclosed third party may have been in danger inside. Accordingly, we conclude that the district court erred in denying appellants motion to suppress the evidence of marijuana recovered during a subsequent search and reverse the district courts judgment of conviction. FACTS AND PROCEDURAL HISTORY On the afternoon of July 29, 2006, appellant Sean Andrew Hannon and his girlfriend, Lea Robinson, were overheard arguing in their apartment. During the argument, Robinson became emotional, screamed at Hannon, and slammed the bathroom door against the wall. Having overheard yelling and screaming [and] thumping against the walls in Hannons apartment, a neighbor called 911 to report a possible domestic disturbance. In response, Officer Eric Friberg and his trainee were dispatched to the scene. Before knocking on Hannons door, the officers confirmed with the neighbor what he had overheard.

144

Hannon v. State

[125 Nev.

Although approximately 45 minutes had elapsed since the argument had dissipated, Robinson answered the door red-faced, crying, and breathing hard. As Robinson opened the door, Officer Friberg observed Hannon in the background in a tank top and underwear. He appeared to be flushed and angry. Speaking to Robinson through the cracked door, Officer Friberg explained that he was responding to a possible domestic disturbance and asked if she was injured. Robinson replied no, though she admitted having a verbal argument with Hannon earlier that day. Robinson was then asked whether anyone else was inside and whether they were injured. Robinson answered that nobody was injured and that nobody else was inside except Hannon. Despite these reassurances, Officer Friberg stated that he needed to come inside to check everybodys welfare and make sure everybody was okay. He then asked Robinson for permission to enter. Robinson refused to allow the officers to enter and asked if they had a warrant. The officers then sought permission from Hannon. Again, the officers were told that they could not come inside the apartment. Although he had twice been denied entry, Officer Friberg persisted by push[ing] the [apartment] door slightly open. As the officers crossed the units threshold, Hannon ran into the kitchen and threw a dark bag into a cupboard, prompting Officer Friberg to push his way past Robinson into the apartment. According to Officer Friberg, he forcibly entered the apartment, not because of Hannons sudden dash to the kitchen, but to protect the safety of its occupants. Once inside, the officers conducted a protective sweep and observed marijuana and assorted paraphernalia on the living room table and marijuana leavings on the kitchen counter. Based on these observations, Officer Friberg advised his sergeant by phone that he wanted to seek a warrant to search Hannons kitchen cupboard. Having overheard the call, Hannon asked Officer Friberg whether [y]ou tear up houses when you obtain search warrants? Concerned with avoiding a full-blown search, Hannon offered to allow the officers to search the cupboard if they would forgo a warrant. Officer Friberg accepted the offer. After verifying Hannons consent, he then recovered a pillowcase-sized plastic bag of marijuana from the kitchen cupboard. Thereafter, Hannon was arrested for the possession of a controlled substance for the purpose of sale. Following his arrest, Hannon filed a motion to suppress, challenging the reasonableness of the warrantless entry. At the evidentiary hearing, Officer Friberg admitted that [he] didnt have evidence that another occupant may have been inside who needed emergency assistance, he just had suspicions.

May 2009]

Hannon v. State

145

Nevertheless, applying the emergency home entry standard recently announced in Brigham City v. Stuart, 547 U.S. 398, 404 (2006), the district court considered Robinsons distressed appearance, the nature of the 911 call, and Officer Fribergs experience and training in domestic violence situations, and concluded that there was objective information to justify the warrantless entry and denied Hannons motion. As a result, Hannon entered a conditional plea of nolo contendere to simple possession.1 This appeal followed.2 DISCUSSION
[Headnotes 1, 2]

In this case, the police entered Hannons apartment for a single stated purposeto render emergency aid to any potential third parties inside. Given the entrys one-dimensional nature, this case deals exclusively with the emergency exception to the warrant requirement. While we defer to the factual findings supporting the district courts ruling on Hannons motion, we review de novo whether the emergency exception justifies the warrantless entry here. See State v. Lisenbee, 116 Nev. 1124, 1127, 13 P.3d 947, 949 (2000). Emergency exception
[Headnotes 3, 4]

Warrantless home entries, the chief evil against which the Fourth Amendment protects, see Payton v. New York, 445 U.S. 573, 585 (1980), are presumptively unreasonable unless justified by a welldelineated exception, such as when exigent circumstances exist. See Camacho v. State, 119 Nev. 395, 400, 75 P.3d 370, 374 (2003). Under established law, see, e.g., Alward v. State, 112 Nev. 141, 151, 912 P.2d 243, 250 (1996), overruled in part on other grounds by Rosky v. State, 121 Nev. 184, 190-91 & n.10, 111 P.3d 690, 694 & n.10 (2005), one such exigency is the need to render emergency assistance to an injured occupant or to protect an occupant from imminent injury. Brigham City, 547 U.S. at 403.
[Headnote 5]

Unlike hot pursuit situations or the need to preserve evidence, warrantless entries for emergency reasons do not require probable cause. See U.S. v. Snipe, 515 F.3d 947, 952 (9th Cir. 2008). Emergencies, therefore, are analytically distinct from other exigent cir1 NRS 174.035(3) (permitting conditional pleas of nolo contendere in exchange for the right to appeal a pretrial ruling). 2 While this case was assigned to District Judge Jerome M. Polaha, who accepted Hannons change of plea and entered the judgment of conviction in this matter, District Judge Janet Berry heard and decided Hannons suppression motion.

146

Hannon v. State

[125 Nev.

cumstances. 3 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment 6.6(a), at 451 (4th ed. 2004). Thus, although some taxonomical debate exists regarding its proper classification, whether as a type of exigency or a freestanding exception to the warrant requirement, id.; compare U.S. v. Holloway, 290 F.3d 1331, 1337 (11th Cir. 2002) ([E]mergency situations involving endangerment to life fall squarely within the exigent circumstances exception.), with People v. Hebert, 46 P.3d 473, 478-79 (Colo. 2002) (warrantless emergency entries fall within the community caretaking exception), emergency entries are assessed separately and by a distinct test. LaFave, supra, 6.6(a), at 451 n.6. Controlling standardBrigham City v. Stuart Although Nevadas existing two-pronged test for emergency home entries permits courts to consider law enforcements subjective motivations, the standard recently announced in Brigham City eliminates such a consideration. 547 U.S. at 404. Under Nevadas existing test, an emergency home entry is permissible without a warrant if law enforcement officers (1) reasonably believe that emergency assistance is needed, and (2) lack the accompanying intent to either arrest or search. See, e.g., Geary v. State, 91 Nev. 784, 790 n.3, 544 P.2d 417, 421 n.3 (1975) (quoting State v. Hardin, 90 Nev. 10, 15, 518 P.2d 151, 154 (1974) (quoting E. Mascolo, The Emergency Doctrine Exception to the Warrant Requirement Under the Fourth Amendment, 22 Buff. L. Rev. 419, 426-27 (1973))). This testthe wording of which derives from a law review articlewas first adopted in State v. Hardin, 90 Nev. at 16, 518 P.2d at 154, and has since been applied in later cases, though with varying degrees of attention to its second prong. Compare Alward, 112 Nev. at 151, 912 P.2d at 250 (not citing or applying the second prong), Johnson v. State, 97 Nev. 621, 624, 637 P.2d 1209, 1211 (1981) (citing but not applying second prong), abrogated in part by Horton v. California, 496 U.S. 128 (1990), Koza v. State, 100 Nev. 245, 253, 681 P.2d 44, 49 (1984) (same), and Geary, 91 Nev. at 790 n.3, 544 P.2d at 421 n.3 (same), with Murray v. State, 105 Nev. 579, 583, 781 P.2d 288, 290 (1989) (citing and applying second prong), Banks v. State, 94 Nev. 90, 97-98, 575 P.2d 592, 597 (1978) (same), and Hardin, 90 Nev. at 15-16, 518 P.2d at 154 (same). To the extent that our caselaw still condones inquiring into law enforcements subjective motivations in the context of an emergency home entry, as other courts have done, see, e.g., U.S. v. Snipe, 515 F.3d 947, 952 (9th Cir. 2008); U.S. v. Najar, 451 F.3d 710, 718 (10th Cir. 2006); State v. Edwards, 945 A.2d 915, 918 (Vt. 2008),

May 2009]

Hannon v. State

147

we abandon our previous test in favor of the standard announced in Brigham City, which clarifies the appropriate Fourth Amendment standard governing warrantless entry by law enforcement in an emergency situation. 547 U.S. at 402.
[Headnote 6]

Under that standard, a law enforcement officers subjective motivation is irrelevant. Id. at 404. Rather, the reasonableness of an emergency home entry depends on whether the circumstances, viewed objectively, justify [the] action, id. (quoting Scott v. United States, 436 U.S. 128, 138 (1978) (alteration in original)), in other words, whether law enforcement had an objectively reasonable basis to believe that there was an immediate need to protect the lives or safety of themselves or others. See Snipe, 515 F.3d at 952; Najar, 451 F.3d at 718; see also U.S. v. Huffman, 461 F.3d 777, 785 (6th Cir. 2006). Officer Friberg lacked an objectively reasonable belief Applying the Brigham City standard, the district court concluded that there was objective information to justify the emergency entry into Hannons apartment. Even accepting the district courts factual findings as true, see Lisenbee, 116 Nev. at 1127, 13 P.3d at 949, we disagree and conclude that this warrantless home entry was not justified on emergency grounds because there was no objectively reasonable basis to believe that a third party was injured inside. With respect to this issue, both sides analogize and distinguish this case from Brigham City, where officers responded at 3 a.m. to complaints about a loud house party and overheard some kind of a [tumultuous] fight inside. 574 U.S. at 406. Through a window, the officers saw a juvenilewho, with fists clenched, was being restrained by four adultspunch an adult in the face, sending the adult to the sink spitting blood. Id. In view of those circumstances, the United States Supreme Court determined that the officers had an objectively reasonable basis for believing that the injured adult might need help and that there was an imminent threat of violence. Id. Here, by contrast, Officer Friberg had noticeably less information than the officers in Brigham City to support his belief that a third party was endangered inside Hannons apartment. First, unlike Brigham City, which involved actual violence as well as the clear threat that the violence . . . was just beginning, id., Officer Friberg did not witness, let alone overhear, sounds of an altercation when he arrived. Tellingly, because there was therefore no apparent need for swift action, see Huffman, 461 F.3d at 785; U.S. v. Holloway, 290 F.3d 1331, 1334 (11th Cir. 2002), instead of entering and announcing his presence (as occurred in Brigham City), Officer Friberg casually knocked on Hannons front door.

148

Hannon v. State

[125 Nev.

Second, unlike in Brigham City, in which the officers witnessed the attack and the victim spitting blood, although Robinson was crying, Hannon appeared angry, and both were flushed and breathing heavily, neither exhibited observable signs of injury. Moreover, when asked by Officer Friberg, both responded that they were unharmed. Thus, even if there was initial reason to believe that Hannon or Robinson may have been injured, Officer Fribergs concerns should have been allayed after interviewing Hannon and Robinson at the door. Additionally, in contrast to Brigham City, where other partygoers were seen inside and surrounding the house, 547 U.S. at 406, no similar indicia existed to believe that a third person was inside Hannons apartment, a point with which Officer Friberg agreed by admitting that while he suspected that another person might have been inside, [he] didnt have evidence. Considering the totality of these circumstances, Officer Friberg arrived at a quiet apartment in response to a 911 dispatch call regarding a possible domestic disturbance thatby all accounts seemed to have already dissipated. Officer Friberg had no reason to believe that Hannon or Robinson had been injured, and had even less reason to believe that Hannons apartment may have harbored an unidentified third person in need of emergency assistance. Given the above, we conclude that Officer Friberg lacked an objectively reasonable basis to believe that there was an immediate need to protect the occupants of Hannons apartment, real or suspected. Because the initial warrantless entry into Hannons apartment was unlawful, we conclude that the marijuana recovered during the subsequent search was illegally seized. See Ford v. State, 122 Nev. 796, 803-04, 138 P.3d 500, 505 (2006); see generally Wong Sun v. United States, 371 U.S. 471 (1963). Accordingly, the district courts judgment of conviction is reversed. CONCLUSION Based on the totality of the circumstances, we conclude that the warrantless entry into Hannons apartment was not justified by an objectively reasonable belief that there was an immediate need to protect the occupants of Hannons apartment. Because no emergency reason existed for forgoing a warrant, we conclude that the district court erred in denying Hannons motion to suppress. Accordingly, we reverse the district courts judgment of conviction. DOUGLAS and PICKERING, JJ., concur.

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HARTFORD FIRE INSURANCE COMPANY; HARTFORD ACCIDENT AND INDEMNITY COMPANY; AND RICH ARDSON CONSTRUCTION, INC., APPELLANTS, v. TRUSTEES OF THE CONSTRUCTION INDUSTRY AND LABORERS HEALTH AND WELFARE TRUST; TRUSTEES OF THE CONSTRUCTION INDUSTRY AND LABORERS JOINT PENSION TRUST; AND TRUSTEES OF THE CON STRUCTION INDUSTRY AND LABORERS VACATION TRUST, RESPONDENTS.
No. 49059 May 28, 2009 208 P.3d 884

Certified questions under NRAP 5 from the Ninth Circuit Court of Appeals in an action to recover unpaid trust contributions from a contractor and a surety. United States Court of Appeals for the Ninth Circuit; Alex Kozinski and Raymond C. Fisher, United States Circuit Judges, and Frederic Block, United States District Judge. The supreme court, GIBBONS, J., held that: (1) trustees had standing to assert claims on behalf of subcontractors workers against payment bond, (2) trustees were required to provide general contractor with notice in order to recover against general contractors payment bond, but (3) trustees were not required to provide general contractor with notice in order to bring a direct action against general contractor seeking recovery of unpaid contributions. Questions answered. Parker, Nelson & Arin, Chtd., and Theodore Parker, III, Las Vegas, for Appellant Richardson Construction. Watt, Tieder, Hoffar & Fitzgerald, LLP, and David R. Johnson, Las Vegas, for Appellants Hartford Fire Insurance Company & Hartford Accident and Indemnity Company. Brownstein Hyatt Farber Schreck, P.C., and Adam P. Segal and Kirk M. Reynolds, Las Vegas, for Respondents. Daniel M. Shanley, Las Vegas; DeCarlo, Connor & Shanley and Desmond C. Lee, Los Angeles, California, for Amici Curiae Southwest Carpenters Health and Welfare Trust, Southwest Carpenters Pension Trust, Southwest Carpenters Vacation Trust, and Southwest Carpenters Training Fund. Kevin B. Christensen, Chtd., and Evan L. James and Kevin B. Christensen, Las Vegas, for Amici Curiae Trustees of the Southern

150

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Nevada Glaziers and Fabricators Pension Trust Fund, Glazing Health and Welfare Fund, and the Glaziers Joint Apprenticeship Training Trust. Kolesar & Leatham, Chtd., and Alan J. Lefebvre and Matthew J. Christian, Las Vegas, for Amicus Curiae Surety & Fidelity Association of America. Laquer, Urban, Clifford & Hodge LLP and Michael A. Urban and Gia A. McGillivray, Las Vegas, for Amici Curiae Trustees of the Operating Engineers Pension Trust, Trustees of the Operating Engineers Health and Welfare Fund, Trustees of the Operating Engineers Vacation-Holiday Fund, Trustees of the Operating Engineers Journeyman Apprentice Training Trust, Bricklayers & Allied Craftworkers Local 13 Health Benefits Fund, and Bricklayers & Allied Craftworkers Local 13 Defined Contribution Pension Trust.
1. FEDERAL COURTS. Supreme court may answer questions of law certified to it by a federal court when: (1) the courts answers to the certified questions may be determinative of part of the federal case, (2) there is no clearly controlling Nevada precedent, and (3) the answers to the certified questions will help settle important questions of law. NRAP 5(a). 2. PUBLIC CONTRACTS. Trustees of employee-benefit trust funds had standing, as representatives of subcontractors workers, to bring a claim against payment bond, which general contractor was required by statute to procure on public works project to secure payment for subcontracted labor, to recover unpaid contributions that subcontractor owed to the trust funds pursuant to memorandum agreement with workers union; trustees were third-party beneficiaries under the memorandum agreement between subcontractor and the union, and trustees stood in the shoes of the workers. NRS 339.035. 3. PUBLIC CONTRACTS. Trustees of employee-benefit trust funds were required to provide general contractor with notice in order to bring suit on payment bond, which general contractor was required by statute to procure on public works project to secure payment for subcontracted labor, to recover unpaid contributions that subcontractor owed to the trust funds pursuant to memorandum agreement with workers union; payment-bond statute required that claimants who only had a contractual relationship with a subcontractor to serve notice on the general contractor of the labor being provided and the amount claimed, trustees stood in the shoes of subcontractors workers for purposes of the statute, public policy did not override the notice prerequisite for recovery, and fact that the contractor may have been in a better position than the trustees to know who was performing work for subcontractor did not relieve trustees of the notice requirement. NRS 339.035. 4. PUBLIC CONTRACTS. Trustees of employee-benefit trust funds were not required to provide general contractor notice in order to bring direct action against general contractor, pursuant to statute providing that general contractors on public works projects assumed subcontractors liability for indebtedness for labor, to recover unpaid contributions that subcontractor owed to the trust funds under subcontractors memorandum agreement with workers union; though

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payment-bond statute required trustees to provide notice to general contractor in order to recover on general contractors payment bond, statute allowing a direct recovery against general contractor did not require that notice be provided to the general contractor, and the two statutes did not conflict, as general contractors obligation to indemnify bond surety arose under the terms of the parties bond agreement, not under the statutes. NRS 339.035, 608.150.

Before the Court EN BANC.1 OPINION By the Court, GIBBONS, J.: The Ninth Circuit Court of Appeals has certified two questions of law to this court concerning various trustees attempts to collect unpaid contributions owed to employee-benefit trust funds. This matter arose when a public works subcontractor failed to contribute to employee-benefit trust funds, which were created as part of a collective bargaining agreement between the subcontractor and its employees union. After the subcontractor failed to pay employeebenefit contributions owed to the trusts, the trusts trustees sued, in federal court, the general contractor and its surety to recover the unpaid contributions. The trustees sued the general contractor under NRS 608.150, which makes general contractors liable for their subcontractors employees unpaid wages, including fringe-benefit trustfund contributions. They sued the surety under NRS 339.035(1), which allows any claimant who has performed labor or furnished material under a bonded, public works construction contract and who has not been paid in full, to bring an action on the payment bond to recover the amount due. Just before trial, however, the surety moved for summary judgment, contending that the trustees had failed to meet a condition precedent to recovery: providing the general contractor with the notice required by NRS 339.035(2), which provides that [a]ny claimant who has a direct contractual relationship with any subcontractor, but no such direct relationship with the general contractor, express or implied, may bring an action on a payment bond only if the claimant provided written notice of the claim to the general contractor. In response, the trustees also moved for summary judgment against the surety and the general contractor. The federal district court apparently disagreed that notice was required and granted summary judgment to the trustees. The surety and the general contractor then appealed to the Ninth Circuit Court of Appeals, which subsequently certified to this court two questions under NRAP 5.
1 THE HONORABLE KRISTINA PICKERING, Justice, voluntarily recused herself from participation in the decision of this matter.

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The certified questions ask us to determine whether the trustees must comply with NRS 339.035(2)s notice requirement to recover (1) on the payment bond against the surety, and (2) against the general contractor under NRS 608.150. The first questions answer is informed by the nature of the trustees standing to recover against the payment bond under NRS 339.035, which is loosely based on their status as third-party beneficiaries to the labor agreement. That is, because the trustees are third-party beneficiaries, we conclude that they should be able to represent the employees who have claims against the surety. The trustees consequently stand in the employees shoes for purposes of recovering on the payment bond under NRS 339.035. The answer to the first question, then, is yes, notice is required to proceed with claims against the bond. Because the employees would be required to provide notice of their claims to the general contractor before recovering on the payment bond under NRS 339.035s clear terms, the trustees, standing in their shoes, likewise are required to do so. The answer to the second question is no, the trustees are not required to provide notice to proceed with NRS 608.150 claims against the contractor. NRS 608.150 is in a statutory chapter completely separate from NRS 339.035, and NRS 608.150 plainly does not require that the trustees provide the contractor with notice of their claims before seeking to recover from the contractor under that statute. FACTS AND PROCEDURAL HISTORY Appellant Richardson Construction, Inc., was a general contractor on various southern Nevada public works projects. To secure payment for any subcontracted labor and materials provided to the public works construction projects, as NRS 339.035 requires, Richardson entered into bond agreements with appellant Hartford Fire Insurance Company and its related entity, appellant Hartford Accident and Indemnity Company (collectively, Hartford). Under the bond agreements, Hartford and Richardson were jointly and severally liable for labor, materials, and equipment contributed to the projects. Hartford asserts, moreover, that as part of the bond agreements, Richardson agreed to indemnify Hartford for any recovery on the payment bond. Richardson then subcontracted some of its work to Desert Valley Landscape & Maintenance, Inc. Desert Valley was party to a memorandum labor agreement with the local chapter of a laborers union, Laborers International Union of North America, Local 872. Under the labor agreement, Desert Valley was required to render payments, i.e., fringe-benefit contributions, to certain employeebenefit trust funds administered on behalf of its employees, includ-

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ing those who worked on the Richardson public works project. The trust funds were created under an agreement between Local 872 and various southern Nevada contractor associations, pursuant to the federal Labor Management Relations Act, 29 U.S.C. 186(c)(5) (2006) (describing a valid employee-benefit trust fund), and the Employee Retirement Income Security Act (ERISA), 29 U.S.C. 1002 (2006) (defining an employee-benefit plan). They provided pension, health coverage, and vacation benefits to employees of companies that were parties to labor agreements with Local 872. Although Desert Valley was required to render payments to the trusts for Richardson projects employees, it never did so. Consequently, in September 1998, respondents, the trusts trustees, instituted an action against Desert Valley in federal district court, asserting a cause of action under ERISA, which generally provides that an employer must comply with its obligation arising under a labor agreement to make employee-benefit contributions. See 29 U.S.C. 1145 (2006). According to Hartford and Richardson, Desert Valley answered the complaint but later filed for bankruptcy, and as a result, the trustees ERISA action against Desert Valley remained inactive for several years, until the trustees amended the complaint to include state-law-based claims against Hartford and Richardson. The claims against Hartford were based on NRS 339.035, which allows any claimant who has performed labor or furnished material to bring an action on the contractors payment bond for any unpaid amount. The claims against Richardson were based on NRS 608.150, which makes a general contractor liable for a subcontractors failure to pay for labor and materials. Although the federal district court ultimately entered a default judgment against Desert Valley, the action proceeded with respect to Hartford and Richardson, and shortly before trial, Hartford moved for summary judgment. In its motion, Hartford argued that the trustees had failed to meet a condition precedent to recovering on the payment bond: providing Richardson with the notice required by NRS 339.035(2), which provides that claimants who have direct contractual relationships with the subcontractor, but not with the general contractor, must give written notice to the general contractor before making a claim on the bond. The trustees opposed Hartfords motion and moved for summary judgment against Hartford and Richardson. With respect to Hartford, the trustees argued that, because they did not have a direct contractual relationship with the subcontractor, which NRS 339.035(2) ties to the notice requirement, they were not obligated to provide Richardson with notice of the claims before bringing an action on the payment bond. As regards Richardson, the trustees asserted that no issues of fact remained with respect to Desert Valleys failure to pay its workers for their labor and materials, given the default judg-

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ment entered against Desert Valley, and thus, Richardson was liable for that failure under NRS 608.150s clear terms. The federal district court granted summary judgment to the trustees. Hartford and Richardson then appealed to the Ninth Circuit Court of Appeals. In a published order, the Ninth Circuit then certified two legal questions to this court under NRAP 5: In order to recover against a defendant surety under [NRS 339.035(1)], must plaintiff trustees, who are not in a direct contractual relationship with the subcontractor, comply with the notice requirements of [NRS 339.035(2)]? In order to recover against a defendant contractor under [NRS 608.150] in a case where unpaid trust contributions are covered by a statutory payment bond, see [NRS 339.025], must plaintiff trustees, who are not in a direct contractual relationship with the subcontractor, comply with the notice requirements of [NRS 339.035(2)]? Trustees of Const. Industry v. Hartford Fire Ins., 482 F.3d 1064, 1066 (9th Cir. 2007). We accepted the certified questions and directed briefing. In addition to the parties briefs, three amici curiae briefs supporting the trustees and one amicus brief supporting Hartford and Richardson have been filed, as permitted.2 DISCUSSION
[Headnote 1]

We may answer questions of law certified to us by a federal court when (1) our answers to the certified questions may be determinative of part of the federal case, (2) there is no clearly controlling Nevada precedent, and (3) the answers to the certified questions will help settle important questions of law. NRAP 5(a); Volvo Cars of North America v. Ricci, 122 Nev. 746, 137 P.3d 1161 (2006). Our consideration of the questions here is appropriate because the answers will likely determine the matter pending in the Ninth Circuit
2 In support of the trustees, Southwest Carpenters Health and Welfare Trust, Southwest Carpenters Pension Trust, Southwest Carpenters Vacation Trust, Southwest Carpenters Training Fund, Trustees of the Southern Nevada Glaziers and Fabricators Pension Trust Fund, Glazing Health and Welfare Fund, the Glaziers Joint Apprenticeship Training Trust, Trustees of the Operating Engineers Pension Trust, Trustees of the Operating Engineers Health and Welfare Fund, Trustees of the Operating Engineers Vacation-Holiday Fund, Trustees of the Operating Engineers Journeyman Apprentice Training Trust, Bricklayers & Allied Craftworkers Local 13 Health Benefits Fund, and Bricklayers & Allied Craftworkers Local 13 Defined Contribution Pension Trust have filed amicus briefs. In support of Hartford and Richardson, the Surety & Fidelity Association of America has filed an amicus brief.

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Court of Appeals and no clearly controlling Nevada precedent exists with respect to the questions, which raise important legal issues. Both certified questions concern NRS 339.035, which provides as follows: 1. Subject to the provisions of subsection 2, any claimant who has performed labor or furnished material in the prosecution of the work provided for in any contract for which a payment bond has been given . . . and who has not been paid in full . . . may bring an action on such payment bond in his own name to recover any amount due him for such labor or material[.] 2. Any claimant who has a direct contractual relationship with any subcontractor of the contractor who gave such payment bond, but no contractual relationship, express or implied, with such contractor, may bring an action on the payment bond only [if he provided certain written notices of the claim to the contractor.] Although Nevada precedent concerning NRS 339.035 is sparse, the statute is modeled after federal law, the Miller Act, 40 U.S.C. 270b and 270c (1935); see Garff v. J. R. Bradley Co., 84 Nev. 79, 85, 436 P.2d 428, 432 (1968) (ZENOFF, J., dissenting), and thus, federal caselaw interpreting the Miller Act is persuasive in addressing issues surrounding NRS 339.035. See Edgington v. Edgington, 119 Nev. 577, 584, 80 P.3d 1282, 1288 (2003) (providing that when a federal statute is adopted in a Nevada statute, using substantially similar language, a presumption arises that the [L]egislature knew and intended to adopt the construction placed on the federal statute by federal courts (quoting State, Bus. & Indus. v. Granite Constr., 118 Nev. 83, 88, 40 P.3d 423, 426 (2002))). As an initial matter, although the certified questions presuppose that the trustees have standing to assert claims against a surety under NRS 339.035, this court has not before so provided. Accordingly, as analyzing the trustees standing in the first instance informs our answers to the certified questions, we first address the trustees standing to file a claim against a payment bond under NRS 339.035. Next, we will answer the Ninth Circuits certified questions, first addressing whether the trustees were required to comply with NRS 339.035(2)s notice requirement to recover on the payment bond, then addressing whether the trustees were required to comply with NRS 339.035(2)s notice requirement to recover from Richardson under NRS 608.150.3
3 Hartford and Richardson also provide argument (1) with respect to whether the trustees may recover liquidated damages and attorney fees pursuant to the payment bond and (2) that the trustees are effectively seeking amounts that

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The trustees standing to file a claim on the payment bond under NRS 339.035
[Headnote 2]

With regard to the trustees standing to file a claim against the payment bond under NRS 339.035, subsection 1 of that statute provides that any claimant who has performed labor or furnished material in the prosecution of the work provided for in any contract for which a payment bond has been given . . . and who has not been paid in full may bring an action on the bond. (Emphasis added.) Subsection 2 of NRS 339.035, read in accordance with federal interpretations, further limits claimants to those persons who have either a direct contractual relationship with the general contractor or a direct contractual relationship with a subcontractor and who provide notice to the general contractor. See, e.g., MacEvoy Co. v. United States, 322 U.S. 102, 108 (1944). Here, the trustees provided no labor or materials and have no direct contractual relationship with Richardson; their relationship with Desert Valley at best renders them third-party beneficiaries of the labor agreement between Desert Valley and Local 872. See Lipshie v. Tracy Investment Co., 93 Nev. 370, 379, 566 P.2d 819, 824-25 (1977) (noting that an individual obtains third-party-beneficiary status when contracting parties demonstrate a clear intent to benefit the individual, a third party, by their contract). While the parties agree that the trustees are third-party beneficiaries and that their status as such impacts their standing to bring claims under NRS 339.035, they disagree on how their third-partybeneficiary status affects their standing. Hartford and Richardson essentially argue that the trustees stand in the shoes of the laborers. The trustees, on the other hand, contend that they are preferred third-party beneficiaries, given their role under ERISA to protect employee pensions and vacation and health benefits, meaning that they have special standing to bring NRS 339.035 claims, broader than that of the employees that they represent. We agree that the trustees are third-party beneficiaries under the memorandum agreement. But while we have recognized that a thirdparty beneficiary has a direct right of action against the promisor in contract, Hemphill v. Hanson, 77 Nev. 432, 436 n.1, 366 P.2d 92, 94 n.1 (1961), that right is not necessarily carried forward to claims against a nonparty surety, which are allowable by statute. See Morelli v. Morelli, 102 Nev. 326, 329, 720 P.2d 704, 706 (1986) (providing that, while a third-party beneficiary is generally subject to the defenses that would be valid as between the parties, the noRichardson already paid to the Labor Commissioner pursuant to the Commissioners claim on behalf of the employees under NRS 608.150. But those issues could not properly be, and were not, included in the Ninth Circuits certified questions, and thus, they are not before us.

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tion that a third-party beneficiary steps into the shoes of a contracting party is a misstatement of the law); see also Restatement (Second) of Contracts 309 cmt. c (1981) (providing that a thirdparty beneficiarys right to enforce a contract is direct, not merely derivative). Thus, their third-party-beneficiary status alone is insufficient to confer the trustees with standing under NRS 339.035. The trustees status as constructive assignees of the workers claims under NRS 339.035 Nevertheless, whether the trustees have standing to sue under NRS 339.035 is closely tied to their third-party-beneficiary status. In United States v. Carter, 353 U.S. 210, 211-12 (1957), the United States Supreme Court addressed whether trustees are entitled to recover unpaid contributions to employee-benefit trust funds under the federal Miller Act, 40 U.S.C. 270b and 270c (1935), a statute nearly identical to NRS 339.035. At that time, the Miller Act provided that [e]very person who has furnished labor or material in the prosecution of the work provided for in [a public works contract] and who has not been paid in full therefore . . . shall have the right to sue on such payment bond . . . for the sum or sums justly due him. 4 Carter, 353 U.S. at 215 (quoting 40 U.S.C. 270b(a) (1935)). The U.S. Supreme Court acknowledged that the trustees were neither persons who have furnished labor or material, nor [were] they seeking sums justly due to persons who have furnished labor or material. Id. at 218. Nevertheless, after analyzing cases arising under a predecessor of the Miller Act, the Heard Act of 1894, see 40 U.S.C. 270 (1934), which established that assignees of the claims of persons furnishing labor or material came within a statutory bonds protection, the Supreme Court noted that the analyses applied likewise to the Miller Act, which, the Supreme Court concluded, was even broader and more liberal in its scope than the Heard Act. Carter, 353 U.S. at 219. Thus, without determining whether any assignment occurred for Miller Act purposes, the Supreme Court noted that [i]f the assignee of an employee can sue on the bond, the trustees of the employees fund should be able to do so. . . . The trustees stand in the shoes of the employees and are entitled to enforce their rights. Id. at 219-20; cf. U.S. Design &
The relevant provision of the federal Miller Act currently reads as follows: [a] person having a direct contractual relationship with a subcontractor but no contractual relationship, express or implied, with the contractor furnishing the payment bond may bring a civil action on the payment bond on giving written notice to the contractor. . . . The action must state with substantial accuracy the amount claimed and the name of the party to whom the material was furnished or supplied or for whom the labor was done or performed. 40 U.S.C. 3133(b)(2) (2006).
4

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Constr. v. I.B.E.W. Local 357, 118 Nev. 458, 50 P.3d 170 (2002) (recognizing that employee-benefit trust-fund trustees are representatives of the employees earning the trust-fund contributions). Given the trustees third-party-beneficiary status, the Supreme Courts analysis in Carter is persuasive here, and thus, we conclude that, like assignees, the trustees stand in the shoes of the workers and should be permitted to recover under NRS 339.035. Edgington v. Edgington, 119 Nev. 577, 584, 80 P.3d 1282, 1288 (2003) (providing that when a federal statute is adopted in a Nevada statute, using substantially similar language, a presumption arises that the [L]egislature knew and intended to adopt the construction placed on the federal statute by federal courts (quoting State, Bus. & Indus. v. Granite Constr., 118 Nev. 83, 88, 40 P.3d 423, 426 (2002))). Indeed, in U.S. Design & Construction v. International Brotherhood of Electrical Workers Local 357, 118 Nev. 458, 50 P.3d 170, this court, without analysis, recognized that employee-benefit trust-fund trustees represent the employees who earned the trust-fund contributions by providing labor. Accordingly, the trustees have standing as representatives of the claimants. We do not agree, however, that the trustees third-party-beneficiary status gives them any rights under NRS 339.035 over and above what the Legislature has given to the persons whom they represent and who are addressed in the statutethe employees. NRS 339.035s notice requirement, as applied to claims against the surety
[Headnote 3]

As noted, NRS 339.035(2) provides that [a]ny claimant who has a direct contractual relationship with any subcontractor of the contractor who gave such payment bond, but no contractual relationship, express or implied, with such contractor, may bring an action on the payment bond if he provides certain notice of the claim to the contractor. Thus, NRS 339.035 foresees two types of claimants: those who have a contractual relationship with the contractor and those who have a contractual relationship with only the subcontractor. Cf. MacEvoy Co. v. United States, 322 U.S. 102 (1944). Those claimants who have a contractual relationship with only the subcontractor must, under NRS 339.035(2), serve notice on the contractor of the labor or materials being provided and the amount claimed. Because the trustees represent the subcontractors employees in wage claims made under NRS 339.035, they stand in the employees shoes and are required, as the employees would be, to provide notice to Richardson to recover on the payment bond. Indeed, this court already has acknowledged the importance of providing the contractor with notice to recover on the payment bond. Garff v. J. R. Bradley Co., 84 Nev. 79, 83, 436 P.2d 428, 431 (1968). In

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particular, in an action by suppliers of labor and material to recover on a payment bond, this court analyzed NRS 339.035(2)s notice requirement, acknowledging that NRS 339.035 creates a remedy in circumstances where none existed before, and thus concluding that [i]t is not unfair to demand compliance with the preconditions for suit. Id. Nevertheless, the trustees contend that they were not required to provide notice under NRS 339.035s clear terms, for public policy reasons, and as a matter of practicality. NRS 339.035s notice-requirement language With respect to the statutes language, the trustees point out that only a claimant who has a direct contractual relationship with any subcontractor of the contractor is required to provide notice. As third-party beneficiaries of the memorandum labor agreement, the trustees maintain, they do not have a direct contractual relationship with the subcontractor, Desert Valley, and thus, they were not required to provide notice to Richardson to recover on the payment bond. This argument lacks merit, however, in light of our conclusion that the trustees stand in the employees shoes for NRS 339.035 purposes. As only claimants with a direct contractual relationship to the contractor or a subcontractor may sue on the payment bond, the trustees are either standing in the place of those persons, subject to all of the same requirements, or they have no standing to sue the surety at all. Notice in light of public policy With respect to their argument that public policy overrides the statutory prerequisite, the trustees primarily rely on reasoning set forth by the U.S. Supreme Court in Lewis v. Benedict Coal Corp., 361 U.S. 459 (1960). In Lewis, as in this case, trustees of employee-benefit trust funds sought to recover an employers unpaid contributions to the trust funds. Id. at 460-62. The employer had withheld contributions associated with time periods during which union work stoppages and strikes occurred, believing that those events violated the labor agreement. Id. at 462. According to the employer, because the trustees were third-party beneficiaries of the labor agreement, they were subject to the same defense as would have been valid against the employees, viz., that the union violated the labor agreement by engaging in strikes and work stoppages, and thus, the employees were not entitled to benefits for that time period. Id. Therefore, in Lewis, the U.S. Supreme Court considered whether the employer may assert the unions breaches of the labor agreement as a defense against the trustees, based on their third-party beneficiary status. Id. at 464. After considering the interests of the

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union, the [employer], and the trustees in the fund under the collective bargaining agreement, id. at 464, the Court noted that because of the trustees important role as third-party beneficiaries under the labor agreementto provide security for employees and their families to enable them to meet problems arising from unemployment, illness, old age or deatha labor agreement is not a typical third-party contract and the typical third-party-beneficiary contract principles do not apply. Id. at 468-69. Based on that determination, the Supreme Court concluded that the parties to a collective bargaining agreement must express their meaning in unequivocal words before they can be said to have agreed that the unions breaches of its promises should give rise to a defense against the duty assumed by an employer to contribute to a welfare fund meeting the requirements of the Labor Management Relations Act. Id. at 470-71; see also 29 U.S.C. 186(c)(5) (1947). The trustees rely on that conclusion and point to several federal court decisions adopting its reasoning, see, e.g., Cement and Concrete Workers Dist. v. Frascone, 68 F. Supp. 2d 166 (E.D.N.Y. 1999); Benson v. Browers Moving & Storage, Inc., 726 F. Supp. 31 (E.D.N.Y. 1989); Southwest Administrators, Inc. v. Rozays Transfer, 791 F.2d 769 (9th Cir. 1986); Southern Cal. Retail Clerks Union v. Bjorklund, 728 F.2d 1262 (9th Cir. 1984), to argue that, although they are third-party beneficiaries of the labor agreement, because of their unique role to protect employee pensions and health benefits, public policy supports interpreting NRS 339.035 more broadly as to them. But the circumstances in Lewis and its holding are ultimately inapposite to this case. Although Lewis involved a trust fund that met Labor Management Relations Act requirements, it did not concern a claim against a surety pursuant to that law. Lewis, 361 U.S. at 461-62. Instead, the trustees instituted a contract action against the contractor. Thus, in Lewis, the Supreme Court analyzed the trustees unique role as third-party beneficiaries of a collective bargaining agreement, not as claimants under the federal Miller Act.5 Id. at 468. In addition, Lewis concerned an employers attempt to use the unions breaches of the collective bargaining agreement against the trustees to justify withholding its promised contributions to
5 While subsequent federal court cases, including those relied on by the trustees, have used Lewiss third-party-beneficiary discussion when considering trustees significant role to protect employee-benefit funds, see, e.g., Cement and Concrete Workers Dist. v. Frascone, 68 F. Supp. 2d 166 (E.D.N.Y. 1999); Benson v. Browers Moving & Storage, Inc., 726 F. Supp. 31 (E.D.N.Y. 1989); Southwest Administrators, Inc. v. Rozays Transfer, 791 F.2d 769 (9th Cir. 1986); Southern Cal. Retail Clerks Union v. Bjorklund, 728 F.2d 1262 (9th Cir. 1984), none determined that that unique status excused compliance with statutory requirements for recovering unpaid contributions to employee-benefit trust funds.

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employee-benefit trust funds. Lewis, 361 U.S. at 464. Unlike Lewis, this particular issue does not concern any defenses regarding a breach of the collective bargaining agreement, but rather a failure to comply with statutory notice requirements. Thus, the Supreme Courts holdingthat parties to a collective bargaining agreement must unequivocally agree that a unions breaches of the agreement relieve the contractor of its obligation to contribute to employee-benefit trust fundsis inapposite to this case.6 Id. at 470-71. Moreover, as Hartford and Richardson contend, notwithstanding various courts conclusions that employee-benefit trust-fund trustees are not typical third-party beneficiaries, the trustees have pointed to no decision concluding that a trustee is excluded from providing notice to a contractor to recover on a payment bond under the federal Miller Act or states Little Miller Acts.7 Indeed, the cases in which courts have concluded that the usual third-party beneficiary defenses did not apply did not concern the trustees compliance with the Miller Acts requirements. See, e.g., Cement and Concrete Workers Dist., 68 F. Supp. 2d 166; Benson, 726 F. Supp. 31; Southwest Administrators, Inc., 791 F.2d 769; Southern Cal. Retail Clerks Union, 728 F.2d 1262. As Hartford and Richardson assert, then, while courts have concluded that trustees are not typical thirdparty beneficiaries, no court has concluded that, in light of their special status, they are not required to comply with the federal Miller Acts or states versions of the Miller Acts notice requirement. Thus, while employee-benefit trust funds serve a significant purpose that might provide some flexibility when trustees attempt to re6 The concept that a unions breaches of a collective bargaining agreement generally may not be asserted against employee-benefit trust-fund trustees to relieve the contractor of an obligation under the agreement to make employeebenefit trust-fund contributions is similar to the theory noted above that, because a third-party beneficiary has a direct right to enforce a contract, the promisor may not use defenses arising from separate transactions to defeat the third-party beneficiarys interest in the contract. See Restatement (Second) of Contracts 309 cmt. c (1981) (providing that, because a third-party beneficiarys right to enforce a contract is a direct, not derivative right, claims and defenses of the promisor against the promisee arising out of separate transactions do not affect the right of the beneficiary, except in accordance with the contracts terms). 7 Similarly, Southwest Carpenters Health and Welfare Trust, Southwest Carpenters Pension Trust, Southwest Carpenters Vacation Trust, and Southwest Carpenters Training Fund, in their amicus brief, contend that employeebenefit trust funds detrimentally rely on an employers promise under a collective bargaining agreement to pay employee benefits, and thus, trustees are not subject to the defenses that might otherwise be available to the employer as the promisor. Hansen v. Proctor, 74 N.W.2d 281, 284-85 (Minn. 1955). But the case on which the Southwest Carpenters Trusts rely to support their argument concerned an action against the promisor based on the parties contract. Id. at 282-83. As noted, this case does not concern an action on the parties contract, the collective bargaining agreement, but rather a statutory claim implicating that agreement.

162

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cover funds under the Miller Act, we are unwilling to ignore an express legislative prerequisite to recovery against a surety. If the Legislature intends for trustees to recover under NRS 339.035 without complying with the notice prerequisite, it is perfectly capable of modifying the statute to so provide. Practicality of providing notice The trustees also argue, however, that as a practical matter notice should be a precondition for a suit on the payment bond only for those in a direct contractual relationship with the subcontractor. This is so, they assert, because trustees have no reasonable basis to know what work is occurring, since they generally do not have direct access to project or job files that might document a laborers time and material furnished to a project. Essentially, the trustees contend that notice is unnecessary because contractors are in a better position to acquire information on which a payment bond claim may be made, since they have continuing access to job sites and files. But this court already has acknowledged the importance of providing contractors with notice, regardless of a contractors access to the information that may underlie a statutory bond claim. Specifically, this court noted that contractors frequently are aware of the identity of the suppliers of materials to subcontractors; frequently [they] know the identity of those performing labor for the subcontractor. However, such awareness or knowledge, standing alone, does not erase the duty which the [L]egislature has placed upon claimants to give . . . notices before becoming eligible to file suit on a payment bond. Garff v. J. R. Bradley Co., 84 Nev. 79, 83, 436 P.2d 428, 431 (1968). Thus, although a contractor may indeed be aware of potential claimants and claims, as the trustees suggest,8 this court already has stated the importance that claimants, like the trustees, nonetheless comply with statutory mandate to provide the contractor with notice. Moreover, as amicus curiae Surety & Fidelity Association of America indicates, to require that those in a direct contractual relationship with the subcontractor provide the contractor with notice of a claim on the payment bond, while absolving those who represent them, such as the trustees, from such a requirement, is unsound. See
8 Trustees of the Southern Nevada Glaziers and Fabricators Pension Trust Fund, Glazing Health and Welfare Fund, and the Glaziers Joint Apprenticeship Training Trust, in their amicus brief, point to NRS 338.070(4), which requires contractors to maintain detailed labor records. According to the Glaziers Trusts, those detailed records obviate the need for the trustees to provide Richardson with notice of their claims on behalf of the Desert Valleys employees.

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MacEvoy Co. v. United States, 322 U.S. 102, 107-08 (1944) (noting that it would be absurd to require notice from persons in direct contractual relationship with a subcontractor to recover on a bond but not from more remote claimants). Accordingly, we conclude that trustees claims against a surety are subject to NRS 339.035s notice requirements.9 The trustees claim under NRS 608.150 and NRS 339.035s notice requirement
[Headnote 4]

Turning to Hartford and Richardsons contention that NRS 339.035(2)s notice requirement applies to claims under NRS 608.150, NRS 608.150(1) provides that [e]very original contractor making or taking any contract in this State for the erection, construction, alteration or repair of any building or structure, or other work, shall assume and is liable for the indebtedness for labor incurred by any subcontractor or any contractors acting under, by or for the original contractor in performing any labor, construction or other work included in the subject of the original contract . . . . This court already has determined that employee-benefit trust contributions constitute indebtedness for labor, Tobler and Oliver v. Bd. Trustees, 84 Nev. 438, 442, 442 P.2d 904, 906-07 (1968), and
And Trustees of the Operating Engineers Pension Trust, Trustees of the Operating Engineers Health and Welfare Fund, Trustees of the Operating Engineers Vacation-Holiday Fund, Trustees of the Operating Engineers Journeyman Apprentice Training Trust, Bricklayers & Allied Craftworkers Local 13 Health Benefits Fund, and Bricklayers & Allied Craftworkers Local 13 Defined Contribution Pension Trust, in their amicus brief, point to NAC 338.092(1)s and NAC 338.094(1)(c)s requirements that a contractor maintain detailed records regarding labor on its projects to argue that Richardson had sufficient notice in this case to obviate the trustees need to comply with NRS 339.035s notice requirement. 9 The trustees also contend that ERISA gives them standing as claimants under NRS 339.035, independent of their third-party-beneficiary status and any actual or constructive assignment of the employees claims. But even if the trustees standing is based on ERISA, which we need not resolve, notice is still a requirement under the Miller Act. Indeed, even the case relied on by the trustees to argue that their standing under the Miller Act is based on ERISA required that the trustees provide the contractor with notice of the payment bond claims. See U.S. for Use & Benefit of IBEW v. Hartford Ins., 809 F. Supp. 523, 526 (E.D. Mich. 1992) (discussing employee-benefit trust-fund trustees compliance with the federal Miller Acts notice requirement, after determining that ERISA provided the trustees with a statutory right and duty to enforce the payment of trust-fund contributions). Accordingly, although under any ERISAbased standing theory the trustees would appear to have direct authority to recover unpaid contributions, nothing therein abrogates NRS 339.035s notice requirement.

164

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that trustees of employee-benefit trusts have standing to sue under NRS 608.150 as representatives of the employees. U.S. Design & Constr. v. I.B.E.W. Local 357, 118 Nev. 458, 50 P.3d 170 (2002). With respect to whether NRS 339.035(2) also requires trustees to provide notice when attempting to recover unpaid funds directly from the contractor under NRS 608.150, Hartford and Richardson contend that to allow otherwise effectively creates an end-run around NRS 339.035(2)s notice requirement. Specifically, Hartford and Richardson maintain that, although NRS 608.150 allows a claimant to recover directly from the contractor, whereas NRS 339.035 allows a claimant to recover on the payment bond, the effect is the same, since Richardson ultimately will have to indemnify Hartford for any payment on the bond. Thus, they assert, because Richardson ultimately will be liable whether under NRS 608.150 or NRS 339.035, the preconditions to recovering under NRS 339.035 should also apply under NRS 608.150. To support that argument, Hartford and Richardson point to authority recognizing that [w]hen two statutes are clear and unambiguous but conflict with each other when applied to a specific factual situation, an ambiguity is created and [this court] will attempt to reconcile the statutes. Szydel v. Markman, 121 Nev. 453, 457, 117 P.3d 200, 202-03 (2005). But Hartford and Richardsons argument assumes that NRS 608.150 and NRS 339.035 conflict. That is not the case. In particular, NRS 339.035 allows a claimant to recover on the payment bond, while NRS 608.150 allows a claimant to recover directly from the general contractor. Even if Richardson is required to indemnify Hartford for any recovery by the trustees on the payment bond, that result arises under the terms of the parties bond agreement or principles of equity, not the statutes. See Medallion Dev. v. Converse Consultants, 113 Nev. 27, 32, 930 P.2d 115, 119 (1997) (noting that indemnity is [a] contractual or equitable right under which the entire loss is shifted from the tortfeasor who is only technically or passively at fault to another who is primarily or actively responsible (quoting Blacks Law Dictionary 769 (6th ed. 1991))), superseded in part by statute, NRS 17.245, as recognized in Doctors Company v. Vincent, 120 Nev. 644, 654, 98 P.3d 681, 688 (2004). Further, and significantly, NRS 608.150s plain language does not require that notice be provided to a contractor for its enforcement. Indeed, NRS 608.150(3) specifically grants a right of enforcement to the district attorney, which has been extended to certain private parties, U.S. Design & Constr., 118 Nev. at 462, 50 P.3d at 172, and that right is not tied to a notice requirement. Thus, to determine that NRS 608.150 imposes a notice requirement for its enforcement would contravene principles of statutory construction, which we

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will not do here. Consequently, NRS 608.150 does not include within its provisions NRS 339.035(2)s requirement that the general contractor receive notice before trustees can recover unpaid contributions owed to employee-benefit trusts. CONCLUSION Under NRS 339.035s clear terms, a subcontractors employees are required to provide notice to the general contractor of their claims for the subcontractors unpaid contributions before recovering on the contractors payment bond. Likewise, because employee-benefit trust-fund trustees are third-party beneficiaries of the subcontractors promise to make the contributions, we conclude that they represent the employees and, thus, are permitted to make claims on the payment bond. Since they stand in the employees shoes, they also are required to provide the contactor with notice of their claims before recovering against the payment bond under NRS 339.035. But as NRS 608.150 plainly does not require that the trustees provide the contractor with notice of their claims before recovering from the contractor, no such notice is necessary to recover under that statute. We thus answer the Ninth Circuits questions by concluding that trustees must provide NRS 339.035 notice as to claims against a surety under that chapter, but not as to claims against a contractor under NRS 608.150. HARDESTY, C.J., PARRAGUIRRE, DOUGLAS, CHERRY, and SAITTA, JJ., concur.

LAS VEGAS TAXPAYER ACCOUNTABILITY COMMITTEE; LAS VEGAS REDEVELOPMENT REFORM COM MITTEE; D. TAYLOR; CHRISTOPHER BOHNER; AND KEN LIU, APPELLANTS, v. CITY COUNCIL OF THE CITY OF LAS VEGAS, NEVADA; BEVERLY K. BRIDGES, IN HER OFFICIAL CAPACITY AS CITY CLERK OF THE CITY OF LAS VEGAS; LIVEWORK, LLC, A DELAWARE LIM ITED LIABILITY COMPANY; FC VEGAS 20, LLC, A NEV ADA LIMITED LIABILITY COMPANY; FC VEGAS 39, LLC, A NEW YORK LIMITED LIABILITY COMPANY; AND DOWNTOWN LAS VEGAS ALLIANCE, A NEVADA NONPROFIT CORPORATION, RESPONDENTS.
No. 53657 May 28, 2009 208 P.3d 429

Appeal from a district court order denying declaratory, injunctive, and extraordinary writ relief as to a municipal initiative and refer-

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endum. Eighth Judicial District Court, Clark County; David B. Barker, Judge. The supreme court, HARDESTY, C.J., held that: (1) city council did not have the authority to decide that referendum and initiative, which were procedurally valid, would not be placed on the ballot due to substantive invalidity, and city should have brought a court action to determine substantive invalidity; (2) statute imposing single-subject and description-of-effect requirements on petitions for initiatives or referendums applied to municipal ballot measures; (3) statute establishing a deadline for filing challenges to proposed initiatives or referendums did not apply to municipal measures; (4) proposed initiative amending city charter to require voter approval for lease-purchase arrangements in excess of $2 million and to require voter approval for all major redevelopment decisions violated single-subject requirement; and (5) description of effect for referendum proposing to repeal citys redevelopment ordinance was materially misleading. Affirmed. McCracken, Stemerman & Holsberry and Richard G. McCracken, Andrew J. Kahn, and Paul L. More, Las Vegas, for Appellants. Kummer Kaempfer Bonner Renshaw & Ferrario and Tami D. Cowden, Mark E. Ferrario, and Jason Woodbury, Las Vegas, for Respondents Livework, FC Vegas 20, FC Vegas 39, and Downtown Las Vegas Alliance. Bradford R. Jerbic, City Attorney, and Phil Byrnes, Deputy City Attorney, Las Vegas; Lewis and Roca LLP and Daniel F. Polsenberg, Jacqueline A. Gilbert, and Jennifer B. Anderson, Las Vegas, for Respondents City Council of the City of Las Vegas and Beverly K. Bridges.
1. DECLARATORY JUDGMENT. When legal, not factual, issues are at play, the supreme court reviews de novo a district court order resolving a request for declaratory relief. 2. MANDAMUS. While a district courts decision to deny extraordinary writ relief is generally reviewed for an abuse of discretion, the supreme court resolves issues of statutory construction de novo in such a context. 3. MUNICIPAL CORPORATIONS. City council did not have the authority to decide, despite the procedural validity of initiative petition and referendum petition, that the proposed initiative and proposed referendum would not be placed on the municipal ballot due to the measures substantive invalidity, namely that the initiative violated statutory single-subject requirement and that the referendums description of effect was misleading, and instead city should have placed the

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4.

5.

6.

7.

8.

9. 10. 11. 12.

13. 14.

procedurally compliant measures on the ballot unless it filed an appropriate action and obtained a ruling that the proposed measures were substantively invalid. NRS 295.009, 295.205, 295.210, 295.215. MUNICIPAL CORPORATIONS. If a city council or other local governing body believes that a proposed municipal ballot measure is substantively invalid, despite complying with procedural requirements and receiving sufficient signatures, then it must file an action in the appropriate district court seeking declaratory, injunctive, or other relief to prevent the measures placement on the ballot. NRS 295.210(4), 295.215(1). MUNICIPAL CORPORATIONS. In an action seeking to prevent proposed initiatives or referendums that are otherwise procedurally valid from being placed on a municipal ballot on the grounds that the measures are substantively invalid, measures opponents bear the burden of demonstrating that the measures are clearly invalid. MUNICIPAL CORPORATIONS. Purpose of the single-subject requirement for initiatives and referendums is to promote informed decisions and to prevent the enactment of unpopular provisions by attaching them to more attractive proposals or concealing them in lengthy, complex initiatives. NRS 295.009. MUNICIPAL CORPORATIONS. Purpose of the description-of-effect requirement for initiatives and referendums is to facilitate the constitutional right to meaningfully engage in the initiative process by helping to prevent voter confusion and promote informed decisions. NRS 295.009. MUNICIPAL CORPORATIONS. Statute imposing single-subject and description-of-effect requirements on petitions for initiative or referendum applies to municipal ballot measures and is not limited to statewide ballot measures. NRS 295.009. STATUTES. When interpreting a statute, the language of the statute should be given its plain meaning unless doing so violates the acts spirit. STATUTES. When a statute is facially clear, supreme court will generally not go beyond its language in determining the Legislatures intent. STATUTES. No part of a statute should be rendered meaningless and its language should not be read to produce absurd or unreasonable results. MUNICIPAL CORPORATIONS. Statute establishing a deadline for challenging a proposed initiative or referendum applies only to statewide ballot initiatives and does not apply to municipal measures; statute requires that a challenge to an initiative measure be brought 15 days after the measure is filed with the Secretary of State, county and city measures are filed with the county and city clerks respectively, and thus by its plain language statute only applies to statewide initiatives. NRS 295.061. STATUTES. Supreme courts looks first to a statutes plain language in determining its application. MUNICIPAL CORPORATIONS. In order for an initiative that is comprised of more than one part to comply with the statutory single-subject requirement, each initiatives parts must be functionally related and germane to each other and the initiatives purpose or subject. NRS 295.009(1)(a), 295.009(2).

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15. MUNICIPAL CORPORATIONS. Proposed municipal initiative that would add a new section to city charter with two provisions, the first requiring voter approval for lease-purchase arrangements that obligated the city to pay more than $2 million per year, and the second designating the citys voters as the citys legislative body for purposes of redevelopment statutes, which would have the effect of requiring voter approval for key aspects of the redevelopment planning process, violated statutory single-subject requirement for initiatives, and initiative thus was invalid; though initiatives proponents contended its purpose was to require voter approval for major redevelopment decisions, voter approval was an excessively general subject that could not meet the singlesubject requirement. NRS 295.009(1)(a), 295.009(2). 16. MUNICIPAL CORPORATIONS. Supreme court would not consider whether severance of proposed initiative amending city charter, which contained a provision requiring voter approval for lease-purchase arrangements that obligated the city to pay more than $2 million a year and another provision that required voter approval for key aspects of the redevelopment planning process, was possible, in appeal of district court decision that initiative violated statutory singlesubject requirement, though initiative contained a severance clause, where proponents did not argue in their opening brief that, if the initiative was held to violate the single-subject requirement, the measure was severable. 17. MUNICIPAL CORPORATIONS. Preelection review of whether statement of effect for proposed referendum, which would repeal citys redevelopment ordinance, was materially misleading, was appropriate, as a description of effect was a statutory requirement for placement on the ballot. NRS 295.009(1)(b). 18. MUNICIPAL CORPORATIONS. While a referendums summary and title need not be the best possible statement of a proposed measures intent, it nevertheless must still be straightforward, succinct, and nonargumentative. NRS 295.009(1)(b). 19. MUNICIPAL CORPORATIONS. Description of effect for referendum, which proposed to repeal citys redevelopment ordinance, was materially misleading, and thus referendum was invalid, as the description of effect stated that the referendums passage would halt only new, additional development projects, but the repeal of the redevelopement ordinance would effectively repeal the entire redevelopment plan, and the referendum did not provide a replacement plan that could administer the existing redevelopment projects. NRS 295.009(1)(b).

Before the Court EN BANC. OPINION By the Court, HARDESTY, C.J.: In this appeal, we consider whether the district court properly refused to require the Las Vegas City Council to place a proposed local initiative and referendum on the June 2009 ballot for the general city election. In reaching its decision, the district court ruled that the City Council had discretion to consider the measures substantive validity in determining whether to place them on the ballot. We disagree and conclude that the City Council improperly refused

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to place these measures on the ballot. In the future, should the City Council believe that a ballot measure is invalid, it must comply with its statutory duty to place the measure on the ballot, and it may then file an action in district court challenging the measures validity. Nevertheless, in determining whether the district court abused its discretion in denying relief, and based on considerations of judicial economy and efficiency, we must consider the City of Las Vegass objections to the statute while placing the burden on the City to demonstrate the measures invalidity. The district court concluded that NRS 295.009, which requires that ballot questions pertain to a single subject and that they include an accurate description of effect, applies to municipal initiatives and referenda. We conclude that the district courts ruling was correct because, by its terms, the statute applies to all petitions for an initiative or referendum. The district court further rejected appellants contention that NRS 295.061s time limits bar consideration of the Citys objections to the measures, holding that this statute applies only to statewide measures. The district courts reasoning, based on the statutes language, was sound, and we determine that the district court properly interpreted NRS 295.061. Finally, in applying NRS 295.009 to the measures at issue, the district court properly found that the proposed initiative pertains to more than one subject and that the description of effect for the proposed referendum is materially misleading. Therefore, we affirm the district courts order denying appellants petitions to require that these measures be placed on the ballot. FACTS AND PROCEDURAL HISTORY Appellants are two unincorporated associations formed pursuant to NRS 295.205 to submit and circulate a proposed initiative and referendum and three individuals who are members of both committees and registered voters. Respondents are the Las Vegas City Council and Las Vegas City Clerk Beverly K. Bridges, as well as parties who were permitted to intervene in the district court.1 One of the factors motivating appellants to organize the committees and circulate the ballot measures was their objections to a redevelopment project for the new city hall in Las Vegas. The agreement between the City and the respondent developers is for a lease-purchase arrangement, whereby the City would lease the city hall from the developers, with an option to purchase the property. In December 2008 and January 2009, appellants circulated two petitions within the City of Las Vegas: the Las Vegas Taxpayer Ac1 Specifically, three of the entities permitted to intervene were Livework, FC Vegas 20, and FC Vegas 39, developers who have a contract with the City to perform feasibility studies and other preparatory work for a new Las Vegas City Hall. The final intervenor in the district court and respondent in this appeal is the Downtown Las Vegas Alliance, a group of downtown businesses.

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countability Act Initiative (the Taxpayer Initiative) and the Las Vegas Redevelopment Reform Referendum (the Redevelopment Referendum). The Taxpayer Initiative would amend the Las Vegas Charter to add a new section with two provisions. The first provision requires voter approval for lease-purchase arrangements that obligate the City to pay more than $2 million per year; it mandates that all such arrangements contemplated for the next two years be presented at each general election. The second provision designates the voters of Las Vegas as the Citys legislative body, as that term is used in certain redevelopment statutes. The latter provision would have the effect of requiring voter approval for key aspects of the redevelopment planning process under Nevada law, including adoption of a plan, amendment of and material deviation from a plan, and approval of certain redevelopment projects. The Redevelopment Referendum seeks to repeal Las Vegas Ordinance 5830, which was passed in 2006 and which adopted the Amended and Restated Redevelopment Plan that is currently in place for Las Vegas. On December 9, 2008, appellants submitted the form of these petitions to the Las Vegas City Clerk, along with affidavits from the committee members, as required by NRS 295.205(1). They then began to gather signatures. On January 22, 2009, appellants presented signed petitions containing more than twice the minimum number of signatures required by Nevada law. In the interim, by December 19, 2008, shortly after the petitions were filed with the City Clerk, the Las Vegas mayor voiced disapproval of the measures and indicated that the measures would not appear on the ballot. Following this announcement, appellants sent a letter to the Las Vegas City Attorney asking for information about the Citys objections. The City did not respond to the letter and did not file any court action to enjoin or otherwise prevent the measures from proceeding. The Clark County Department of Elections, which was charged with reviewing the signed petitions, determined on January 29, 2009, that the petitions contained a sufficient number of signatures. On February 10, 2009, the City Clerk issued an official certification of the petitions sufficiency. Appellants requested an explanation for why the certification was delayed; the Clerk stated that the City was looking into its legal options. At a council meeting on March 4, 2009, after continuing the matter from its February 17, 2009, meeting, the City Council officially announced that it would not approve the City Clerks certifications of sufficiency or place the measures on the ballot. The Council based its decision on an opinion from the City Attorneys office. The City does not dispute that appellants complied with the procedural requirements for collecting signatures and submitting their petitions or that sufficient signatures were obtained.

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Less than a week after the March 4 City Council meeting, appellants filed an original petition for a writ of mandamus with this court, Las Vegas Taxpayer Accountability Committee v. City Council of Las Vegas, Nevada, Docket No. 53388, insisting that because of time constraints, they had no alternative but to seek relief from this court in the first instance. The developers who are parties to the city hall contract were permitted to intervene and file an answer, and an amicus brief was filed by the Downtown Las Vegas Alliance and others. The intervenors and the amici urged this court to keep the measures off the ballot. Following oral argument, this court denied the petition in an order, holding that appellants were required to seek relief in the district court in the first instance. The order specifically noted that expedited proceedings are available at the district court level and, in essence, rejected appellants contention that they had no time to proceed in district court. On April 10, 2009, two days after this court denied the writ petition, appellants filed a district court action seeking mandamus and declaratory relief. The district court set an expedited hearing that began on the afternoon of April 15, 2009, and continued on April 16, 2009. The hearing included both argument and testimony, primarily from Las Vegas City Attorney Bradford Jerbic. Jerbic testified concerning the measures asserted shortcomings that, in the Citys view, properly prevented their placement on the ballot. The district court issued its ruling on Friday, April 17, 2009. In a clear, thorough order, the district court denied appellants requested relief. First, the district court held that, under this courts precedent, it could not compel the City to place invalid measures on the ballot. Accordingly, the district court determined that the Citys objections to the measures must be examined. The district court then concluded that NRS 295.009s single-subject and description-ofeffect requirements applied to municipal ballot questions, and both measures were invalid under that statute: the initiative violated the single-subject requirement, and the referendums description of effect was materially misleading. The district court therefore denied appellants any relief. This appeal followed. DISCUSSION In resolving this appeal, we first consider appellants argument that the City Council and City Clerk had a ministerial duty to place the measures on the ballot once the City Clerk had confirmed that they had sufficient signatures and met all procedural requirements. While we agree with appellants position, we nevertheless then turn to respondents objections to the measures, while placing the burden on respondents to demonstrate the measures invalidity. We next consider whether the single-subject requirement and description-of-

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effect requirement set forth in NRS 295.009 apply to municipal ballot measures. We must also consider whether respondents objections are barred by the time limitation set forth in NRS 295.061. Finally, we examine the district courts application of NRS 295.009 to the measures at issue to determine whether the proposed initiative complied with the single-subject rule and whether the referendums description of effect is materially misleading. Standard of review
[Headnotes 1, 2]

When legal, not factual, issues are at play, this court reviews de novo a district court order resolving a request for declaratory relief. Nevadans for Nevada v. Beers, 122 Nev. 930, 942, 142 P.3d 339, 347 (2006). And while a district courts decision to deny extraordinary writ relief is generally reviewed for an abuse of discretion, DR Partners v. Bd. of County Commrs, 116 Nev. 616, 621, 6 P.3d 465, 468 (2000), we resolve issues of statutory construction de novo even in this context. Nevadans for Prop. Rights v. Secy of State, 122 Nev. 894, 901, 141 P.3d 1235, 1240 (2006). The City had a ministerial duty to place procedurally proper measures on the ballot Relying on the plain language of NRS 295.215(1) and several cases from other jurisdictions, appellants argue that, after the measures were verified as procedurally correct with sufficient signatures, the City Clerk had a ministerial duty to place them on the ballot. They further argue that the City Council lacked the judicial capacity to evaluate the validity of the measures by any other standards, such as their constitutionality or whether they violated provisions of Nevadas redevelopment statutes. Respondents argue that this court has already rejected appellants position in previous opinions and held that writ relief is warranted only if the measures are properly placed on the ballot. They contend that the City was not required to seek a judicial declaration of the measures invalidity. The district court concluded that the City had the discretion to consider the merits of the proposed measures and the court then considered the Citys objections to the measures. Procedural requirements for placing measures on the ballot NRS 295.205(1) provides that a petition for a municipal ballot measure must be filed with the City Clerk. The City Clerk must then confer with the City Council to determine whether the measure would have any fiscal effect; if so, the City Council must prepare a fiscal note to be posted on the City Clerks website. NRS 295.205(4). The measures proponents then have up to 180 days to gather signatures, or until 130 days before the election, whichever is

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earlier, and they must then submit the signatures to the City Clerk for verification. NRS 295.205(5). Other subsections of the statute set forth guidelines for the documents form and requirements for the circulators affidavits. NRS 295.205(6) and (7). Once the signatures have been submitted, the City Clerk has 20 days to verify the signatures pursuant to NRS 295.250-295.290. NRS 295.210(1). If the measure is certified as sufficient, then it must be presented to the City Council, and the Clerks certificate is a final determination as to the sufficiency of the petition. NRS 295.210(2). NRS 295.210(4) provides that a final determination of sufficiency is subject to judicial review in the district court on an expedited basis. NRS 295.215 sets forth the procedure to be followed once a measure has been certified as sufficient. The statute provides that, once the City Clerk verifies that a ballot measure has sufficient signatures and that it is procedurally correct, the City Council shall promptly consider the proposed initiative ordinance in the manner provided by law for the consideration of ordinances generally or reconsider the referred ordinance by voting its repeal. NRS 295.215(1). The City Council has 30 days to perform this task. Id. If the City Council fails to adopt the proposed initiative ordinance without any change in substance or fails to repeal the referred ordinance, the council shall submit the proposed or referred ordinance to the registered voters of the city. Id. (emphasis added). The vote must be held at the next general city election. NRS 295.215(2).
[Headnote 3]

Nothing in the language of these statutes grants the City Council authority to decide, despite a measures procedural validity, that it should not be placed on the ballot for other reasons, such as objections based on its asserted substantive defects. Under authority interpreting similar statutes, the City has no discretion to refuse to place procedurally valid measures on the ballot In support of their argument that the City had no discretion in this matter, appellants cite ample authority from several other jurisdictions. For example, in Williams v. Parrack, 319 P.2d 989, 990 (Ariz. 1957), the governing city charter section provided that, if the Phoenix City Council did not adopt a duly proposed initiative, the council shall proceed to call a special election. On the city attorneys advice, the council and the mayor refused to call a special election for a proposed initiative. Id. When the measures proponent sought mandamus relief to require the initiatives placement on the ballot, the council argued that the measure was beyond the initiative power. Id. The Arizona Supreme Court refused to consider the councils objections to the initiative, stating [w]e are concerned

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Las Vegas Taxpayer Comm. v. City Council

[125 Nev.

here only with whether the city council has the power to decline to act upon a petition proposing an initiated ordinance duly certified to it as being sufficient in form and having affixed thereto the required number of signatures. . . . Id. at 991. The court concluded that the councils duty was purely ministerial and mandatory, and the court therefore affirmed the lower courts order granting mandamus. Id. Similarly, California courts have repeatedly held that registrars of voters, county clerks, and the attorney general do not have discretion to bar an initiatives placement on the ballot due to stated concerns over the measures substantive validity, but rather, such concerns must be presented to the court. See Schmitz v. Younger, 577 P.2d 652 (Cal. 1978) (issuing mandamus to require attorney general to prepare title and summary for initiative, despite assertion that initiative violated single-subject requirement); Farley v. Healey, 431 P.2d 650, 653 (Cal. 1967) (Traynor, C.J.) (ordering registrar of voters and county clerk to proceed with signature verification notwithstanding their contention that measure was beyond the initiative power).2 These cases are well-reasoned and comport with the plain language of Nevadas statutory provisions, which do not allow a local governing body to refuse to place a procedurally valid measure on the ballot. Nevadas precedent does not support the Citys contention that it has no ministerial duty to place procedurally valid measures on the ballot Respondents rely on two cases in which this court considered the merits of a citys objections to a ballot measure in determining whether to require the city to place the measure on the ballot, State v. Reno City Council, 36 Nev. 334, 136 P. 110 (1913), and Glover v. Concerned Citizens for Fuji Park, 118 Nev. 488, 50 P.3d 546 (2002), overruled in part on other grounds by Garvin v. Dist. Ct., 118 Nev. 749, 765 n.71, 59 P.3d 1180, 1190 n.71 (2002). Respondents contend that these two cases establish that the City Council had no duty in this case to place the proposed measures on the ballot when it had concerns about their validity, despite the mandatory language of NRS 295.215(1). First, in the 1913 case, the Reno City Council refused to place on the ballot a municipal initiative that would grant a liquor license to a particular individual. Reno City Council, 36 Nev. 334, 136 P. 110. This court held that mandamus would not issue to require a void
2 Other cases cited by appellants to support their argument that the City Clerk and City Council had a ministerial duty to place the proposed measures on the ballot include Wyman v. Secretary of State, 625 A.2d 307 (Me. 1993); Heidtman v. City of Shaker Heights, 119 N.E.2d 644 (Ohio Ct. App. 1954); Fried v. Augspurger, 164 N.E.2d 466 (Ohio Ct. Com. Pl. 1959); and Philadelphia II v. Gregoire, 911 P.2d 389 (Wash. 1996).

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measures placement on the ballot. Id. at 338, 136 P. at 111. Notably, however, the statutes discussed above were not in effect at that time, and no statutory duties were addressed in the opinion. More recently, in Glover, 118 Nev. 488, 50 P.3d 546, an initiatives proponents had argued in the district court that the Carson City Board of Supervisors had a duty to place the measure on the ballot; the district court rejected that argument. But on appeal, the proponents did not renew this argument, and the opinion does not discuss the nature of the duties imposed by NRS 295.215(1). Rather, the arguments focused on the proponents contention that the Board could not participate in a court action challenging a ballot measure and the Boards objection that the measure concerned administrative rather than legislative matters. Consequently, this courts opinion did not consider the issue of whether the Board had a ministerial duty under NRS 295.215(1) to place the measure on the ballot.
[Headnote 4]

We conclude that, as neither Reno City Council nor Glover addressed a city councils duty under NRS 295.215(1), respondents argument lacks merit. If a city council or other local governing body believes that a proposed ballot measure is substantively invalid, despite complying with procedural requirements and receiving sufficient signatures, then it must file an action in the appropriate district court seeking declaratory, injunctive, or other relief to prevent the measures placement on the ballot. See NRS 295.210(4). Under NRS 295.215(1), a city council may not simply refuse to place the measure on the ballot. Nevertheless, the district court relied on Reno City Council and Glover in determining that the City had discretion to consider the merits of the proposed measures in deciding whether they should be placed on the ballot.3 The district court therefore proceeded to address the Citys objections and determined that the measures were invalid. Under these circumstances, we conclude that judicial economy and efficiency will be best served by reviewing the district courts ruling on the Citys objections. But we emphasize that, hereafter, a city council must comply with NRS 295.215(1) and place a procedurally compliant measure on the ballot unless it has filed an appropriate action in the district court and obtained a ruling that the proposed measure is invalid. We note the possibility that, in light of the absence of any statutory or other deadline for filing an action raising such objections, a city could delay filing an action to the point that the courts consideration of the issues is jeopardized. In such circumstances, if the city has
3 The City Council also cited to a 1995 Attorney General Opinion, addressing a proposed referendum similar to the instant referendum and concluding that the City Council could refuse to place it on the ballot. 95-16 Op. Atty Gen. 69 (1995).

176

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[125 Nev.

complied with its statutory duty to place the measure on the ballot, then laches may prevent preelection adjudication of the citys objections. And conversely, if the city has failed to comply with its statutory duty, a special election may be necessary and appropriate to guarantee the citizens right to vote on the proposed measure.4
[Headnote 5]

Consequently, we next consider the objections asserted by respondents in determining whether the district court properly denied relief. We note that, although holding that the registrar of voters and county clerk had a ministerial duty to place the challenged measures on the ballot, the California Supreme Court in Farley considered the asserted objections while placing the burden on the measures opponents to make a compelling showing that the measure was clearly invalid. 431 P.2d at 652; see also deBottari v. Norco City Council (Hanzlik), 217 Cal. Rptr. 790, 792-93 (Ct. App. 1985). We agree with Californias allocation of the burden of proof, and therefore, respondents bear the burden of demonstrating that the measures are clearly invalid. We thus proceed to determine whether the district court properly ruled that they have done so. NRS 295.009s single-subject and description-of-effect requirements apply to municipal ballot measures
[Headnotes 6, 7]

NRS 295.009 imposes two requirements on [e]ach petition for initiative or referendum: that it concern a single subject and that it contain a description of effect of no more than 200 words.5 We have previously identified the purposes of these requirements. Specifically, the single-subject requirement helps both in promoting informed decisions and in preventing the enactment of unpopular provisions by attaching them to more attractive proposals or concealing
4 While we directed the parties to brief the issue of this courts authority to order a special election, we need not reach the issue in this case in light of our disposition today. 5 The full text of NRS 295.009 is as follows: 1. Each petition for initiative or referendum must: (a) Embrace but one subject and matters necessarily connected therewith and pertaining thereto; and (b) Set forth, in not more than 200 words, a description of the effect of the initiative or referendum if the initiative or referendum is approved by the voters. The description must appear on each signature page of the petition. 2. For the purposes of paragraph (a) of subsection 1, a petition for initiative or referendum embraces but one subject and matters necessarily connected therewith and pertaining thereto, if the parts of the proposed initiative or referendum are functionally related and germane to each other in a way that provides sufficient notice of the general subject of, and of the interests likely to be affected by, the proposed initiative or referendum.

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them in lengthy, complex initiatives (i.e., logrolling). Nevadans for Prop. Rights v. Secy of State, 122 Nev. 894, 905, 141 P.3d 1235, 1242 (2006) (citing with approval Campbell v. Buckley, 203 F.3d 738, 746 (10th Cir. 2000)).6 And the requirement that each measure include a description of effect facilitates the constitutional right to meaningfully engage in the initiative process by helping to prevent voter confusion and promote informed decisions. Nevadans for Nevada v. Beers, 122 Nev. 930, 939, 142 P.3d 339, 345 (2006) (quoting Campbell, 203 F.3d at 746).
[Headnote 8]

Appellants argue that NRS 295.009 is limited to statewide ballot measures. Respondents assert that the statute applies to all initiatives and referenda in Nevada, including the measures at issue in this case. The district court concluded that the statute applies to municipal ballot measures. We agree with the district court.
[Headnotes 9-11]

It is well established that, when interpreting a statute, the language of the statute should be given its plain meaning unless doing so violates the acts spirit. McKay v. Bd. of Supervisors, 102 Nev. 644, 648, 730 P.2d 438, 441 (1986). Thus, when a statute is facially clear, we will generally not go beyond its language in determining the Legislatures intent. Id. Also, no part of a statute should be rendered meaningless and its language should not be read to produce absurd or unreasonable results. Harris Assocs. v. Clark County Sch. Dist., 119 Nev. 638, 642, 81 P.3d 532, 534 (2003) (quoting Glover v. Concerned Citizens for Fuji Park, 118 Nev. 488, 492, 50 P.3d 546, 548 (2002), overruled in part on other grounds by Garvin v. Dist. Ct., 118 Nev. 749, 765 n.71, 59 P.3d 1180, 1190 n.71 (2002)). NRS 295.009s plain language states that its requirements apply to [e]ach petition for initiative or referendum. NRS 295.009(1) (emphasis added). Nothing in the statute indicates that it was intended to apply solely to statewide measures. Also, the reasons for the statutes requirements apply equally to statewide and municipal measures, and to interpret the statute to exclude municipal ballot measures would therefore yield an unreasonable and absurd result. The interpretation urged by appellants would require this court to ignore the plain meaning of the term each as used in the statute, thereby rendering that term meaningless. We have reviewed the extrajurisdictional authority cited by appellants and do not find it persuasive as to Nevadas statute. In particular, we acknowledge the vig6 In Fine v. Firestone, 448 So. 2d 984, 988 (Fla. 1984), the Florida Supreme Court recognized a third benefit of the single-subject rule: unlike other means of enacting law, the initiative process typically does not allow for input in drafting proposed laws.

178

Las Vegas Taxpayer Comm. v. City Council

[125 Nev.

orous debate that exists in this country concerning whether singlesubject requirements are wise as a matter of policy, and we recognize that their application can be difficult. But the Legislature has decided the policy issue for Nevada by enacting NRS 295.009, and the requirement is proper under the Federal and Nevada Constitutions. Nevadans for Prop. Rights, 122 Nev. at 902-06, 141 P.3d at 1240-43. Accordingly, we conclude that municipal initiatives and referenda must meet NRS 295.009s requirements. NRS 295.061 does not apply to municipal measures, either directly or through Las Vegas City Charter section 5.030
[Headnote 12]

Appellants assert that, if NRS 295.009s single-subject and description-of-effect provisions apply to municipal initiatives, then so must NRS 295.061s deadline for bringing challenges on those bases. Respondents counter that NRS 295.061 applies only to statewide initiatives, not municipal initiatives, and therefore its deadline does not bar their objections. The district court ruled that NRS 295.061 did not apply to municipal measures, and we conclude that the district court was correct.
[Headnote 13]

Again, we look first to the statutes plain language in determining its application. State, Dept of Motor Vehicles v. Terracin, 125 Nev. 31, 34, 199 P.3d 835, 837 (2009) (noting that when the language of the statute is plain and unambiguous, this court may not look beyond that plain and unambiguous language); McKay, 102 Nev. at 648, 730 P.2d at 441. Here, NRS 295.061(1) provides a procedural mechanism for asserting challenges to a measure based on the single-subject requirement and the description of effect, when the measure is placed on file with the Secretary of State pursuant to NRS 295.015 by specifying that such challenges should be filed in the First Judicial District Court within 15 days after the measure is filed with the Secretary of State. Only statewide measures are filed with the Secretary of State; county and city measures are filed with the county and city clerks, respectively. NRS 295.095 (county measures); NRS 295.205 (city measures). Therefore, the statutes plain language indicates that NRS 295.061 applies only to statewide initiatives. Moreover, it would be absurd to interpret the statute to require that challenges to local measures be filed in the First Judicial District Court rather than the locality in which they are proposed, here, Clark County. Harris Assocs., 119 Nev. at 642, 81 P.3d at 534 (stating that statutes should be interpreted to avoid absurd or unreasonable results). Appellants correctly identify a procedural gap in the statutory scheme, in that the Legislature prescribed a specific procedure for

May 2009]

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asserting single-subject and description-of-effect objections only with regard to statewide, not local, measures. That the Legislature could have addressed local measures is illustrated by NRS 295.105(4) and NRS 295.210(4), which set forth expedited procedures for challenging the sufficiency of, respectively, county and city ballot measures in the local district court on shortened time. But the Legislature could have deemed these procedural mechanisms sufficient for local measures, particularly since the district court, unlike this court, is well-suited to gather evidence, to hold hearings on short notice, and to expedite issuance of a decision. Notably, after appellants first writ petition to this court was denied, the district court completed its proceedings in little more than one week. Moreover, the Legislature could have reasonably concluded that the local city council was better able to tailor the procedure for enforcing the single-subject and description-of-effect requirements to local conditions and that, pursuant to its authority to control city elections under NRS 293C.110, it could do so if it wished. Accordingly, we reject appellants contention that NRS 295.061 applies to bar consideration of respondents objections. The Taxpayer Accountability Initiative violates the single-subject requirement We have previously held that objections to a measures validity based on the statutory provisions governing initiatives, such as the single-subject requirement, are properly considered preelection. Herbst Gaming, Inc. v. Secy of State, 122 Nev. 877, 883-85, 141 P.3d 1224, 1228-29 (2006). We therefore turn to respondents objections to the initiative based on NRS 295.009s single-subject requirement. Appellants assert that the initiative concerns the single subject of voter approval of use of taxpayer funds to finance large new development projects and that this subject is sufficiently defined to satisfy NRS 295.009. Respondents contend that the initiative concerns two unrelated subjects: lease-purchase agreements and redevelopment plans. They further maintain that only an exceptionally broad subject, such as voter approval could encompass both of the initiatives provisions and that a subject so defined does not meet the statutes requirements. The district court determined that the initiative consisted of two unrelated provisions and was therefore invalid under the single-subject requirement. NRS 295.009(1)(a) requires that an initiative must [e]mbrace but one subject and matters necessarily connected therewith and pertaining thereto. NRS 295.009(2) expands on this requirement, stating that it is met if the parts of the proposed initiative or referendum are functionally related and germane to each other in a way that provides sufficient notice of the general subject of, and of the inter-

180

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[125 Nev.

ests likely to be affected by, the proposed initiative. As noted above, the single-subject requirement helps to promote informed decisions and to prevent logrolling. Nevadans for Prop. Rights, 122 Nev. at 905, 141 P.3d at 1242 (citing Campbell, 203 F.3d at 746).
[Headnote 14]

In Nevadans for Property Rights, this court noted that NRS 295.009(2) plainly describes the standard that must be used in determining whether an initiative is comprised of more than one subject: each initiatives parts must be functionally related and germane to each other and the initiatives purpose or subject. 122 Nev. at 906-07, 141 P.3d at 1243. Thus, in resolving this issue, this court must first determine the initiatives purpose or subject. A primary purpose cannot be determined from the initiative itself and its description of effect To determine the initiatives purpose or subject, this court looks to its textual language and the proponents arguments. Id. at 907, 141 P.3d at 1243. In this case, the title of the proposed initiative is the Las Vegas Taxpayer Accountability Act Initiative. The description of effect does not articulate an overarching purpose or theme and never uses the words taxpayer or accountability. Rather, the description of effect states that the first section of the proposed new city charter provision would require voter approval for certain lease-purchase agreements entered into by the City, and it then avers that the second section would establish that the Citys voters would serve as the legislative body for certain redevelopment purposes. Neither the title nor the description indicate how these two provisions relate to any single subject. It is therefore difficult to discern the measures primary purpose in order to evaluate whether its provisions are functionally related and germane to that purpose, as required by Nevadans for Property Rights, 122 Nev. at 907, 141 P.3d at 1243. Appellants articulation on appeal of the measures subject is excessively general and therefore violates the single-subject rule
[Headnote 15]

The district court determined that the initiative was composed of two unrelated sections. In the district courts view, the first section imposed a voter-approval requirement for all lease-purchase agreements for all public buildings, not only those that were part of redevelopment projects. The district court therefore found that this section of the initiative attempt[ed] to limit the Councils powers to use lease-purchase agreements to conduct business. The district court next considered the second section and determined that, by attempting to substitute the Citys voters as the legislative body

May 2009]

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under certain redevelopment statutes, it attempted to limit the powers of the Las Vegas Redevelopment Agency, an entity separate from the City. The district court thus concluded that the initiative petition included two distinct subjects, one relating to voter approval for all lease purchase agreements (whether for redevelopment projects or otherwise), and the other seeking to govern the redevelopment agency by popular vote. The district court rejected appellants suggested subject of requiring voter approval for expenditure of taxes for development projects, since the measures second section called for voter approval of much more than particular projects, as it would require voter approval for virtually all aspects of redevelopment planning. In interpreting their constitutional single-subject requirement for initiatives, California courts have held that an initiative proponent may not circumvent the single-subject rule by phrasing the proposed laws purpose or object in terms of excessive generality: For example, the rule obviously forbids joining disparate provisions which appear germane only to topics of excessive generality such as government or public welfare. Harbor v. Deukmejian, 742 P.2d 1290, 1303 (Cal. 1987) (quoting Brosnahan v. Brown, 651 P.2d 274, 284 (Cal. 1982)) (invalidating a proposed law for violating the single-subject rule because the only commonality among the provisions, fiscal affairs and statutory adjustments to state budget were too general of topics); see also Chem. Specialties Mfrs. v. Deukmejian, 278 Cal. Rptr. 128, 133 (Ct. App. 1991) (determining, under a functionally related or reasonably germane standard, that an initiative proposing to require disclosures pertaining to, among other things, household toxic products, senior health insurance, and senior nursing homes, could not proceed under the general rubric public disclosure, i.e., truth in advertising and violated Californias single-subject rule).
[Headnote 16]

The proponents indicate that the measures purpose is to provide the voters of Las Vegas with greater input into the Citys redevelopment decisions by requiring voter approval for major redevelopment decisions. But voter approval, as held by the California Supreme Court, is an excessively general subject that cannot meet NRS 295.009s requirement. Senate of the State of Cal. v. Jones, 988 P.2d 1089, 1101-02 (Cal. 1999). And the purported single subject articulated in appellants opening brief, voter approval of use of taxpayer funds to finance large new development projects, is no better, when the proposed initiative is not limited to the financing of large new development projects but instead encompasses the far more complex task of adopting and amending redevelopment plans. The district court properly evaluated the proposed initiatives provi-

182

Las Vegas Taxpayer Comm. v. City Council

[125 Nev.

sions and concluded that the initiative violates the single-subject requirement. We therefore hold that the measure is invalid.7 The Redevelopment Reform Referendums description of effect is materially misleading Preelection review is appropriate
[Headnote 17]

Appellants first challenge the propriety of this court reviewing the referendums statement of effect preelection, arguing that this court rejected a similar attempt to review substantive constitutional matters in the guise of a procedural challenge in Herbst Gaming, Inc. v. Secretary of State, 122 Nev. 877, 141 P.3d 1224 (2006). The City Attorney, however, contends that the district court properly reviewed the description-of-effect challenge preelection because the matter concerns limits on the citys self-governing power, which this court stated in Herbst Gaming, 122 Nev. at 883, 141 P.3d at 1228, could be reviewed preelection. Because, under NRS 295.009(1)(b), the description of effect is a statutory requirement for placement on the ballot, it is virtually always ripe for preelection review. Id. We see no reason to depart from this general rule here, and thus conclude that it is appropriate for preelection review. The description of effect violates NRS 295.009(1)(b) Turning to the merits of the description-of-effect issue, appellants contend that the district court erred in determining that the description of effect was materially misleading. The referendums description of effect sets forth, in full: The referendum asks registered voters in the City of Las Vegas to repeal Ordinance No. 5830, entitled An Ordinance to Adopt an Amended and Restated Redevelopment Plan, Which Includes Additional Property Within the Plan, and to Provide for other Related Matters. Ordinance No. 5830 amended and restated the Redevelopment Plan for the Downtown Las Vegas Redevelopment Area by expanding the area covered by the Plan, restating the purpose of the Redevelopment Plan, determining that blight existed in the Redevelopment Area covered by the Redevelopment Plan, and making certain other findings. Repeal of Ordinance No. 5830 would prevent the Redevelopment Agency from undertaking further redevelopment projects in
7 Appellants did not argue in their opening brief that, if the initiative was held to violate the single-subject requirement, the measure was severable. Accordingly, although the initiative contains a severance clause, we do not consider whether severance may have been possible under Nevadans for Property Rights v. Secretary of State, 122 Nev. 894, 141 P.3d 1235 (2006).

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the Redevelopment Area or incurring further indebtedness to support such additional projects. (Emphasis added.) Appellants argue that the referendums description of effect correctly states that a repeal of Ordinance No. 5830 would only act prospectively, to prevent the adoption of any additional redevelopment projects and the incurring of additional indebtedness until a new redevelopment plan is adopted. During any interim after the referendums passage, appellants contend, the redevelopment agency would remain in place and, under NRS 279.676, any existing incurred debts would continue to be paid so long as there is sufficient tax increment from existing plan areas. The City Attorney, however, contends that the district court correctly determined that the referendums description of effect was materially misleading. Specifically, the City Attorney argues that the referendum, if passed, would result in the complete termination of the redevelopment plan. Thus, the proposed referendums statement of effect, which states that passage of the referendum would merely result in the prevention of additional development projects under the redevelopment plan, is inadequate under NRS 295.009(1)(b), as it fails to accurately inform the voters that the referendums passage would also affect current and existing projects, and debts incurred thereby.
[Headnote 18]

Under NRS 295.009(1)(b), referendum petition signature pages must include a description summarizing the proposed law. This court has noted that this description of effect is significant as a tool to help prevent voter confusion and promote informed decisions. Nevadans for Nevada v. Beers, 122 Nev. 930, 939, 142 P.3d 339, 345 (2006) (quoting Campbell v. Buckley, 203 F.3d 738, 746 (10th Cir. 2000)). Additionally, while a referendums summary and title need not be the best possible statement of a proposed measures intent, it nevertheless must still be straightforward, succinct, and nonargumentative. Herbst Gaming, 122 Nev. at 889, 141 P.3d at 1232 (internal quotations omitted). This court has consistently provided that the district courts findings of fact will not be disturbed on appeal if they are supported by substantial evidence. Bedore v. Familian, 122 Nev. 5, 9-10, 125 P.3d 1168, 1171 (2006) (quoting Clark County v. Sun State Properties, 119 Nev. 329, 334, 72 P.3d 954, 957 (2003)).
[Headnote 19]

Here, the district court made factual findings regarding the referendum and NRS 295.009(1)(b). Specifically, the district court found that the true effect of the referendum would be to completely terminate the redevelopment plan and, consequently, to impair out-

184

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[125 Nev.

standing securities issued by the Redevelopment Agency. The district court also found that the referendums statement of effect was materially misleading because, by stating that the referendums passage would halt only new, additional development projects, it failed to inform the voters that the repeal of Ordinance No. 5830 would also affect existing redevelopment projects. We agree with the district court that the description of effect materially fails to accurately identify the consequences of the referendums passage. Because Ordinance No. 5830 adopted the current redevelopment plan, the referendums repeal of that ordinance effectively repeals the entire redevelopment plan, and the referendum does not provide any replacement plan that could administer the existing redevelopment projects.8 Thus, because this description of effect does not satisfy NRS 295.009(1)(b), we affirm the district courts findings on this point. The description of effect cannot be saved by a prospective application of the referendum Finally, appellants argue that, even if the City Attorney is correct that the referendum can be read in the manner that would result in a complete termination of the redevelopment plan, the referendum is salvageable, as its repeal of an existing statute could nonetheless be read and applied in a prospective manner so as to preserve the local electorates constitutional right to referendum. For instance, as support for this possible prospective application of the referendums repeal of Ordinance No. 5830, appellants distinguish between the effect of a statute declared void and the effect of a statute that is repealed, as set forth in the Missouri Supreme Court case, R.E.J., Inc. v. City of Sikeston, 142 S.W.3d 744 (Mo. 2004). In light of our determination that the referendums proposed repeal of Ordinance No. 5830 would terminate the entire redevelopment plan, we reject appellants arguments that the description of effect can be saved by a prospective application of the referendum. CONCLUSION Upon certification by the City Clerk that the proposed measures had sufficient signatures and otherwise met procedural requirements, the City Council had a duty to place the measures on the ballot, regardless of its objections to the measures substantive validity. In light of our opinion today, it must promptly assert any such objections in an action filed in the appropriate district court for an
8 See Las Vegas Municipal Code 1.04.040 (stating that the repeal of an ordinance does not automatically revive any ordinance that was previously in effect either before or at the time the ordinance repealed took legal effect).

June 2009]

Rivera v. Philip Morris, Inc.

185

expedited decision. But under the circumstances of this case and to serve judicial efficiency and economy, we have nevertheless considered respondents objections to the proposed measures, while placing the burden of establishing the measures invalidity on respondents. We conclude that respondents have met this burden. First, NRS 295.009s single-subject and description-of-effect requirements apply to all initiatives and referenda in Nevada. Moreover, respondents objections on these bases are not barred by NRS 295.061, which applies only to statewide measures. Next, respondents have demonstrated that the proposed initiative violates the single-subject requirement and that the proposed referendums description of effect is misleading. Thus, the district court properly concluded that the measures were invalid.9 Accordingly, we affirm the district courts judgment. PARRAGUIRRE, DOUGLAS, CHERRY, SAITTA, GIBBONS, and PICKERING, JJ., concur.

JOE RIVERA, INDIVIDUALLY AND AS GUARDIAN AD LITEM FOR JOSEPH RIVERA, V, AND JENICA RIVERA, MINORS, AND JOE RIVERA AS SPECIAL ADMINISTRATOR TO THE ESTATE OF PAMELA RIVERA, APPELLANTS, v. PHILIP MORRIS, INCORPORATED, A VIRGINIA CORPORATION, RESPONDENT.
No. 49396 June 4, 2009 209 P.3d 271

Certified question, pursuant to NRAP 5, regarding whether Nevada law recognizes a heeding presumption in strict product liability failure-to-warn cases. United States District Court, District of Nevada; David A. Ezra, Judge.1 The supreme court, SAITTA, J., held that Nevada law does not recognize a heeding presumption in strict products liability failure-towarn cases because a heeding presumption shifts burden of proving causation from the plaintiff to the manufacturer. Question answered.
9 In light of our conclusion that the measures are invalid on the bases discussed in this opinion, we do not consider respondents other objections to the measures. 1 The Honorable James C. Mahan presided over the case and the motions for summary judgment, but the case was later reassigned to The Honorable David A. Ezra.

186

Rivera v. Philip Morris, Inc.

[125 Nev.

Gillock, Markley & Killebrew, PC, and Gerald I. Gillock, Las Vegas; Johnson Flora, PLLC, and Mark A. Johnson, Seattle, Washington, for Appellants. Jones Vargas and Clark V. Vellis and John P. Desmond, Reno; Munger, Tolles & Olson, LLP, and Gregory Stone, Los Angeles, California; Shook, Hardy & Bacon, LLP, and Craig Proctor and William A. Yoder, Kansas City, Missouri, for Respondent.
1. PRODUCTS LIABILITY. In strict product liability failure-to-warn cases, the plaintiff bears the burden of production and must prove, among other elements, that the inadequate warning caused his injuries. 2. FEDERAL COURTS. Supreme court has the discretion to answer questions certified by a federal court, and to decide whether to exercise that discretion, supreme court looks at whether (1) the certified questions answer may be determinative of part of the federal case, (2) controlling Nevada precedent exists, and (3) the answer will help settle important questions of law. NRAP 5. 3. FEDERAL COURTS. Supreme court would answer question certified by federal district court asking whether Nevada law recognizes a heeding presumption in strict products liability failure-to-warn cases, as this was issue of first impression. NRAP 5. 4. PRODUCTS LIABILITY. Nevada law does not recognize a heeding presumption in strict products liability failure-to-warn cases because a heeding presumption shifts burden of proving causation from the plaintiff to the manufacturer, and shifting the burden of proving causation to the manufacturer, even if it is a temporary shift, is contrary to Nevada law, as well as public policy; rather than demanding that plaintiff prove that the inadequate warning caused his or her injuries, a heeding presumption requires the manufacturer to rebut the presumption that the plaintiff would have heeded an adequate warning by demonstrating that different warning would not have changed plaintiffs actions. 5. PRODUCTS LIABILITY. When bringing a strict product liability failure-to-warn case, the plaintiff carries the burden of proving, in part, that the inadequate warning caused his injuries. 6. EVIDENCE. The term burden of proof is an umbrella phrase that describes two related, but separate, burdens: (1) there is the burden of production, and the party that carries the burden of production must establish a prima facie case, and burden of production may be switched from one party to another by a presumption; and (2) there is the burden of persuasion, and the burden of persuasion rests with one party throughout the case and determines which party must produce sufficient evidence to convince a judge that a fact has been established. NRS 47.180. 7. PRODUCTS LIABILITY. In strict product liability cases, the plaintiff carries both the burden of production and the burden of persuasion. 8. PRODUCTS LIABILITY. To successfully prove a strict product liability failure-to-warn case, a plaintiff must produce evidence demonstrating the same elements as in other

June 2009]

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187

9. 10.

11.

12. 13.

strict product liability cases: (1) the product had a defect which rendered it unreasonably dangerous, (2) the defect existed at the time the product left the manufacturer, and (3) the defect caused the plaintiffs injury. PRODUCTS LIABILITY. A product may be found unreasonably dangerous and defective if the manufacturer failed to provide an adequate warning. PRODUCTS LIABILITY. The burden of proving causation can be satisfied in strict product liability failure-to-warn cases by demonstrating that a different warning would have altered the way the plaintiff used the product or would have prompted plaintiff to take precautions to avoid the injury. PRODUCTS LIABILITY. A heeding presumption is a rebuttable presumption that allows a fact-finder to presume that the injured plaintiff would have heeded an adequate warning if one had been given, and thus, it shifts the burden of proving the element of causation from the plaintiff to the manufacturer. PRODUCTS LIABILITY. Plaintiff bears the burden of proving causation in strict product liability cases. PRODUCTS LIABILITY. A manufacturer must make products that are not unreasonably dangerous, no matter what instructions are given in a warning.

Before the Court EN BANC.2 OPINION By the Court, SAITTA, J.: The United States District Court, District of Nevada, has certified the question of whether Nevada law recognizes a heeding presumption in strict product liability failure-to-warn cases. A heeding presumption is a rebuttable presumption that allows a factfinder to presume that the injured plaintiff would have heeded an adequate warning if one had been given. Thus, it shifts the burden of proving the element of causation from the plaintiff to the manufacturer. We exercise our discretion to answer this question and conclude that Nevada law does not recognize a heeding presumption.
[Headnote 1]

In Nevada, it is well-established law that in strict product liability failure-to-warn cases, the plaintiff bears the burden of production and must prove, among other elements, that the inadequate warning caused his injuries. Because a heeding presumption shifts the burden of proving causation from the plaintiff to the manufacturer, it is contrary to Nevada law. Rather than demanding that the plaintiff prove
2 THE HONORABLE KRISTINA PICKERING, Justice, did not participate in the decision of this matter.

188

Rivera v. Philip Morris, Inc.

[125 Nev.

that the inadequate warning caused his injuries, a heeding presumption requires the manufacturer to rebut the presumption that the plaintiff would have heeded an adequate warning by demonstrating that a different warning would not have changed the plaintiffs actions. While other jurisdictions have permitted this shifting of the burden of production, we are unwilling to do so. FACTS AND PROCEDURAL HISTORY Appellant Joe Rivera brought a wrongful death suit against respondent Philip Morris, Inc., on behalf of the estate and family of his wife, Pamela Rivera. Pamela began smoking in 1969, before the federal government required cigarette labels to include warnings that specifically addressed the health risks of smoking, including its causing lung cancer. Rather, from 1966 until 1985, cigarette labels warned only of general health risks. Beginning in 1985, the warnings were required to be more explicit, expressly warning of smokings connection to lung cancer, heart disease, and emphysema, as well as the risks of smoking during pregnancy. Pamela smoked until she died in 1999 of brain cancer, which her estate alleges was caused by lung cancer. Rivera filed a complaint for damages against Philip Morris in the state district court, which Philip Morris removed to the federal district court. Riveras initial complaint set forth strict product liability and fraud claims. Rivera based the strict product liability claim on his contention that, by producing and selling cigarettes, Philip Morris breached its duty to Pamela not to manufacture and sell a product that was defective and unreasonably dangerous to her. By selling a defective and unreasonably dangerous product to Pamela, Rivera claimed that Philip Morris caused her death. The federal district court granted summary judgment on all claims in favor of Philip Morris on the grounds that the strict liability claim was preempted by the Federal Cigarette Labeling and Advertising Act of 1965, and that the fraud claims were either preempted by the same Act or, alternatively, that there was a lack of evidence that Pamela would have stopped smoking if Philip Morris had disclosed material information regarding the health effects of smoking. Rivera appealed to the United States Court of Appeals for the Ninth Circuit. In Rivera v. Philip Morris, Inc., 395 F.3d 1142 (9th Cir. 2005), the Ninth Circuit affirmed summary judgment on the fraud claims but reversed the district court on the strict product liability failureto-warn claim. Id. at 1154-55. The Ninth Circuit first determined that none of Riveras claims were preempted by federal law. Id. at 1146-50. The court decided that summary judgment was inappropriate on the strict product liability claim because the question of whether it was common knowledge when Pamela began smoking in

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1969 that cigarette smoking caused lung cancer was a question of fact for a jury to decide. Id. at 1153. Further, the Ninth Circuit concluded that summary judgment was also inappropriate because whether a typical consumer in 1969 knew that cigarettes were addictive was also a question of fact for a jury. Id. at 1153-54. Accordingly, the Ninth Circuit affirmed in part and remanded the case for further proceedings solely on Riveras strict product liability failure-to-warn claim. Id. at 1155. On remand, Rivera filed a motion for partial summary judgment, asking the federal district court to recognize, as fact, certain assertions. Philip Morris filed a cross-motion for summary judgment on the strict product liability failure-to-warn claim. Philip Morris argued that Rivera could not prove that the alleged failure-to-warn caused Pamelas injuries because the record was void of any evidence that Pamela would have acted differently had Philip Morris provided additional information or warnings. In opposition, Rivera argued that the federal district court should apply a heeding presumption. After the hearing on the parties motions, the federal district court entered an order that granted, in part, Riveras motion for partial summary judgment, by recognizing that Philip Morris cigarettes have been and are addictive and that they have caused and do cause cancer. The order also denied Philip Morris motion for summary judgment, finding that Philip Morris had failed to overcome the presumption that Pamela would have heeded additional information and warnings had Philip Morris provided them. Philip Morris moved for clarification and reconsideration of the federal district courts decision and for certification, pursuant to NRAP 5, of whether Nevada law recognizes a heeding presumption in strict liability failure-to-warn cases. The federal district court denied Philip Morris motions. The parties then joined in a motion to certify the heeding presumption question to this court, which the federal district court granted. DISCUSSION NRAP 5 certification is appropriate
[Headnotes 2, 3]

At the outset, we address the threshold issue of whether the certified question should be answered by this court. Pursuant to NRAP 5, this court has the discretion to answer questions certified by a federal court. To decide whether to exercise that discretion, this court looks at whether (1) the certified questions answer may be determinative of part of the federal case, (2) controlling Nevada precedent exists, and (3) the answer will help settle important ques-

190

Rivera v. Philip Morris, Inc.

[125 Nev.

tions of law. Federal Ins. v. Am. Hardware Mut. Ins., 124 Nev. 319, 322, 184 P.3d 390, 392 (2008). Whether Nevada law recognizes a heeding presumption is a matter of first impression. Our answer will determine whether plaintiffs in strict product liability failure-to-warn cases will continue to bear the burden of proving causation throughout the entire case or whether that burden will first shift to the manufacturers who must rebut it. In this case, our answer may also be determinative of the federal case. If this court declines to adopt a heeding presumption, it is unlikely that Rivera can prove causation because the only evidence he has presented that Pamela would have heeded a more specific warning is speculative and, therefore, likely inadmissible. Accordingly, we answer the certified question. Nevada law and public policy do not support a heeding presumption Nevada law
[Headnotes 4, 5]

In Nevada, when bringing a strict product liability failure-towarn case, the plaintiff carries the burden of proving, in part, that the inadequate warning caused his injuries. Sims v. General Telephone & Electric, 107 Nev. 516, 524, 815 P.2d 151, 156 (1991), overruled on other grounds by Tucker v. Action Equip. and Scaffold Co., 113 Nev. 1349, 1356 n.4, 951 P.2d 1027, 1031 n.4 (1997), overruled on other grounds by Richards v. Republic Silver State Disposal, 122 Nev. 1213, 148 P.3d 684 (2006). Rivera admits that a heeding presumption would shift this burden from the plaintiff to the manufacturer, but argues that a heeding presumption is concordant with Nevada law because it is a rebuttable presumption that initially shifts the burden of proving causation to the manufacturer but shifts the burden back to the plaintiff upon the manufacturer rebutting the claim. We reject Riveras argument. Instead, we conclude that shifting the burden of proving causation to the manufacturer in a strict product liability case, even if it is a temporary shift, is contrary to this states law, as well as public policy.
[Headnote 6]

At the outset, we note that cases are governed, in part, by evidentiary burdens and determining which party carries these burdens. The determination of which party caries a burden is critical because it can impact the outcome of a case. The term burden of proof is an umbrella phrase that describes two related, but separate, burdens. See Northwest Pipeline Corp. v. Adams County, 131 P.3d 958, 960 (Wash. Ct. App. 2006). First, there is the burden of production. The party that carries the burden of production must establish a prima

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facie case. See Aguilar v. Atlantic Richfield Co., 24 P.3d 493, 510 (Cal. 2001); Cuzze v. Univ. & Cmty. Coll. Sys. of Nev., 123 Nev. 598, 602, 172 P.3d 131, 134 (2007); Parsons v. State, 116 Nev. 928, 937 n.7, 10 P.3d 836, 841 n.7 (2000). The burden of production may be switched from one party to another by a presumption. See NRS 47.180;3 Nevada Power Co. v. Public Util. Commn, 122 Nev. 821, 835, 138 P.3d 486, 495-96 (2006). Second, there is the burden of persuasion. The burden of persuasion rests with one party throughout the case and determines which party must produce sufficient evidence to convince a judge that a fact has been established. 29 Am. Jur. 2d Evidence 171 (2008) (citing Hurley v. Hurley, 754 A.2d 1283, 1286 (Pa. Super. Ct. 2000)); see Northwest Pipeline Corp., 131 P.3d at 960.
[Headnotes 7-10]

In strict product liability cases, the plaintiff carries both the burden of production and the burden of persuasion. See Shoshone Coca-Cola v. Dolinski, 82 Nev. 439, 443, 420 P.2d 855, 857-58 (1966). To successfully prove a failure-to-warn case, a plaintiff must produce evidence demonstrating the same elements as in other strict product liability cases: (1) the product had a defect which rendered it unreasonably dangerous, (2) the defect existed at the time the product left the manufacturer, and (3) the defect caused the plaintiffs injury. See Fyssakis v. Knight Equipment Corp., 108 Nev. 212, 214, 826 P.2d 570, 571 (1992). A product may be found unreasonably dangerous and defective if the manufacturer failed to provide an adequate warning. See Yamaha Motor Co. v. Arnoult, 114 Nev. 233, 238-39, 955 P.2d 661, 665 (1998). Further, the burden of proving causation can be satisfied in failure-to-warn cases by demonstrating that a different warning would have altered the way the plaintiff used the product or would have prompted plaintiff to take precautions to avoid the injury. See Riley v. American Honda Motor Co., Inc., 856 P.2d 196, 198 (Mont. 1993).
[Headnote 11]

A heeding presumption, which Rivera seeks this court to adopt, departs from well-settled and established Nevada law. Instead of requiring that the plaintiff prove each element of a strict product liability case, a heeding presumption removes the plaintiffs responsibility to carry the initial burden of production as to the element of causation. See Riley, 856 P.2d at 199; Seley v. G. D. Searle & Co., 423 N.E.2d 831, 838 (Ohio 1981); Technical Chemical Company v. Jacobs, 480 S.W.2d 602, 606 (Tex. 1972). A heeding presumption
3 We note that since its adoption in 1971, NRS 47.180 has never been amended.

192

Rivera v. Philip Morris, Inc.

[125 Nev.

allow[s] the fact-finder to presume that the person injured by product use would have heeded an adequate warning, if given. Golonka v. General Motors Corp., 65 P.3d 956, 967 (Ariz. Ct. App. 2003); Bushong v. Garman Co., 843 S.W.2d 807, 811 (Ark. 1992). Therefore, a heeding presumption shifts the burden of production from the plaintiff to the manufacturer, who must rebut the presumption by proving that the plaintiff would not have heeded a different warning. Golonka, 65 P.3d at 971; Bushong, 843 S.W.2d at 811; see NRS 47.180. Rivera argues that this courts decisions in Sims, 107 Nev. 516, 815 P.2d 151, and Stackiewicz v. Nissan Motors Corp., 100 Nev. 443, 686 P.2d 925 (1984), support our recognizing a heeding presumption. For the reasons set forth below, we reject this argument. This court has consistently stated that the plaintiff must prove the element of causation. Shoshone Coca-Cola, 82 Nev. at 443, 420 P.2d at 857-58. In Sims, we concluded that the district court had improperly granted the manufacturers motion for summary judgment because the fact-finder could have found that the evidence indicated that Sims would have heeded an adequate warning, if one was given. 107 Nev. at 524, 815 P.2d at 156. Notably, this court did not reverse because the fact-finder could presume that Sims would have followed an adequate warning. Instead, this court stated that the evidence could demonstrate that he would have adhered to an adequate warning. See id. Similarly, in Stackiewicz, we concluded that the district court improperly granted the manufacturers motion for a judgment notwithstanding the verdict because there was circumstantial evidence that could lead the fact-finder to conclude that the cars defect had caused Stackiewiczs injuries. 100 Nev. at 452, 686 P.2d at 930. Thus, our conclusions in Sims and Stackiewicz demonstrate this courts steadfast commitment to the principle that the burden of production as to the element of causation rests with the plaintiff in strict product liability cases. Moreover, we emphasize that we did not contemplate switching the burden of production from the plaintiff to the manufacturer in either Sims or Stackiewicz. Restatement (Second) of Torts section 402A, comment j Rivera next contends that this court should recognize a heeding presumption because this court has adopted the Restatement (Second) of Torts section 402A, comment j, which favors the presumption. We disagree. While this court has cited to the Restatement (Second) of Torts section 402A, comment j, the manner in which we relied on comment j indicates our intention to require the plaintiff in strict product liability failure-to-warn cases to carry the burden of production on the element of causation. Our use of comment j does not support a heeding presumption.

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The Restatement (Second) of Torts section 402A governs strict product liability. Restatement (Second) of Torts 402A (1965). Comment j to section 402A states, in pertinent part, [w]here warning is given, the seller may reasonably assume that it will be read and heeded; and a product bearing such a warning, which is safe for use if it is followed, is not in defective condition, nor is it unreasonably dangerous. Many courts have interpreted comment j as giving rise to a rebuttable heeding presumption. See, e.g., Golonka, 65 P.3d at 968; Butz v. Werner, 438 N.W.2d 509, 517 (N.D. 1989).4 In Allison v. Merck and Company, 110 Nev. 762, 878 P.2d 948 (1994), this court concluded that a drug manufacturer will be liable if it fails to market a vaccine with a proper warning. Id. at 774, 878 P.2d at 956. In so determining, this court cited the Restatement (Second) of Torts section 402A, comment j. See id. at 774 n.12, 878 P.2d at 956 n.12. We noted that comment j was consistent with our conclusion that a fact-finder could conclude from the evidence that the manufacturer was liable for underwarning the product. Id. However, we did not adopt comment j wholesale. Instead, in citing comment j, we specifically noted that the evidence could demonstrate that the manufacturer had not provided a sufficient warning. Id. At no point did we imply that comment j supported adopting a presumption that the Allisons would have heeded an adequate warning had one been provided. Therefore, we reject Riveras argument that this courts discussion of comment j to section 402A of the Restatement (Second) of Torts in Allison supports our adoption of a heeding presumption. To the contrary, we conclude that the manner in which we have previously cited to comment j indicates that we will not stray from the principle that the plaintiff carries the burden of production of the element of causation.
[Headnote 12]

Finally, we note that we are not alone in our decision to reject a heeding presumption. See Riley, 856 P.2d at 200 (concluding that the adoption of a heeding presumption was inconsistent with Montanas strict product liability failure-to-warn law, which requires the plaintiff to demonstrate that the inadequate warning caused his in4 Even though some jurisdictions have adopted a heeding presumption without directly referencing the Restatement (Second) of Torts section 402A, comment j, see, e.g., Bushong, 843 S.W.2d at 811; Cunningham v. Charles Pfizer & Co., Inc., 532 P.2d 1377, 1382 (Okla. 1974); Menard v. Newhall, 373 A.2d 505, 506-07 (Vt. 1977), this fact does not change our decision to reject Riveras invitation to adopt a heeding presumption. These courts have applied a heeding presumption in the same way as jurisdictions that reference comment j. Therefore, that some jurisdictions have adopted the heeding presumption without reference to comment j of the Restatement (Second) of Torts does not convince us to depart from the principle that the plaintiff bears the burden of production as to the element of causation in strict product liability cases.

194

Rivera v. Philip Morris, Inc.

[125 Nev.

juries); DeJesus v. Craftsman Machinery Co., 548 A.2d 736, 744 (Conn. App. Ct. 1988) (concluding that there is no presumption that an inadequate warning was the proximate cause of the plaintiffs injuries because the plaintiff bears the burden of proving proximate cause); Harris v. International Truck and Engine, 912 So. 2d 1101, 1109 (Miss. Ct. App. 2005) (declining to adopt the heeding presumption because the Mississippi Supreme Court had an opportunity to do so but did not, instead noting that the plaintiff bore the burden of proving that his injury had been caused by his following the inadequate warning). We agree with these jurisdictions and now affirm the requirement that the plaintiff bear the burden of proving causation in strict liability cases. For all of these reasons, we conclude that Nevada law does not support recognizing a heeding presumption. It is a firmly rooted part of Nevada law that the plaintiff in a strict product liability case bears the burden of proving all the elements of his case, including causation. Therefore, we decline Riveras invitation to depart from this standard. Public policy Rivera further argues that public policy would be served by Nevada adopting a heeding presumption. We disagree. Jurisdictions that have adopted a heeding presumption have cited public policy as a reason for their decision. See, e.g., Golonka, 65 P.3d at 969. For instance, jurisdictions have noted that [b]y easing the burden of proving causation, [t]he use of the heeding presumption provides a powerful incentive for manufacturers to abide by their duty to provide adequate warnings. Golonka, 65 P.3d at 969 (alteration in original) (quoting Coffman v. Keene Corp., 628 A.2d 710, 718 (N.J. 1993)). Courts have also noted that the heeding presumption serves to reinforce the basic duty to warnto encourage manufacturers to produce safer products, and to alert users of the hazards arising from the use of those products through effective warnings. See House v. Armour of America, Inc., 929 P.2d 340, 347 (Utah 1996) (quoting House v. Armour of America, Inc., 886 P.2d 542, 553 (Utah Ct. App. 1996) (quoting Coffman, 628 A.2d at 718)).
[Headnote 13]

We have held that the public policy behind strict product liability law is that manufacturers and distributors of defective products should be held responsible for injuries caused by these products. See, e.g., Allison, 110 Nev. at 769, 878 P.2d at 953. However, we conclude that public policy is best served by our rejecting a heeding presumption. As noted in the Restatement (Third) of Torts, comment

June 2009]

Ramet v. State

195

j to section 402A of the Restatement (Second) of Torts implies that a manufacturer can satisfy its duty of making products safe by providing adequate warnings. Restatement (Third) of Torts: Products Liability 2 cmt. l (1998). We find such a result to be untenable. Instead, we strongly adhere to the principle that a manufacturer must make products that are not unreasonably dangerous, no matter what instructions are given in the warning. Therefore, we conclude that it is better public policy not to encourage a reliance on warnings because this will help ensure that manufacturers continue to strive to make safe products. Further, as noted by the Riley court, it is not logical to presume that a plaintiff would have heeded an adequate warning, if provided. See Riley, 856 P.2d at 200. [W]arnings are everywhere in the modern world and often go unread or, where read, ignored. Id. For these reasons, we conclude that a heeding presumption has no place in our law. Therefore, because we conclude that neither Nevada law nor public policy militate in favor of adopting a heeding presumption, we answer the certified question in the negative. CONCLUSION Nevada law is clear that a plaintiff bears the burden of proving causation in strict product liability cases. The heeding presumption inappropriately shifts the burden of production from the plaintiff to the manufacturer. Accordingly, because we decline to alter Nevadas established law concerning the plaintiffs burden of proof of causation in strict product liability cases, we answer this certified question in the negative. HARDESTY, C.J., PARRAGUIRRE, DOUGLAS, CHERRY, and GIBBONS, JJ., concur.

DANIEL ANTHONY RAMET, APPELLANT, v. THE STATE OF NEV ADA, RESPONDENT.

No. 50204 June 4, 2009 209 P.3d 268

Appeal from a judgment of conviction, pursuant to a jury verdict, of first-degree murder. Eighth Judicial District Court, Clark County; Sally L. Loehrer, Judge. The supreme court, DOUGLAS, J., held that: (1) as a matter of first impression in Nevada, the State could not introduce evidence of defendants refusal to consent to a warrantless search of his home

196

Ramet v. State

[125 Nev.

and could not argue to the jury that the refusal was evidence of guilt; and (2) error in the States introduction of evidence of defendants refusal to consent and jury argument that the refusal was evidence of guilt was harmless. Affirmed. Philip J. Kohn, Public Defender, and Robert L. Miller, Deputy Public Defender, Clark County, for Appellant. Catherine Cortez Masto, Attorney General, Carson City; David J. Roger, District Attorney, and Nancy A. Becker, Deputy District Attorney, Clark County, for Respondent.
1. CRIMINAL LAW. The State, at a murder trial, could not introduce evidence of defendants refusal to consent to a warrantless search of his home and could not argue to the jury that the refusal was evidence of guilt. U.S. CONST. amend. 4. 2. ARREST; SEARCHES AND SEIZURES. Fourth Amendment prohibits unreasonable searches and seizures, thereby granting individuals the right to refuse entry and search without a warrant. U.S. CONST. amend. 4. 3. CRIMINAL LAW. The State may not introduce evidence of a defendants refusal to submit to a warrantless search or argue it to a jury as evidence of guilt. U.S. CONST. amend. 4. 4. CRIMINAL LAW. Error in the States introduction of evidence of defendants refusal to consent to a warrantless search of his home and closing argument that the refusal was evidence of guilt was harmless at a trial for first-degree murder; defendant confessed during trial that he strangled victim, stopped and checked her pulse, and then continued to strangle her. U.S. CONST. amend. 4.

Before PARRAGUIRRE, DOUGLAS and PICKERING, JJ. OPINION By the Court, DOUGLAS, J.: Appellant Daniel Anthony Ramet was convicted of first-degree murder. On appeal, Ramet raises several points of error allegedly committed during his trial, only one of which merits detailed consideration.1 Ramet contends that the testimony concerning his refusal to consent to a search of his home, taken together with the prose1 Ramet also argues that: (1) the State did not present sufficient evidence to establish the corpus delicti for first-degree murder absent his statements prior to and at trial; (2) the district court erred in denying his motion to suppress his

June 2009]

Ramet v. State

197

cutors comment on it, was violative of his Fourth Amendment rights. We conclude that the district court erred in allowing testimony and argument regarding Ramets invocation of his Fourth Amendment right. However, the error in admitting the statements was harmless. We therefore affirm Ramets conviction. FACTS AND PROCEDURAL HISTORY Ramet killed his 20-year-old daughter, Amy Ramet, in the home they shared. Ramet strangled Amy for a minute or two and then stopped; she moved, and he checked for a pulse, and then he strangled her for another couple of minutes. He continued to live in his home with Amys body for three weeks, sending text messages from her cell phone to allay the fears of his younger daughter, Delsie, and his ex-wife, Bernadette. After not being able to speak with Amy for three weeks, Bernadette and Delsie became so worried that they filed a missing persons report. Three days later, unsatisfied with the polices efforts, they decided to break into Ramets home. Bernadette broke a window with a baseball bat and a foul smell came out, prompting them to call the police. Shortly thereafter, the police arrived at Ramets home and the officers asked to perform a welfare check on Amy. Ramet refused, claiming it was a search and seizure issue. The police obtained a search warrant and discovered Amys badly decomposed body in Ramets home. Ramet was arrested and he confessed to killing his daughter. Prior to trial, the defense sought to preclude any reference to Ramets statements about search and seizure, arguing that the fact that Ramet had exercised a constitutional right was irrelevant and more prejudicial than probative. The district court denied the motion, finding Ramets statement relevant and more probative than prejudicial. At trial, the State presented testimony from two officers regarding Ramets refusal to consent to a search of his home. On the stand, Officer Yant testified that Ramets statements that he did not want the police in his house because it would be a search and seizure issue made the police even more suspicious. Officer Yant repeated
statement to the police because the waiver of his Miranda rights and his statement were not voluntary; (3) the district court erred in denying his motion to suppress the recordings of telephone calls he made while in jail; (4) the district court erred in failing to declare a mistrial, sua sponte, based on the jurys exposure to unduly prejudicial prior bad act evidence; and (5) the prosecutor committed misconduct during closing argument by making arguments that were not supported by evidence. We have considered these issues and conclude that these additional challenges are without merit.

198

Ramet v. State

[125 Nev.

Ramets statement that it would be a search and seizure issue two more times. Officer Bertges also repeated Ramets statement during his testimony. In addition, evidence of Ramets refusal to submit to a search was used by the State to incriminate Ramet. During closing argument, the prosecuting attorney commented on Ramets refusal: [a]nd when the police come to the house on two different occasions, he wont even let them conduct a welfare check. Hes hiding something. DISCUSSION
[Headnote 1]

Ramet contends that the introduction of evidence that he refused to submit to a search of his home and reference to this incident in the States closing argument violated his rights under the Fourth Amendment. We agree that the Fourth Amendment gives Ramet the constitutional right to refuse to consent to a search and his assertion of that right cannot be evidence of his guilt. We review a district courts decision to admit or exclude evidence for an abuse of discretion. Thomas v. State, 122 Nev. 1361, 1370, 148 P.3d 727, 734 (2006).
[Headnote 2]

The Fourth Amendment prohibits unreasonable searches and seizures, thereby granting individuals the right to refuse entry and search without a warrant. U.S. Const. amend. IV; see Schneckloth v. Bustamonte, 412 U.S. 218, 234, 248 (1973); United States v. Prescott, 581 F.2d 1343, 1351 (9th Cir. 1978). The Supreme Court has held that the Fifth Amendment right against selfincrimination also prohibits the State from commenting on the invocation of that right as evidence of the defendants guilt. Griffin v. California, 380 U.S. 609, 615 (1965). The Court has concluded that asserting ones constitutional right cannot be a crime, nor can it be evidence of a crime. Camara v. Municipal Court, 387 U.S. 523, 532-33 (1967); District of Columbia v. Little, 339 U.S. 1, 7 (1950). While there are no Nevada cases on point, the Ninth Circuit Court of Appeals, in United States v. Prescott, held that refusal to consent to a warrantless search is privileged conduct which cannot be considered as evidence of criminal wrongdoing. 581 F.2d at 1351; see also United States v. Taxe, 540 F.2d 961, 969 (9th Cir. 1976). That court reasoned that [t]he right to refuse [entry] protects both the innocent and the guilty, and to use its exercise against the defendant would be, as the Court said in Griffin, a penalty imposed by courts for exercising a constitutional right. Prescott, 581

June 2009]

Ramet v. State

199

F.2d at 1352. We agree with the reasoning of the Ninth Circuit. Allowing the prosecution to use evidence of a defendants invocation of a constitutional right against him would make meaningless the constitutional protection against unreasonable searches and seizures. Bargas v. State, 489 P.2d 130, 132 (Alaska 1971). Other jurisdictions have also held that the prosecution may not use a defendants refusal to consent to a search as evidence of guilt. See U.S. v. Moreno, 233 F.3d 937, 941 (7th Cir. 2000) (the Fourth Amendment entitled defendant to withhold consent to the search, and so introducing the invocation of that right as evidence of guilt may have been inconsistent with due process); U.S. v. Thame, 846 F.2d 200, 206-07 (3d Cir. 1988) (error for the prosecutor to argue that the defendants refusal to consent to search of his bag constituted evidence of his guilt); Padgett v. State, 590 P.2d 432, 434 (Alaska 1979) (right to refuse to consent to warrantless search of car would be effectively destroyed if, when exercised, it could be used as evidence of guilt); State v. Palenkas, 933 P.2d 1269, 1280, 1282 (Ariz. Ct. App. 1996) (prosecutors use of defendants contacting his attorney and his invocation of his right to refuse a warrantless search as evidence of his guilt denied due process and required a new trial); People v. Wood, 127 Cal. Rptr. 2d 132, 136 (Ct. App. 2002) (defendants invocation of his rights under the Fourth Amendment was improperly used to demonstrate his consciousness of guilt; however, this error was harmless); People v. Keener, 195 Cal. Rptr. 733, 735-36 (Ct. App. 1983) (the trial court improperly admitted evidence of defendants refusal to allow police to enter his apartment to show a consciousness of guilt); Gomez v. State, 572 So. 2d 952, 953 (Fla. Dist. Ct. App. 1990) (police officers comment on defendants refusal to consent to a search without probable cause was constitutional error); People v. Stephens, 349 N.W.2d 162, 163-64 (Mich. Ct. App. 1984) (the Fourth Amendment gives the defendant the constitutional right to refuse to consent to a search and the assertion of that right cannot be evidence of a crime).
[Headnote 3]

We agree with the cases cited above; therefore, we hold that the State may not introduce evidence of a defendants refusal to submit to a warrantless search, or argue it to the jury as evidence of guilt. The defendants invocation of his Fourth Amendment right cannot be used as evidence of a crime or consciousness of guilt, and the district court abused its discretion by admitting this evidence.
[Headnote 4]

Because the error involved a violation of a federal constitutional guarantee, we may not consider it harmless unless we can say beyond a reasonable doubt that the error complained of did not con-

200

HD Supply Facilities Maint. v. Bymoen

[125 Nev.

tribute to the verdict obtained. Chapman v. California, 386 U.S. 18, 24 (1967). In this case, there was overwhelming evidence of Ramets guilt. Ramet confessed during trial that he strangled his daughter, stopped and checked her pulse, and then continued to strangle her. Under these circumstances, we can conclude beyond a reasonable doubt that the constitutional violation did not affect the jurys verdict. CONCLUSION In this appeal, we conclude that the State may not introduce evidence of or reference a defendants invocation of his Fourth Amendment right to refuse to consent to a search of his home without a warrant. However, we conclude that the error in this case was harmless beyond a reasonable doubt. Accordingly, we affirm the judgment of conviction. PARRAGUIRRE and PICKERING, JJ., concur.

HD SUPPLY FACILITIES MAINTENANCE, LTD., APPELLANT, v. LEIF BYMOEN, AN INDIVIDUAL; AND AZ PARTS MASTER, INC., AN ARIZONA CORPORATION, RESPONDENTS.
No. 50989 June 11, 2009 210 P.3d 183

Certified questions under NRAP 5 concerning whether Nevadas rule prohibiting the assignment of noncompetition covenants in asset purchase transactions applies when a successor corporation acquires the covenants of noncompetition, nonsolicitation, or confidentiality as the result of a merger. United States District Court for the District of Nevada; Philip M. Pro, Judge. The supreme court, PARRAGUIRRE, J., held that rule prohibiting the assignment of employee noncompetition covenants in asset purchase transactions does not apply when a successor corporation acquires restrictive employment covenants as the result of a merger. Questions answered. Lewis & Roca, LLP, and Daniel F. Polsenberg, Las Vegas; Ford & Harrison, LLP, and Dinita L. James, Phoenix, Arizona, for Appellant. Fennemore Craig, P.C., and David W. Dachelet, Las Vegas; Quarles & Brady Streich Lang, LLP, and Eric B. Johnson, Phoenix, Arizona, for Respondents.

June 2009]

HD Supply Facilities Maint. v. Bymoen

201

1. ASSIGNMENTS. There is a basic policy in the law of contractual assignments of honoring an obligors choice to contract with only the original obligee, thereby ensuring that the obligor is not compelled to perform more than his or her original obligation. 2. ASSIGNMENTS. Personal services contracts are not assignable absent consent. Restatement (Second) of Contracts 317. 3. CORPORATIONS. In a merger, the right to enforce the restrictive covenants of a merged corporation normally vests in the surviving entity. 4. ASSIGNMENTS; CORPORATIONS. Rule prohibiting the assignment of employee noncompetition covenants in asset purchase transactions absent an agreement negotiated at arms length that explicitly permits assignment and that is supported by separate consideration does not apply when a successor corporation acquires restrictive employment covenants as the result of a merger, regardless of whether the type of covenant is one of noncompetition, nonsolicitation, or confidentiality.

Before the Court EN BANC. OPINION By the Court, PARRAGUIRRE, J.: The United States District Court for the District of Nevada has certified, under NRAP 5, three questions concerning [w]hether the Nevada rule stated in Traffic Control Servs. v. United Rentals, 120 Nev. 168, 172, 87 P.3d 1054, 1057 (2004), that absent an agreement negotiated at arms length, which explicitly permits assignment and which is supported by separate consideration, employee [noncompetition] covenants are not assignable, applies when a successor corporation acquires a non-competition covenant[, or a covenant of nonsolicitation or confidentiality] as a result of a merger? We answer these questions in the negative and clarify that Traffic Controls rule of nonassignability does not apply when a successor corporation acquires restrictive employment covenants as the result of a merger. FACTS AND PROCEDURAL HISTORY These certified questions arise from a federal district court action brought by appellant HD Supply Facilities Maintenance, Ltd. (HDS), to enforce restrictive covenants in an employment agreement against its former employee, respondent Leif Bymoen, and respondent AZ Partsmaster, Inc. (AZP), Bymoens current employer. HDS is the product of two separate mergers. In the first merger, Bymoens original employer, Century Maintenance Supply, Inc., was acquired by Hughes Supply, Inc. In the second, Hughes merged

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with a subsidiary of The Home Depot, Inc. The surviving corporationrenamed HDSemerged as one of the largest maintenance, repair, and operations supplies distribution firms in the United States. As Centurys successor-in-interest, HDS claims to have succeeded to the restrictive covenants of former Century employees, including Bymoens. While at Century, Bymoen entered into covenants of nonsolicitation and confidentiality, as well as a noncompetition covenant restricting him for six months after his termination from engag[ing] in any business activity, directly or indirectly, whether for profit or otherwise, which is similar to or competitive with the business of Century in any market area then being served by Century. The agreement did not contain an assignment clause. Over the course of the two mergers and eventual name change, Bymoen continued in his position as a sales representative with Centurys successors. On September 22, 2006, however, Bymoen voluntarily resigned from HDS and immediately took a sales position with AZP, an HDS competitor. Within days of joining AZP, Bymoen sent solicitation letters to his former HDS clients. Learning of Bymoens actions, HDS alerted AZP that Bymoen was allegedly in breach of the covenants contained in his original employment agreement with Century, HDSs predecessor. Nevertheless, AZP continued to employ Bymoen, prompting HDS to bring a federal action against both AZP and Bymoen for breach of contract, misappropriation of trade secrets, tortious interference with contractual relations, and breach of fiduciary duty. Once suit was filed, Bymoen moved to dismiss HDSs contract claims on grounds that the restrictive covenants at issue were unenforceable under Traffic Control because he did not consent to their assignment when he was employed with Century. In response, HDS distinguished Traffic Control as limited to its facts, arguing first that the nonassignability rule announced in that decision was limited to asset purchase transactions, and second, that the rule did not govern the covenants of nonsolicitation and confidentiality. Considering these conflicting arguments, the federal court concluded that Traffic Control was not clearly controlling precedent because it d[id] not directly answer the basic issue before it: whether a successor company may enforce an employees noncompete, non-solicitation, and confidentiality covenants where the company claims the right to enforce the covenants through a . . . merger rather than through an asset purchase. As a result, this issue was certified to this court under NRAP 5, in the form of three separate questions, which can be summarized as follows: whether the Nevada rule stated in Traffic Control Services v. United Rentals, 120 Nev. 168, 172, 87 P.3d 1054, 1057 (2004),

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that absent an agreement negotiated at arms length, which explicitly permits assignment and which is supported by separate consideration, employee noncompetition covenants are not assignable, applies when a successor corporation acquires (1) a noncompetition covenant, (2) a nonsolicitation covenant, or (3) a confidentiality covenant as the result of a merger? DISCUSSION These three certified questions ask us to clarify whether Traffic Controls rule of nonassignability applies when a successor corporation acquires covenants of noncompetition, nonsolicitation, or confidentiality as the result of a merger. Because we conclude that Traffic Control does not apply in the context of a statutory merger, we answer these questions in the negative. Traffic Controls rule of nonassignability In Traffic Control, this court addressed whether an employer in a corporate sale may assign rights under an employees covenant not to compete without the employees consent. 120 Nev. at 169, 87 P.3d at 1055. Confronting an apparent split of authority, the court resolved the issue in the negative and announced that absent an agreement negotiated at arms length, which explicitly permits assignment and which is supported by separate consideration, employee noncompetition covenants are not assignable. Id. at 172, 87 P.3d at 1057. Notwithstanding this broad language, which in Bymoens view suggests that Traffic Control has a wider application, HDS argues that Traffic Control is narrowly limited to its facts, and as such, its rule prohibiting assignments does not apply when a successor corporation acquires restrictive employment covenants as the result of a merger. For the following two reasons, we agree. Traffic Control is a narrow decision based on the law of contract HDS asserts that Traffic Controls nonassignability rule is grounded in the common law of contractual assignments and, therefore, does not control whether a restrictive covenant may be validly acquired in the context of a statutory merger. In view of Traffic Controls discrete facts and narrow reasoning, we agree. Rather than support a comprehensive inquiry into different types of corporate transactions and their various consequences for assignments, Traffic Controls narrow set of factswhich involved the attempted assignment by a selling company of a noncompetition covenant under an asset purchase agreementsupported a much more limited inquiry, namely, whether the noncompetition covenant

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passed to the acquiring company under an asset purchase agreement without the employees consent. Id. at 169-71, 87 P.3d at 1055-56. Nevertheless, despite the narrow facts before it, the court framed its inquiry somewhat generically as whether a noncompetition covenant was assignable in a corporate sale, id. at 169, 87 P.3d at 1055, and, even more expansively, as whether the covenant was assignable through the medium of an asset sale (or otherwise). Id. at 172, 87 P.3d at 1057 (emphasis added). However, by seeming to treat an asset purchase as indistinguishable from other corporate transactions, the courts inquiry in Traffic Control was framed as if its restrictive rule would apply in any transactional context, which is the principal source of confusion underlying these certified questions. As a result, we have been asked to determine the significance of this apparent incongruityi.e., whether, despite its broadly framed inquiry, Traffic Control is nonetheless limited to asset purchase transactions. In this regard, we agree with HDS that the limited scope of Traffic Controls rule of nonassignability is betrayed by the nature of the courts reasoning and the narrowness of its concerns. In Traffic Control, the court reasoned that because the covenants are personal in nature1 and replacing a former employer with another obligee could fundamentally change the nature of an employees obligation, noncompetition covenants could not be assigned without employee consent. Id. at 174-75, 87 P.3d at 1058-59.
[Headnote 1]

Notably, by conditioning assignability on consent, Traffic Control protects against unbargained-for changes in the scope of the restraint barring a covenanting employee from competing with his or her former employer. See id. at 174, 87 P.3d at 1058. In this way, the rule of Traffic Control echoes the basic policy in the law of contractual assignments of honoring an obligors choice to contract with only the original obligee, thereby ensuring that the obligor is not compelled to perform more than his or her original obligation. See Munchak Corporation v. Cunningham, 457 F.2d 721, 725-26 (4th Cir. 1972); Roeder v. Ferrell-Duncan Clinic, Inc., 155 S.W.3d 76, 89 (Mo. Ct. App. 2004). Carrying this policy further, beyond requiring employee consent as a general matter, Traffic Control imposes two additional condi1 These covenants are considered personal to the employee since deciding whether to refrain from competition with an employer after termination is based on an individualized assessment of that particular employers character and personality. Traffic Control, 120 Nev. at 174, 87 P.3d at 1058.

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tions to a valid assignment: an express assignability clause negotiated at arms length and separate consideration. Id. at 175, 87 P.3d at 1059. As the court explained, the intended purpose of these conditions is to place[ ] the burden on the employer to seek assignability and adequately compensate[ ] the party with the lesser bargaining power for the possibility that a stranger to the covenant may ultimately assume the right to its enforcement. Id.
[Headnote 2]

Given this reasoning, which reveals a single-minded concern with preserving an employees individualized choice to covenant not to compete with a particular employer, we conclude that Traffic Controls rule of nonassignability stands for the general proposition, grounded in the law of contractual assignments, that personal services contracts are not assignable absent consent. See Restatement (Second) of Contracts 317 (1981); 29 Richard A. Lord, Williston on Contracts 74:10 (4th ed. 2003); 6 Am. Jur. 2d Assignments 15 (2008); 6A C.J.S. Assignments 32 (2004); see, e.g., Sisco v. Empiregas, Inc. of Belle Mina, 237 So. 2d 463, 466-67 (Ala. 1970); SDL Enterprises, Inc. v. DeReamer, 683 N.E.2d 1347, 1349-50 (Ind. Ct. App. 1997); Clark v. Shelton, 584 P.2d 875, 877 (Utah 1978). As a protection under the law of contract, the rule therefore logically applies in the contractual setting of an asset purchase transaction because, in an asset purchase, the transaction introduces into the equation an entirely different entity, the acquiring business. Corporate Exp. Office Products v. Phillips, 847 So. 2d 406, 412 (Fla. 2003). However, despite the rules natural affinity to asset purchases, Bymoen contends that Traffic Controls prohibition on assignments without consent can be generalized to other forms of corporate transactions, including mergers. As discussed below, we disagree. Asset purchases are distinct from mergers Although the court in Traffic Control lacked a similar opportunity, the Florida Supreme Court in Corporate Express Office Products v. Phillips addressed whether different forms of corporate transactions affect whether consent is necessary to effect a valid assignment of a covenant not to compete. 847 So. 2d 406. Notably, while Corporate Express was cited in Traffic Control as authority for requiring consent to assignability in the context of an asset purchase, 120 Nev. at 174 n.10, 87 P.3d at 1058 n.10, as the certifying court expressed in its order denying Bymoens and AZPs motion to dismiss HDSs contract claims, the citation of Corporate Express in Traffic Control is ambiguous because it was unclear whether we would adopt the remainder of the Florida Supreme

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Courts reasoning regarding mergers. For purposes of these certified questions, we consider Corporate Expresss reasoning regarding mergers to be persuasive. In Corporate Express, a corporation sued three former employees to enforce noncompetition covenants that purportedly passed to it from two of its predecessors, one of which the corporation claimed to have acquired through a 100-percent stock purchase and a subsequent merger, and the other via an asset purchase and a subsequent merger. 847 So. 2d at 407-08. Thus, unlike in Traffic Control, with three types of transactions before itan asset purchase, a 100-percent stock purchase, and mergersthe court in Corporate Express was able to squarely address whether the nature of the . . . transaction affects whether . . . consent to an assignment of a noncompete agreement is necessary. Id. at 409. In answering affirmatively, the court sharply distinguished between the nature of an asset purchase and a merger. Unlike in a merger, in which two corporations . . . unite into a single corporate existence, the acquiring corporation in an asset purchase becomes, in effect, a wholly new employer. Id. at 412-14. Accordingly, based on its recognition of a merging corporations shared existence with its successor, the court concluded that, under Floridas merger statute, the surviving corporation in a merger assumes the right to enforce a noncompete agreement entered into with an employee of the merg[ing] corporation by operation of law, and no assignment is necessary. Id. at 414. Although under a slightly varied rationale, these sharp distinctions were recently reiterated in Aon Consulting v. Midlands Financial, 748 N.W.2d 626 (Neb. 2008). There, the Nebraska Supreme Court considered whether a successor corporation could enforce a former employees nonsolicitation covenant under Marylands merger statute, which controlled under the merger agreement. Id. at 636. However, even though the Maryland and Florida statutes were based on similar language, compare Md. Code Ann., Corps. & Assns 3-114 (LexisNexis 2008) with Fla. Stat. Ann. 607.1106 (West 2007), instead of embracing Corporate Expresss corporate continuity rationale, the court in Aon Consulting concluded simply that a nonsolicitation covenant is a corporate asset, and as such passes by operation of law to a successor corporation as the result of a merger, regardless of whether the agreement would otherwise be assignable. 748 N.W.2d at 637.
[Headnote 3]

Notably, despite some superficial differences in their rationales, Corporate Express and Aon Consulting looked directly to the relevant merger statuteas opposed to contract principlesto resolve whether a restrictive covenant transferred to a successor cor-

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poration following a merger. Indeed, when a relevant merger statute exists, the issue of a covenants assignability is not controversial. See 19 C.J.S. Corporations 909 (2008). As the majority of courts have concluded when considering this issue, in a merger, the right to enforce the restrictive covenants of a merged corporation normally vests in the surviving entity.2 See, e.g., UARCO Inc. v. Lam, 18 F. Supp. 2d 1116, 1122 (D. Haw. 1998); Corporate Express, 847 So. 2d at 414; Alexander & Alexander, Inc. v. Koelz, 722 S.W.2d 311, 313 (Mo. Ct. App. 1986); Aon Consulting, 748 N.W.2d at 637; Farm Credit Services v. Wysocki, 627 N.W.2d 444, 450-53 (Wis. 2001).
[Headnote 4]

While this particular issue has never been directly confronted in Nevada, historically, this court has recognized a hard-and-fast distinction between the implications of a merger, which is a statutory creature, and an asset purchase, which is not. Specifically, in Lamb v. Leroy Corp., a case involving whether an acquiring corporation was liable for a selling corporations debts, the court contrasted an asset purchase, in which an acquirer does not assume the liabilities of the seller, with a merger, which imposes upon the surviving corporation all liabilities of the constituent corporations so merged.3 85 Nev. 276, 279, 454 P.2d 24, 26 (1969). Thus, in light of Corporate Express and Aon, which treat mergers as distinct from asset purchases, and Lamb, which confirms that this basic distinction exists in Nevada, we clarify that Traffic Controls rule of nonassignability does not apply when a successor corporation acquires restrictive employment covenants as the result of a merger.4
2 This interpretation finds further support in the official comment to section 11.07 of the Model Business Corporation Act, which provides that all property owned by, and every contract right possessed by, each corporation . . . that merges into the survivor is vested in the survivor without reservation or impairment. 3 Model Bus. Corp. Act Ann. 11.07 cmt. (2008). In explaining the effect of a merger under this model provision, the comment clarifies that a merger does not give rise to a claim that a contract with a party to the merger is no longer in effect on the ground of nonassignability, unless the contract specifically provides that it does not survive a merger. Id. This is so, according to the drafters, because [a] merger is not a conveyance, transfer, or assignment, but rather a unique process of combining corporate entities. Id. 3 Although Lamb was construing former NRS 78.495, which provided that in the event of a merger the surviving corporation . . . shall possess all the rights, privileges, powers and franchises . . . and be subject to all the restrictions, disabilities and duties of each of the constituent corporations so merged, this early statute differs little in regard to the succession of rights of a surviving entity set forth in NRS 92A.250, Nevadas modern merger statute. 4 Nevertheless, Bymoen urges this court to follow the reasoning of Smith, Bell & Hauk, Inc. v. Cullins, 183 A.2d 528 (Vt. 1962), in which the Vermont

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Covenants of nonsolicitation and confidentiality Since we have clarified that Traffic Controls rule of nonassignability does not apply to statutory mergers, we need not address whether our conclusion would change depending on the type of covenantwhether one of noncompetition, nonsolicitation, or confidentialitythat a successor corporation stands to inherit in this type of corporate transaction. CONCLUSION The rule of nonassignability adopted in Traffic Control does not apply when a successor corporation acquires restrictive employment covenants as the result of a merger. Accordingly, we answer the three certified questions in the negative. HARDESTY, C.J., DOUGLAS, CHERRY, SAITTA, and GIBBONS, JJ., concur. PICKERING, J., concurring: I concur in the majoritys decision to limit Traffic Control Services v. United Rentals, 120 Nev. 168, 87 P.3d 1054 (2004), to the asset sale setting, despite the range of its dicta. I write separately to emphasize NRS 613.200(4), which Traffic Control mentions only briefly, and the majoritys opinion does not cite. This statute sets controlling Nevada public policy. It provides that restrictive covenants in Nevada employment agreements are enforceable so long as the agreement is supported by valuable consideration and is otherwise reasonable in its scope and duration. NRS 613.200(4). But for the stare decisis respect due Traffic Control, in my estimation judicial analysis of the enforceability of restrictive covenants in the merger and acquisition setting should begin and end with NRS 613.200(4).1 In other respects, such covenants should be judged by the same rules as apply to contracts generally.
Supreme Court concluded that an acquiring corporation in a stock purchase transaction could not enforce a former employees noncompetition covenant under Vermonts now-superseded merger statute, which provided that upon an asset sale, merger, or consolidation of different corporate entities, the acquiring corporation shall possess all the rights, privileges and benefits of the original corporation properly exercisable under the laws of [Vermont]. Id. at 531 (emphasis added) (citing Vt. Stat. Ann. tit. 11, 161, 165 (1958)). However, Cullins is unpersuasive because the court read the phrase properly exercisable as subjecting the noncompete agreement at issue in that case to the common law rule of nonassignability that we recognized in Traffic Control. Thus, while Cullins may remain good law with respect to asset purchase transactions, we are not persuaded that it has any application to mergers. 1 The 1995 Legislature added paragraph 4 to NRS 613.200 to make it clear that the statute of Nevada does not prevent th[e]se kind of reasonable contracts from existing. Hearing on S.B. 128 Before the Senate Comm. on Commerce

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As the federal district courts certification order reflects, Traffic Control can fairly be read to apply to all changes in an employers ownership, whether accomplished by asset sale, dissolution, merger, or stock sale. Thus, Traffic Control frames the question presented as whether noncompetition covenants may be assigned from one employer to another through the medium of an asset sale (or otherwise). 120 Nev. at 172, 87 P.3d at 1057 (emphasis added). It answers the question in equally broad terms: Covenants not to compete are personal in nature and therefore are not assignable absent the employees express consent. Further, an employer must obtain such consent through arms-length negotiation with the employee, supported by valuable consideration beyond that necessary to support the underlying covenant. Id. at 176, 87 P.3d at 1060. Whether an employers business is transferred by asset sale, as opposed to merger or stock sale, should make little difference to an affected employee, if that information is even known. Nonetheless, to explain its narrow reading of Traffic Control, the majority distinguishes between asset sales and other forms of corporate acquisition, finding no assignment in rights that succeed by merger as distinguished from asset sale. While I agree with the majority, what I respectfully submit is missing from its analysis are the policy reasons for disavowing Traffic Controls dicta. There are a number of reasons to limit Traffic Control to its stated facts. First, its personal services rationale is questionable, given that the personal nature of an employment contract ends following termination and has little application to modern employment relationships. Sogeti USA LLC v. Scariano, 606 F. Supp. 2d 1080, 1084, 1086 (D. Ariz. 2009) (criticizing Traffic Control and predicting the Arizona Supreme Court would reject its holding); see AutoMed Technologies, Inc. v. Eller, 160 F. Supp. 2d 915, 924 (N.D. Ill. 2001) (noting that, while [a]n employee has a clear interest in controlling for whom he works . . . the identity of the party enforcing a restrictive covenant should make little difference to a former employee challenging a restrictive covenant). Second, the criteria set out in NRS 613.200(4) and in similar law elsewhere for determining the enforceability of restrictive covenants are better suited to the job of assessing the fairness of enforcing reand Labor, 68th Leg. (Nev., Feb. 24, 1995) (comments of Senator Raggio). Reportedly, the Legislature was concerned that if Nevada did not permit such contracts to protect trade secrets and clients, businesses would choose not to operate in this state. Id. The Legislature considered whether the statutory limitations afforded employees sufficient protection and concluded that they did. These kinds of contracts have to have valuable consideration. These types of covenants are enforceable; they do not involve involuntary servitude if they are supported by valuable consideration, if they impose no greater restraint on the employee than necessary to protect the business and goodwill of the person. Id.

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strictive covenants than corporate law distinctions between mergers, stock acquisitions, and asset sales. See Sogeti, 606 F. Supp. 2d at 1085. These criteria focus on the employment relationship itself, not the transactional or corporate means by which a change in the parties to that relationship occurs: Did the change in employer, however accomplished, materially change the scope of the restrictive covenant for which consideration was given, making its enforcement unreasonable? This is the right question to ask, regardless of how the successor came to stand in the original employers shoes. Nonetheless, under Traffic Control as narrowed by the majoritys opinion, in an asset sale setting, pre-acquisition restrictive covenants are not enforceable without new consideration and employee consent (unless the preexisting contract specifies free assignability), whereas in the merger or stock acquisition setting, they are. And this is true whether the new employer is a whale devouring a minnow or a retiring parent transferring a small business to a daughter or son, and without regard to the consideration given for the original covenant. Third, contract law normally allows assignment of contract rights unless assignment is prohibited by express contract term, statute, or public policy, or the particular circumstances of the case are such that allowing substitution materially varies the burden or risk of performance. Restatement (Second) of Contracts 317 (1981). Traffic Controls holding that restrictive covenants may never be assigned without consent thus reverses the normal common law rule allowing assignment and imposes new public policy restrictions on contract rights. See AutoMed, 160 F. Supp. 2d at 924, cited with approval in Sogeti, 606 F. Supp. 2d at 1086. In the 1995 amendments to NRS 613.210(4), the Legislature set public policy to govern creation and enforcement of restrictive covenants in contracts that apply to Nevada businesses with Nevada employees. This is a valid exercise of legislative prerogative. Cf. Edwards v. Arthur Andersen LLP, 189 P.3d 285, 292-93 (Cal. 2008) (rejecting a Ninth Circuit decision suggesting California courts would judicially adopt a narrowrestraint exception to California statute that, unlike Nevadas, invalidates restrictive covenants unless a specific statutory exception applies; and noting that it would leave it to the Legislature, if it chooses, either to relax the statutory restrictions or adopt additional exceptions to the prohibition-against-restraint [statutory] rule). By imposing additional requirements, beyond those stated in the statute, Traffic Control unsettles normal contract-law-based expectations that the Legislature intended to foster. Finally, as the employer conceded at argument, avoiding invalidation under Traffic Controls per se rule is only a first step; the court will still have to assess whether the contract, viewed in light of the new, post-merger day, satisfies NRS 613.200(4). Todays case apparently does not present conflicts between Nevada and other

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states laws. But as the Vermont law analyzed by the majority, ante n.4, suggests, we can expect that issue to visit next. The question becomes whether the multilayered analysis our decisional law now requires adds anything beyond complexity and delay to fair and efficient dispute resolution in this arena. I submit that it does not.

ST. JAMES VILLAGE, INC., APPELLANT, v. JENNIFER A. CUN NINGHAM; CRAIG CUNNINGHAM; JAMES H. SAL ADIN; AND THELMA L. SALADIN, RESPONDENTS.
No. 49398 June 25, 2009 210 P.3d 190

Appeal from a district court order dismissing a complaint in an easement action. Second Judicial District Court, Washoe County; Robert H. Perry, Judge. Owner of servient estate brought a declaratory action, seeking authorization to unilaterally relocate an easement to facilitate development of the property and alleging that the relocation would not materially inconvenience the dominant estate owners. The district court dismissed the complaint, and the servient estate owner appealed. The supreme court, HARDESTY, C.J., held that an easement with metes and bounds described in the deed could not be unilaterally relocated by owner of servient estate. Affirmed. [Rehearing denied September 15, 2009] McDonald Carano Wilson LLP and John Frankovich and Kimberly H. Albro, Reno, for Appellant. Woodburn & Wedge and Nicholas F. Frey, Reno, for Respondents.
1. EASEMENTS. Adoption of the Restatement (Third) of Property section that permits a servient estate owner to unilaterally relocate an easement so long as the relocation does not substantially affect the dominant estates rights, is warranted in those circumstances where the creating instrument does not define the easement through specific reference to its location or dimensions and the unilateral relocation will not materially inconvenience the dominant estate owner. Restatement (Third) of Property 4.8. 2. DECLARATORY JUDGMENT. When the parties raise only legal issues on appeal from a district court order resolving a request for declaratory relief, the supreme court will review the district courts decision de novo.

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3. COURTS. Dictum, a courts statement in a case when it is unnecessary to a determination of the questions involved, is not controlling as precedent in other cases. 4. EASEMENTS. Easement, under deed that gave a metes and bounds description of its specific location and was silent regarding any right to relocation by the servient estate, could not be unilaterally relocated by owner of servient estate, although the relocation might not materially inconvenience the dominant estate owners; deed granting the easement here defined its location. 5. EASEMENTS. The purpose of the Restatement (Third) of Property rule that permits a servient estate owner to unilaterally relocate an easement so long as the relocation does not substantially affect the dominant estates rights, is to permit development of the servient estate to the extent it can be accomplished without unduly interfering with the legitimate interests of the easement holder. Restatement (Third) of Property 4.8.

Before the Court EN BANC.1 OPINION By the Court, HARDESTY, C.J.: In this appeal, we consider whether the servient estate owner has any authority to unilaterally relocate an easement burdening its property, provided that the relocation does not materially inconvenience the dominant estate owner. To facilitate the development of its property into a planned community, appellant St. James Village, Inc., asked the dominant estate owners if St. James Village could relocate an easement that traversed across a portion of its property. The dominant estate owners refused to consent to the relocation. Accordingly, appellant filed a declaratory action in district court, seeking authorization to unilaterally relocate the easement, alleging that the relocation would not materially inconvenience the dominant estate owners. The district court denied appellants requested relief, reasoning that Swenson v. Strout Realty, Inc., 85 Nev. 236, 239, 452 P.2d 972, 974 (1969), mandates that the dominant estate owners consent to the relocation of the easement. We are now asked to revisit a statement made in Swenson, that, in general, the location of an easement once selected, cannot be changed by either the landowner or the easement owner without the others consent. 85 Nev. at 239, 452 P.2d at 974. In doing so, St. James Village invites us to adopt section 4.8 of the Restatement (Third) of Property, which permits a servient estate owner to uni1 THE HONORABLE KRISTINA PICKERING, Justice, did not participate in the decision of this matter.

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laterally relocate an easement so long as the relocation does not substantially affect the dominant estates rights.
[Headnote 1]

We conclude that the statement made in Swenson indicating that fixed easements cannot be moved is overbroad, and determine that adoption of section 4.8 of the Restatement (Third) of Property is warranted in those circumstances where the creating instrument does not define the easement through specific reference to its location or dimensions and the unilateral relocation will not materially inconvenience the dominant estate owner. Because the creating instrument in this case specifies the location and dimension of the easement, we conclude that the district court properly denied St. James Villages request for declaratory relief. FACTS AND PROCEDURAL BACKGROUND Respondents Jennifer A. Cunningham, Craig Cunningham, James H. Saladin, and Thelma L. Saladin (collectively, the Cunninghams) own two parcels of property located in Washoe County that are adjacent to 1,600 acres owned by St. James Village. In 1974, the Cunninghams predecessors in interest obtained an easement across the land that now belongs to St. James Village. The Cunninghams predecessors purchased an express easement for access to their property from a public road. The deed for the easement gives a metes and bounds description of its specific location but is silent regarding any right to relocation by the servient estate. The Cunninghams predecessors easement deed was recorded in 1974. The conveyance to the Cunninghams was recorded in 1997 and included the metes and bounds description of the easement. After St. James Village acquired the servient property, it designed a master-planned gated community. The easement, as it currently exists, crosses 14 lots in the planned development, 2 of which have been approved and recorded and 12 of which have been approved. To allow development of those lots as proposed in St. James Villages master plan, St. James Village seeks a slight relocation of the easement by adding curves to the existent roadway.2 St. James Village proposes to shift the easement and eventually incorporate it into the paved roads that will serve the subdivision and be maintained by the homeowners association. St. James Village attempted to reach an agreement with the Cunninghams to relocate the easement but the Cunninghams refused to consent. Upon failing to reach an agreement with the Cunninghams, St. James Village sought declaratory relief in the district court, contending that property owners can unilaterally relocate easements,
2

Please see map in Appendix A to this opinion.

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[125 Nev.

if such relocation does not materially inconvenience the easement holder, in order to allow the development of their property. The Cunninghams moved to dismiss St. James Villages complaint for declaratory relief, arguing that dismissal was warranted because under Swenson v. Strout Realty, Inc., 85 Nev. 236, 239, 452 P.2d 972, 974 (1969), consent to relocate by the dominant estate owner is always required.3 Despite St. James Villages contentions that the law is unsettled in Nevada and adoption of section 4.8 of the Restatement would be a sensible development in the law of easements, the district court denied St. James Village the declaratory relief it sought. The court found that, under Swenson, Nevada law requires the consent of both parties to move an easement.4 This appeal followed. DISCUSSION On appeal, St. James Village argues that Swenson is not controlling on this issue, as the statement made in Swenson regarding unilateral relocation of easements is dictum. St. James Village then advocates for the adoption of section 4.8 of the Restatement (Third) of Property, governing unilateral relocation of easements, and this courts interpretation of that rule, which reads: Except where the location and dimensions are determined by the instrument or circumstances surrounding creation of a servitude, they are determined as follows: (1) The owner of the servient estate has the right within a reasonable time to specify a location that is reasonably suited to carry out the purpose of the servitude. (2) The dimensions are those reasonably necessary for enjoyment of the servitude. (3) Unless expressly denied by the terms of an easement, as defined in 1.2, the owner of the servient estate is entitled to
3 While the Cunninghams used summary judgment language in, and attached exhibits to, their motion, the district court considered the motion as one for seeking a dismissal under NRCP 12(b)(5) rather than summary judgment. Regardless, we treat the district courts order as one resolving a request for declaratory relief. 4 The court summarily found: [T]he requirement of consent as stated in Swenson, supra, is currently the law in Nevada. The Court finds no statute, case, or other authority that has changed, modified, or overruled Swenson. It is not the place of the District Court to change the law or to determine what the Nevada Supreme Court should do. Because the Plaintiff has failed to plead a cognizable claim under Nevada law, the Court finds that Defendants have met the standard of dismissal by showing that Plaintiff is not entitled to relief under any set of facts that could be proved in support of its claim.

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make reasonable changes in the location or dimensions of an easement, at the servient owners expense, to permit normal use or development of the servient estate, but only if the changes do not (a) significantly lessen the utility of the easement, (b) increase the burdens on the owner of the easement in its use and enjoyment, or (c) frustrate the purpose for which the easement was created. (Emphasis added.) According to St. James Villages reading of the Restatement rule, nothing in the introductory language limits the applicability of the rule. St. James Village claims that such language merely refers to the locations and dimensions of an easement that can be adjusted. Moreover, St. James Village contends that if the creating document fails to expressly prohibit relocation of the easement, like the deed in this case, the easement may be moved by the owner of the servient estate. Although the deed in this appeal contains a specific description and location of the easement, the deed is silent as to relocation. The Cunninghams argue that Swenson is controlling law, which precludes St. James Village from unilaterally relocating the easement. The Cunninghams further argue that even if Swenson is not authoritative on this matter and this court adopts the Restatement rule, St. James Village cannot prevail. According to the Cunninghams, the language prefacing section 4.8 of the Restatement (Third) of Property unambiguously provides that an easement may be unilaterally relocated so long as the creating instrument does not specifically define the location or dimensions of the easement. Because the deed granting the easement in this case defines the easement by metes and bounds, the Cunninghams argue that section 4.8 of the Restatement precludes unilateral relocation by St. James Village. In resolving this appeal, we must consider whether a statement made in Swenson is controlling or mere dictum. While we determine that the statement made in Swenson is authoritative, we conclude that it is overbroad and public policy would be significantly furthered by implementation of the modern Restatement rule concerning relocation of easements by the servient estate owner. In adopting the Restatement rule, we determine that the plain meaning of the rules introductory language prohibits application of the rule when the creating instrument provides for an express location or dimensions of the easement. Thus, when the easement at issue has a location certain, the Restatement rule is not applicable and the easement cannot be unilaterally relocated. Only when the creating instrument is silent as to the location of the easement may a servient owner seeking to unilaterally relocate the easement avail himself or

216

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[125 Nev.

herself of the Restatement rule. And, even then, the servient owner must establish that it meets the three-factor test set forth in subsections a through c of section 4.8(3) of the Restatement (Third) of Property. Standard of review
[Headnote 2]

When the parties raise only legal issues on appeal from a district court order resolving a request for declaratory relief, this court will review the lower courts decision de novo. Public Employees Benefits Prog. v. LVMPD, 124 Nev. 138, 146, 179 P.3d 542, 548 (2008). In this case, the single issue presented is whether Nevada law permits servient estate owners to unilaterally relocate easements traversing across their property. Because this is purely a legal question, this courts standard of review is plenary. See id. Swenson v. Strout Realty, Inc., is controlling
[Headnote 3]

In Swenson v. Strout Realty, Inc., this court stated, It is a general rule of law that, in the absence of [a] statute to the contrary, the location of an easement once selected, cannot be changed by either the landowner or the easement owner without the others consent. 85 Nev. 236, 239, 452 P.2d 972, 974 (1969). Dictum is not controlling. See Camacho v. State, 119 Nev. 395, 398 n.7, 75 P.3d 370, 373 n.7 (2003). A statement in a case is dictum when it is unnecessary to a determination of the questions involved. Stanley v. Levy & Zentner Co., 60 Nev. 432, 448, 112 P.2d 1047, 1054 (1941). Thus, in order to determine whether the Swenson courts statement is dictum, this court must examine whether the issues involved in Swenson necessitated a determination of whether the location of an easement could be changed unilaterally. In Swenson, a real estate broker sued Dorothy and Lester Swenson in order to recover a commission after the broker secured a viable buyer for property owned by the Swensons, but the Swensons refused to sign the escrow instruments, which rendered the sale incomplete. 85 Nev. at 237-38, 452 P.2d at 972-73. The Swensons countersued for damages arising out of a second transaction with the real estate broker wherein the Swensons asserted that the broker falsely represented that the Swensons could relocate an easement that traversed across the land that they purchased. Id. at 238, 452 P.2d at 973. The district court entered judgment in favor of the real estate broker, finding that the Swensons could not rely on the brokers legally incorrect statement that the easement could be relocated. Id. at 239, 452 P.2d at 974. The Swenson court stated generally that the location of an easement once selected[ ] cannot be changed by either the landowner or

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the easement owner without the others consent. Swenson, 85 Nev. at 239, 452 P.2d at 974. The court further stated that the brokers advice to the Swensons had been an innocent misrepresentation of the law by a nonlawyer and that the Swensons had not alleged bad faith or fraud on the part of the broker. Id. at 239, 452 P.2d at 97374. Although the Swenson court did not clearly enunciate the applicable rule of law, it appears that the court considered at least two elements required to establish the cause of action: (1) the statement was false, and (2) the purchasers could rely on the statement. Id. at 239-40, 452 P.2d at 974. Prior to determining the reliance element of the test, the Swenson court examined the falsity element and concluded that the brokers statement was legally incorrect. Id. at 239, 452 P.2d at 974. Although, arguably, the court could have resolved the viability of the Swensons claim based on its conclusion that the Swensons reliance on the brokers statement was unreasonable, the court declined to reach that question until it determined whether the brokers statement was false. See id. at 239-40, 452 P.2d at 974. Because the court necessarily considered the falsity of the statement, we determine that Swenson is controlling on the issue of whether this court has established that unilateral relocation of an easement is prohibited. Although Swenson is authoritative, we nevertheless consider whether the rule stated in Swenson, which prohibits unilateral relocation of express easements is overbroad and whether significant public policy considerations warrant this courts adoption of the modern section 4.8 of the Restatement (Third) of Property, which permits unilateral relocation under certain circumstances. Section 4.8 of the Restatement (Third) of Property
[Headnote 4]

St. James Village advocates for the adoption of the rule set forth in section 4.8 of the Restatement (Third) of Property because the rules flexible approach is preferable to the rigid traditional rule, as it allows the owner of the servient estate to develop his or her property in any way that does not intrude upon the rights of the dominant estate. The Cunninghams argue against adoption of the Restatement rule, claiming that such a rule undermines the property rights and the bargained-for expectations of easement purchasers. After balancing public policy considerations, we adopt the Restatement rule.
[Headnote 5]

The purpose of the Restatement rule is to permit development of the servient estate to the extent it can be accomplished without unduly interfering with the legitimate interests of the easement holder. Restatement (Third) of Prop.: Servitudes 4.8 cmt. f (2000). Moreover, the rule works to increase overall utility because it will increase the value of the servient estate without diminishing the value

218

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[125 Nev.

of the dominant estate and it will encourage the use of easements and lower their price by decreasing the risk [that] the easements will unduly restrict future development of the servient estate. Id. Allowing the servient estate owner to move the location of the easement burdening his or her property provides a further benefit in the form of a fair trade-off for the vulnerability of the servient estate to increased use of the easement to accommodate changes in technology and development of the dominant estate. Id. Jurisdictions adopting the Restatement rule give the same or similar reasons: allowing full economic development of the servient estate, see Roaring Fork Club, L.P. v. St. Judes Co., 36 P.3d 1229, 1236 (Colo. 2001) (noting that the rule maximizes the overall utility of the land and enables the owner of the servient estate to make the most economic use of her land, including uses unforeseen when the easement originated); M.P.M. Builders, LLC v. Dwyer, 809 N.E.2d 1053, 1058 (Mass. 2004) (An easement is created to serve a particular objective, not to grant the easement holder the power to veto other uses of the servient estate that do not interfere with that purpose.), granting the owner of the servient estate an equal right to develop his or her property as that of the dominant estate owner, see Dwyer, 809 N.E.2d at 1057 (noting that the owner of a dominant estate generally has the right to increase the use of her land, including uses unforeseen when the easement originated), and fairly balancing competing property interests, see Roaring Fork Club, 36 P.3d at 1234-36 (noting that Colorado jurisprudence in other areas of property law was appropriately shifting to accommodate owners competing uses and that the Restatement rule best served that accommodation). We acknowledge the negative concerns surrounding the adoption of the Restatement rule. One concern is that the rule will trigger increased litigation over the reasonableness of the servient estate owners proposed relocation. See Herren v. Pettengill, 538 S.E.2d 735, 736 (Ga. 2000). Other concerns include that the Restatement rule undermines certainty in the property rights of dominant estate owners, see id. (noting that the majority rule provides certainty in land ownership), and that it denies dominant estate owners the benefit of their bargain, see id. (Allowing unilateral avoidance of the contract . . . not only would violate fairness principles, it also would create uncertainty in real property law by opening the door for increased litigation over reasonableness issues based on todays conditions rather than those considered in the original bargain.). Although adoption of the Restatement rule might indeed increase litigation, we determine that, under appropriate circumstances, public policy that is furthered by adoption of the Restatement rule sig-

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nificantly outweighs the potential for increased litigation. Further, we conclude that the dominant estate owners property rights are not undermined by adoption of the Restatement rule because the rule permits only reasonable alterations to the easements location. The easement must also continue to serve the purpose for which it was created. Thus, the value of the easement is not lost by a reasonable relocation. And, since the value of the easement is not lost, the dominant estate owner is not denied the benefit of the bargain. While we recognize that Nevada law has generally favored fixed property rights, see, e.g., Boyd v. McDonald, 81 Nev. 642, 650, 408 P.2d 717, 722 (1965), and we have strictly construed express easements, see, e.g., S.O.C., Inc. v. The Mirage Casino-Hotel, 117 Nev. 403, 408, 23 P.3d 243, 246-47 (2001), we determine that adoption of the Restatement rule is warranted because the modern approach that the Restatement rule conveys accommodates the development of the servient estate without unduly interfering with the dominant estate owners rights, which are adequately safeguarded by the reasonableness limitations expressed in the Restatement rule. Therefore, in light of the practical realities of competing property uses and interests, we expressly adopt section 4.8 of the Restatement (Third) of Property to decide unilateral easement relocation cases. Despite this courts adoption of the Restatement rule, the Cunninghams assert that, as applied to this case, St. James Villages proposed relocation is prohibited by the introductory language of the rule. Particularly, the Cunninghams argue that a plain reading of the prefatory language of section 4.8, which provides that the location and dimensions of an easement are determined by subsections 1 through 3 [e]xcept where the location and dimensions are determined by the instrument or circumstances surrounding creation of a servitude, bars relocation when the creating instrument specifies a location or dimensions certain. And, because the Cunninghams deed contains a metes and bounds description of the easement, the Cunninghams claim that St. James Village cannot avail itself of the Restatement rule to unilaterally relocate the Cunninghams easement. In reply, St. James Village argues that the introductory language of section 4.8 does not limit the applicability of its provisions because such a reading would render that language and the language of subsection 3 inconsistent with each other. Section 4.8(3) provides that an easement may be unilaterally relocated [u]nless expressly denied by the terms of an easement. Therefore, St. James Village contends, unilateral relocation is only prohibited when the creating instrument expressly prohibits relocation. We disagree. The language prefacing section 4.8 unambiguously states that the rules provisions apply [e]xcept where the location and dimensions are determined by the instrument or circumstances surrounding cre-

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[125 Nev.

ation of a servitude. Interpreting this introductory language as meaning that section 4.8s provisions will govern the relocation of easements so long as the easement at issue does not have a location or dimensions certain is consistent with subsection 3. Subsection 3 does not have any bearing on the introductory language of the rule; rather, subsection 3 is another limitation. Under section 4.8(3), even if the easement does not have a location or dimensions certain, if the creating instrument prohibits relocation, then the servient estate owner may not avail himself or herself of the Restatement rules unilateral relocation provision. Construing the introductory language of the Restatement rule to prohibit unilateral relocation when the deed contains a certain location or dimensions is not only supported by a plain reading of the rule, but also a majority of jurisdictions caselaw addressing the issue. See, e.g., Stanga v. Husman, 694 N.W.2d 716, 718-20 (S.D. 2005) (applying the Restatement rule and permitting unilateral relocation by the servient estate owner because the creating instrument did not specifically define the location or dimensions of the easement); Roaring Fork Club, L.P. v. St. Judes Co., 36 P.3d 1229, 1236-37 (Colo. 2001) (adopting section 4.8(3) of the Restatement (Third) of Property but explaining that under the Restatement, a burdened estate owner may unilaterally move an easement (unless it is specified in deeds or otherwise to have a location certain)); Lewis v. Young, 705 N.E.2d 649, 654 (N.Y. 1998) (permitting unilateral relocation after determining that the deeds lack of specificity in describing the easement implied that the original parties did not intend to fix the location). Here, the Cunninghams recorded deed expressly contains a metes and bounds description of the easement. Thus, since the deeds description indicates that the original parties intended to fix the location of the easement, St. James Village cannot avail itself of the Restatement rule and relocate the easement absent the Cunninghams consenteven if the proposed relocation does not hinder the Cunninghams interests. Accordingly, we affirm the district courts order dismissing St. James Villages complaint. CONCLUSION Because we determine that the Swenson court necessarily considered whether an easement can be relocated unilaterally, we conclude that the statement in Swensonthat once the location of an easement is determined it cannot be relocated without the dominant estate owners consentis not dictum and is therefore authoritative on the issue. Nevertheless, we determine that the rule in Swenson is overbroad and, in light of competing property interests, adoption of section 4.8 of the Restatement (Third) of Property is warranted.

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Adoption of this Restatement rule will accommodate the development of the servient estate while simultaneously protecting the dominant estates interests under appropriate circumstances in which the Restatement rule applies. Accordingly, we expressly adopt section 4.8 of the Restatement (Third) of Property in unilateral easement relocation cases. In adopting the Restatement rule, however, we further conclude that, based on a plain reading of the rule and considering other jurisdictions interpretations of the rule, the introductory language of section 4.8 prohibits unilateral relocation when the creating instrument defines the easement through specific reference to its location or dimensions. Therefore, because the Cunninghams deed contained a metes and bounds description of the easement, we affirm the district courts order dismissing St. James Villages complaint as the district court reached the correct result, even though the district court relied on different grounds in reaching its decision. See generally Hotel Riviera, Inc. v. Torres, 97 Nev. 399, 403, 632 P.2d 1155, 1158 (1981) (holding that [i]f a decision below is correct, it will not be disturbed on appeal even though the lower court relied upon wrong reasons). PARRAGUIRRE, DOUGLAS, CHERRY, SAITTA, and GIBBONS, JJ., concur.

222

St. James Village, Inc. v. Cunningham APPENDIX A

[125 Nev.

June 2009]

MGM Mirage v. Nevada Ins. Guaranty Assn

223

MGM MIRAGE, A DELAWARE CORPORATION; AND STEEL ENGI NEERS, INC., A NEVADA CORPORATION, APPELLANTS, v. NEVADA INSURANCE GUARANTY ASSOCIATION, A NONPROFIT UNINCORPORATED NEVADA ENTITY, RESPONDENT.
No. 49445 June 25, 2009 209 P.3d 766

Appeal from a district court order granting summary judgment in a workers compensation insurance coverage matter. Eighth Judicial District Court, Clark County; Elizabeth Goff Gonzalez, Judge. Nevada Insurance Guaranty Association (NIGA) filed complaint seeking declaration regarding its obligations to reimburse selfinsured employers for workers compensation claims that should have been paid by employers insolvent excess insurance carrier. The district court entered summary judgment, holding that self-insured employers under workers compensation laws were precluded from seeking reimbursement from NIGA. Employers appealed. The supreme court, HARDESTY, C.J., held that self-insured employers were not insurers for purposes of NIGA Act, and thus were not barred from recovering payment from NIGA. Reversed and remanded. Kurth Law Office and Robert O. Kurth, Jr., Las Vegas, for Appellant Steel Engineers. S. Denise McCurry, Las Vegas; Sandra Douglass Morgan, Las Vegas, for Appellant MGM Mirage. Hutchison & Steffen, LLC, and Michael K. Wall and James H. Randall, Las Vegas, for Respondent. Catherine Cortez Masto, Attorney General, Shane Chesney, Senior Deputy Attorney General, and Joanna N. Grigoriev, Deputy Attorney General, Carson City, for Amicus Curiae Nevada State Insurance Commissioner. Lemons, Grundy & Eisenberg and Alice Campos Mercado, Reno, for Amicus Curiae Property Casualty Insurers Association of America. Scarpello & Huss, Ltd., and Mark R. Forsberg, Carson City, for Amicus Curiae Carson City.
1. APPEAL AND ERROR. The construction of a statute is a question of law reviewed de novo.

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[125 Nev.

2. INSURANCE. The purpose of the Nevada Insurance Guaranty Association Act (NIGA Act) is to provide limited protection for insureds in the event that their insurers become insolvent. NRS 687A.060. 3. STATUTES. When presented with an issue of statutory interpretation, the supreme court should give effect to the statutes plain meaning. 4. STATUTES. When the language of a statute is plain and unambiguous, such that it is capable of only one meaning, the supreme court should not construe that statute otherwise. 5. STATUTES. If following a statutes apparent plain meaning results in a meaning that runs counter to the spirit of the statute, the supreme court may look outside the statutes language. 6. WORKERS COMPENSATION. Self-insured employers under workers compensation laws were not insurers, for purposes of Nevada Insurance Guaranty Association Act (NIGA Act), precluded from seeking reimbursement from NIGA for workers compensation claims that should have been paid by employers insolvent excess insurance carrier. NRS 687A.033(2)(a).

Before the Court EN BANC.1 OPINION By the Court, HARDESTY, C.J.: In this appeal we must determine whether appellants, as selfinsured employers under Nevadas Workers Compensation Act, can seek reimbursement from the Nevada Insurance Guaranty Association (NIGA) for amounts that should have been paid by appellants insolvent excess insurance carrier. Because we determine that appellants are not insurers for purposes of the Nevada Insurance Guaranty Association Act (NIGA Act), we conclude that selfinsured employers under the Workers Compensation Act, like MGM Mirage (MGM) and Steel Engineers, Inc. (SEI), are not barred from recovering payment from NIGA for their covered workers compensation claims payable by their insolvent excess insurance carrier. FACTUAL AND PROCEDURAL BACKGROUND Appellants MGM and SEI are both employers in the State of Nevada who operate as self-insured employers, as defined under Nevadas workers compensation laws. In accordance with the re1 THE HONORABLE JEROME POLAHA, Judge of the Second Judicial District Court, was designated by the Governor to sit in place of THE HONORABLE KRISTINA PICKERING, Justice, who voluntarily recused herself from participation in the decision of this matter. Nev. Const. art. 6, 4.

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quirements set forth in the Workers Compensation Act, MGM and SEI obtained excess workers compensation insurance policies. Both employers contracted with Reliance National Insurance Company (Reliance) for their excess policies. The policies, entitled Specific Excess Workers Compensation and Employers Liability Policy, declare that MGM and SEI are insured[s] and Reliance is their insurer. In October 2001, the Commonwealth Court of Pennsylvania declared Reliance Insurance Company, including Reliance, insolvent and entered an order of liquidation. MGM and SEI were required to pay workers compensation funds to employees whose claims were pending at the time Reliance became insolvent. As a result of Reliances insolvency, pursuant to NRS 687A.060, NIGA became responsible for claims that were covered under the Reliance policies and the NIGA Act.2 In order to recover the expended funds, MGM and SEI requested reimbursement from NIGA. NIGA concedes that it is responsible for paying insolvent insurers, like Reliances, unpaid Nevada claims that are within NRS 687A.033s definition of covered claims. It further agrees that MGM and SEI could have recovered payment for some or all of the expended workers compensation funds based on both entities excess insurance policies with Reliance had Reliance remained solvent. However, NIGA refused to pay the claims because it was uncertain as to whether MGM and SEI fell within the NIGA Acts definition of insurer, which would place their claims outside the scope of covered claims under the NIGA Act, specifically NRS 687A.033(2)(a), and prohibit NIGA from paying the claims. Because NIGA was uncertain about its statutory obligations towards MGM and SEI, NIGA filed a complaint in district court, seeking a declaration of the meaning of the term insurer under the NIGA Act. The district court granted summary judgment in favor of NIGA.
NRS 687A.060(1) provides, in pertinent part: The Association: (a) Is obligated to the extent of the covered claims existing before the determination of insolvency and arising within 30 days after the determination of insolvency, or before the expiration date of the policy if that date is less than 30 days after the determination, or before the insured replaces the policy or on request cancels the policy if he does so within 30 days after the determination . . . . .... (b) Shall be deemed the insurer to the extent of its obligations on the covered claims and to that extent has any rights, duties and obligations of the insolvent insurer as if the insurer had not become insolvent. The rights include, without limitation, the right to seek and obtain any recoverable salvage and to subrogate a covered claim, to the extent that the Association has paid its obligation under the claim. (Emphases added.)
2

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[125 Nev.

In its order, the district court concluded that summary judgment was appropriate because there were no factual disputes and the sole issue presented was one of statutory construction. The court determined that the definition of insurer under NRS 616A.270 of the Workers Compensation Actwhich includes self-insured employersmust be read consistently with the NIGA Act. Because MGMs and SEIs claims were based on funds paid to employees as workers compensation, the court determined that the Workers Compensation Acts definition of insurer was applicable to the NIGA Act. And, because MGM and SEI did not dispute the fact that they were self-insured employers under the workers compensation laws, and therefore, that they were insurers under the Workers Compensation Act, the court concluded that MGM and SEI were insurers under the NIGA Act. As a result, the court held that MGM and SEI were precluded from seeking reimbursement from NIGA. MGM and SEI appeal. DISCUSSION On appeal, MGM and SEI argue that their claims are recoverable, maintaining that self-insured employers excess workers compensation claims fall within the NIGA Acts definition of covered claim because they do not engage in the business of insurance, although they are self-insured employers under workers compensation laws. NIGA, on the other hand, argues that the NIGA Act prohibits it from paying MGMs and SEIs claims because MGM and SEI are considered insurers under the Workers Compensation Act, as they are self-insured employers. Because MGM and SEI are insurers under Nevadas workers compensation laws, and the Workers Compensation Act and the NIGA Act are connected, NIGA contends, MGM and SEI are likewise insurers under the NIGA Act. In resolving this appeal, we will address whether a self-insured employer, as defined in the Workers Compensation Act, qualifies as an insurer for purposes of the NIGA Act, thus precluding recovery from the NIGA fund. Standard of review
[Headnote 1]

Summary judgment is . . . appropriate [only] when no genuine issues of material fact [exist] and the moving party is entitled to judgment as a matter of law. Stalk v. Mushkin, 125 Nev. 21, 2425, 199 P.3d 838, 840 (2009) (alterations in original) (quoting Clark v. Robinson, 113 Nev. 949, 950, 944 P.2d 788, 789 (1997)). The parties do not dispute the material facts of this case. Instead, they dispute the district courts legal conclusions regarding the construction of NRS 687A.033(2)(a). The construction of a statute is a question of law, which we review de novo. In re Application

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of Shin, 125 Nev. 100, 102, 206 P.3d 91, 92 (2009). Because the single issue presented in this appeal is whether MGM and SEI, as self-insured employers, are deemed insurers for purposes of the NIGA Acta legal question of statutory interpretationthis courts review of the district courts grant of summary judgment is plenary. See id. Nevadas Insurance Guaranty Association Act and the Association
[Headnote 2]

In 1971, following the majority of other jurisdictions, the Legislature created an insurance guaranty act entitled the Nevada Insurance Guaranty Association Act (NIGA Act). 1971 Nev. Stat., ch. 661, 21, at 1943; NRS 687A.010. The NIGA Act was codified at NRS Chapter 687A. 1971 Nev. Stat., ch. 661, 21, at 1943. The purpose of the NIGA Act is to provide limited protection for insureds in the event that their insurers become insolvent. NRS 687A.060. The NIGA Act applies to all direct insurance (with exception to certain insurance that is not pertinent to this appeal). See NRS 687A.020. The NIGA Act created the Nevada Insurance Guaranty Association (NIGA). See NRS 687A.040. NIGA is a nonprofit, unincorporated, legal entity that provides insurance benefits to individuals and entities whose insurers have become insolvent. See NRS 687A.040; NRS 687A.060. NIGAs duty is to accept responsibility for obligations existent at the time that an insurance company loses its solvency, meaning NIGA steps into the shoes of the insolvent insurer, as NIGA [s]hall be deemed the insurer to the extent of its obligations on the covered claims and to that extent has any rights, duties and obligations of the insolvent insurer as if the insurer had not become insolvent. NRS 687A.060(1)(b) (emphasis added). Covered claims are unpaid claims that are within the coverage of a policy written by a now insolvent insurance company. NRS 687A.033(1). While the statute defining [c]overed claims generally provides that covered claims are those that are within the policy coverage, the statute specifically prescribes what types of claims are not covered, which, therefore, fall outside the purview of NIGAs duty to pay. Specifically, NRS 687A.033(2) excludes from coverage, in relevant part, [a]n amount that is directly or indirectly due a[n] . . . insurer. NRS 687A.033(2)(a). The NIGA Act does not define insurer. NIGAs general fund, from which it pays claims, is supplied by annual assessments of each insurer that is a member of NIGA. See NRS 687A.060; S.B. 74, Bill Summary, 70th Leg. (Nev. 1999). In order to transact business within Nevada, all insurers must be members of NIGA and must contribute to the fund. NRS 687A.040; NRS 687A.070(2). The NIGA Act defines these members as per-

228

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[125 Nev.

sons or entities that [w]rite[ ] any kind of insurance and are licensed to transact insurance in this state. NRS 687A.037(1), (2). Nevadas Workers Compensation Act Prior to 1980, the Nevada Industrial Commission was the sole provider of workers compensation insurance in Nevada. Legislative Counsel Bureau, Leg. Comm. on Workers Compensation, Bulletin No. 01-19 at 5, 71st Leg. (Nev., 2001). But, in 1979, recognizing that some employers could fund compensation benefits by themselves, the Legislature allowed employers to opt out of the state industrial insurance system and remain personally liable for the claims of their injured employees. Id.; see generally NRS Chapter 616B. Thus, the Legislature permitted those qualified employers to selfinsure. Id.; NRS 616B.300. As self-insurers, these employers are exempt from the statutory requirement that employers purchase workers compensation insurance. See generally NRS 616B.300. However, in order to qualify as a self-insured employer, the employer must be certified by the Commissioner of Insurance, which requires the employer to prove that it is financially capable of assuming the responsibility to pay the claims of its injured workers. NRS 616A.305; see also NRS 616B.300(1). Additionally, the self-insured employer must obtain excess insurance in order to provide protection against a catastrophic loss. NRS 616B.300(5). The excess insurance policy protects the self-insured employer when the specific or total losses in a policy year exceed its deductible. 23 Eric Mills Holmes, Appleman on Insurance 145.1, at 4 (2d ed., interim vol., 2003) (stating that excess coverage is a second layer of insurance coverage that is generally triggered on the exhaustion of the limits of the primary policy). The Workers Compensation Act defines insurer as including self-insured employers. NRS 616A.270(1). Statutory interpretation of NRS 687A.033(2)(a) NIGA argues that because MGM and SEI qualify as self-insured employers and, therefore, insurers under workers compensation laws, MGM and SEI are insurers for purposes of the NIGA Act and cannot recover from NIGA. The issue of whether self-insured employers constitute insurers for NIGA Act purposes is an issue of first impression and requires this court to engage in statutory interpretation.
[Headnotes 3-5]

This court has established that when it is presented with an issue of statutory interpretation, it should give effect to the statutes plain meaning. Public Employees Benefits Prog. v. LVMPD, 124 Nev. 138, 147, 179 P.3d 542, 548 (2008). Thus, when the language of a

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statute is plain and unambiguous, such that it is capable of only one meaning, this court should not construe that statute otherwise. Nevada Power Co. v. Public Serv. Commn, 102 Nev. 1, 4, 711 P.2d 867, 869 (1986). However, if following the statutes apparent plain meaning results in a meaning that runs counter to the spirit of the statute, this court may look outside the statutes language. Public Employees Benefits Prog., 124 Nev. at 147, 179 P.3d at 548; see also Universal Electric v. Labor Commr, 109 Nev. 127, 131, 847 P.2d 1372, 1374 (1993) (stating that this court will adhere to the rule of statutory construction that the intent of a statute will prevail over the literal sense of its words). MGM and SEI argue that a plain reading of the NIGA Act demonstrates that neither employer is an insurer and that NIGA is obligated to pay their claims as a result. In response, NIGA asserts that the term insurer, as used in the NIGA Act, is ambiguous and therefore requires this court to look outside the statutory scheme. It argues that because both the NIGA Act and the Workers Compensation Act are inextricably intertwined, they must be read in conjunction with each other. Therefore, because the Workers Compensation Act defines insurer to include self-insured employers, then, according to NIGA, self-insured employers are insurers under the NIGA Act as well. Plain meaning of insurer under NRS 687A.033(2)(a)
[Headnote 6]

Despite the fact that NRS 687A.033(2)(a) of the NIGA Act excludes coverage for claims that are due an . . . insurer, the Legislature did not define insurer in the NIGA Act. Rather, the NIGA Act defines [i]nsolvent insurer, which includes the circumstances in which an insurer is to be considered insolvent so that its obligations will be met by the association, and member insurer, which describes the type of insurer that is required to be a member of NIGA. NRS 687A.035; NRS 687A.037. We are not persuaded that either of these definitions are instructive in this case because NRS 687A.033(2)(a) specifically uses the term insurer rather than insolvent insurer or member insurer. Nevertheless, we determine that the term insurer has a plain meaning and that MGM and SEI do not fall within a reasonable connotation of the term. We determine that various statutory definitions of insurer throughout other chapters of the insurance title are instructive.3 For example, the general provisions governing the insurance title
3 NRS Chapters 679A through 697 comprise the Nevada Insurance Code (Title 57). See NRS 679A.010. The NIGA Act falls within this title and the general provisions governing Title 57 are contained in NRS Chapter 679A.

230

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[125 Nev.

defines insurer as every person engaged as principal and as indemnitor, surety or contractor in the business of entering into contracts of insurance. NRS 679A.100. Because this definition is included in the general provisions governing Title 57, which includes the NIGA Act, we conclude that NRS 679A.100s definition of insurer applies to the NIGA Act. In response to this general statutory definition of insurer, NIGA argues that it is not authoritative because the Legislature used the word includes before ascribing NRS 679A.100 its definitioni.e., Insurer includes every person engaged as principal and as indemnitor, surety or contractor in the business of entering into contracts of insurance. NRS 679A.100 (emphasis added). Based on this, NIGA claims that NRS 679A.100 does not define insurer, but that it is a list of insurers that is not allinclusive. While NIGA is correct in its assertion that the term includes generally indicates something that is a part of the whole, Merriam-Websters Collegiate Dictionary 629-30 (11th ed. 2007) (defining include as to take in or comprise as a part of a whole or group and that it suggests the containment of something as a constituent, component, or subordinate part of a larger whole), and that NRS 679A.100s definition may not be all inclusive, we determine that several other statutes falling within Title 57 further demonstrate that insurer has the commonplace meaning that the Legislature prescribed in NRS 679A.100. Other statutes in the insurance title define insurer as one that engages in the business of insurance, like NRS 679A.100. For example, NRS 692C.070 and NRS 696B.120 define insurer the same as NRS 679A.100, which includes every person engaged as principal and as indemnitor, surety or contractor in the business of entering into contracts of insurance.4 Additionally, NRS 679B.540 and NRS 695H.040 provide that an insurer is any insurer . . . authorized pursuant to this title to conduct business in this state. Moreover, NRS 686B.1759 and NRS 695A.014 also define insurer as any person or entity that is engaged in the insurance business.5 Although NRS 679A.100 employs the term includes when prefacing its definition of insurer, which indicates that the definition is not all-inclusive, we find it indicative of the meaning
4 Specifically, NRS 692C.070 provides, in pertinent part, Insurer has the meaning ascribed in NRS 679A.100. In addition, NRS 696B.120 provides the following definition: Insurer, in addition to persons so defined under NRS 679A.100, includes also persons purporting to be insurers, or organizing or holding themselves out as organizing in this state for the purpose of becoming insurers. 5 NRS 686B.1759 defines Insurer as any private carrier authorized to provide industrial insurance in this state. Similarly, NRS 695A.014 provides, Insurer includes every person engaged as principal and as indemnitor, surety or contractor in the business of entering into contracts of insurance.

June 2009]

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of insurer under the NIGA Act, which we conclude excludes selfinsured employers since they do not engage in the business of insurance. Further, we note that self-insured employers are not defined as insurers anywhere in Nevadas insurance title. The only definition of insurer that includes self-insured employers is found in Nevadas Workers Compensation Act under NRS 616A.270. Nevadas workers compensation laws are located in a separate title, not the insurance title. Compare NRS Title 57 (which includes the NIGA Act (NRS Chapters 679A through 697)), with NRS Title 53 (which includes the Workers Compensation Act, which, under NRS 616A.005, is technically referred to as the Nevada Industrial Insurance Act (NRS Chapters 616A through 616D)). Thus, we conclude that the Legislatures substantial use of insurer to describe persons or entities in the business of insurance militates in favor of concluding that the NIGA Acts reference to insurer plainly addresses an insurance company.6 Nevertheless, NIGA suggests that MGM and SEI are insurers even under the plain meaning of the term, arguing that, although they do not underwrite insurance policies as insurance companies do, as self-insured employers, they still insure the risk of their employees like insurance companies. We disagree. Traditionally, the party who is the insurer obligates itself to become responsible for loss or damage for consideration in the form of premium payments from the insured. See, e.g., Blacks Law Dictionary 814 (8th ed. 2004) (defining insurance as [a] contract by which one party (the insurer) undertakes to indemnify another party (the insured) against risk of loss, damage, or liability arising from the occurrence of some specified contingency and that [a]n insured party usu[ally] pays a premium to the insurer in exchange for the insurers assumption of the insureds risk). Here, although MGM and SEI are obligated to their employees to the extent that they must pay their employees workers compensation claims, the claims at issue in this case fall within MGMs and SEIs excess insurance policy with Reliance. MGM and SEI had in6 Our conclusion that the plain meaning of the term insurer refers to an insurance company or a person engaged in the insurance business reflects the common lay and legal understanding of the term. See, e.g., Merriam-Websters Collegiate Dictionary 649, 1365 (11th ed. 2007) (defining insurer as one that insures, especially as an insurance underwriter, which is one that underwrites a policy of insurance and set[s] ones name to (an insurance policy) for the purpose of thereby becoming answerable for a designated loss or damage on consideration of receiving a premium percent); Blacks Law Dictionary 823 (8th ed. 2004) (defining insurer as [o]ne who agrees, by contract, to assume the risk of anothers loss and to compensate for that loss. Also termed underwriter); A Dictionary of Modern Legal Usage 457, 898 (2d ed. 1995) (defining insurer to mean an underwriter and defining underwriter as one that insures a risk).

232

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[125 Nev.

surance policies with Reliance where, in consideration for premiums paid, Reliance agreed to assume the risk of MGMs and SEIs employees workers compensation claims that reached an excess beyond the limits that they contractually agreed to. It was Reliance who paid into the NIGA Act fund as a member-insurer. Therefore, we conclude that Reliance, not MGM or SEI, was insuring the employees risk of loss for those excess insurance claims. Consequently, the plain meaning of insurer, as applied to the NIGA Act, must exclude MGM and SEI because they are not in the business of insurance. This conclusion is consistent with other jurisdictions interpretations of statutes similar to NRS 687A.033(2)(a). Although every state has statutorily created insurance guaranty acts and associations, only a few states have considered the precise issue of whether selfinsured employers are insurers under their Insurance Guaranty Association Acts. Notably, however, the majority of those states that have considered the issue hold that self-insurers are not insurers for Insurance Guaranty Association Act purposes. See, e.g., Doucette v. Pomes, 724 A.2d 481, 489-91 (Conn. 1999) (holding that in light of the plain meaning of insurance and insurer, and the insurance titles definition of insurance, a self-insured employer under the workers compensation laws was not an insurer for purposes of the guaranty act); Stamp v. Dept. of Labor and Industries, 859 P.2d 597, 599-601 (Wash. 1993) (deciding to follow other jurisdictions interpretations of insurer in concluding that self-insured employers are not reinsurers, insurers, insurance pools or underwriting associations); In re Mission Ins. Co., 816 P.2d 502, 505 (N.M. 1991) (holding that self-insured employers claims are covered claims under the guaranty act because the excess insurance policies at issue were direct insurance and not reinsurance); Iowa Cont. Wkrs Comp. v. Iowa Ins. Guar., 437 N.W.2d 909, 913-16 (Iowa 1989) (concluding that the self-insurers excess workers compensation insurance was direct insurance, rather than reinsurance, because the only insurance contract at issue was between the insolvent insurer and the group, as the insurers relationship is with the employer or the group of employers, and not with the individual employees); Zinke-Smith, Inc. v. Florida Insurance Guar. Assn, Inc., 304 So. 2d 507, 509 (Fla. Dist. Ct. App. 1974) (holding that, under the insurance titles definition of insurer, self-insured employers are not insurers for guaranty act purposes as such insurance policies are not reinsurance, but rather, excess insurance). Moreover, our conclusion that self-insured employers are not insurers under the NIGA Act is in harmony with Nevadas workers compensation laws. As the term insurer is used in the NIGA Act, it is addressing an insurance company, which is evidenced by the

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purpose of the NIGA Actto cover claims of insolvent insurance companies. NRS 687A.060 limits NIGAs obligation to pay certain covered claims; however, NIGAs obligation with respect to workers compensation claims is not limited, as the statute requires NIGA to pay [t]he entire amount of the claim. NRS 687A.060(1)(a)(1). Applying the Workers Compensation Acts definition of insurer to the NIGA Act would run counter to NRS 687A.060(1)(a)(1), as the NIGA Act obligates NIGA to pay workers compensation claims in full and NIGAs obligation would be excused if the claimant was a self-insured employer. Such a reading is contrary to the purpose of the NIGA Act. Therefore, we join the majority of jurisdictions and hold that self-insured employers under Nevadas workers compensation laws are not insurers for purposes of the NIGA Act. Consequently, we conclude that MGMs and SEIs claims that are [c]overed claim[s], as defined in NRS 687A.033(1), are recoverable. CONCLUSION We hold that, because the plain meaning of insurer necessarily denotes a person or entity that is in the insurance business, selfinsured employers are not insurers under the NIGA Act. We therefore determine that appellants, as self-insured employers, may recover payment from NIGA for their workers compensation claims that are [c]overed claims. This conclusion is supported by a majority of jurisdictions interpretations of their guaranty acts and is in harmony with Nevadas workers compensation laws. Thus, we reverse the district courts order and remand this matter to the district court for further proceedings consistent with this opinion. PARRAGUIRRE, DOUGLAS, CHERRY, SAITTA, and GIBBONS, JJ., and POLAHA, D.J., concur.

V AND S RAILWAY, LLC, FKA V AND S RAILWAY, INC., APPELLANT, v. WHITE PINE COUNTY AND CITY OF ELY, RESPONDENTS.
No. 49351 July 16, 2009 211 P.3d 879

Appeal from a district court order granting summary judgment in an eminent domain action. Seventh Judicial District Court, White Pine County; Andrew J. Puccinelli, Judge. Railroad company brought action seeking condemnation of railroad designated as surplus property by city department of water

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[125 Nev.

and power almost simultaneously with offer by other city to purchase railroad. The district court granted summary judgment to other city, finding condemnation action was barred as soon as railroad was declared surplus government property. Railroad company appealed. The supreme court, SAITTA, J., held that: (1) statute that allowed city to circumvent other statutory proceedings when purchasing surplus governmental property was triggered by demonstration of intent of city and department to enter into contract for purchase of railroad, rather than declaration as surplus government property; but (2) genuine issue of material fact as to whether city and department expressed intent to enter into contract for purchase and sale of railroad precluded summary judgment. Reversed and remanded. Jones Vargas and R. Douglas Kurdziel, Kirk B. Lenhard, and Tiffany J. Swanis, Las Vegas, for Appellant. Richard W. Sears, District Attorney, White Pine County, for Respondents.
1. APPEAL AND ERROR. The supreme court reviews a district courts grant of summary judgment de novo. 2. JUDGMENT. Summary judgment is only appropriate where the evidence does not present any genuine issues of material fact and the law requires judgment for the moving party. 3. APPEAL AND ERROR. In reviewing a district courts decision to grant or deny summary judgment, the supreme court construes the factual basis for the decision in favor of the nonmoving party. 4. APPEAL AND ERROR. The supreme court reviews issues of statutory construction de novo. 5. STATUTES. Words in a statute should be given their plain meaning unless this violates the spirit of the act; where a statute is clear on its face, a court may not go beyond the language of the statute in determining the Legislatures intent. 6. STATUTES. A statute must be construed as to give meaning to all of its parts and language, and the supreme court will read each sentence, phrase, and word to render it meaningful within the context of the purpose of the legislation; further, a statute should not be read in a manner that renders a part of a statute meaningless or produces an absurd or unreasonable result. 7. EMINENT DOMAIN. Statute that allowed city to circumvent other statutory proceedings when purchasing railroad designated as governmental surplus property by department of water and power would have been triggered by city and department taking steps demonstrating their intent to enter into a contract for

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the purchase and sale of railroad, rather than departments designation of railroad as surplus governmental property. NRS 334.030. 8. JUDGMENT. Genuine issue of material fact as to whether city and department of water and power expressed intent to enter into a contract for the purchase and sale of railroad that department had declared surplus governmental property precluded summary judgment in railroad companys condemnation action. NRS 37.230, 334.030.

Before the Court EN BANC.1 OPINION By the Court, SAITTA, J.: NRS 334.030 facilitates the purchase of surplus governmental property by a governmental entity from another governmental entity. Specifically, NRS 334.030(2), (3), and (4) set forth special provisions for governmental entities entering into contracts for such purchases. NRS 334.030(5) suspends any law that is inconsistent with the other NRS 334.030 provisions. In this appeal, we consider the scope of NRS 334.030. Here, there are two parties, one that is a governmental entity and one that is not, each contesting which of them may purchase surplus governmental property from another governmental entity. The property in question is a railroad that the Los Angeles Department of Water and Power (LADWP), a governmental entity, designated as surplus property. The LADWP sought bids on the railroad, and respondent City of Ely2 offered to purchase the railroad for $750,000. The LADWP accepted Elys offer, and Ely placed $250,000 in escrow. Nearly simultaneously, appellant V and S Railway, LLC (V & S Railway), a private company, sought to condemn the railroad pursuant to NRS 37.230, a statute that gives railroad companies that right. Subsequently, White Pine County and Ely brought a motion for summary judgment, claiming that NRS 334.030(5) precluded V & S Railways ability to pursue its condemnation action under NRS 37.230, which the district court granted. The district court found that V & S Railways condemnation action was barred because as soon as the LADWP designated the railroad as surplus governmental property, NRS 334.030(5) was triggered, thereby suspending NRS 37.230.
1 THE HONORABLE KRISTINA PICKERING, Justice, voluntarily recused herself from participation in the decision of this matter. 2 Respondent White Pine County, another governmental entity, intervened at a later point in the proceedings.

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[125 Nev.

On appeal, V & S Railway argues that the district court erred when it granted White Pine County and Elys motion for summary judgment. Primarily, V & S Railway contends that the district court incorrectly found that, pursuant to NRS 334.030(5), NRS 334.030 superseded NRS 37.230. We conclude that the district court incorrectly decided that NRS 334.030 was triggered by the LADWP designating the railroad as surplus governmental property. According to the plain language of NRS 334.030, the statute is triggered when governmental entities take steps demonstrating their intent to enter into a contract for the purchase and sale of surplus governmental property. NRS 334.030(5) then suspends any action brought pursuant to a law that is inconsistent with facilitating these purchases. Therefore, we reverse and remand to the district court to determine whether the LADWP and Ely had taken steps showing their intent to enter into a contract for the purchase and sale of the railroad when V & S Railway brought its condemnation action pursuant to NRS 37.230. If the district court finds that the LADWP and Ely had taken the necessary actions to trigger NRS 334.030, then it should again conclude that NRS 334.030(5) precluded V & S Railways ability to pursue its condemnation action. FACTUAL AND PROCEDURAL HISTORY In 1987, the LADWP purchased the Northern Nevada Railway, a 128-mile railroad between Cobre, Nevada, and McGill Junction, Nevada. By 2002, the railroad was no longer used, and the LADWP designated the railroad as surplus property. Prior to offering the railroad for sale to the general public, the LADWP offered the railroad to governmental entities, including Ely. On November 6, 2003, Ely offered to purchase the railroad for $750,000. The offer invited the LADWP to negotiate a purchase and sale agreement and proposed that Ely would place $250,000 in escrow to be applied toward the purchase. The escrow monies were designated as fully refundable. On December 9, 2003, the LADWP sent Ely a letter indicating, in pertinent part, that: (1) Ely needed to send the LADWP a payment in the amount of $250,000 in order to proceed with the purchase and sale agreement; (2) so long as there were no other interested parties during the 60-day notification period, the LADWP would proceed with negotiations with Ely; and (3) the $250,000 would be returned if the purchase and sale agreement was not finalized. On December 17, 2003, the LADWP received Elys $250,000 deposit. Two separate condemnation actions regarding the railroad were subsequently filed. One was filed by V & S Railway, which wanted to obtain the railroad under NRS 37.230. The other was filed by

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Ely, when contract negotiations between itself and the LADWP soured. V & S Railways condemnation action The same day that the LADWP sent Ely the letter indicating its acceptance of Elys offer, V & S Railway brought a condemnation action against the LADWP, seeking to acquire the railroad pursuant to NRS 37.230.3 V & S Railway later moved for immediate occupancy of the railroad, a temporary restraining order,4 and a preliminary injunction to prevent the LADWP from selling the railroad to Ely. White Pine County and Ely intervened in the action, arguing that they had an economic interest in the railroad. The district court denied V & S Railways motions. Ely and White Pine County together moved for, in part, summary judgment on V & S Railways condemnation action.5 Ely and White Pine County argued that NRS 334.030(5) precluded V & S Railways ability to pursue its condemnation action under NRS 37.230. The district court initially denied the motion for summary judgment, stating that it was untimely, and granted a continuance for further discovery. Elys condemnation action Following the district courts denial of its summary judgment motion in V & S Railways condemnation action, Ely filed a condemnation action against the LADWP, primarily arguing that the LADWP had failed to ratify the contract that they had negotiated and was attempting to increase the purchase price. In this action, Ely did not name V & S Railway as a party. Ely moved for immediate occupancy of the railroad, which the district court granted, contingent upon Elys deposit of $500,000 with the district court. The $500,000 was added to the $250,000 Ely had already placed in escrow, totaling $750,000 paid toward acquiring the railroad. The LADWP and Ely ultimately entered into an asset-purchaseand-settlement agreement. The agreement specifically noted that it was intended to resolve the condemnation action that Ely had filed
3 The condemnation action was also brought against BHP Nevada Railway Company; White Pine Historical Railroad Foundation, Inc.; Robinson Mining Limited Partnership; Doe individuals; and Roe corporations or business entities. Because these parties do not raise issues on appeal, their involvement in the underlying lawsuits is not discussed herein. 4 V & S Railway later conceded that the temporary restraining order was unnecessary. 5 Ely moved for intervention before the district court denied V & S Railways motion for immediate occupancy, but its intervention motion was not granted until after V & S Railways motion was denied.

238

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[125 Nev.

against the LADWP. According to the agreement, the purchase price was $1,500,000, minus the $750,000 already paid. Pursuant to the settlement agreement between the LADWP and Ely, the district court entered an order approving the parties stipulated settlement. The order stated that it resolved all issues among the parties related to the railroads acquisition but noted that it was not admissible in any other case for any other purpose. The same day, the district court also entered a judgment of condemnation in Elys favor and dismissed the case. Motion for summary judgment in V & S Railways condemnation action Following the district courts entry of a judgment of condemnation in Elys favor in its condemnation action, White Pine County and Ely supplemented their original motion for summary judgment in V & S Railways condemnation action. The district court granted summary judgment in favor of White Pine County and Ely. In granting summary judgment, the district court found no genuine issue of material fact as to whether V & S Railway was entitled to pursue its condemnation action. Further, the district court found that White Pine County and Ely were entitled to judgment as a matter of law because NRS 334.030(5) suspends NRS 37.230 and any other statutes that interfere with a governmental entity purchasing surplus property from another governmental entity. The district court stated that NRS 334.030 was triggered when the LADWP, itself a governmental entity, designated the railroad as surplus property. The district court noted that NRS 334.030(5) states that any provision of law that is inconsistent with NRS 334.030 is suspended. Thus, any action brought pursuant to NRS 37.230, or any statute that would interfere with a governmental entitys purchase of surplus property from another governmental entity, was superseded by the LADWP designating the railroad as surplus. Further, the district court stated that V & S Railways argument that, by purchasing the railroad Ely was merely stepping into the LADWPs shoes in its condemnation action, failed because it was contrary to NRS 334.030. Accordingly, the district court granted summary judgment, finding that White Pine County and Ely were entitled to judgment as a matter of law. V & S Railway has appealed from that order. DISCUSSION Standard of review
[Headnotes 1-3]

This court reviews a district courts grant of summary judgment de novo. Wood v. Safeway, Inc., 121 Nev. 724, 729, 121 P.3d

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1026, 1029 (2005). Summary judgment is only appropriate where the evidence does not present any genuine issues of material fact and the law requires judgment for the moving party. Id. In reviewing a district courts decision to grant or deny summary judgment, this court construes the factual basis for the decision in favor of the nonmoving party. Id. Scope of NRS 334.030
[Headnotes 4-6]

This court reviews issues of statutory construction de novo. Harris Assocs. v. Clark County Sch. Dist., 119 Nev. 638, 641, 81 P.3d 532, 534 (2003). In Nevada, words in a statute should be given their plain meaning unless this violates the spirit of the act. McKay v. Bd. of Supervisors, 102 Nev. 644, 648, 730 P.2d 438, 441 (1986). Where a statute is clear on its face, a court may not go beyond the language of the statute in determining the [L]egislatures intent. Id. A statute must be construed as to give meaning to all of [its] parts and language, and this court will read each sentence, phrase, and word to render it meaningful within the context of the purpose of the legislation. Harris Assocs., 119 Nev. at 642, 81 P.3d at 534 (quoting Coast Hotels v. State, Labor Commn, 117 Nev. 835, 841, 34 P.3d 546, 550 (2001)). Further, a statute should not be read in a manner that renders a part of a statute meaningless or produces an absurd or unreasonable result. Id.
[Headnotes 7, 8]

NRS 334.030 facilitates the purchase of surplus governmental property by governmental entities. These transactions are eased by the provisions in NRS 334.030 that allow governmental entities to circumvent other statutory proceedings.6 See NRS 334.030(2), (5). By looking at the plain meaning of the statutes words, we conclude that the statute is triggered by two governmental entities taking steps demonstrating their intent to enter into a contract for the purchase and sale of surplus governmental property. NRS 334.030(2)-(4). Specifically, NRS 334.030(2) states that [a]ny governmental entity may enter into any contract with any other governmental entity for the purchase of any . . . property. (Emphases added.) The plain meaning of enter into is to participate in; engage in. Random
6

In its entirety, NRS 334.030 states: 1. The purpose of this section is to permit any governmental entity to take full advantage of the available surplus properties of any other governmental entity. 2. Any governmental entity may enter into any contract with any other governmental entity for the purchase of any equipment, supplies, materials or other property, real or personal, without regard to provisions of law which require:

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House Websters College Dictionary 435 (2d ed. 1997). Thus, NRS 334.030(2) clearly contemplates that the relevant act for the statutes implication is when governmental entities begin to participate in or engage in the steps necessary to form a contract. NRS 334.030(3) goes on to state that in making the contract, governmental entities are authorized to accept statutory conditions as part of the contract. Accordingly, the statutes words demonstrate that the Legislature intended the statute to be triggered when the entities took steps toward entering into a contract for the purchase of surplus governmental property. Finally, as further evidence that the statute does not require the actual formation of a contract, NRS 334.030(4) discusses the bidding process. As the bidding process necessarily precedes the contract being formed, the language of NRS 334.030(4) indicates that the statute applies as soon as entities begin engaging in steps that show their intent to form a contract. NRS 334.030(5) is central to resolution of this case. The district court primarily relied upon this provision when it found that V & S Railway was barred from pursuing its condemnation action under NRS 37.230. NRS 334.030(5) suspends any portion of any law that is inconsistent with allowing governmental entities to take full advantage of purchasing surplus property from other governmental entities. Once NRS 334.030 is triggered, no other action may interfere with the surplus property purchase.7 Further, V & S Railways argument that such a reading would render NRS 334.030(2) through (4) mere surplusage is not persua(a) The posting of notices or public advertising for bids or of expenditures. (b) The inviting or receiving of competitive bids. (c) The delivery of purchases before payment, and without regard to any provision of law which would, if observed, defeat the purpose of this section. 3. In making any such contract or purchase the purchaser is authorized to accept any condition imposed pursuant to federal, state or local law as a part of the contract. 4. The governing body or executive authority, as the case may be, of any governmental entity may designate by appropriate resolution or order any officeholder or employee of its own to enter a bid or bids in its behalf at any sale of any equipment, supplies, material or other personal property, owned by any other governmental entity and may authorize that person to make any down payment or payment in full required in connection with such bidding. 5. Any provisions of any law, charter, ordinance, resolution, bylaws, rule or regulation which are inconsistent with the provisions of this section are suspended to the extent such provisions are inconsistent herewith. 7 We note that legislative history supports our conclusion that the plain meaning of NRS 334.030(5) is that the provision suspends any law inconsistent with

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sive. Applying the plain meaning of NRS 334.030(5) does not render any other section of NRS 334.030 nugatory because the provisions of NRS 334.030 do not contradict each other. Each provision is written in furtherance of the statutes intent: facilitating the purchase and sale of surplus property between governmental entities. NRS 334.030(1) states the statutes purpose; NRS 334.030(2) permits governmental entities to circumvent certain provisions of the law that might otherwise hinder their surplus property transactions; NRS 334.030(3) allows the purchasing governmental entities to accept any contractual condition imposed pursuant to law; and NRS 334.030(4) gives governmental entities the authority to designate an agent to enter bids and make payments on its behalf when purchasing surplus governmental property. Therefore, because NRS 334.030(1) through (4) promote the purpose of NRS 334.030 and are thus not inconsistent with each other, NRS 334.030(5) does not suspend any of them. Based upon the plain meaning of NRS 334.030, we conclude that condemnation actions like V & S Railways are suspended pursuant to NRS 334.030(5) once two governmental entities take steps demonstrating their intent to enter into a contract for the purchase and sale of surplus governmental property. While NRS 37.230 gives authority to [a]ny company incorporated under the laws of this state, or constructing or operating a railway in this state, to acquire property for use as a railroad by condemnation, allowing a private entity to condemn surplus governmental property once two governmental entities have taken steps toward the formation of a contract for that propertys sale is contrary to NRS 334.030(1)s stated purpose. NRS 334.030(5) suspends a private entitys ability to condemn surplus governmental property once governmental entities have demonstrated their intent to enter into a contract for that propertys sale. We conclude that NRS 334.030 does not support the district courts finding that the LADWPs designation of the railroad as surplus governmental property triggered NRS 334.030. Rather, as noted above, NRS 334.030 is triggered when governmental entities take steps showing their intent to enter into a contract for the purchase and sale of surplus governmental property. Therefore, on remand, the district court must determine whether the LADWP and Ely had already taken such steps when V & S Railway brought its condemthe statute. When the statute was originally adopted in 1945, its purpose was to permit state and local governmental units to take full advantage of available federal surplus properties. 1945 Nev. Stat., ch. 43, 3, at 53. In 1979, the statute was amended to include any government-to-government purchase, as opposed to only purchases from the federal government. 1979 Nev. Stat., ch. 77, 1, at 98-99. This amendment did not affect the language of subsection 5.

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V & S Railway v. White Pine County

[125 Nev.

nation action.8 If the district court concludes that the LADWP and Ely had taken the steps necessary to make NRS 334.030 applicable when V & S Railway brought its condemnation action under NRS 37.230, then the district court should once again conclude that NRS 334.030(5) barred V & S Railways condemnation action. NRS 37.230 is inconsistent with allowing White Pine County and Ely to take full advantage of the LADWPs sale of the surplus governmental property. Moreover, if the district court finds that NRS 334.030(5) precludes V & S Railways condemnation action, then White Pine County and Ely do not replace the LADWP in V & S Railways condemnation action, as V & S Railway suggests. Such an interpretation would undermine the statutes express purpose of allowing governmental entities to take full advantage of available surplus governmental property. Conversely, if the district court concludes that NRS 334.030 had not been triggered when V & S Railway brought its condemnation action, then the district court must reverse its grant of summary judgment in favor of White Pine County and Ely and permit V & S Railway to pursue its condemnation action against the LADWP. NRS 334.030 does not give governmental entities a priority right to acquire surplus governmental property absent prior evidence indicating their intent to enter into a contract for the purchase of such property. Because the district court incorrectly based its conclusion on its determination that NRS 334.030 was triggered by the LADWP designating the railroad as surplus governmental property, we reverse the district courts order and remand this matter to the district court for proceedings consistent with this opinion. HARDESTY, C.J., PARRAGUIRRE, DOUGLAS, CHERRY, and GIBBONS, JJ., concur.
8 Facts that the district court should consider in making this determination are: (1) on November 6, 2003, Ely offered to purchase the railroad; (2) on December 9, 2003, the LADWP sent Ely a letter indicating its tentative acceptance of Elys offer; and (3) on December 17, 2003, the LADWP received Elys $250,000 deposit.

July 2009]

McConnell v. State ROBERT LEE MCCONNELL, APPELLANT, v. THE STATE OF NEV ADA, RESPONDENT.
No. 49722

243

July 23, 2009

212 P.3d 307

Appeal from an order of the district court dismissing appellants post-conviction petition for a writ of habeas corpus in a death penalty case. Second Judicial District Court, Washoe County; Steven R. Kosach, Judge. The supreme court held that: (1) a claim challenging the constitutionality of Nevadas lethal injection protocol is not cognizable in a post-conviction petition for a writ of habeas corpus; (2) defendant knowingly and voluntarily entered a guilty plea to first-degree murder, sexual assault, and first-degree kidnapping; (3) defendant did not have a constitutional right to the effective assistance of standby counsel; (4) defendant did not show that standby counsel was ineffective for allowing him to plead guilty while a discovery request was pending; (5) defendant did not show that appellate counsel was ineffective on direct appeal; and (6) certain claims asserted by defendant in his habeas petition were procedurally barred. Affirmed. [Rehearing denied October 6, 2009] Scott W. Edwards, Reno; Law Office of Thomas L. Qualls, Ltd., and Thomas L. Qualls, Reno, for Appellant. Catherine Cortez Masto, Attorney General, Carson City; Richard A. Gammick, District Attorney, and Terrence P. McCarthy, Deputy District Attorney, Washoe County, for Respondent.
1. STATUTES. When interpreting a statute, the supreme courts goal is to determine the Legislatures intent in enacting the statute. 2. STATUTES. When interpreting a statute, the supreme court must focus on the statutes plain language. 3. HABEAS CORPUS. A claim challenging the constitutionality of Nevadas lethal injection protocol is not cognizable in a post-conviction petition for a writ of habeas corpus; the claim involves a challenge to the manner in which the death sentence will be carried out rather than the validity of the judgment of conviction or sentence. NRS 34.720, 34.724(2)(b), 176.355(1), (2)(b). 4. CRIMINAL LAW. A guilty plea is presumptively valid. 5. CRIMINAL LAW. In determining the validity of a guilty plea, a trial court must look to the totality of the circumstances.

244

McConnell v. State

[125 Nev.

6. CRIMINAL LAW. Failure to utter talismanic phrases will not invalidate a guilty plea where a totality of the circumstances demonstrates that the plea was freely, knowingly, and voluntarily made and that the defendant understood the nature of the offense and the consequences of the plea. 7. CRIMINAL LAW. Defendant knowingly and voluntarily entered a guilty plea to firstdegree murder, sexual assault, and first-degree kidnapping, even though defendant was not advised that lifetime supervision would be a direct consequence of his guilty plea to sexual assault; events at the Faretta canvass that preceded the plea canvass demonstrated defendants intelligence and awareness of the proceedings, his understanding of his constitutional rights, and that he was adamant about pleading guilty, trial court sufficiently advised defendant of his constitutional rights during the plea canvass, and defendant was advised that he faced a life sentence for the sexual assault. 8. CRIMINAL LAW. A claim that counsel provided constitutionally inadequate representation is subject to the two-part Strickland test. U.S. CONST. amend. 6. 9. CRIMINAL LAW. To prevail on a claim of ineffective assistance of trial or appellate counsel, a defendant must demonstrate (1) that counsels performance was deficient and (2) that counsels deficient performance prejudiced the defense. U.S. CONST. amend. 6. 10. CRIMINAL LAW. A court need not consider both prongs of the Strickland test if a defendant makes an insufficient showing on either prong. U.S. CONST. amend. 6. 11. 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. 12. CRIMINAL LAW. To establish Strickland prejudice resulting from trial counsels inaction or omission, a defendant who pleaded guilty must demonstrate a reasonable probability that he or she would not have pleaded guilty and would have insisted on going to trial. U.S. CONST. amend. 6. 13. CRIMINAL LAW. A defendant asserting a claim of ineffective assistance of counsel carries the affirmative burden of establishing prejudice. U.S. CONST. amend. 6. 14. CRIMINAL LAW. Defendant did not have a constitutional right to the effective assistance of standby counsel in a prosecution for first-degree murder, where defendant waived his right to counsel and chose to represent himself. U.S. CONST. amend. 6. 15. ATTORNEY AND CLIENT. Counsel does not have the authority to override a defendants decision to plead guilty; that decision is reserved to the client. RPC 1.2. 16. CRIMINAL LAW. Defendant did not show that he was prejudiced by standby counsels alleged error in allowing him to plead guilty to first-degree murder and other offenses while a discovery request was pending, and thus, defendant did not establish ineffective assistance of counsel; defendant did not specify what discovery was outstanding and how that discovery would have convinced him not to plead guilty and proceed to trial, and moreover, during

July 2009]

McConnell v. State

245

17.

18.

19.

20.

21.

defendants Faretta canvass, he complimented his attorneys performance. U.S. CONST. amend. 6. CRIMINAL LAW. To state a claim of ineffective assistance of appellate counsel, a petitioner must demonstrate that counsels performance was deficient in that it fell below an objective standard of reasonableness and resulting prejudice such that the omitted issue would have had a reasonable probability of success on appeal. U.S. CONST. amend. 6. CRIMINAL LAW. In the context of a claim of ineffective assistance, appellate counsel is not required to raise every nonfrivolous issue on appeal. U.S. CONST. amend. 6. SENTENCING AND PUNISHMENT. When considering whether the death penalty is excessive, the supreme court looks to whether various objective factors are present, such as whether alcohol or drugs influenced the crime, the treatment of codefendants, and the defendants mental state, prior history of violence, and age; in other words, the supreme court considers the totality of the circumstances surrounding the defendant and the crime in making a determination of excessiveness. NRS 177.055(2). CRIMINAL LAW. Defendant did not show that appellate counsel rendered ineffective assistance in a death penalty direct appeal by failing to argue that it was prejudicial to have elected judges and justices preside over defendants trial and appellate review on the ground that elected judges were beholden to the electorate and therefore could not be impartial; defendant failed to substantiate his claim with any specific factual allegations demonstrating actual judicial bias, and the claim was unpersuasive and would not have had a reasonable probability of success on appeal. U.S. CONST. amend. 6. HABEAS CORPUS. Certain claims asserted by defendant in a post-conviction petition for a writ of habeas corpus were procedurally barred, so as to allow trial court to dismiss the claims without an evidentiary hearing; the claims should have been raised on direct appeal, defendant did not attempt to demonstrate good cause for not doing so, and defendant failed to demonstrate that dismissal of the claims resulted in prejudice. NRS 34.810.

Before HARDESTY, C.J., PARRAGUIRRE, DOUGLAS, CHERRY, SAITTA, GIBBONS and PICKERING, JJ. OPINION Per Curiam: The primary issue in this appeal is whether the constitutionality of Nevadas lethal injection protocol may be challenged in a postconviction petition for a writ of habeas corpus. We hold that the claim is not cognizable in a post-conviction petition for a writ of habeas corpus under NRS Chapter 34 because it involves a challenge to the manner in which the death sentence will be carried out rather than the validity of the judgment of conviction or sentence.

246

McConnell v. State

[125 Nev.

FACTS AND PROCEDURAL HISTORY Appellant Robert Lee McConnell pleaded guilty to first-degree murder with the use of a deadly weapon, sexual assault, and first-degree kidnapping. In doing so, he admitted that he shot and killed his ex-girlfriends fianc, Brian Pierce, and threatened his exgirlfriend, April Robinson, with a knife, handcuffed her, sexually assaulted her, and kidnapped her, forcing her to drive to California. In a subsequent penalty hearing, the jury found three aggravators the murder was committed during the course of a burglary and a robbery and involved mutilationand determined that the aggravators were not outweighed by any mitigating circumstances. The jury returned a death sentence for the first-degree murder charge. On direct appeal, this court held that an aggravator cannot be based on the same felony used to establish felony murder but concluded that McConnell was not entitled to relief because he clearly pleaded guilty to willful, deliberate, and premeditated murder rather than felony murder. McConnell v. State, 120 Nev. 1043, 1069, 102 P.3d 606, 624 (2004), rehearing denied, 121 Nev. 25, 107 P.3d 1287 (2005). McConnell then filed a timely post-conviction petition for a writ of habeas corpus in the district court alleging several claims for relief. The district court dismissed the petition without conducting an evidentiary hearing. McConnell challenges the district courts decision to deny his petition without conducting an evidentiary hearing on his claims. DISCUSSION This court has held that a post-conviction habeas petitioner is entitled to a post-conviction evidentiary hearing when he asserts claims supported by specific factual allegations not belied by the record that, if true, would entitle him to relief. Mann v. State, 118 Nev. 351, 353, 46 P.3d 1228, 1229 (2002); see Hargrove v. State, 100 Nev. 498, 503, 686 P.2d 222, 225 (1984). For the reasons below, we conclude that the district court did not err by dismissing McConnells post-conviction petition without conducting an evidentiary hearing. Claim that Nevadas lethal injection protocol is unconstitutional Relying on the United States Supreme Courts recent decision in Baze v. Rees, McConnell argues that Nevadas lethal injection protocol violates the Eighth Amendment to the United States Constitution because it does not sufficiently safeguard against a substantial risk of serious harm. 553 U.S. 35, 50 (2008) (quoting Farmer v. Brennan, 511 U.S. 825, 842 (1994)). In this, McConnell draws distinctions between the Kentucky protocol upheld in Baze and the protocol used in Nevada. The district court, however, rejected the

July 2009]

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247

claim without an evidentiary hearing after concluding that a postconviction petition for a writ of habeas corpus is not the proper forum to raise a challenge to Nevadas lethal injection protocol because by law this type of petition is used solely to attack a judgment or sentence.1
[Headnotes 1, 2]

Whether a claim challenging the constitutionality of Nevadas lethal injection protocol is cognizable in a post-conviction habeas petition is an issue of first impression for this court. Because a postconviction petition for a writ of habeas corpus filed pursuant to NRS Chapter 34 is a creature of statute, see Hill v. Warden, 96 Nev. 38, 40, 604 P.2d 807, 808 (1980), our resolution of the issue involves statutory interpretation. When interpreting a statute, this courts goal is to determine the Legislatures intent in enacting the statute. Moore v. State, 117 Nev. 659, 661, 27 P.3d 447, 449 (2001). Because we presume that the statutes language reflects the Legislatures intent, we must focus on the statutes plain language. Id. As is evident from Nevadas statutory scheme, a post-conviction petition for a writ of habeas corpus is limited in scope. Under NRS 34.720, a post-conviction petition for a writ of habeas corpus is available to address two types of claims: (1) [r]equests [for] relief from a judgment of conviction or sentence in a criminal case and (2) [c]hallenges [to] the computation of time that [the petitioner] has served pursuant to a judgment of conviction. As a challenge to the lethal injection protocol does not implicate the computation of time served, only the first category is at issue. If a claim falls within that category, meaning that it seeks relief from a conviction or sentence, then a post-conviction petition for a writ of habeas corpus is the exclusive remedy.2 NRS 34.724(2)(b) (providing that a
1 The district court further denied this claim as barred by the law-of-the-case doctrine, stating that on direct appeal this court found the death penalty constitutional as applied to McConnell. However, on direct appeal we rejected an argument that Nevadas use of lethal injection is unconstitutional due to the absence of detailed codified guidelines setting forth a protocol for lethal injection. McConnell, 120 Nev. at 1054-57, 102 P.3d at 615-16. McConnell did not challenge, and this court did not address, the constitutionality of the specific protocol used in Nevada. As a result, the district court was incorrect in its conclusion that the claim was barred by the law-of-the-case doctrine. 2 There are two exceptions to this rule of exclusivity: a post-conviction petition for a writ of habeas corpus [i]s not a substitute for and does not affect [1] any remedies which are incident to the proceedings in the trial court or [2] the remedy of direct review of the sentence or conviction. NRS 34.724(2)(a). Under the first exception, this court has recognized four remedies that are incident to the proceedings in the trial court: (1) a motion to correct an illegal sentence, (2) a motion to modify a sentence, (3) a post-conviction motion to withdraw a guilty plea, and (4) a motion for a new trial based on newly discovered evidence. Hart v. State, 116 Nev. 558, 562-63 & n.4, 1 P.3d 969, 971-72 & n.4 (2000); Edwards v. State, 112 Nev. 704, 707, 918 P.2d 321, 323-24 (1996).

248

McConnell v. State

[125 Nev.

post-conviction petition for a writ of habeas corpus [c]omprehends and takes the place of all other common-law, statutory or other remedies which have been available for challenging the validity of the conviction or sentence, and must be used exclusively in place of them). This court has addressed the scope of post-conviction habeas relief in other contexts that provide some guidance. For example, in Bowen v. Warden, this court explained that it has repeatedly held that a petition for writ of habeas corpus may challenge the validity of current confinement, but not the conditions thereof. 100 Nev. 489, 490, 686 P.2d 250, 250 (1984). Accordingly, we have previously determined that challenges to the conditions of confinement, such as placement in punitive segregation, are not cognizable in a post-conviction habeas petition. Id. Consistent with NRS 34.720, the import of Bowen is that a claim that is cognizable in a postconviction habeas petition must challenge the validity of the conviction or sentence. The claim at issue in this case (the constitutionality of the lethal injection protocol) clearly does not involve a challenge to the validity of the conviction. Therefore, we focus on whether the claim challenges the validity of the sentence. The United States Supreme Court has considered a similar question in holding that a challenge to a lethal injection protocol that is not statutorily mandated may be filed in a federal action under 42 U.S.C. 1983. In Hill v. McDonough, 547 U.S. 573, 579 (2006), the Court reasoned that a protocol challenge is more akin to a challenge to the conditions of confinement, which may be brought under 1983, than a challenge to the lawfulness of confinement or its duration, which must be brought in a habeas petition under 28 U.S.C. 2254. The Court explained that the petitioners challenge to the lethal injection protocol would leave the State free to use an alternative lethal injection procedure because state law did not require use of the challenged procedure. Id. at 580-81. As a result, the Court concluded that the claim could proceed under 1983 because granting relief would not imply the unlawfulness of the lethal injection sentence. Id. at 580. The Hill Court, however, did not directly address whether the same challenge would also be cognizable in a federal habeas petition.
[Headnote 3]

In answering that question for purposes of a state habeas petition under NRS Chapter 34, we conclude that a challenge to the lethal injection protocol in Nevada does not implicate the validity of a death sentence because it does not challenge the death sentence itself but seeks to invalidate a particular procedure for carrying out the sentence. In Nevada, the method of executioninjection of a lethal drugis mandated by statute. NRS 176.355(1). But the

July 2009]

McConnell v. State

249

manner in which the lethal injection is carried outthe lethal injection protocolis left by statute to the Director of the Department of Corrections. NRS 176.355(2)(b) (providing that the Director shall [s]elect the drug or combination of drugs to be used for the execution after consulting with the State Health Officer). Because the lethal injection protocol is not mandated by statute, granting relief on a claim that a specific protocol is unconstitutional would not implicate the legal validity of the death sentence itself. Rather, while granting relief on such a claim would preclude the Director from using the particular protocol found to be unconstitutional, the Director would be free to use some other protocol to carry out the death sentence.3 Because McConnells challenge to the lethal injection protocol would not preclude his execution under current law using another protocol, we conclude that the challenge to the lethal injection protocol does not implicate the validity of the death sentence and therefore falls outside the scope of a post-conviction petition for a writ of habeas corpus.4 Accord Ex parte Alba, 256 S.W.3d 682, 685-86 (Tex. Crim. App. 2008) (reasoning that because the specific mixture used for lethal injection is not mandated by statute in Texas and any challenge to the current protocol would not eliminate the petitioners death sentence, challenge to lethal injection protocol was not cognizable in state habeas petition).5 Accordingly, the district court did not err in rejecting this claim without conducting an evidentiary hearing. Claims that challenged the validity of the guilty plea McConnell argues that the district court erred by dismissing his claims that his guilty plea was not entered knowingly and voluntarily. In particular, McConnell claims that his plea was invalid because he was not advised that he was waiving several constitutional rights, that he would be subject to lifetime supervision as a result of the sexual assault conviction, that he was ineligible for probation, and that he would be assessed fees and restitution and because the dis3 As the Supreme Courts decision in Baze demonstrates, there is at least one protocol available that clearly meets constitutional requirements. 4 We are further convinced of this conclusion by two practical considerations. First, a challenge to the lethal injection protocol necessarily seeks injunctive relief against use of the specific protocol, and it is not entirely clear that injunctive relief is available in a post-conviction habeas proceeding under NRS Chapter 34. Second, if the claim is cognizable in a post-conviction petition under NRS Chapter 34, then that is the only remedy available, NRS 34.724(2)(b), and the claim could be procedurally barred for some prisoners under NRS 34.726, NRS 34.800, or NRS 34.810. 5 Our decision today does not leave McConnell without a remedy. For example, as the Supreme Courts decision in Hill makes clear, a challenge to the lethal injection protocol may be brought in an action under 42 U.S.C. 1983.

250

McConnell v. State

[125 Nev.

trict court failed to inquire whether he was under the influence of drugs during the plea canvass.6
[Headnotes 4-6]

A guilty plea is presumptively valid, and McConnell had the burden of establishing that the plea was not entered knowingly and intelligently. Bryant v. State, 102 Nev. 268, 272, 721 P.2d 364, 368 (1986); see also Hubbard v. State, 110 Nev. 671, 675, 877 P.2d 519, 521 (1994). In determining the validity of a guilty plea, the district court must look to the totality of the circumstances. State v. Freese, 116 Nev. 1097, 1105, 13 P.3d 442, 448 (2000); Bryant, 102 Nev. at 272, 721 P.2d at 368. Thus, the failure to utter talismanic phrases will not invalidate a plea where a totality of the circumstances demonstrates that the plea was freely, knowingly and voluntarily made, Freese, 116 Nev. at 1104, 13 P.3d at 447, and that the defendant understood the nature of the offense and the consequences of the plea. See Kidder v. State, 113 Nev. 341, 344, 934 P.2d 254, 256 (1997), overruled on other grounds by Freese, 116 Nev. at 1106 n.7, 13 P.3d at 448 n.7. This court will not reverse a district courts determination concerning the validity of a plea absent a clear abuse of discretion. Hubbard, 110 Nev. at 675, 877 P.2d at 521.
[Headnote 7]

The record in this case demonstrates that McConnells guilty plea was entered knowingly and voluntarily and, therefore, the district court did not abuse its discretion in denying McConnells challenge to his guilty plea. First, events at the Faretta canvass7 that preceded the plea canvass demonstrate McConnells intelligence and awareness of the proceedings, his understanding of his constitutional rights, and that he was adamant about pleading guilty. Second,
6 McConnell also claims that his plea was not entered knowingly and voluntarily because the district court did not advise him during the plea canvass that it had discretionary authority to impose concurrent or consecutive sentences and that a presentence report including his criminal history and hearsay evidence would be prepared before he was sentenced on the kidnapping and sexual assault counts. We conclude that the district court did not abuse its discretion in rejecting these claims as McConnell failed to adequately explain how these omissions rendered his guilty plea involuntary, particularly considering that he faced the death penalty as a result of the plea. McConnell further claims that the plea was invalid under NRS 174.035(7) because it was not memorialized in a written plea agreement. We conclude that this claim lacks merit and therefore the district court did not abuse its discretion in rejecting it. NRS 174.035(7) does not apply here because McConnells guilty plea was not entered pursuant to a plea bargain. Instead, McConnell pleaded guilty to all of the charges without the benefit of plea negotiations with the State, informing the district court that he was pleading guilty, over his prior counsels objections, because of the overwhelming evidence the State possessed and because he wanted to accept responsibility. 7 The district court canvassed McConnell pursuant to Faretta v. California, 422 U.S. 806 (1975), before granting his request to represent himself.

July 2009]

McConnell v. State

251

the district court sufficiently advised McConnell of his constitutional rights during the plea canvass, addressing the right to a jury trial on the issue of guilt, the right to confrontation, the right to crossexamine witnesses, the right to subpoena witnesses, and the right against self-incrimination and also addressing the deadlines for McConnell to pursue an appeal. Third, although McConnell was not advised that lifetime supervision would be a direct consequence of his guilty plea to sexual assault, see Palmer v. State, 118 Nev. 823, 831, 59 P.3d 1192, 1197 (2002), we conclude that the omission did not render the plea invalid given that McConnell was advised that he faced a life sentence for the sexual assault and he therefore was aware that he faced a maximum sentence that was greater than or equal to lifetime supervision plus the sentence imposed, see id. at 829 n.17, 59 P.3d at 1195 n.17; Avery v. State, 122 Nev. 278, 284, 129 P.3d 664, 668 (2006). Fourth, although the district court did not inform McConnell during the plea canvass that he was ineligible for probation,8 it is apparent from the totality of the circumstances that McConnell was aware that probation was not a sentencing option. See Avery, 122 Nev. at 284-85, 129 P.3d at 668 (concluding that guilty plea was voluntary although district court did not specifically inform defendant of minimum term where district court advised defendant that maximum punishment was life in prison with possibility of parole after 20 years). In particular, McConnell was aware that he faced a death sentence. Fifth, although the district court did not inform McConnell during the plea canvass that he would be assessed fees and restitution as a consequence of his guilty plea,9 we conclude that this omission did not render the plea unknowing or involuntary given the totality of the circumstances demonstrating that McConnell understood the consequences of his guilty plea. And sixth, although the district court did not ask McConnell during the plea canvass whether he was under the influence of drugs, the totality of the circumstances demonstrate that McConnell was not under the influence of drugs at the time. In particular, the plea canvass followed a thorough Faretta canvass during which McConnell informed the district court that he was not taking any medication and was not under the influence of drugs or alcohol. Given the totality of the circum8 This courts prior decisions require that when an offense does not allow for probation, the district judge has a duty to insure that the record discloses that the defendant is aware of that fact. Riker v. State, 111 Nev. 1316, 1322-23, 905 P.2d 706, 710 (1995) (quoting Meyer v. State, 95 Nev. 885, 887, 603 P.2d 1066, 1067 (1979), overruled on other grounds by Little v. Warden, 117 Nev. 845, 34 P.3d 540 (2001)). 9 This courts prior decisions indicate that restitution is a direct consequence of a guilty plea and therefore a defendant must be informed of the possibility of restitution to ensure that the defendant understands the consequences of the plea. See Lee v. State, 115 Nev. 207, 209-10, 985 P.2d 164, 166 (1999); Cruzado v. State, 110 Nev. 745, 747, 879 P.2d 1195, 1196 (1994), overruled on other grounds by Lee, 115 Nev. 207, 985 P.2d 164.

252

McConnell v. State

[125 Nev.

stances demonstrating a knowing and voluntary plea, the district court did not abuse its discretion in rejecting McConnells challenges to the validity of his guilty plea.10 Claims of ineffective assistance of counsel
[Headnotes 8-11]

McConnell contends that the district court erred in dismissing his claims that trial and appellate counsel provided ineffective assistance of counsel. A claim that counsel provided constitutionally inadequate representation is subject to the two-part test established by the Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). To prevail on a claim of ineffective assistance of trial or appellate counsel, a defendant must demonstrate (1) that counsels performance was deficient and (2) that counsels deficient performance prejudiced the defense. Id. at 687. A court need not consider both prongs of the Strickland test if a defendant makes an insufficient showing on either prong. Id. at 697. A claim of ineffective assistance of counsel presents a mixed question of law and fact, subject to independent review. Evans v. State, 117 Nev. 609, 622, 28 P.3d 498, 508 (2001). Ineffective assistance of trial counsel
[Headnotes 12, 13]

McConnell contends that his standby defense counsel provided ineffective assistance by permitting him to plead straight-up while a discovery request was pending, demonstrating that standby counsel had not properly investigated and was not prepared. To establish prejudice resulting from trial counsels inaction or omission, a defendant who pleaded guilty must demonstrate a reasonable probability that he would not have pleaded guilty and would have insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 59 (1985); Kirksey v. State, 112 Nev. 980, 988, 923 P.2d 1102, 1107 (1996). The defendant carries the affirmative burden of establishing prejudice. Riley v. State, 110 Nev. 638, 646, 878 P.2d 272, 278 (1994). We conclude that McConnells claim has no merit for three reasons.
[Headnote 14]

First, McConnell waived his right to counsel and chose to represent himself. Therefore, he did not have a constitutional right to the effective assistance of standby counsel. See Harris v. State, 113 Nev. 799, 804, 942 P.2d 151, 155 (1997) (holding that defendant does not have right to advisory counsel); see also Faretta v. California,
10 To the extent that McConnell claims that appellate counsel was ineffective for failing to challenge the validity of his guilty plea on appeal, this claim lacks merit because he cannot do so. See Bryant v. State, 102 Nev. 268, 272, 721 P.2d 364, 367-68 (1986).

July 2009]

McConnell v. State

253

422 U.S. 806, 835 (1975) (When an accused manages his own defense, he relinquishes, as a purely factual matter, many of the traditional benefits associated with the right to counsel.).
[Headnote 15]

Second, McConnell stated during the plea canvass that he was pleading guilty against the advice of counsel. Although counsel certainly owes a duty to advise his client whether to plead guilty, counsel does not have the authority to override a defendants decision to plead guilty. That decision is reserved to the client. RPC 1.2 (providing that [i]n a criminal case, the lawyer shall abide by the clients decision, after consultation with the lawyer, as to a plea to be entered).
[Headnote 16]

Third, McConnell did not specify in his petition what discovery was outstanding and how that discovery would have convinced him not to plead guilty and proceed to trial. And during McConnells Faretta canvass, he complimented his attorneys performance, stating that theyre great attorneys, all of them. And I have to say I am impressed . . . these people actually care. And theyre against the death penalty, and they believe in something. Under the circumstances, McConnell cannot meet his affirmative burden of establishing prejudicethat but for standby counsels alleged error in allowing him to plead guilty while a discovery request was pending, he would not have pleaded guilty and would have insisted on going to trial. Ineffective assistance of appellate counsel
[Headnotes 17, 18]

McConnell argues that the district court erred in dismissing his claim that appellate counsel was ineffective for failing to raise several issues. To state a claim of ineffective assistance of appellate counsel, a petitioner must demonstrate that counsels performance was deficient in that it fell below an objective standard of reasonableness, and resulting prejudice such that the omitted issue would have had a reasonable probability of success on appeal. Kirksey, 112 Nev. at 998, 923 P.2d at 1113-14. Appellate counsel is not required to raise every nonfrivolous issue on appeal. Jones v. Barnes, 463 U.S. 745, 751 (1983). Rather, this court has held that appellate counsel will be most effective when every conceivable issue is not raised on appeal. Ford v. State, 105 Nev. 850, 853, 784 P.2d 951, 953 (1989). Jury instruction on weighing aggravating and mitigating factors McConnell argues that the district court erred in rejecting his ineffective-assistance claim based on appellate counsels failure to

254

McConnell v. State

[125 Nev.

argue that the district court should have instructed the sentencing jury that the aggravating factors had to outweigh the mitigating factors beyond a reasonable doubt before it could impose death. We conclude that this ineffective-assistance claim lacks merit because the underlying legal argument would not have had a reasonable probability of success on appeal. Nevada statutes do not impose the burden suggested by McConnells claim. Two specific provisions are relevant. First, NRS 200.030(4)(a), which outlines the range of punishment for a firstdegree murder conviction, provides that death can be imposed only if . . . any mitigating circumstance or circumstances which are found do not outweigh the aggravating circumstance or circumstances. Second, NRS 175.554(3), which addresses jury instructions, determinations, findings, and the verdict, states that [t]he jury may impose a sentence of death only if it finds at least one aggravating circumstance and further finds that there are no mitigating circumstances sufficient to outweigh the aggravating circumstance or circumstances found. Nothing in the plain language of these provisions requires a jury to find, or the State to prove, beyond a reasonable doubt that no mitigating circumstances outweighed the aggravating circumstances in order to impose the death penalty. Similarly, this court has imposed no such requirement. In DePasquale v. State, we rejected an invitation to overturn previously established caselaw and require the State to prove beyond a reasonable doubt that aggravating circumstances outweigh mitigating circumstances. 106 Nev. 843, 852, 803 P.2d 218, 223 (1990); accord Harris v. Pulley, 692 F.2d 1189, 1195 (9th Cir. 1982) (noting that United States Supreme Court has never stated that beyond-areasonable-doubt standard is required when determining whether death penalty is imposed), revd on other grounds, 465 U.S. 37 (1984); Gerlaugh v. Lewis, 898 F. Supp. 1388, 1421 (D. Ariz. 1995) (holding that jury need not be instructed how to weigh any particular fact in the capital sentencing decision (quoting Tuilaepa v. California, 512 U.S. 967, 979 (1994)). As the United States Supreme Court has stated, the jurys decision whether to impose a sentence of death is a moral decision that is not susceptible to proof. Penry v. Lynaugh, 492 U.S. 302, 319 (1989), abrogated on other grounds by Atkins v. Virginia, 536 U.S. 304 (2002); Caldwell v. Mississippi, 472 U.S. 320, 340 n.7 (1985) (quoting Zant v. Stephens, 462 U.S. 862, 901 (1983)). Because McConnell failed to demonstrate that this juryinstruction issue would have had a reasonable probability of success on appeal, we conclude that the district court did not err in rejecting McConnells ineffective-assistance claim without conducting an evidentiary hearing.

July 2009]

McConnell v. State

255

Mandatory review of death sentences McConnell contends that the district court erred in rejecting his ineffective-assistance claim based on appellate counsels failure to argue that this court has not articulated any standards for its mandatory review of death sentences pursuant to NRS 177.055(2).11 Citing Dennis v. State, 116 Nev. 1075, 13 P.3d 434 (2000), McConnell claims that the only guidance this court uses is the following question: [A]re the crime and defendant before us on appeal of the class or kind that warrants the imposition of death? Id. at 1085, 13 P.3d at 440. McConnell argues that without standards, he was unable to litigate on direct appeal the issue of whether his sentence was excessive and that that deprivation prejudiced him because he was unable to show that his case was no more egregious than cases in which the death penalty was not imposed.
[Headnote 19]

In Dennis, this court explained that, although we no longer conduct proportionality review of death sentences,12 our consideration of the death sentences of similarly situated defendants may serve as a frame of reference for determining the crucial issue in the excessiveness analysis under NRS 177.055(2). 116 Nev. at 1085, 13 P.3d at 440. When considering whether the death penalty is excessive, this court looks to whether various other objective factors are present, such as whether alcohol or drugs influenced the crime, the treatment of codefendants, and the defendants mental state, prior history of violence, and age. Rhyne v. State, 118 Nev. 1, 16, 38 P.3d 163, 173 (2002). In other words, this court considers the totality of the circumstances surrounding the defendant and the crime in making a determination of excessiveness. Id. McConnell fails to specify how he would have benefited by more specific standards applied by this court in determining whether his sentence was excessive or that this court improperly concluded that his death sentence was not excessive. In particular, we observed
11 NRS 177.055(2) provides, in pertinent part, that this court must review every death sentence and consider: (c) Whether the evidence supports the finding of an aggravating circumstance or circumstances; (d) Whether the sentence of death was imposed under the influence of passion, prejudice or any arbitrary factor; and (e) Whether the sentence of death is excessive, considering both the crime and the defendant. 12 A prior version of NRS 177.055(2) required this court to conduct a proportionality review of death sentences. 1985 Nev. Stat., ch. 527, 1, at 159798. The Legislature repealed that requirement in 1985. See, e.g., Thomas v. State, 114 Nev. 1127, 1148, 967 P.2d 1111, 1125 (1998); Guy v. State, 108 Nev. 770, 784, 839 P.2d 578, 587 (1992).

256

McConnell v. State

[125 Nev.

in McConnells direct appeal that he murdered Pierce with a shocking degree of deliberation and premeditation and without any comprehensible provocation and that [h]e presented no compelling mitigating evidence. McConnell v. State, 120 Nev. 1043, 1073, 102 P.3d 606, 627 (2004). We thoroughly considered whether McConnells character and the crime warranted the imposition of death. Therefore, we conclude that McConnell failed to demonstrate that this claim had a reasonable probability of success on appeal and, as a result, the district court did not err in rejecting this ineffective-assistance claim without conducting an evidentiary hearing. Elected judges
[Headnote 20]

McConnell contends that the district court erred in rejecting his ineffective-assistance claim based on appellate counsels failure to argue that it was prejudicial to have elected judges and justices preside over his trial and appellate review because elected judges are beholden to the electorate and therefore cannot be impartial. We conclude that this claim fails for two reasons. First, McConnell failed to substantiate this claim with any specific factual allegations demonstrating actual judicial bias. Second, we conclude that his argument is unpersuasive and would not have had a reasonable probability of success on appeal. See Nevius v. Warden, 113 Nev. 1085, 1086-87, 944 P.2d 858, 859 (1997) (denying disqualification of supreme court justice where justice commented during election campaign that he favored death penalty in appropriate cases and had voted to uphold death penalty 76 times). Because this omitted issue had no reasonable probability of success on appeal, McConnell cannot demonstrate that appellate counsel provided ineffective assistance in this respect. The district court therefore did not err in rejecting this ineffective-assistance claim without conducting an evidentiary hearing. Death-qualified jury McConnell next argues that the district court erred in rejecting his ineffective-assistance claim based on appellate counsels failure to argue that jury selection was unfairly limited to those jurors who were death qualified.13 Even assuming that the jurors identified by McConnell were dismissed because they were unwilling to impose a death sentence, there was no error. This court and the United States
13 We note that McConnell provided only partial transcripts of the voir dire. The burden is on the appellant to provide this court with an adequate record enabling this court to review assignments of error. Greene v. State, 96 Nev. 555, 558, 612 P.2d 686, 688 (1980); Lee v. Sheriff, 85 Nev. 379, 380, 455 P.2d 623, 624 (1969).

July 2009]

McConnell v. State

257

Supreme Court have determined that death qualification of a jury is not an unconstitutional practice. See, e.g., Buchanan v. Kentucky, 483 U.S. 402, 416, 420 (1987); Lockhart v. McCree, 476 U.S. 162, 173 (1986); Aesoph v. State, 102 Nev. 316, 317-19, 721 P.2d 379, 380-81 (1986); McKenna v. State, 101 Nev. 338, 342-44, 705 P.2d 614, 617-18 (1985). Additionally, since McConnells jury was chosen only for the penalty hearing, the jury was required to be death qualified to ensure that they could follow the law and perform their duty as jurors. See Buchanan, 483 U.S. at 415-16. Because there was no error in death qualifying the jury, McConnell cannot demonstrate that appellate counsel was ineffective for failing to raise the issue. Thus, the district court did not err in rejecting this ineffectiveassistance claim without conducting an evidentiary hearing. Application of the McConnell rule McConnell next claims the district court erred in dismissing his ineffective-assistance claim based on appellate counsels failure to argue that two of the aggravating circumstances were improperly based upon the predicate felony alleged in support of the States felony-murder theory. This claim is belied by the record in that appellate counsel did raise this issue on direct appealit was the focus of this courts decision in the direct appeal. See McConnell v. State, 120 Nev. 1043, 102 P.3d 606 (2004). Because the claim is belied by the record, the district court properly rejected it without conducting an evidentiary hearing. McConnell nonetheless argues that this court should review this claim because it is warranted. In particular, McConnell argues that this courts holding in his direct appeal was erroneous because he did not make any factual admissions when he entered his guilty plea that would support the conclusion that he pleaded guilty to willful, deliberate, and premeditated murder rather than felony murder, and this court erred by basing its contrary conclusion in part on his testimony during the penalty hearing. Relying on Means v. State, 120 Nev. 1001, 103 P.3d 25 (2004), McConnell argues that admissions which come later in time than the entry of the plea are not sufficient to cure a deficiency with the plea itself.14 But unlike in Means, the issue we considered in McConnells direct appeal did not involve the validity of the guilty plea but rather the theory upon which the first-degree murder con14 In Means, we held that because Means had signed his plea agreement three months after his plea canvass and the district court failed to inform him during the plea canvass that lifetime supervision was a consequence of his guilty plea, the record did not belie Meanss claim that he was unaware that lifetime supervision was a direct consequence of his plea. 120 Nev. at 1017-18, 103 P.3d at 36. We therefore concluded that the district court erred by denying Meanss claim that his plea was invalid without conducting an evidentiary hearing.

258

McConnell v. State

[125 Nev.

viction was based. McConnell has not cited any relevant legal authority to undermine our analysis on direct appeal. We therefore are not persuaded to revisit the law of the case on this matter, as established on direct appeal.15 See Pellegrini v. State, 117 Nev. 860, 885, 34 P.3d 519, 535-36 (2001) (indicating that despite law-of-the-case doctrine, appellate court has limited discretion to revisit the wisdom of its legal conclusions when it determines that further discussion is warranted). Direct appeal claims
[Headnote 21]

McConnell contends that the district court erred in dismissing the following claims without conducting an evidentiary hearing: (1) the jury should have been instructed that it had to find that the aggravating factors outweighed the mitigating factors beyond a reasonable doubt before it could return with a sentence of death, (2) this court has not articulated standards for its mandatory excessiveness review, (3) it was prejudicial to have elected judges and justices preside over his penalty hearing and appellate review, (4) the aggravating circumstances were improperly based upon the predicate felony alleged in support of the States felony-murder theory, (5) the jury selection was unfairly limited to those jurors who were death qualified, (6) the district court erred in allowing venire members to be dismissed on the basis that they had reservations regarding the death penalty, (7) the death penalty is unconstitutional,16 and (8) the death sentence is invalid because he may become incompetent to be executed. These claims should have been raised on direct appeal and thus are procedurally barred under NRS 34.810 absent a showing of good cause and prejudice. McConnell did not attempt to demonstrate good cause, and he failed to demonstrate that dismissal of these claims resulted in prejudice. Thus, we conclude that the district court did not err in dismissing these claims.
15 The State in its brief on appeal argues that McConnell was wrongly decided and should be overturned. This court considered and rejected the same challenges to McConnell in State v. Harte, 124 Nev. 969, 194 P.3d 1263 (2008), cert. denied, 129 S. Ct. 2431 (2009). We decline to revisit the issue. 16 McConnell argues that the death penalty is unconstitutional on the grounds that it (1) is a wanton and arbitrary infliction of pain, (2) is unacceptable under current American standards of human decency, (3) deprives persons of the fundamental right to life without a compelling justification, (4) is cruel and unusual, (5) violates international law, (6) presents the risk of executing an innocent person, (7) undermines the underlying goals of the capital sanction by executing a rehabilitated person, and (8) allows district attorneys to select capital defendants and therefore results in arbitrary, inconsistent, and discriminatory selections.

July 2009]

McConnell v. State

259

Cumulative error McConnell claims that all the alleged errors raised in this appeal considered cumulatively rendered his conviction and sentence unfair. McConnell uses the cumulative-error standard that this court applies on direct appeal from a judgment of conviction. See, e.g., Hernandez v. State, 118 Nev. 513, 535, 50 P.3d 1100, 1115 (2002) (The cumulative effect of errors may violate a defendants constitutional right to a fair trial even though errors are harmless individually.). We are not convinced that that is the correct standard, but assuming that it is, McConnell has not asserted any meritorious claims of error and therefore there is nothing to cumulate.17 We therefore conclude that the district court did not err in dismissing this claim. CONCLUSION The district court did not err in dismissing McConnells postconviction petition without conducting an evidentiary hearing. With respect to the constitutional challenge to Nevadas lethal injection protocol, we agree with the district court that such a challenge is not cognizable in a post-conviction petition for a writ of habeas corpus under NRS Chapter 34 because it does not implicate the validity of the death sentence itself. Accordingly, we affirm the judgment of the district court.
17 We acknowledge that some courts have taken an approach similar to cumulative error in addressing ineffective-assistance claims, holding that multiple deficiencies in counsels performance may be cumulated for purposes of the prejudice prong of the Strickland test when the individual deficiencies otherwise would not meet the prejudice prong. See, e.g., Harris by and through Ramseyer v. Wood, 64 F.3d 1432, 1438 (9th Cir. 1995) (stating that prejudice may result from the cumulative impact of multiple deficiencies (quoting Cooper v. Fitzharris, 586 F.2d 1325, 1333 (9th Cir. 1978))); Schofield v. Holsey, 642 S.E.2d 56, 60 n.1 (Ga. 2007), cert. denied, 552 U.S. 1070 (2007); State v. Thiel, 665 N.W.2d 305, 323 (Wis. 2003) (stating that it need not look at the prejudice of each deficient act or omission in isolation, because we conclude that the cumulative effect undermines our confidence in the outcome of the trial). But see Lee v. Lockhart, 754 F.2d 277, 279 (8th Cir. 1985) (reasoning that [e]ach claim of a constitutional deprivation asserted in a petition for federal habeas corpus must stand on its own, or, as here, fall on its own); Byrd v. Armontrout, 686 F. Supp. 743, 784 (E.D. Mo. 1988) (same). Assuming that multiple claims of constitutionally deficient counsel may be cumulated to demonstrate prejudice, we conclude that McConnell still would not be entitled to relief.

260

Funderburk v. State

[125 Nev.

SAMAJA FUNDERBURK, AKA SAMAJA ELVIS FUNDER BURK, APPELLANT, v. THE STATE OF NEVADA, RESPONDENT.
No. 49198 July 30, 2009 212 P.3d 337

Appeal from a judgment of conviction, upon a jury verdict, of two counts of burglary while in possession of a deadly weapon, two counts of conspiracy to commit robbery, and four counts of robbery with use of a deadly weapon. Eighth Judicial District Court, Clark County; Sally L. Loehrer, Judge. The supreme court, HARDESTY, C.J., held that definitions in deadly weapon enhancement statute were instructive in determining what constituted a deadly weapon for purposes of burglary-while-inpossession-of-a-deadly-weapon statute. Affirmed. Amesbury & Schutt and John P. Parris, David C. Amesbury, and Sandra L. Stewart, Las Vegas, for Appellant. Catherine Cortez Masto, Attorney General, Carson City; David J. Roger, District Attorney, Steven S. Owens and Nancy A. Becker, Chief Deputy District Attorneys, and Danielle K. Pieper, Deputy District Attorney, Clark County, for Respondent.
1. CRIMINAL LAW. The supreme court reviews a district courts decision settling jury instructions for an abuse of discretion or judicial error; however, whether the instruction was an accurate statement of the law is a legal question that is reviewed de novo. 2. STATUTES. When a statute or one of its provisions is uncertain, the supreme court will look to the intent of the Legislature; moreover, it will construe the statute in a manner which avoids unreasonable results. 3. BURGLARY. Legislature intended the term deadly weapon to have broad applicability when it drafted statute governing burglary while in possession of a deadly weapon, and thus, definitions in deadly weapon enhancement statute were instructive to determine what constituted a deadly weapon in burglary statute; Legislature did not define deadly weapon in amendments to burglary statute. NRS 193.165(6), 205.060(4). 4. BURGLARY. BB gun was a deadly weapon within meaning of burglary-while-inpossession-of-a-deadly-weapon statute. NRS 193.165(6)(c), 202.265(5)(b), 205.060(4).

Before the Court EN BANC.

July 2009]

Funderburk v. State OPINION

261

By the Court, HARDESTY, C.J.: In this appeal, we address an issue of first impression: whether the definitions of deadly weapon set forth in NRS 193.165(6) are instructive on what constitutes a deadly weapon for burglary while in possession of a deadly weapon under NRS 205.060(4). Because the Legislature intended the definition of deadly weapon to be broad for purposes of NRS 205.060(4), we conclude that NRS 193.165(6)s definitions are instructive for determining whether a weapon is a deadly weapon for purposes of NRS 205.060(4). Therefore, we determine that the district court did not err by instructing the jury that a BB gun constitutes a firearm, as defined in NRS 202.265(5)(b),1 a statute referenced in NRS 193.165(6)(c). FACTS AND PROCEDURAL HISTORY On the evening of December 20, 2005, Samaja Funderburk and his co-assailant, Tucker Allen, entered a Burger King wearing hooded sweatshirts and masks over their faces. At least one of the men was carrying a gunwhich was later determined to be a BB gun. After taking all of the cash and coin out of the safe, Funderburk and Allen instructed the employees to enter the walk-in refrigerator. After waiting for the assailants to leave, the employees exited the walk-in refrigerator and contacted the police. On the evening of December 30, 2005, Funderburk and Allen, dressed in heavy winter clothing and ski masks, entered a McDonalds with a BB gun. Allen pointed the gun at the employees and said, You know what this ismeaning a robbery. After Funderburk and Allen emptied the registers and the safe, they left the establishment. The police were waiting outside and took both men into custody. Funderburk and Allen were subsequently tried. On the final day of trial, the district court instructed the jury on Funderburks robbery-with-the-use-of-a-deadly-weapon and burglary-whilein-possession-of-a-deadly-weapon charges. Jury Instruction No. 10 addressed the definition of a deadly weapon under the robbery and burglary charges: You are instructed that . . . Firearm includes: ....
1 NRS 202.265(5)(b) defines firearm as includ[ing] any device from which a metallic projectile, including any ball bearing or pellet, may be expelled by means of spring, gas, air or other force.

262

Funderburk v. State

[125 Nev.

3. Any device from which a metallic projectile, including any ball bearing or pellet, may be expelled by means of spring, gas, air or other force. See NRS 202.265(5)(b). The jury convicted Funderburk of various charges, including two counts of burglary while in possession of a deadly weapon under NRS 205.060(4). Funderburk challenges the deadly weapon element of his burglary-while-in-possession-of-adeadly-weapon convictions. DISCUSSION Funderburk contends that the district court erred by applying one of NRS 193.165(6)s definitions of deadly weapon to his burglary-while-in-possession-of-a-deadly-weapon charges.2 Specifically, Funderburk claims that applying NRS 193.165(6)s definitions to his burglary charges contradicts the Legislatures intent because burglary, unlike other crimes such as robbery or murder, is not referenced in NRS 193.165, and the burglary statute instead has its own provision in NRS 205.060(4) that allows for an increased sentence when a person possesses a deadly weapon during the commission of a burglary.3 We disagree and conclude that the Legislature intended the definition of deadly weapon to be broad for purposes of determining whether a defendant committed burglary while in possession of a deadly weapon under NRS 205.060(4). As a result, we are convinced that the district court did not err by instructing the jury on a definition set forth in NRS 193.165(6)(c) for Funderburks burglary-while-in-possession-of-a-deadly-weapon charges.4
NRS 193.165(6) provides: As used in this section, deadly weapon means: (a) Any instrument which, if used in the ordinary manner contemplated by its design and construction, will or is likely to cause substantial bodily harm or death; (b) Any weapon, device, instrument, material or substance which, under the circumstances in which it is used, attempted to be used or threatened to be used, is readily capable of causing substantial bodily harm or death; or (c) A dangerous or deadly weapon specifically described in NRS 202.255, 202.265, 202.290, 202.320 or 202.350. 3 NRS 205.060(4) provides: A person convicted of burglary who has in his possession or gains possession of any firearm or deadly weapon at any time during the commission of the crime, at any time before leaving the structure or upon leaving the structure, is guilty of a category B felony and shall be punished by imprisonment in the state prison for a minimum term of not less than 2 years and a maximum term of not more than 15 years, and may be further punished by a fine of not more than $10,000. 4 Funderburk also asserts that NRS 193.165(6)s definitions of deadly weapon are not applicable to his burglary charges because NRS 193.165 provides that its provisions (including its definitions) are not applicable to crimes
2

July 2009]

Funderburk v. State

263

Standard of review
[Headnote 1]

This court reviews a district courts decision settling jury instructions for an abuse of discretion or judicial error, Brooks v. State, 124 Nev. 203, 206, 180 P.3d 657, 658-59 (2008); however, whether the instruction was an accurate statement of the law is a legal question that is reviewed de novo. Nay v. State, 123 Nev. 326, 330, 167 P.3d 430, 433 (2007).
[Headnote 2]

This court has stated that a criminal statute must be strictly construed against the imposition of a penalty when it is uncertain or ambiguous. Zgombic v. State, 106 Nev. 571, 575, 798 P.2d 548, 551 (1990), superseded by statute, 1995 Nev. Stat., ch. 455, 1, at 1431, as recognized in Steese v. State, 114 Nev. 479, 499 n.6, 960 P.2d 321, 334 n.6 (1998). When a statute or one of its provisions is uncertain, this court will look to the intent of the Legislature. Id. Moreover, this court will construe the statute in a manner which avoids unreasonable results. Id. Legislative intent
[Headnote 3]

When the Legislature drafted NRS 205.060 in 1967, it did not include a deadly weapon enhancement provision. See 1967 Nev. Stat., ch. 211, 138, at 494. Nonetheless, lower courts began enhancing burglary sentences under NRS 193.165 when the defendant possessed a deadly weapon during the commission of the burglary. See Carr v. Sheriff, 95 Nev. 688, 601 P.2d 422 (1979); see also Frost v. Sheriff, 95 Nev. 781, 602 P.2d 193 (1979). In response, this court addressed whether burglary sentences could be enhanced under NRS 193.165 for a defendants use of a deadly weapon. In Carr, this court noted that NRS 193.165 authorizes a sentence enhancement if the defendant uses a . . . deadly weapon in the commission of a crime. 95 Nev. at 690 n.2, 601 P.2d at 424 n.2 (quoting NRS 193.165(1)). This court concluded that because [t]he offense of burglary is complete when the house or other building is entered with the specific intent designated in the statute[,] . . . [the] commission of the burglary . . . could not have been perpetrated with the use of a deadly weapon as contemplated by NRS 193.165. Id. at 689-90, 601 P.2d at 423-24 (citations omitted); see also Frost, 95 Nev. at 782, 602 P.2d at 194 (because burglary is complete upon
that require a deadly weapon as an element of the crime. Moreover, according to Funderburk, the district courts use of NRS 202.265(5)(b)s definition of firearm was error because NRS 202.265(5) specifically states that its definitions relate only to the term as used in that statute. After careful consideration, we conclude that these claims are without merit.

264

Funderburk v. State

[125 Nev.

entry of the dwelling, appellant could not have used [the weapon] in the commission of the burglary). Thus, under these holdings, a defendants burglary sentence could not be enhanced if the defendant possessed a deadly weapon during the commission of the crime. Nearly a decade after this court established that burglary sentences could not be enhanced under NRS 193.165, this court addressed what constituted a deadly weapon under NRS 193.165. Clem v. State, 104 Nev. 351, 760 P.2d 103 (1988), overruled by Zgombic, 106 Nev. 571, 789 P.2d 548. In Clem v. State, this court adopted the broadly applicable functional test for determining whether an instrument constituted a deadly weapon under NRS 193.165. Id. at 357, 760 P.2d at 106-07. Under the functional test, this court would look to how an instrument is used and the facts and circumstances of its use. Id. at 357, 760 P.2d at 106. After this court determined that burglary sentences could not be enhanced under NRS 193.165, see Carr, 95 Nev. at 689-90, 601 P.2d at 423-24, and shortly after this court adopted the broad functional test, the Legislature amended NRS 205.060 to include an increased sentencing range when a person has possession or gains possession of a deadly weapon during a burglary. 1989 Nev. Stat., ch. 568, 1, at 1207. The Legislature, however, failed to define that term in the statute. See id. Additionally, there was no discussion during consideration of the amendment as to what constituted a deadly weapon for purposes of the increased sentencing range. See, e.g., Hearing on A.B. 592 Before the Assembly Comm. on Judiciary, 65th Leg. (Nev., April 25, 1989); Hearing on A.B. 592 Before the Senate Comm. on Judiciary, 65th Leg. (Nev., June 13, 1989). Yet, the caselaw existent at the time that the Legislature amended NRS 205.060 demonstrates that the Legislature intended the new armed burglary provision to have broad applicability in terms of what constitutes a deadly weapon. Although the applicability of NRS 193.165(6)s definitions was not at issue during the 1989 drafting of the armed burglary provision (because the Legislature did not add those definitions to NRS 193.165 until 1995, see 1995 Nev. Stat., ch. 455, 1, at 1431), we determine that the existence of the Clem decision had considerable influence on the Legislatures enactment of the 1989 statute. Clems functional test was the applicable law to determine whether an instrument was a deadly weapon at the time that the Legislature adopted the armed burglary provision. Therefore, because the Clem functional test was the test for determining what constituted a deadly weapon, we must assume that the Legislature drafted the armed burglary provision with that broad definition in mind. Studebaker Co. v. Witcher, 44 Nev. 442, 450, 195 P. 334, 336 (1921) (It must be presumed that the [L]egislature of this state, when it

July 2009]

Berry v. State

265

enacted the statute . . . had knowledge of the state of the law in regard to the subject-matter involved.). And, because the Legislature did not define deadly weapon in its amendments to NRS 205.060, we conclude that the Legislature intended the term to have broad applicability.
[Headnote 4]

As a result, we conclude that, based on the Legislatures intent, the definitions set forth in NRS 193.165(6) are instructive to determine what constitutes a deadly weapon under NRS 205.060(4). Therefore, we determine that the district court did not err by instructing the jury that a BB gun is a deadly weapon as it constitutes a firearm under NRS 202.265(5)(b), a statute referenced in NRS 193.165(6)(c).5 CONCLUSION We conclude that NRS 193.165(6)s definitions are instructive for determining what constitutes a deadly weapon for enhancement purposes under NRS 205.060(4). Further, we determine that the district court did not err by instructing the jury on the definition of a firearm, as defined in NRS 202.265(5)(b), a statute referenced in NRS 193.165(6)(c). Accordingly, we affirm the judgment of conviction. PARRAGUIRRE, DOUGLAS, CHERRY, SAITTA, GIBBONS, and PICKERING, JJ., concur.

DURAND EUGENE BERRY, APPELLANT, v. THE STATE OF NEV ADA, RESPONDENT.

No. 49709 July 30, 2009 212 P.3d 1085

Appeal from a judgment of conviction, upon a jury verdict, of burglary while in possession of a deadly weapon, robbery with use of a deadly weapon, and one count of open and gross lewdness. Eighth Judicial District Court, Clark County; Valerie Adair, Judge.
5 Additionally, Funderburk alleges that the State failed to present sufficient evidence to support his conviction of robbery with the use of a deadly weapon regarding count 10. Having carefully reviewed this contention, we conclude that it does not warrant reversal. See Brooks v. State, 124 Nev. 203, 210, 180 P.3d 657, 661 (2008) (stating that a defendant uses a deadly weapon and is subject to an additional sentence when (1) the defendant is liable as a principal for the offense, (2) another principal used a deadly weapon during the commission of the crime, and (3) the defendant knew that the other used a deadly weapon).

266

Berry v. State

[125 Nev.

The supreme court, HARDESTY, C.J., held that: (1) district court did not err by instructing jury on definition of firearm found in statute prohibiting weapons on school property; (2) if trier of fact finds that weapons capabilities are established by its design, not its operability, then weapon meets the definition of deadly weapon for purposes of statute providing additional penalty for offenders who use deadly weapon during crime; (3) evidence was insufficient to support defendants deadly weapon enhancements; and (4) statute providing that person who commits any act of open or gross lewdness is guilty, for the first offense, of a gross misdemeanor, was not unconstitutionally vague. Affirmed in part, reversed in part, and remanded with instructions. Philip J. Kohn, Public Defender, and Lauren Diefenbach and Nancy Lemcke, Deputy Public Defenders, Clark County, for Appellant. Catherine Cortez Masto, Attorney General, Carson City; David J. Roger, District Attorney, Steven S. Owens, Chief Deputy District Attorney, and Ercan E. Iscan, Deputy District Attorney, Clark County, for Respondent.
1. CRIMINAL LAW. Supreme court generally reviews a district courts decision settling jury instructions for an abuse of discretion or judicial error. 2. CRIMINAL LAW. Whether a jury instruction was an accurate statement of the law is a legal question subject to de novo review. 3. CRIMINAL LAW. Supreme court reviews the legal accuracy of the trial courts instructions de novo. 4. CRIMINAL LAW. Because list of weapons in statute prohibiting possession of dangerous weapon on school property was specifically referenced in statute providing additional penalty for offenders who use deadly weapon during crime as being deadly weapons, the district court did not err by instructing jury on definition of firearm found in statute prohibiting weapons on school property, and similarly, district court did not err by instructing jury on definition of firearm found in dangerous weapons statute, even though defendant was not charged with possession or use of a firearm and this statute was not referenced in statute providing additional penalty for offenders who use deadly weapon during crime. NRS 193.165(6)(c), 202.253(2), 202.265(5)(b). 5. SENTENCING AND PUNISHMENT. Statute provides various definitions of deadly weapon to enhance an offenders sentences for robbery with use of a deadly weapon, and those definitions are also relevant in determining whether a person had possession or gained possession of a deadly weapon during a burglary for purposes of the statutory aggravated sentencing range. NRS 193.165(6), 205.060(4).

July 2009]

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267

6. SENTENCING AND PUNISHMENT. For enhancement purposes, a firearm under statute prohibiting possession of dangerous weapon on property or in vehicle of school or child care facility and defining firearm as including any device from which a metallic projectile may be expelled by means of spring, gas, air, or other force is a deadly weapon. NRS 202.265(5)(b). 7. SENTENCING AND PUNISHMENT. Dangerous-weapons-and-firearms statutes definition of firearm amounts to a deadly weapon under statute that provides various definitions of deadly weapon to enhance an offenders sentence. NRS 193.165(6), 202.253(2). 8. SENTENCING AND PUNISHMENT. Because it is designed to cause substantial bodily harm or death, a device that is constructed to be a weapon and is designed to expel projectiles falls within the purview of the definition of deadly weapon set forth in statute that provides various definitions of deadly weapon to enhance an offenders sentence. NRS 193.165(6)(a). 9. WEAPONS. The limitation as to weapons possessed on school grounds expressed in statute prohibiting possession of dangerous weapon on school property applies only to the crime it creates and does not limit its use as a definition of a deadly weapon. NRS 202.265(5). 10. SENTENCING AND PUNISHMENT. Any weapon that meets the description of firearm in statute prohibiting possession of dangerous weapons on school property supports a deadly weapon finding for purposes of statute providing an additional penalty for offenders who use a deadly weapon during the commission of a crime. NRS 193.165(6), 202.265(5)(b). 11. SENTENCING AND PUNISHMENT. Because the general statutory firearm definition found in dangerous weapon statute applies to all of the laws referenced in enhancement statute that provides an additional penalty for offenders who use a deadly weapon during the commission of a crime, the general definition of firearm is incorporated into the laws that the enhancement statute references and, therefore, that definition is applicable to define a deadly weapon. NRS 193.165(6)(c), 202.253(2). 12. SENTENCING AND PUNISHMENT. Because statute prohibiting possession of dangerous weapon on school property defines firearm as a device from which metal projectile may be expelled by spring, air, gas, or other force, and dangerous weapons statute defines firearm as device from which projectile may be expelled by explosion or combustion, under both definitions, if trier of fact finds that weapons capabilities are established by its design, not its operability, then weapon meets the definition of deadly weapon for purposes of statute providing additional penalty for offenders who use deadly weapon during crime, and thus, whether weapon was unloaded or inoperable at time of the crime is irrelevant. NRS 193.165(6), 202.253(2), 202.265(5)(b). 13. SENTENCING AND PUNISHMENT. A weapon must fall within the definitions set forth in statute providing various definitions of deadly weapon to enhance an offenders sentence in order to uphold a finding that an instrument is a deadly weapon, and if the weapon is not a firearm under the general statutory definition, then the State must prove that the weapon supporting the deadly weapon finding

268

Berry v. State

[125 Nev.

14.

15.

16.

17.

18. 19.

20.

21.

22.

is a deadly weapon as defined in the statute, abrogating Allen v. State, 96 Nev. 334, 609 P.2d 321 (1980), and Anderson v. State, 96 Nev. 633, 614 P.2d 540 (1980). NRS 193.165(6), 202.253(2). SENTENCING AND PUNISHMENT. Whether a weapon was capable of producing reasonable fear is an ancillary consideration when determining whether a weapon is a deadly weapon for purposes of statute providing an additional penalty for offenders who use a deadly weapon during the commission of a crime. NRS 193.165(6). SENTENCING AND PUNISHMENT. The State failed to establish either that toy pellet gun could fire a projectile by the force of an explosion or combustion, or that it was capable of firing a metal projectile, and thus, evidence was insufficient to support defendants deadly weapon enhancements. NRS 193.165(6), 202.253(2), 202.265(5)(b). CRIMINAL LAW. In reviewing the sufficiency of the evidence supporting a jury verdict in a criminal case, supreme court views the evidence in the light most favorable to the verdict and determines whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. CONSTITUTIONAL LAW; LEWDNESS. Because gross and lewdness were terms that conveyed to the average person what conduct was proscribed, statute providing that person who commits any act of open or gross lewdness is guilty, for the first offense, of a gross misdemeanor was not unconstitutionally vague; lewdness had a sufficiently definite meaning, such that the average person would know what kinds of acts were prohibited by statute, and the terms open, gross, and lewdness all had well-defined and well-understood meanings. NRS 201.210. CRIMINAL LAW. Supreme court reviews a challenge to the constitutionality of a statute de novo. CONSTITUTIONAL LAW. Because the court presumes that statutes are constitutional, a party challenging the statute has the burden of making a clear showing of invalidity. CRIMINAL LAW. A statute is void for vagueness, and therefore facially unconstitutional, if the statute both: (1) fails to provide notice sufficient to enable ordinary people to understand what conduct is prohibited; and (2) authorizes or encourages arbitrary and discriminatory enforcement. CRIMINAL LAW. A statute, challenged on void-for-vagueness grounds, will be deemed to give sufficient notice of proscribed conduct when, viewing the context of the entire statute, the words used have a well-settled and ordinarily understood meaning. LEWDNESS. The fact that an act was committed openly was sufficient for the factfinder to conclude that there was a likelihood that the act would be observed and that it would be offensive to observers, and accordingly, the term open was not vague, as used in statute providing that a person who commits any act of open or gross lewdness is guilty, for the first offense, of a gross misdemeanor. NRS 201.210.

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23. LEWDNESS. As used in statute providing that a person who commits any act of open or gross lewdness is guilty, for the first offense, of a gross misdemeanor, the term gross sufficiently informed people what degree of lewdness was prohibited, and the phrase gross lewdness was neither vague nor indefinite; placement of the term gross narrowed the meaning and breadth of lewdness by specifying the degree of lewdness required by the statute, and the statute prohibited lewd acts that were glaringly noticeable or obviously objectionable. NRS 201.210. 24. CRIMINAL LAW. When a criminal defendant fails to object to a district courts action, supreme court reviews the record for plain error only. 25. CRIMINAL LAW. To be plain, an error must be so unmistakable that it is apparent from a casual inspection of the record and the defendant must demonstrate that the error affected his substantial rights. 26. CRIMINAL LAW. Based on the common law definition of open lewdness, and the ordinary meaning of terms in statute providing that person who commits any act of open or gross lewdness is guilty, for the first offense, of a gross misdemeanor, defendant failed to demonstrate that any error in the district courts instruction amounted to plain error affecting his substantial rights; instruction stated that term gross was defined as being indecent, obscene, or vulgar, and instruction defined term lewdness as any act of sexual nature which actor knew was likely to be observed by victim who would be affronted by the act, and courts instruction on word open was in conformity with prior court decisions. NRS 201.210. 27. CRIMINAL LAW. Because defendant failed to object to the district courts jury instructions concerning his open and gross lewdness charges, supreme court would review the adequacy of the district courts instructions for plain error.

Before the Court EN BANC. OPINION By the Court, HARDESTY, C.J.: A jury convicted appellant Durand Eugene Berry of burglary while in possession of a deadly weapon, robbery with use of a deadly weapon, and one count of open and gross lewdness. In this opinion, we address three of the issues Berry raises on appeal and their accompanying subissues. First, we consider Berrys challenges to the district courts jury instructions defining deadly weapon for purposes of the burglary-while-in-possession-of-a-deadly-weapon and robbery-withuse-of-a-deadly-weapon charges. Specifically, we discuss whether the district court erroneously instructed the jury on the meaning of deadly weapon by using NRS 202.265(5)(b)s and NRS 202.253(2)s definitions of firearm. The instruction at issue provided, in pertinent part:

270

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[A] deadly weapon includes: 1. Any device, whether loaded or unloaded, operable or inoperable, designed to be used as a weapon from which a projectile may be expelled through the barrel by the force of any explosion or other form of combustion; or 2. Any device, whether loaded or unloaded, operable or inoperable, from which a metallic projectile, including any ball bearing or pellet, may be expelled by means of spring, gas, air or other force. We conclude that because NRS 202.265s list of weapons is specifically referenced in NRS 193.165(6)(c) as being deadly weapons, the district court did not err by instructing the jury on NRS 202.265(5)(b)s definition of firearm. We similarly hold that the district court did not err by instructing the jury on NRS 202.253(2)s definition of firearm, even though Berry was not charged with possession or use of a firearm and NRS 193.165(6) does not reference NRS 202.253. We are persuaded that a firearm under the general firearm definition of NRS 202.253(2) is an instrument designed to cause substantial bodily harm or death, and therefore, it falls within the meaning of deadly weapon under NRS 193.165(6)(a). As a result, we conclude that the district court did not err by using definitions from NRS 202.265(5)(b) and NRS 202.253(2) to define deadly weapon. Further, we discuss whether the law supports a jury instruction that a firearm is a deadly weapon despite it being unloaded or inoperable. Because NRS 202.265(5)(b) defines firearm as a device from which a metal projectile may be expelled by spring, air, gas, or other force, and NRS 202.253(2) defines firearm as a device from which a projectile may be expelled by explosion or combustion, we conclude that under both definitions, if the trier of fact finds that the weapons capabilities are established by its design, not its operability, then the weapon meets the definition of a deadly weapon. Thus, whether the weapon was unloaded or inoperable at the time of the crime is irrelevant. In reaching this conclusion, we take the opportunity to clarify this courts holdings in Allen v. State, 96 Nev. 334, 609 P.2d 321 (1980), and Anderson v. State, 96 Nev. 633, 614 P.2d 540 (1980). While we stated in Allen that the purpose of the deadly weapon statute was to penalize an offenders use of a weapon not only because of the weapons ability to inflict deadly harm but also because of the deadly reaction the weapon is likely to provoke, we note that the Legislature subsequently spoke on the issue by enacting NRS 193.165(6) to define what constitutes a deadly weapon. Thus, although the rationale expressed in Allen is still part of this courts consideration, we conclude that a weapon must fall within NRS 193.165(6)s definitions to uphold a finding that an instrument is a deadly weapon. And, contrary to Andersons implications, we reit-

July 2009]

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erate that if the weapon is not a firearm under NRS 202.253(2), the State must prove that the weapon supporting the deadly weapon finding is a deadly weapon as defined in NRS 193.165(6). Second, we consider whether sufficient evidence supports the deadly weapon findings for the charges of burglary while in possession of a deadly weapon and robbery with use of a deadly weapon. We conclude that based on the applicable statutory definitions of deadly weapon, no rational trier of fact could have found beyond a reasonable doubt that the toy pellet gun used in this case was a deadly weapon. Third, we consider Berrys challenges to his open and gross lewdness conviction. In particular, we consider whether the open and gross lewdness statute, NRS 201.210, is unconstitutionally vague and whether the district court erred by instructing the jury on definitions of gross and lewdness that were not prescribed by Nevada law. We conclude that the terms gross and lewdness, although not statutorily defined, are common words with generally accepted meanings. Thus, we hold that NRS 201.210 is not unconstitutionally vague because an average person of ordinary intelligence can determine what conduct is proscribed by the statute. We further conclude that based on the common law definition of open lewdness, and the plain, ordinary meaning of NRS 201.210s terms, Berry failed to demonstrate that any error in the district courts instruction amounted to plain error affecting his substantial rights. FACTS AND PROCEDURAL BACKGROUND On February 26, 2006, the victim, Armstrong, was working by herself at Kosters Cash Loans, a payday loan store. At the end of her shift, Armstrong began to close the store by counting the money that the business had received that day and placing it in the stores safe. As she prepared to leave for the evening, she went outside to start her car, intending to return to the store only to retrieve her personal belongings and lock the doors. On her way back into the store, Berry approached her, held a gun (later determined to be a Speedy Toys pellet gun) to her neck, and told her to go into the store and give him all the money. Berry and Armstrong went into the store and into the closet where the stores safe was kept. Armstrong explained to Berry that it was a time-delay safe and, therefore, he would have to wait ten minutes before it would open. Armstrong testified that Berry told her that he would not shoot her as long as she was not lying and that he would wait for the safe to open. Armstrong testified that while they were waiting for the safe to open, Berry began touching her on her behind area and [her] hips and [her] back and shoulders. She testified that Berry said she had a nice body and that if he had known about the time-delay safe taking ten minutes he would have had his fun with [her]. She

272

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thought that he meant he would try to have sex with her. Armstrong described the touching as Berry standing behind her and holding her near him. She testified that he was rubbing his genitals against her for the entire ten minutes that they waited for the safe to open. At one point, Berry also massaged her shoulders and told her to relax. When the safes ten-minute time delay had elapsed, Armstrong opened the safe. Berry ordered her to kneel in the corner of the closet, facing away from him. Berry took everything out of the safe, placed it in a backpack, and ordered Armstrong to stay in the closet for one minute after he left, threatening that someone would shoot her otherwise. Armstrong, who had her cellular telephone in her jacket pocket, called 911 from the closet. Police officers had already been dispatched to the store based on an anonymous 911 call. Upon arrival, an officer saw Berry exit the closet door and pull a mask over his face. As Berry exited the store, the officer identified himself to Berry and, with his gun pointed at Berry, demanded that he stop. Berry ran from the officer, jumped over some shrubs, and climbed a wall into a nearby apartment-style retirement community. The officer found Berry hiding behind a washing machine on a patio. Berry dropped his backpack while fleeing. Inside the backpack, the crime scene analyst found a toy pellet gun, the contents of the safe, an identification card, a bandana, and a hammer. On February 28, 2006, the State charged Berry with burglary while in possession of a deadly weapon, robbery with use of a deadly weapon, first-degree kidnapping with use of a deadly weapon, and two counts of open and gross lewdness. Berry pleaded not guilty and the matter proceeded to trial. At trial, the State offered Detective Lance Spiotto as the single witness to testify as to the appearance and capabilities of the gun that Berry used during the crime. Detective Spiotto testified that it was a type of pellet gun with a plastic body and a spring action magazine, designed to look like a Beretta 9-millimeter handgun. The gun, manufactured by Speedy Toys, was available for purchase online for approximately $20. Detective Spiotto further testified that the gun would be capable of firing a projectile because normally a gun of its type was operated by a sealed-to-cartridge spring mechanism. When asked whether it could fire a bullet, he answered, Definitely not a .45, but I guess if you made one small enough, you canI dont know what a .22 would do in there. To his knowledge, no one had tried to fire the gun when it was seized, and no pellets were found in Berrys possession. Additionally, the crime scene analyst testified that when impounding the evidence she labeled the gun a toy but that it appeared capable of firing a projectile. The gun was also admitted into evidence for the jury to examine. At the conclusion of trial, the district court instructed the jury that a deadly weapon included: any device that constitutes a firearm

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pursuant to NRS 202.253(2) or NRS 202.265(5)(b), regardless of whether the gun was unloaded or inoperable; any instrument that was inherently dangerous, under NRS 193.165(6)(a); or any instrument or device that is readily capable of causing substantial bodily harm or death, pursuant to NRS 193.165(6)(b). The jury returned a verdict finding Berry guilty of burglary while in possession of a deadly weapon, robbery with use of a deadly weapon, and one count of open and gross lewdness. After the district court denied Berrys motion to set aside his convictions, Berry appealed. DISCUSSION On appeal, we discuss three of Berrys challenges and their accompanying subissues. First, we consider the district courts use of NRS 202.265(5)(b)s and NRS 202.253(2)s firearm definitions, and its use of unloaded or inoperable language to define deadly weapon for the burglary-while-in-possession-of-a-deadly-weapon and robbery-with-use-of-a-deadly-weapon charges. Second, we consider whether sufficient evidence supports the jurys determination that the pellet gun possessed and used in the crimes was a deadly weapon. Third, we discuss Berrys challenges to the constitutionality of the open and gross lewdness statute and the district courts instructions on definitions of gross and lewdness. We address each of these arguments in turn. Jury instruction defining deadly weapon Berrys challenge to the deadly weapon jury instruction is twofold. First, Berry argues that the district court erred by instructing the jury on definitions of firearm derived from NRS 202.265(5)(b) and NRS 202.253(2). He claims that those definitions are not applicable to his case, alleging that NRS 202.265(5)(b) is limited to weapons possessed on school grounds and that NRS 202.253(2) is not referenced in NRS 193.165(6)(c) as an applicable statutory definition. Second, Berry argues that the law does not support the district courts instruction that a firearm under NRS 202.265(5)(b) and NRS 202.253(2) is a deadly weapon regardless of whether it was unloaded or inoperable. After considering the statutes at issue, we reject Berrys assignments of error. Standard of review
[Headnotes 1-3]

This court generally reviews a district courts decision settling jury instructions for an abuse of discretion or judicial error. Brooks v. State, 124 Nev. 203, 206, 180 P.3d 657, 658-59 (2008). However, whether the jury instruction was an accurate statement of the law is a legal question subject to de novo review. Nay v. State, 123 Nev. 326, 330, 167 P.3d 430, 433 (2007). Because Berry argues that the

274

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[125 Nev.

district courts deadly weapon instruction was a misstatement of law, we review the legal accuracy of the courts instructions de novo. See id. Definitions of firearm
[Headnotes 4, 5]

NRS 193.165 provides an additional penalty for offenders who use a deadly weapon during the commission of a crime. NRS 193.165(6) provides various definitions of deadly weapon to enhance an offenders sentences for robbery with use of a deadly weapon. Those definitions are also relevant in determining whether a person had possession or gained possession of a deadly weapon during a burglary for purposes of the aggravated sentencing range provided in NRS 205.060(4). Funderburk v. State, 125 Nev. 260, 212 P.3d 337 (2009). NRS 193.165(6)(a) through (b) defines deadly weapon as an instrument that is used in the manner in which it was designed to cause substantial bodily harm or death or, under the circumstances in which it was used, is likely to cause substantial bodily harm or death. NRS 193.165(6)(c) further defines deadly weapon to include [a] dangerous or deadly weapon specifically described in NRS 202.255, 202.265, 202.290, 202.320 or 202.350.1 Therefore, NRS 193.165(6)(c) expressly incorporates the definitions set forth in those particular statutes. The five statutes referenced in NRS 193.165(6)(c) each pertain to crimes involving weapons. One of the referenced statutes, NRS 202.265, which is entitled, in part, [p]ossession of dangerous weapon on property or in vehicle of school or child care facility, makes possession of certain weapons on school grounds a gross misdemeanor. NRS 202.265(1)(e) prohibits, for example, possession of [a] pistol, revolver or other firearm. NRS 202.265(5)(b) defines the term firearm, [f]or the purposes of [that] section, as any device from which a metallic projectile, including any ball bearing or pellet, may be expelled by means of spring, gas, air or other force. The district court in this case used NRS 202.265(5)(b)s definition of firearm in the deadly weapon instruction. In total, the court
1

NRS 193.165(6) reads, in its entirety: As used in this section, deadly weapon means: (a) Any instrument which, if used in the ordinary manner contemplated by its design and construction, will or is likely to cause substantial bodily harm or death; (b) Any weapon, device, instrument, material or substance which, under the circumstances in which it is used, attempted to be used or threatened to be used, is readily capable of causing substantial bodily harm or death; or (c) A dangerous or deadly weapon specifically described in NRS 202.255, 202.265, 202.290, 202.320 or 202.350.

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used definitions from NRS 193.165(6)(a), NRS 193.165(6)(b), NRS 202.265(5)(b), and NRS 202.253(2).2 First, Berry challenges the district courts use of the latter two statutes, arguing that the instruction on firearm definitions was erroneous because he was not charged with possession or use of a firearm. Rather, he was charged with possession and use of a deadly weapon. However, because the term deadly weapon is broad, and firearms are included within the meaning of that term, we disagree with Berrys argument.
[Headnote 6]

NRS 202.265(5)(b) and NRS 202.253(2) define firearm, and both definitions are included within NRS 193.165(6)s definitions of deadly weapon. In particular, NRS 202.265(5)(b) (defining the term firearm as any device from which a metallic projectile, including any ball bearing or pellet, may be expelled by means of spring, gas, air or other force) is specifically referenced in NRS 193.165(6)(c). See NRS 193.165(6)(c) (providing that deadly weapon means: . . . (c) [a] dangerous or deadly weapon specifically described in . . . NRS 202.265 . . .). Therefore, for enhancement purposes, a firearm under NRS 202.265(5)(b) is a deadly weapon.
[Headnotes 7, 8]

Further, NRS 202.253(2)s definition of firearm also amounts to a deadly weapon under NRS 193.165(6) because, under NRS 202.253(2), a firearm is any device designed to be used as a weapon from which a projectile may be expelled through the barrel by the force of any explosion or other form of combustion. Naturally, a device that is constructed to be a weapon and is designed to expel projectiles falls within the purview of NRS 193.165(6)(a)s definition of deadly weapon because it is designed to cause substantial bodily harm or death. In conclusion, because both of the firearm definitions that the district court used to instruct the jury are encompassed within NRS 193.165(6)s definitions of deadly weapon, we conclude that the district court did not err. Moreover, Berry asserts that these definitions are inapplicable to this case because (1) NRS 202.265 is limited to weapons possessed on school grounds, and (2) NRS 202.253 is not one of the statutes referenced by NRS 193.165(6). We reject Berrys arguments.
[Headnotes 9, 10]

With respect to Berrys challenge to the district courts use of NRS 202.265, we are convinced that the limitation expressed in
2 NRS 202.253 provides, in pertinent part: As used in NRS 202.253 to 202.369, inclusive: . . . 2. [f]irearm means any device designed to be used as a weapon from which a projectile may be expelled through the barrel by the force of any explosion or other form of combustion.

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[125 Nev.

NRS 202.265(5) applies only to the crime it creates and does not limit its use as a definition of a deadly weapon. Moreover, in Funderburk v. State, we established that NRS 193.165(6) includes in its definitions any weapon described in the statutes listed in paragraph (c). 125 Nev. 260, 212 P.3d 337 (2009). As a result, we reiterate our conclusion from Funderburk and hold that any weapon that meets the description set forth in NRS 202.265(5)(b) supports a deadly weapon finding. Accordingly, we conclude that the district court did not err by instructing the jury using language from NRS 202.265(5)(b)s definition of firearm.
[Headnote 11]

Turning to Berrys challenge to the district courts instruction using NRS 202.253(2)s definition of firearm, we conclude that the district court did not err. As explained above, NRS 193.165(6)(a)s definition of deadly weapon encompasses firearm under NRS 202.253(2)s definition, as a firearm is a device that is designed to cause substantial bodily harm or death. In addition, NRS 202.253(2) is the general firearm definition for purposes of NRS 202.253 through 202.369. Thus, as a general definition, NRS 202.253 applies to every other statute referred to by NRS 193.165(6)(c) that employs the term firearm. See NRS 193.165(6)(c) (referencing NRS 202.255, 202.265, 202.290, 202.320, and 202.350). Because the general firearm definition of NRS 202.253(2) applies to all of the statutes referenced in NRS 193.165(6)(c), we conclude that NRS 202.253 is incorporated into the statutes that NRS 193.165(6)(c) references and, therefore, that definition is applicable to define a deadly weapon. In sum, we conclude that the district court did not err by using the firearm definitions from NRS 202.265(5)(b) and NRS 202.253(2) to define deadly weapon for Berrys burglary-whilein-possession-of-a-deadly-weapon and robbery-with-use-of-a-deadlyweapon charges. Propriety of the unloaded or inoperable language
[Headnote 12]

Second, Berry argues that the district court erred by instructing the jury that a firearm under NRS 202.265(5)(b) and NRS 202.253(2) was a deadly weapon regardless of whether it was unloaded or inoperable. We disagree and conclude that this instruction is a correct statement of law. NRS 202.265(5)(b)s and NRS 202.253(2)s definitions of firearm both include devices that are designed to be capable of expelling projectiles, one by means of spring, gas, air, or other force and the other by explosion or combustion. Under these definitions, if the fact-finder determines that by its designfor example, because it is constructed with a spring, gas, air, or explosion mechanism, the weapon is capable of expelling projectiles (specifically metallic pro-

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jectiles under NRS 202.265(5)(b))the definitions are met. Whether the weapon was unloaded or inoperable is therefore irrelevant. Hence, we conclude that the district court did not err. Although we conclude that the district courts unloaded or inoperable instruction was not erroneous as a matter of law, we take this opportunity to clarify our holdings in Allen v. State, 96 Nev. 334, 609 P.2d 321 (1980), and Anderson v. State, 96 Nev. 633, 614 P.2d 540 (1980). In Allen, this court addressed whether an inoperable firearm was a deadly weapon under NRS 193.165. 96 Nev. at 336, 609 P.2d at 322. In holding that an inoperable firearm used in the commission of a crime could support a deadly weapon enhancement, this court reasoned, [a] firearm is dangerous, not only because it can inflict deadly harm, but because its use may provoke a deadly reaction from the victim or from bystanders. Id. Then, in Anderson, this court expanded its holding in Allen to apply to the use of a blank gun. 96 Nev. at 634, 614 P.2d at 540. Without describing the type of gun or its capabilities, the Anderson court summarily stated that it perceive[d] no substantial distinction between the inoperable firearm in Allen and the blank gun used in the instant case. Id. Here, the State relies on Allen and Anderson, maintaining that a pellet gun is per se a deadly weapon because there is no difference between the pellet gun used in this case and the guns used in Allen and Anderson.
[Headnotes 13, 14]

Although the Allen court considered the fear or deadly reaction that may be provoked by the use of a weapon, we now clarify that whether the weapon was capable of producing reasonable fear is an ancillary consideration when determining whether a weapon is a deadly weapon. Because the Legislature drafted specific provisions defining deadly weapon after this court decided Allen and Anderson, see 1995 Nev. Stat., ch. 455, 1, at 1431, the statutory definitions set forth in NRS 193.165(6) control and the State must prove that the weapon is a deadly weapon pursuant to NRS 193.165(6). Thus, to the extent that Allen or Anderson imply that a weapon need not meet one of NRS 193.165(6)s deadly weapon definitions, we take this opportunity to clarify that it does. Sufficiency of the evidence supporting the finding of a deadly weapon
[Headnote 15]

Berry argues that even if the district court properly instructed the jury, there was insufficient evidence to support a finding that the toy pellet gun was a deadly weapon. Specifically, Berry claims that the State failed to establish either that the Speedy Toys pellet gun could fire a projectile by the force of an explosion or combustion, see NRS 202.253(2), or that it was capable of firing a metal projectile. See NRS 202.265(5)(b). We agree and conclude that this failure warrants reversal of the aggravated sentence for burglary while in possession

278

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[125 Nev.

of a deadly weapon and the deadly weapon enhancement sentence for the robbery conviction.
[Headnote 16]

In reviewing the sufficiency of the evidence supporting a jury verdict in a criminal case, this court views the evidence in the light most favorable to the verdict and determines whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Mitchell v. State, 124 Nev. 807, 816, 192 P.3d 721, 727 (2008) (quoting Koza v. State, 100 Nev. 245, 250, 681 P.2d 44, 47 (1984)). In this case, as previously discussed, in order to meet its burden of proof, the State had to establish that the pellet gun Berry possessed during, and used in, the commission of the crimes was indeed a deadly weapon under NRS 193.165. According to the applicable statutes, the pellet gun would have been a deadly weapon if it was (1) designed to cause substantial bodily harm or death, NRS 193.165(6)(a); (2) used in a manner which, under the circumstances, could cause substantial bodily harm or death pursuant to NRS 193.165(6)(b); (3) capable of expelling a metal projectile by use of spring, gas, air, or other force pursuant to NRS 202.265(5)(b); or (4) designed to expel a projectile by the force of an explosion pursuant to NRS 202.253(2). The record does not reveal any evidence presented by the State that suggests that the pellet gun at issue was specifically designed to cause substantial bodily harm or death, see NRS 193.165(6)(a), that Berry used the pellet gun in a manner that could cause substantial bodily harm or death, see NRS 193.165(6)(b), or that the gun was designed to expel a projectile by the force of an explosion. See NRS 202.253(2). Instead, the record reflects that the State attempted to prove that the gun was a deadly weapon under NRS 202.265(5)(b) by presenting evidence that the gun was capable of firing metal projectiles. But the only evidence offered at trial consisted of testimony regarding the type of projectile that this gun was capable of firing, which came from Detective Spiotto. Detective Spiottos testimony that the pellet gun would be capable of firing a projectile was based on the fact that [n]ormally a gun of its type was operated by a sealedto-cartridge spring mechanism. He also explained that a pellet for the gun is usually plastic but could be metal. Notably, when specifically asked whether the gun could fire a bullet, he answered, Definitely not a .45, but I guess if you made one small enough, you canI dont know what a .22 would do in there. According to Detective Spiotto, no one had tried to fire the gun and no projectiles of any kind were found in Berrys possession upon arrest. Based on the uncertainty of this testimony, we determine that no rational trier of

July 2009]

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fact could have found beyond a reasonable doubt that the gun was capable of firing metal projectiles.3 Therefore, because Detective Spiottos testimony did not prove beyond a reasonable doubt that this weapon was within NRS 202.265(5)(b)s definition of firearm or any other definition of deadly weapon, we conclude that the States evidence was insufficient to support Berrys deadly weapon enhancements. Open or gross lewdness conviction
[Headnote 17]

Berry also challenges his open and gross lewdness conviction for two reasons. First, Berry argues that NRS 201.210 is unconstitutionally vague because the terms gross and lewdness lack definite meaning. Second, Berry argues that the district court erred by instructing the jury on definitions of gross and lewdness that were not prescribed by Nevada law. We conclude that because gross and lewdness are terms that convey to the average person what conduct is proscribed, NRS 201.210 is not unconstitutionally vague and any error made by the district court with respect to the open and gross lewdness instruction did not amount to plain error affecting Berrys substantial rights. Constitutionality of NRS 201.210
[Headnotes 18, 19]

This court reviews a challenge to the constitutionality of a statute de novo. Silvar v. Dist. Ct., 122 Nev. 289, 292, 129 P.3d 682, 684 (2006). Because the court presumes that statutes are constitutional, a party challenging the statute has the burden of making a clear showing of invalidity. Id.
[Headnotes 20, 21]

A statute is void for vagueness, and therefore facially unconstitutional, if the statute both: (1) fails to provide notice sufficient to enable ordinary people to understand what conduct is prohibited; and (2) authorizes or encourages arbitrary and discriminatory enforcement. City of Las Vegas v. Dist. Ct., 118 Nev. 859, 862, 59 P.3d 477, 480 (2002). However, a statute will be deemed
3 In response to questioning by this court at oral argument concerning the uncertain nature of Detective Spiottos testimony, the State argued that the jury had the opportunity to examine the gun and its conclusion that the gun was a deadly weapon must be afforded deference. We reject this argument because, although he was not an expert, Detective Spiotto was experienced with guns and he was unable to determine whether the pellet gun used in this case could, beyond a reasonable doubt, fire a metal projectile. Thus, we conclude that no rational trier of fact could find that the pellet gun used in this case was indeed capable of firing a metal projectile.

280

Berry v. State

[125 Nev.

to give sufficient notice of proscribed conduct when, viewing the context of the entire statute, the words used have a well-settled and ordinarily understood meaning. Nelson v. State, 123 Nev. 534, 54041, 170 P.3d 517, 522 (2007). It has also been established that when an offense has not been defined by the Legislature, we generally look to the common law definitions of the related term or offense. Ranson v. State, 99 Nev. 766, 767, 670 P.2d 574, 575 (1983). In this case, the challenged statute provides: A person who commits any act of open or gross lewdness is guilty: (a) [f]or the first offense, of a gross misdemeanor [and] (b) [f]or any subsequent offense, of a category D felony and shall be punished as provided in NRS 193.130. NRS 201.210(1). At common law, open lewdness was defined as an unlawful indulgence of lust involving gross indecency with respect to sexual conduct committed in a public place and observed by persons lawfully present. Young v. State, 109 Nev. 205, 215, 849 P.2d 336, 343 (1993) (quoting 3 Whartons Criminal Law 315 (14th ed. 1980)). Thus, the definition of open lewdness at common law expressed elements concerning acts that were sexual in nature, public, and observed by others. See id. Open This court has previously considered what acts of lewdness were deemed open under NRS 201.210. Ranson, 99 Nev. 766, 670 P.2d 575; Young, 109 Nev. 205, 849 P.2d 336. The Ranson court concluded that because the term open modified the word lewdness, the Legislature intend[ed] to broaden the common law definition to include acts which are committed in a private place, but which are nevertheless committed in an open as opposed to a secret manner. 99 Nev. at 767, 670 P.2d at 575. Thus, the court held that even if an act is not committed in a public place, when the evidence shows that an offender clearly intended his acts to be offensive to his victim, he acted in an open fashion and is, therefore, guilty of open lewdness under NRS 201.210. Id. at 768, 670 P.2d at 575.
[Headnote 22]

We then expanded our interpretation of open lewdness in Young, when we expressed that NRS 201.210 does not require proof of intent to offend an observer or even that the exposure was observed. 109 Nev. at 215, 849 P.2d at 343. Instead, the court explained, [i]t is sufficient that the public sexual conduct or exposure was intentional. Id. Therefore, as the law stands with respect to the meaning of open for purposes of NRS 201.210, we determine that the term is not vague. Under Ranson and Young, the fact that an act is committed openly is sufficient for the fact-finder to conclude that there was a likelihood that the act would be observed and that

July 2009]

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it would be offensive to observers. Accordingly, we conclude that the term open is not vague. Gross lewdness
[Headnote 23]

In addition, we conclude that the phrase gross lewdness in NRS 201.210 is neither vague nor indefinite; rather, we are persuaded that it has a well-defined, well-understood, and generally accepted meaning, sufficient to inform an offender of the act that is prohibited. The term gross, as used in NRS 201.210, modifies the term lewdness. This placement of the term gross narrows the meaning and breadth of lewdness by specifying the degree of lewdness required by the statute. Merriam-Websters Collegiate Dictionary defines gross to mean immediately obvious . . . glaringly noticeable usu[ally] because of inexcusable badness or objectionableness. 551 (11th ed. 2003). Therefore, for purposes of NRS 201.210, the statute prohibits lewd acts that are glaringly noticeable or obviously objectionable. See id. In light of the plain meaning of the word gross and its placement with respect to the term lewdness, we conclude that, as used in NRS 201.210, gross sufficiently informs people what degree of lewdness is prohibited.4 With respect to the term lewdness, this court has previously considered a vagueness challenge to that word in Summers v. Sheriff, 90 Nev. 180, 521 P.2d 1228 (1974). In Summers, this court established that the word lewd, under NRS 201.230, defining lewdness with a minor, was not exceedingly vague to render the statute void, stating, [w]hile lewd is not specifically defined in our statutes, the word conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices. Id. at 182, 521 P.2d at 1228 (quoting Roth v. United States, 354 U.S. 476, 491 (1957)). Even though the analysis in Summers concerned lewdness with a minor under NRS 201.230, and that analysis was brief, we are convinced that dictionary definitions and other jurisdictions reasoning regarding similar lewdness statutes support the same conclusion here. Modern authorities define lewd as pertaining to sexual conduct that is [o]bscene or indecent; tending to moral impurity or wantonness, Blacks Law Dictionary 927 (8th ed. 2004), evil, wicked or sexually unchaste or licentious, Merriam-Websters Collegiate Dictionary 715 (11th ed. 2003), and [p]reoccupied with sex and sexual desire; lustful, The American Heritage Dictionary of
4 Other courts have also rejected vagueness challenges to the term gross, reasoning that it has an ordinary meaning: glaringly noticeable, glaringly obvious, or flagrant. See, e.g., Maun v. Dept. of Professional Regulation, 701 N.E.2d 791, 798-99 (Ill. App. Ct. 1998); State v. Welch, 707 N.E.2d 1133, 1135 (Ohio Ct. App. 1997); Chandler v. Housholder, 722 S.W.2d 217, 218 (Tex. App. 1987).

282

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[125 Nev.

the English Language 1035 (3d ed. 1996).5 Other jurisdictions considering vagueness challenges to statutes worded similar to NRS 201.210 have upheld those statutes reasoning that the terms lewd or lewdness have generally accepted meanings, State v. Cook, 678 P.2d 987, 989 (Ariz. Ct. App. 1984), and the concept of lewdness is sufficiently a matter of common knowledge that the average citizen can determine what conduct is proscribed. Profit v. City of Tulsa, 574 P.2d 1053, 1056 (Okla. Crim. App. 1978). Therefore, we determine that lewdness has a sufficiently definite meaning such that the average person would know what kinds of acts are prohibited by NRS 201.210.6 Because the terms open, gross, and lewdness all have well-defined and well-understood meanings, we hold that NRS 201.210 is not unconstitutionally vague. Jury instructions defining gross and lewdness
[Headnotes 24-26]

As previously mentioned, whether a jury instruction was an accurate statement of the law is a legal question subject to de novo review. Nay v. State, 123 Nev. 326, 330, 167 P.3d 430, 433 (2007). But, when a criminal defendant fails to object to a district courts
5 Several jurisdictions have likewise concluded that the term lewd or lewdness have commonplace meanings. See, e.g., State v. Gates, 897 P.2d 1345, 1348 (Ariz. Ct. App. 1994) (Although the term lewd is not defined by statute or Arizona case law, it has been held to have an ordinary meaning, one that is easily understood by the common man. (quoting State v. Limpus, 625 P.2d 960, 965 (Ariz. Ct. App. 1981)); George v. State, 189 S.W.3d 28, 34 (Ark. 2004) ( Though lewd is not defined in the Arkansas Code, the court of appeals has stated that lewd is a common word with an ordinary meaning [and] Blacks Law Dictionary defines lewd as [o]bscene or indecent; tending to moral impurity or wantonness. (second alteration in original) (citations omitted) (quoting Cummings v. State, 110 S.W.3d 272, 278 (Ark. 2003))); People v. Pinkoski, 752 N.Y.S.2d 421, 424 (App. Div. 2002) ([T]he word [lewd] is not so arcane as to escape the understanding of the average juror.); State v. Hammett, 642 S.E.2d 454, 458 (N.C. Ct. App. 2007) (This Court has defined the words lewd and lascivious according to their plain meaning in ordinary usage.); Tovar v. State, 165 S.W.3d 785, 790 (Tex. App. 2005) ( Lewd is not defined by the penal code . . . [but] because lewd has a common meaning that jurors can be fairly presumed to know and apply, the trial court was not required to define lewd in the jury charge.); State v. Lubotsky, 434 N.W.2d 859, 861 (Wis. Ct. App. 1988) (concluding that dictionary definitions reflect the ordinary and accepted meaning of the word lewd. (citations omitted)). 6 Additional jurisdictions have upheld their lewdness statutes after considering vagueness challenges. See, e.g., State v. B Bar Enterprises, Inc., 649 P.2d 978, 982 (Ariz. 1982) ([L]ewdness as used in A.R.S. 12-802 [the statute prohibiting the use of buildings for the purpose of lewdness] is not unconstitutionally vague.); State v. Holstead, 354 So. 2d 493, 497 (La. 1977) ( The word[ ] lewd . . . [is] not vague and indefinite. On the contrary, [it] ha[s] a well defined, well understood, and generally accepted meaning . . . . The word lewd means lustful, indecent, lascivious, and signifies that form of immorality which has relation to sexual impurity . . . . (quoting State v. Prejean, 45 So. 2d 627, 629 (La. 1950))); State v. Club Recreation and Pleasure, 599

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action, this court reviews the record for plain error only. Nelson v. State, 123 Nev. 534, 543, 170 P.3d 517, 524 (2007). To be plain, an error must be so unmistakable that it is apparent from a casual inspection of the record and the defendant must demonstrate that the error affected his substantial rights. Id. (quoting Garner v. State, 116 Nev. 770, 783, 6 P.3d 1013, 1022 (2000), overruled on other grounds by Sharma v. State, 118 Nev. 648, 56 P.3d 868 (2002), and by Nika v. State, 124 Nev. 1272, 198 P.3d 839 (2008)).
[Headnote 27]

In this case, Berry failed to object to the district courts jury instructions concerning his open and gross lewdness charges. Therefore, we review the adequacy of the district courts instructions for plain error. The district court instructed the jury on Berrys open and gross lewdness charges as follows: With reference to the crime of Open and Gross Lewdness, you are instructed that the word open is used to modify the term lewdness[.] As such, it includes acts which are committed in a private place, but which are nevertheless committed in an open as opposed to a secret manner. You are further instructed that it includes an act done in an open fashion clearly intending that the act be offensive to the victim. The term gross is defined as being indecent, obscene or vulgar. The term lewdness is defined as any act of a sexual nature which the actor knows is likely to be observed by the victim who would be affronted by the act. Berry concedes that the district courts instruction on the word open is in conformity with this courts decisions in Ranson, 99 Nev. 766, 670 P.2d 574, and Young, 109 Nev. 205, 849 P.2d 336. And, after considering the common law definition of open lewdness and the ordinary meanings of the terms gross and lewdness, we conclude that the trier of fact could have found that Berrys touching of Armstrong was sexual in nature, committed in an open fashion, and could have been observed by others who would have been offended. Accordingly, we conclude that Berry has failed to demonstrate that any error in the jury instruction affected his substantial rights.
P.2d 1194, 1200 (Or. Ct. App. 1979) (Lewdness is defined as gross indecency so notorious as to tend to corrupt the communitys morals. . . . We find th[is] term[ ] [is] not unconstitutionally vague. (quoting Blacks Law Dictionary 1052 (rev. 4th ed. 1968))); State v. Carter, 687 S.W.2d 292, 293-94 (Tenn. Crim. App. 1984) (The constitutionality of the statute . . . is not vague. . . . [T]he words in the statute, lewd, lascivious, and obscene, are sufficient descriptions to put ordinary men of common intelligence on notice as to what conduct is prohibited.).

284

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[125 Nev.

CONCLUSION We conclude that, for purposes of Berrys burglary-while-inpossession-of-a-deadly-weapon and robbery-with-use-of-a-deadlyweapon charges, the district court did not err by using NRS 202.265(5)(b)s and NRS 202.253(2)s definitions of firearm to instruct the jury on the meaning of deadly weapon. In particular, NRS 193.165(6)(c) specifically refers to weapons defined under NRS 202.265 as deadly weapons and, under NRS 193.165(6)(a), a firearm as defined under NRS 202.253(2) is also a deadly weapon. Further, after reexamining this courts holdings in Allen and Anderson, we overrule those cases to the extent that they suggest that a weapon that is likely to produce fear or a deadly reaction is a deadly weapon. Rather, a weapon must meet one of the definitions set forth in NRS 193.165(6) to qualify as a deadly weapon for enhancement purposes. However, regarding Berrys deadly weapon convictions, we conclude that the State failed to present sufficient evidence to support a finding of a deadly weapon under NRS 193.165(6). While Detective Spiotto testified that pellet guns are designed to fire projectiles (normally due to the sealed-to-cartridge spring mechanism) and that the gun in this case could possibly fire a metal projectile, the State failed to demonstrate beyond a reasonable doubt that the weapon was designed to be capable of firing a metal projectile, as required under NRS 202.265(5)(b). Finally, we conclude that NRS 201.210, the open and gross lewdness statute, is not unconstitutionally vague. Each of the terms set forth in the statuteopen, gross, and lewdnessall have generally accepted meanings that impart sufficient notice on the average person of what conduct the statute proscribes. And, considering the common law definition of open lewdness and the ordinary meanings of NRS 201.210s terms, we are persuaded that the jury could have convicted Berry under NRS 201.210. Thus, any error made by the district court in giving the instruction does not rise to plain error. Accordingly, we affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.7 PARRAGUIRRE, DOUGLAS, CHERRY, SAITTA, GIBBONS, and PICKERING, JJ., concur.
7 In addition to the specific challenges addressed in this opinion, Berry also raises separate challenges relating to the admission of Detective Spiottos testimony, the admission of false identifications that were located in Berrys backpack upon arrest, and the district courts failure to admit evidence of Berrys statement to police. Additionally, Berry raises challenges concerning various instances of prosecutorial misconduct, sufficiency of the evidence supporting his open and gross lewdness conviction, and cumulative error. After careful review, we conclude that none of these challenges warrant reversal.

July 2009]

Commission on Ethics v. Hardy

285

THE COMMISSION ON ETHICS OF THE STATE OF NEV ADA, APPELLANT, v. WARREN B. HARDY II, IN HIS OFFICIAL CAPACITY AS NEVADA STATE SENATOR FOR CLARK COUNTY SENATORIAL DISTRICT NO. 12, RESPONDENT.
No. 53064 July 30, 2009 212 P.3d 1098

Appeal from a district court order granting judicial review of a Nevada Ethics Commission decision and entering a permanent injunction in an ethics matter. First Judicial District Court, Carson City; William A. Maddox, Judge. The supreme court held that: (1) delegation to Commission on Ethics of each legislative houses power to discipline its members for disorderly conduct involving core legislative function activities ran afoul of separation of powers doctrine, (2) Senators alleged ethics violation involved core legislative functions such that investigation into Senators activities by Commission violated separation of powers doctrine, and (3) Legislature could not waive constitutionally based structural protections such as the separation of powers doctrine. Affirmed. Nevada Commission on Ethics and Adriana G. Fralick, Carson City, for Appellant. Legislative Counsel Bureau Legal Division and Brenda J. Erdoes, Legislative Counsel, Eileen G. OGrady, Chief Deputy Legislative Counsel, and Kevin C. Powers, Senior Principal Deputy Legislative Counsel, Carson City, for Respondent. Jacob L. Hafter, Las Vegas, for Amicus Curiae Nevada Center for Public Ethics.
1. CONSTITUTIONAL LAW. To extent that a legislators conduct, resulting in disciplinary proceeding, involves a core legislative function such as voting and, by extension, disclosure of potential conflicts of interest prior to voting, any discipline of legislator is a function constitutionally committed to each legislative house such that this power cannot be delegated to another branch of government; and thus, the Commission on Ethics being an agency of the executive branch, any delegation to Commission of each legislative houses power to discipline its members for disorderly conduct involving core legislative function activities runs afoul of separation of powers doctrine and is therefore unconstitutional. Const. art. 3, 1; art. 4, 6. 2. CONSTITUTIONAL LAW; STATES. State Senators alleged ethics violation in failing to adequately disclose an alleged conflict of interest regarding a piece of legislation and by failing to abstain from voting on that legislation involved core legislative functions such that investigation into Senators activities by Commission on Ethics, as

286

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[125 Nev.

3.

4.

5. 6.

7.

8.

9.

10. 11.

12.

13.

an agency of the executive branch, violated separation of powers doctrine. Const. art. 3, 1; art. 4, 6; NRS 281A.420. CONSTITUTIONAL LAW. The Legislature cannot, by enacting a statute that delegates certain powers to another branch of the government, waive constitutionally based structural protections such as the separation of powers doctrine. Const. art. 3, 1. APPEAL AND ERROR. The decision of whether to grant a permanent injunction rests in the district courts sound discretion and supreme court will not overturn that decision unless it is an abuse of discretion. APPEAL AND ERROR. When the facts surrounding the underlying issues are undisputed, the district courts permanent injunction will be reviewed de novo. ADMINISTRATIVE LAW AND PROCEDURE. In the context of reviewing an administrative decision made under the Administrative Procedure Act, supreme court reviews purely legal questions de novo. CONSTITUTIONAL LAW. The purpose of the separation of powers doctrine is to prevent one branch of government from encroaching on the powers of another branch. Const. art. 3, 1; U.S. CONST. art. 1; art. 2; art. 3. CONSTITUTIONAL LAW. When legislative conduct at issue constitutes a core legislative function, constitutional and prudential concerns protect members of the house from having that conduct scrutinized by another branch of state government; voting constitutes a core legislative function. Const. art. 3, 1; art. 4, 6. CONSTITUTIONAL LAW; STATES. Legislature may delegate the power to discipline its own members with respect to conduct related to noncore legislative functions; using the ethics laws as an example, such proceedings could include discipline for legislators who use governmental time, property, equipment, or other facilities for nongovernmental purposes, bid or enter into governmental contracts, or accept or receive an honorarium. NRS 281A.400(8), 281A.430, 281A.510. STATES. The ethics laws make disclosure of any potential conflicts of interest a prerequisite to voting or abstaining from voting on legislation. CONSTITUTIONAL LAW. Departmental agencies can exist within each branch of government and exercise certain ministerial functions that appear to overlap with or duplicate the functions of another branch; such an overlapping or duplication of effort or function can be entirely valid so long as each can logically and legitimately trace its efforts or functions back to, and is derived from, its basic source of power. STATES. Although the Commission on Ethics itself was created by the Legislature, the purpose for which it was created, to investigate and take appropriate action regarding alleged violations of the ethics laws, necessarily designates the Commission as an agency of the executive branch. Const. art. 5, 7; NRS 281A.280(1). CONSTITUTIONAL LAW. Regardless of the degree of assent or acquiescence by the Legislative or Executive Department, legislation which infringes on the structural pro-

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tections of separation of powers is unconstitutional. Const. art. 3, 1; art. 4, 6. 14. CONSTITUTIONAL LAW. Constitutionally based structural protections, like the separation of powers doctrine, cannot be waived by either the legislative or executive branch. Const. art. 3, 1; U.S. CONST. art. 1; art. 2; art. 3.

Before HARDESTY, C.J., PARRAGUIRRE, DOUGLAS, CHERRY, SAITTA, GIBBONS and PICKERING, JJ. OPINION Per Curiam: In this appeal, we consider whether appellant Nevada Commission on Ethics has the authority to conduct administrative proceedings regarding alleged ethical violations purportedly committed by respondent Senator Warren B. Hardy II. Specifically, we address the Commissions authorization to entertain allegations that Senator Hardy violated NRS 281A.420 by failing to adequately disclose an alleged conflict of interest regarding a piece of legislation and by failing to abstain from voting on that bill. In this regard, this appeal sets the very nature of the Commissions jurisdiction before us for evaluation, and calls into question whether the Legislature can delegate to the Commission the power to discipline legislators for alleged disorderly conduct. In particular, since the Nevada Constitution confers that power on each house of the Legislature, we must determine whether the Legislatures decision to pass that power to the Commission constitutes an unconstitutional delegation of legislative power. We further evaluate whether the Legislature, by enacting the Ethics in Government laws and creating the Commission, waived any claim to protection under the separation of powers doctrine. Based on our review of the Nevada Constitution and relevant legal authority, we conclude that to the extent that a legislators conduct, resulting in a disciplinary proceeding, involves a core legislative function such as voting and, by extension, disclosure of potential conflicts of interest prior to voting, any discipline of the legislator is a function constitutionally committed to each house of the Legislature by Article 4, Section 6 of the Nevada Constitution, and that this power cannot be delegated to another branch of government. We further hold that the Commission is an agency of the executive branch, and thus, any delegation to the Commission of each house of the Legislatures power to discipline its members for disorderly conduct involving core legislative function activities runs afoul of the separation of powers doctrine and is therefore unconstitutional. Finally, we hold that the Legislature cannot waive consti-

288

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[125 Nev.

tutionally based structural protections such as the separation of powers doctrine. As a result, we affirm the district courts decision and conclude that the Commission is barred from conducting any further proceedings against Senator Hardy. NEVADA COMMISSION ON ETHICS AND ETHICS LAWS Because this appeal requires us to evaluate the Commission itself, we begin our discussion by providing a brief overview of the Commission and the ethics laws relevant to this appeal. Commission on Ethics The Commission on Ethics is charged with investigating and taking appropriate action regarding alleged violations of Nevada ethics laws by public officers and employees as well as former public officers and employees.1 NRS 281A.280. Prior to the Commissions formation in 1985, two separate ethics commissions existed, one for the legislative branch and one for the executive branch. In 1985, both of those commissions were combined to form the current Commission on Ethics. See Hearing on S.B. 345 Before the Senate Comm. on Government Affairs, 63d Leg. (Nev., April 24, 1985) (introducing and explaining the history of the ethics commission and the intention of S.B. 345 to combine the Executive Ethics Commission and the Legislative Ethics Commission into one Commission on Ethics). The Commission is composed of eight membersfour members appointed by the governor and four members appointed by the legislative commission. NRS 281A.200 (appointing Commission members). Pursuant to NRS 281A.280, the Commission has jurisdiction over ethics violations purportedly committed by most public officers.2 A public officer is defined as a person elected or appointed to a position which is established by the Constitution of the State of Nevada . . . and which involves the exercise of a public power, trust or duty. NRS 281A.160(1). NRS 281A.160(1) defines the exercise of a public power, trust, or duty as official actions involving substantial and material exercise of administrative dis1 Nevadas ethics laws are contained in Chapter 281A of the Nevada Revised Statutes. We note that Chapter 281A has recently been amended to add language outlining the ethics laws impact on state legislators rights and responsibilities when performing their legislative functions. See generally NRS Chapter 281A (amended 2009). The instant matter involves the application of the previous version of the ethics laws, the version in effect when the underlying ethics proceeding against Senator Hardy was initiated. 2 Supreme court justices, judges, officers of the court system, and court employees are specifically excluded from the Commissions jurisdiction. See NRS 281A.160(2)(a); NRS 281A.150.

July 2009]

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cretion in the formation of public policy, [t]he expenditure of public money, and [t]he administration of laws and rules of the State, a county, or a city. In light of this language, it is clear that, for the purposes of the ethics laws, the term public officer encompasses members of the state senate and the assembly. Under NRS 281A.280(1), the Commissions authority to investigate and take action regarding alleged violations of the ethics laws may be initiated by an individual. Any individual may also request an opinion regarding alleged ethical violations of a public officer.3 After the Commission has investigated an ethics allegation, the Commission may issue an opinion applying the statutory ethical standards to a given set of facts or circumstances. NRS 281A.440(2). Additionally, if the Commission determines that an ethics violation has been willful, the Commission may impose a civil penalty for such a violation. NRS 281A.480. Nevada ethics laws Under Nevadas ethics laws, a public officer may not vote or abstain from voting upon any matter on which the officer has accepted a gift, that would reasonably be shaped by the officers obligation in a private capacity to the interest of others, or that the officer has a pecuniary interest in, unless he or she publicly discloses to other members of the body to which the officer belongs, the gift, commitment, or interest. NRS 281A.420(4). For members of the Legislature, once disclosure is made pursuant to NRS 281A.420(4), the legislator may file a written conflict of interest disclosure statement with the Legislative Counsel Bureau prior to voting on such matters. See NRS 281A.420(6). After the written disclosure statement is made, the legislator need not orally disclose the interest when the matter is again considered by the Legislature. Id. With this framework, we turn to the present matter before us. FACTS AND PROCEDURAL BACKGROUND This case began when the Commission instituted administrative proceedings against Senator Hardy stemming from a citizens complaint to the Commission based on allegations of ethics violations that involve Senator Hardys voting on legislation during the 2007 legislative session. The ethics complaint, in relevant part, asserted that Senator Hardy violated NRS 281A.420, by failing to adequately disclose an alleged conflict of interest regarding Senate Bill 509 and
3 The ethics laws also allow the Commission to render an opinion at the request of a public officer or employee who is seeking guidance on questions related to the propriety of his own past, present or future conduct as an officer or employee. See NRS 281A.440(1).

290

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[125 Nev.

by failing to abstain from the voting on that bill.4 NRS 281A.420(2) provides, in relevant part that a public officer shall not vote upon or advocate the passage or failure of, but may otherwise participate in the consideration of, a matter with respect to which the independence of judgment of a reasonable person in his situation would be materially affected by: (a) [h]is acceptance of a gift or loan; (b) [h]is pecuniary interest; or (c) [h]is commitment in a private capacity to the interests of others. Senator Hardy moved the Commission to dismiss the administrative proceeding or for summary judgment on separation of powers and legislative immunity grounds. The Commission subsequently denied Senator Hardys motion. Although an administrative hearing was scheduled to address the allegations against him, Senator Hardy filed a petition for judicial review of the Commissions denial of his motion to dismiss or for summary judgment in the district court. He also filed an emergency motion for a preliminary injunction. Following a hearing on the petition and motion, the district court granted Senator Hardys petition for judicial review of the Commissions decision and entered a permanent injunction preventing the Commission from conducting any further proceedings against Senator Hardy. The district court based its decision on several grounds. The court found that the Commission was barred as a matter of law from conducting administrative proceedings against Senator Hardy because of the constitutional doctrines of separation of powers and legislative immunity under Article 3, Section 1 of the Nevada Constitution. In reaching its determination, the district court found that the alleged ethics violations involved legislative actions taken by Senator Hardy within the sphere of legitimate legislative activity, and the court concluded that those legislative actions were constitutionally protected. The court further found that the Nevada Senate was the only governmental entity that could question Senator Hardy regarding those legislative actions and that the Commission, an agency of the executive branch, would violate the separation of powers doctrine by questioning Senator Hardy regarding the alleged ethics violations. The court also determined that there had not been an institutional legislative immunity waiver, through the enactment of NRS 281A.420, of the Legislatures constitutional right to discipline its members. Finally, the district court concluded that the Legislatures standing rules, regarding the disclosure of conflicts, voting, and abstention, took precedence over NRS 281A.420. The Commission subsequently filed an appeal from the district courts
4 The record shows that in his private capacity, Senator Hardy serves as president of the Associated Builders and Contractors of Southern Nevada (ABC-LV). Senate Bill 509 related to lease-purchase and installment-purchase agreements that would have affected ABC-LVs members.

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order. Because the issues presented pertained to the 2009 legislative session, this court granted Senator Hardys motion to expedite briefing and argument and provided a memorandum disposition, with the formal disposition to follow. See Ex Rel. Penrose v. Greathouse, 48 Nev. 419, 233 P. 527 (1925). DISCUSSION
[Headnotes 1-3]

Our consideration of the issues presented to us in this appeal begins with a brief examination of the separation of powers doctrine. We then examine Article 4, Section 6 of the Nevada Constitution to determine whether the separation of powers doctrine bars the Legislature from delegating this authority to another branch of government. After determining that the Legislature may not delegate its disciplinary authority to another governmental branch, we evaluate the Commission itself to determine its position in Nevadas tripartite government system. Determining that the Commission is part of the executive branch, we conclude by addressing whether the Legislature waived the protections of the separation of powers doctrine by creating the Commission and granting it authority to discipline legislators for ethics violations. Standard of review
[Headnotes 4-6]

The decision of whether to grant a permanent injunction rests in the district courts sound discretion and we will not overturn that decision unless it is an abuse of discretion. See Director, Dept. of Prisons v. Simmons, 102 Nev. 610, 613, 729 P.2d 499, 502 (1986), overruled on other grounds by Las Vegas Novelty v. Fernandez, 106 Nev. 113, 787 P.2d 772 (1990). Nonetheless, because the facts surrounding the underlying issues are undisputed, the district courts permanent injunction will be reviewed de novo. See Secretary of State v. Give Nevada A Raise, 120 Nev. 481, 486 n.8, 96 P.3d 732, 735 n.8 (2004). Moreover, in the context of reviewing an administrative decision made under the Administrative Procedure Act, this court, like the district court, reviews purely legal questions de novo. Garcia v. Scolaris Food & Drug, 125 Nev. 48, 56, 200 P.3d 514, 520 (2009); see also NRS 233B.135(3). The separation of powers doctrine prohibits one branch of government from impinging on the powers of another
[Headnote 7]

States are not required to structure their governments to incorporate the separation of powers doctrine, Sweezy v. New Hampshire, 354 U.S. 234, 255 (1957), but Nevada has embraced this doctrine and incorporated it into its constitution. Nev. Const. art. 3, 1. The

292

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purpose of the separation of powers doctrine is to prevent one branch of government from encroaching on the powers of another branch. Clinton v. Jones, 520 U.S. 681, 699 (1997). In the United States Constitution, separation of powers is expressed by the discrete treatment of the three branches of government in Articles I (legislative), II (executive), and III (judicial). Buckley v. Valeo, 424 U.S. 1, 124 (1976). The Nevada Constitution mirrors this structure in Articles 4, 5, and 6. The Nevada Constitution vests the states legislative power in a Legislature comprised of two bodies, the Senate and Assembly. Nev. Const. art. 4, 1. Specifically, Article 4, Section 1 provides that [t]he Legislative authority of this State shall be vested in a Senate and Assembly which shall be designated The Legislature of the State of Nevada. The powers of the executive branch are outlined in Article 5 of the Nevada Constitution, with the supreme executive power granted to the Governor. Nev. Const. art. 5, 1. The powers of the judicial branch are set forth in Article 6 of the Nevada Constitution. Unlike the United States Constitution, which expresses separation of powers through the establishment of the three branches of government, see Buckley, 424 U.S. at 124, Nevadas Constitution goes one step further; it contains an express provision prohibiting any one branch of government from impinging on the functions of another. Secretary of State v. Nevada State Legislature, 120 Nev. 456, 466, 93 P.3d 746, 753 (2004) (noting that Nevadas separation of powers provision is contained in Article 3, Section 1 of the Nevada Constitution and that separation of powers works by preventing the accumulation of power in any one branch of government). Specifically, Article 3, Section 1(1) provides that [t]he powers of the Government of the State of Nevada shall be divided into three separate departments,the Legislative,the Executive,and Judicial; and no persons charged with the exercise of powers properly belonging to one of these departments shall exercise any functions, appertaining to either of the others, except in the cases expressly directed or permitted in this constitution. Accord Blackjack Bonding v. Las Vegas Mun. Ct., 116 Nev. 1213, 1218, 14 P.3d 1275, 1279 (2000) (recognizing that the Nevada Constitution establishes that each branch of government is considered to be co-equal, with inherent powers to administer its own affairs). Based on these separation of powers principles, we begin our application of the doctrine to this case by examining Article 4, Section 6 of the Nevada Constitution to determine whether the power to discipline legislators is a function constitutionally committed to each house of the Legislature and whether any delegation of that

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power to another branch of government unconstitutionally violates separation of powers principles. We then evaluate the Commission itself, to determine its position within the three branches of Nevadas government. The discipline of legislators is a function constitutionally committed to each house of the Legislature that cannot be delegated to another branch of government The Commission contends that the separation of powers doctrine has not been violated because the Legislature properly delegated its power to discipline its members to the Commission for the purpose of enforcing Nevadas ethics laws. Senator Hardy maintains that the separation of powers doctrine is implicated because the Nevada Constitution clearly mandates that the regulation and discipline of legislators is a function constitutionally committed to each house of the Legislature. Senator Hardy also argues that the Commission is an agency of the executive branch, and thus the delegation of this authority to the Commission would violate the separation of powers doctrine. The district court agreed with Senator Hardys argument, finding that the discipline of legislators is a constitutionally committed function of the Legislature. The court further determined that the Commission is an executive branch agency, and that under the separation of powers doctrine, it could not infringe on the Legislatures constitutionally committed function. We agree with the district court. This court has recognized that separation of powers principles are particularly applicable when a constitution expressly grants authorization to one branch of government. Secretary of State, 120 Nev. at 466, 93 P.3d at 753. Article 4, Section 6 of the Nevada Constitution vests each house of the Legislature with the authority to regulate the conduct of its own members: Each House shall judge the qualifications, elections and returns of its own members, choose its own officers (except the President of the Senate), determine the rules of its proceedings and may punish its members for disorderly conduct, and with the concurrence of two thirds of all the members elected, expel a member. This provision expressly grants the authority to discipline legislators for disorderly conduct to the individual houses of the Legislature, thus the power to discipline legislators for disorderly conduct is a function constitutionally committed to each house of the Legislature. See Brady v. Dean, 790 A.2d 428, 432 (Vt. 2001) (recognizing a legislative bodys exclusive constitutional prerogative to judge the qualifications of its own members); see also Secretary of State, 120 Nev. at 466, 93 P.3d at 753 (recognizing that the Nevada Constitution reserves the power to judge the qualifications of its members to

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each house of the Legislature). The issue then turns on whether the Legislature can delegate this authority. While not directly on point, this courts decision in Dunphy v. Sheehan, 92 Nev. 259, 549 P.2d 332 (1976), is instructional. In Dunphy, this court addressed the separation of powers doctrine as it related to the application of a previous version of the ethics laws and whether it was unconstitutional because it did not apply to members of the judicial branch. Id. at 265-66, 549 P.2d at 336-37. Noting that the Legislature had excluded members of the judiciary from being subject to the ethics laws out of deference to the separation of powers doctrine, the court nonetheless concluded that this exclusion was constitutionally mandated. Id. Specifically, the court stated that under the separation of powers doctrine, the legislative and executive branches may not exercise powers belonging to the judicial branch. Id. at 265, 549 P.2d at 336. And, concluding that the function of the judicial branch is the administration of justice and that [t]he judiciary, as a coequal branch of government, possesses the inherent power to protect itself and administer its affairs, the court held that [t]he promulgation of a Code of Judicial Ethics is a measure essential to the due administration of justice and within the inherent power of the judicial department of this state. Id. at 266, 549 P.2d at 336-37. In essence, the Dunphy court relied on the importance of the power to promulgate an ethics code specifically applicable to the judicial departments functionthe administration of justiceand the inherent powers of the judicial branch to conclude that the separation of powers principles barred the application of the ethics laws to the judiciary. Indeed, this court reached this conclusion even though, at the time the Dunphy decision was issued, no constitutional provision expressly reserved the power to discipline members of the judiciary to the judicial branch.5 Accordingly, we conclude that the Legislature may not delegate the constitutionally committed authority conferred on each house to discipline its members for disorderly conduct. What legislative actions are subject to discipline for disorderly conduct under this constitutional provision, however, is an issue we have not previously addressed. The power to discipline for disorderly conduct applies to conduct undertaken in the course of engaging in core legislative function activities Senator Hardy maintains that the power to punish legislators for disorderly conduct extends to punishing members for conduct related to their legislative actions, such as voting. The Commission re5 Subsequent to Dunphy, the Nevada Constitution was amended to establish a Commission on Judicial Discipline to hear matters relating to the fitness of judges in Nevada. See Nev. Const. art. 6, 21.

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sponds, in cursory fashion, by asserting that the Commissions proceedings are distinguishable from efforts to discipline legislators for disorderly conduct. Because we have not addressed what legislative actions are subject to discipline for disorderly conduct under Article 4, Section 6 of the Nevada Constitution, we turn to other courts for guidance on this issue. Core legislative function In Brady v. Dean, the Vermont Supreme Court concluded that a challenge to a law, based on the contention that members of Vermonts House of Representatives were required to disqualify themselves from voting on that law, constituted a nonjusticiable political question. 790 A.2d 428, 432-33 (Vt. 2001). In reaching its conclusion, the court relied on Chapter 2, Section 14 of the Vermont Constitution, which provides that the House of Representatives shall have the power to judge of the elections and qualifications of its own members. 6 Brady, 790 A.2d at 431 (quoting Vt. Const., ch. II, 14). The court concluded that Chapter 2, Section 14 conferred the exclusive authority on the legislature to judge the qualifications of its members. Id. In that regard, the court determined that Section 14 applied to determinations as to whether members of the house were required to disqualify themselves from voting on legislation.7 Brady, 790 A.2d at 431-32. As a result, the court held that a challenge to a law based on the argument that members of the house were required to disqualify themselves from voting constituted a political question. Id. at 432-33.
[Headnote 8]

The Brady court noted, however, that Chapter 2, Section 14 did not immunize members of the house from all conflicts of interest oversight by the executive and judicial branches. Id. at 432. Nonetheless, the court concluded that, when the conduct at issue constitutes a core legislative function, constitutional and prudential concerns protect members of the house from having that conduct scrutinized by another branch of state government. Id. at 432-33. The court reaffirmed that voting on legislation constituted such a core legislative function.8 Id. at 432. In doing so, the Brady court
6 Chapter 2, Section 14 of the Vermont Constitution deals with the powers of Vermonts House of Representatives. The powers of the Vermont Senate are set forth in Chapter 2, Section 19, which contains an identical reservation of the power to judge the elections and qualifications of its members to the Senate as Nevadas Constitution. 7 Unlike the Nevada Constitution, the Vermont Constitution does not contain an express reservation of the power to discipline its legislators for disorderly conduct. 8 See Salt Lake City v. Ohms, 881 P.2d 844, 848 (Utah 1994) (recognizing that a legislators act of voting on legislation is a core legislative function); Biblia Abierta v. Banks, 129 F.3d 899, 903 (7th Cir. 1997) (same); Burnette v. Bre-

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[125 Nev.

recognized that voting must remain inviolate to ensure the continued integrity and independence of [the house]. Id.
[Headnote 9]

Although Brady involved an extension of the constitutionally granted power to judge members qualifications to encompass determinations regarding whether members were required to disqualify themselves from voting on legislation, the principles set forth in Brady are applicable to the case before us. Specifically, Bradys conclusion that Chapter 2, Section 14 shields members of the Vermont House of Representatives from scrutiny by another branch of government with regard to core legislative function activities is particularly persuasive. Id. at 432-33. Here, Article 4, Section 6 of the Nevada Constitution expressly grants the authority to discipline legislators for disorderly conduct to the individual houses of the Legislature. Applying Brady to the present case, we conclude that, to the extent that a legislators actions are undertaken in the course of the legislators participation in, or conduct of, a core legislative function, any discipline for purported disorderly conduct in the course of engaging in these core function activities is a function constitutionally committed to each legislative house with regard to its members that cannot be delegated to another branch of government.9 Id. at 431-33. And because voting on legislation is a core legislative function, the authority to discipline legislators for disorderly conduct allegedly committed in the course of voting on legislation is also a function constitutionally committed to each house of the Legislature and cannot be delegated to another branch of the government. Disclosure of any potential conflicts of interest
[Headnote 10]

The ethics allegations against Senator Hardy assert that he violated NRS 281A.420 by failing to adequately disclose an alleged conflict of interest regarding a piece of legislation and by failing to abstain from voting on that legislation. NRS 281A.420(2) provides that a legislator may not vote on legislation when his or her interest in that legislation presents a conflict of interest. Additionally, NRS 281A.420(4) provides that a public officer may not vote or abstain from voting upon any matter (1) on which the public officer
desen, 566 F. Supp. 2d 738, 745 (E.D. Tenn. 2008) (same); Scott v. Office of Alexander, 522 F. Supp. 2d 262, 267 (D.D.C. 2007) (same); State v. Haley, 687 P.2d 305, 319 (Alaska 1984) (same). 9 In contrast, the Legislature may delegate the power to discipline with respect to conduct related to noncore legislative functions. Using the ethics laws as an example, such proceedings could include discipline for legislators who use governmental time, property, equipment, or other facilities for nongovernmental purposes (NRS 281A.400(8)), bid or enter into governmental contracts (NRS 281A.430), or accept or receive an honorarium (NRS 281A.510).

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has accepted a gift, (2) that would reasonably be shaped by the officers obligation in a private capacity to the interest of others, or (3) in which the officer has a pecuniary interest, without publicly disclosing to other members of the legislative body, the gift, commitment, or interest. The ethics laws thus make disclosure of any potential conflicts of interest a prerequisite to voting or abstaining from voting on legislation. Because voting is a core legislative function, see Brady, 790 A.2d at 432; Ohms, 881 P.2d at 848, and NRS 281A.420 makes disclosure necessary in order to vote or abstain from voting on legislation, the disclosure of potential conflicts in this context is, by extension, likewise a core legislative function. As concluded above, the discipline of legislators for disorderly conduct related to the core function activities of voting and disclosure of conflicts of interest is constitutionally committed to each house of the Legislature. And, on that basis, this authority cannot be delegated to another branch of the government. Secretary of State v. Nevada State Legislature, 120 Nev. 456, 466, 93 P.3d 746, 753 (2004); Brady, 790 A.2d at 43133. Thus, our determination of whether the Legislatures delegation of authority to discipline legislators for disorderly conduct related to voting and disclosure to the Commission violates separation of powers principles turns on our evaluation of the Commissions position within Nevadas tripartite government system. The district court properly determined that the Commission is an executive branch agency The Commission asserts that it is an independent agency with many types of powers blended together and contends that the legislative delegation of disciplinary power to the Commission does not violate the separation of powers doctrine. Senator Hardy responds that under Nevada law the Commission is part of the executive branch, and thus, the ethics proceedings, if allowed to go forward, would violate separation of powers principles. In addressing this issue, the district court determined that the Commission is part of the executive branch. We agree.
[Headnote 11]

Departmental agencies can exist within each branch of government and exercise certain ministerial functions that appear to overlap with or duplicate the functions of another branch. Galloway v. Truesdell, 83 Nev. 13, 21-22, 422 P.2d 237, 243-44 (1967). In fact, this court has recognized that administrative agencies from one branch can exercise functions linked to another branch without violating the separation of powers doctrine. See Nevada Industrial Commn v. Reese, 93 Nev. 115, 119-22, 560 P.2d 1352, 1354-56 (1977) (holding that appeals officers can exercise administrative powers that are quasi-judicial in nature without violating the separation of powers doctrine). Such an overlapping or duplication

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of effort or function can be entirely valid so long as each can logically and legitimately trace its efforts or functions back to, and is derived from, its basic source of power. Galloway, 83 Nev. at 22, 422 P.2d at 243. Thus, despite the Commissions arguments to the contrary, the Commission cannot be considered an independent agency because it must have a primary connection to and derive its power to act from one of the three branches of Nevada government.10 Id.
[Headnote 12]

The Commission was created to investigate and take appropriate action regarding alleged violations of the ethics laws. NRS 281A.280(1). Upon completion of its investigation, the Commission has the authority to issue opinions interpreting and applying the ethics laws, NRS 281A.440, and to impose civil penalties. NRS 281A.480. Thus, by statute, the Commission is tasked with carrying out and enforcing Nevadas ethics laws. Under Article 5, Section 7 of the Nevada Constitution, the executive branch is charged with carrying out and enforcing the laws enacted by the Legislature. Other jurisdictions have recognized that the executive branch in their respective states has the duty to execute the laws enacted by the legislature. See generally Phelps v. Sybinsky, 736 N.E.2d 809, 816 (Ind. Ct. App. 2000) (stating, in relevant part, members of the executive branch have the responsibility to execute the laws of the state); Snider v. Bd of Comrs, Walla Walla County, 932 P.2d 704, 708 n.3 (Wash. Ct. App. 1997) (noting that executive branch executes the laws as enacted by the legislature). Considering the powers of and the purpose behind the Commission in light of Article 5, Section 7 thus demonstrates that the Commission is part of the executive branch. Thus, although the Commission itself was created by the Legislature, the purpose for which it was created necessarily designates the Commission as an agency of the executive branch with its basic source of power provided by Article 5 of the Nevada Constitution. Based on our discussion above, we conclude that because the Commission is an executive branch agency, any delegation to the Commission by the Legislature of the power to discipline its members with respect to core legislative functions is an unconstitutional delegation of power in violation of the separation of powers provision of the Nevada Constitution. Having reached this conclusion, we turn to our final issuewhether the Legislature waived the protec10 Although the Commission correctly argues that it also exercises quasilegislative functions, such as adopting regulations, see NRS 281A.290, and quasi-judicial functions, such as adjudicating contested ethics cases and issuing subpoenas when investigating alleged violations, see NRS 281A.290-.300, this argument does not affect our conclusion. As noted in Galloway, agencies can exist within each branch to exercise certain ministerial functions that appear to overlap with or duplicate the functions of another branch. 83 Nev. at 21-22, 422 P.2d at 243-44.

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tions of the separation of powers doctrine by enacting the ethics laws. Structural protections such as the separation of powers doctrine cannot be waived
[Headnote 13]

The Commission contends that the Legislatures delegation of its disciplinary power to the Commission by enacting the ethics laws was an intentional institutional waiver of any constitutional protections that might bar the Commission from conducting disciplinary proceedings against Senator Hardy. Senator Hardy contends that there was no institutional waiver and that no such waiver is possible. He asserts that any conclusion that a waiver occurred would result in an unconstitutional delegation of each house of the Legislatures disciplinary responsibility. Moreover, the structural protections of the separation of powers doctrine cannot be waived. In addressing this issue, the district court agreed with Senator Hardy that any finding of an institutional waiver would raise the specter of an unconstitutional delegation of power to the Commission. It further noted that any such finding of waiver would create separation of powers concerns because neither the Legislature nor the executive branch can agree to waive the structural protections of separation of powers. Specifically, the district court held that regardless of the degree of assent or acquiescence by the Legislative or Executive Department, legislation which infringes on the structural protections of separation of powers is unconstitutional. We agree.
[Headnote 14]

In Freytag v. Commissioner, 501 U.S. 868, 878-80 (1991), the United States Supreme Court held that constitutionally based structural protections cannot be waived by either the legislative or executive branch. More specifically, in addressing the argument that it should defer to the Executive Branchs decision that a statute did not represent a legislative encroachment on the executive powers found in the Appointments Clause of Article II, Section 2 of the United States Constitution, the Court concluded that the roots of the separation-of-powers concept embedded in the Appointments Clause are structural and political. Id. at 878. As a result, the Court rejected the argument that it should defer to the Executive Branch, concluding that neither Congress nor the Executive Branch can waive such a structural protection. Id. at 880. In reaching this conclusion, the Court noted that [t]he assent of the Executive to a bill which contains a provision contrary to the Constitution does not shield [the bill] from judicial review. Id. (quoting INS v. Chadha, 462 U.S. 919, 942 n.13 (1983)). This court has recognized that separation of powers is probably the most important single principle of government. Galloway v.

300

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[125 Nev.

Truesdell, 83 Nev. 13, 18, 422 P.2d 237, 241 (1967). Thus, considering this courts recognition of the fundamental nature of this structural protection to Nevadas tripartite system of government, guided by the Supreme Courts conclusion in Freytag that such structural protections cannot be waived, we conclude that the Legislature cannot, by enacting a statute that delegates certain powers to another branch of the government, waive any separation of powers violation inherent in such a delegation. CONCLUSION The power to discipline its membership with respect to the core legislative function of voting and, by extension, disclosure of conflicts of interest, is a function constitutionally committed to each house of the Legislature and it cannot be delegated to another branch of government. Because the Commission is part of the executive branch, any delegation to the Commission by the Legislature of the power to discipline its members with respect to such core legislative functions is an unconstitutional delegation of power in violation of the separation of powers provision of the Nevada Constitution. In light of the fundamental importance of the structural protections provided by the separation of powers doctrine, the Legislature cannot waive those protections by enacting a statute. Thus, we affirm the district courts order.11

ALLSTATE INSURANCE COMPANY, APPELLANT, v. WILLIAM MILLER, RESPONDENT.

No. 49760 July 30, 2009 212 P.3d 318

Appeal from a district court judgment in an insurance bad-faith action. Eighth Judicial District Court, Clark County; Elizabeth Goff Gonzalez, Judge. Insured brought action against automobile liability insurer to recover for bad-faith failure to file interpleader complaint, inform insured of settlement offer, and agree to stipulated judgment in excess of policy limits. The district court denied insurers request for special interrogatories and entered judgment on jury verdict for insured. Insurer appealed. The supreme court, GIBBONS, J., held that: (1) insurer had duty to adequately inform insured of injured claimants offer to release insured if insurer filed interpleader action, (2) in11 Based on our holding, we need not reach the district courts finding that legislative immunity barred the Commission from conducting administrative proceedings against Senator Hardy.

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surer was not required to file interpleader action on insureds behalf, (3) it had no duty to accept offer of stipulated judgment in excess of policy limits, and (4) refusal to give special interrogatories without stating reasons on the record was abuse of discretion requiring reversal. Affirmed in part, reversed in part, and remanded. [Rehearing granted October 28, 2009] CHERRY, J., dissented in part. SAITTA, J., dissented. Lewis & Roca, LLP, and Daniel F. Polsenberg, Las Vegas; Prince & Keating, LLP, and Dennis M. Prince, Las Vegas; Luce Forward Hamilton & Scripps, LLC, and Ronald D. Getchey, San Diego, California, for Appellant. Vannah & Vannah and Matthew R. Vannah, Las Vegas, for Respondent.
1. INSURANCE. Because a primary liability insurers exercise of its right and duty to defend includes settlement duties and an insurer must give equal consideration to the insureds interest, the covenant of good faith and fair dealing includes a duty to adequately inform the insured of settlement offers, including reasonable offers in excess of the policy limits. 2. INSURANCE. A liability insurers failure to adequately inform an insured of a settlement offer is a factor to consider in a bad-faith claim. 3. INSURANCE. Unless the policy says otherwise, a liability insurer does not have an independent duty to file an interpleader action on behalf of an insured. 4. INSURANCE. A liability insurer is not required to agree to a proposed stipulated judgment between the insured and the claimant if that stipulated judgment is beyond the policy limits. 5. TRIAL. If a party submits special verdicts or interrogatories to the court, the district court must approve or deny them on the record, and state its legal basis for doing so. NRCP 49. 6. APPEAL AND ERROR. Supreme court upholds a jury verdict if there is substantial evidence to support it, but will overturn it if it was clearly wrong from all the evidence presented. 7. APPEAL AND ERROR. Supreme court reviews for abuse of discretion denial of request to submit special interrogatories and denial of motion for new trial. 8. INSURANCE. The law, not the insurance contract, imposes implied covenant of good faith and fair dealing on insurers. 9. INSURANCE. Insurers violation of implied covenant of good faith and fair dealing gives rise to a bad-faith tort claim.

302

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[125 Nev.

10. INSURANCE. Liability insurers obligation in the duty to indemnify is narrower than the insurers duty to defend. 11. INSURANCE. A primary liability insurers right and duty to defend attaches when the insured tenders defense of the lawsuit to the insurer and carries with it the duty to communicate to the insured any reasonable settlement offer that could affect the insureds interests. 12. INSURANCE. A liability insurers duty to adequately inform the insured begins upon receipt of a settlement demand and continues through litigation to final resolution of that claim. 13. INSURANCE. If liability insurer fails to adequately inform an insured of a known reasonable settlement opportunity after the filing of a claimants lawsuit, then the insurer has breached its duty to defend the insured against lawsuits. 14. INSURANCE. Evidence created jury questions on whether automobile liability insurer adequately informed insured of claimants offer to settle for policy limits and release insured from liability if insurer would file interpleader action and, thus, whether insurer breached covenant of good faith and fair dealing and proximately caused insureds damages. 15. INSURANCE. A liability insurers failure to adequately inform an insured of a settlement offer is a factor for the trier of fact to consider when evaluating a bad-faith claim. 16. INSURANCE. Liability insurers duty to adequately inform an insured of settlement offer arises from the special relationship between the insured and the insurer, which is similar to a fiduciary relationship. 17. INSURANCE. A liability insurer must equally consider the insureds interests and its own in settling tort claim. 18. INSURANCE. Automobile liability insurers offer of policy limits within 13 days of accident and its subsequent issuance of check with the claimant and lienholders names did not relieve insurer of liability for bad faith; insurers duty to insured continued from the filing of claim until the duty to defend was discharged. 19. INTERPLEADER. Either automobile liability insurer or claimant had standing to commence interpleader action for distributing policy limits. NRCP 22. 20. INSURANCE. If a liability insurer violates its duty of good faith and fair dealing by failing to adequately inform the insured of a reasonable settlement opportunity, the insurers actions can be a proximate cause of the insureds damages arising from a foreseeable settlement or excess judgment. 21. INSURANCE. Automobile liability insurer had duty to adequately inform insured of claimants offer to release insured from liability if insurer filed interpleader action; insured could have chosen at that time to hire independent counsel to review the offer and pursue any available options, such as initiating an interpleader complaint at his expense or contributing additional funds.

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22. INSURANCE. Insured was not required to show possibility of settlement of tort claim within automobile liability policy limits before proceeding on claim of badfaith failure to inform insured of offer to release insured if insurer filed interpleader action. 23. INSURANCE. If a claimant offers to settle for the liability policy limits plus court costs, then the insurer must relay that offer to the insured; although the offer is technically beyond the policy limits, the insurer must provide the insured the opportunity to independently consider his or her options. 24. INSURANCE. In order to provide the full benefit of the special relationship between liability insurer and the insured, the insurer must adequately inform the insured of the status of his or her case so the latter can protect his interests, although insurer need not accept excessive settlement demand. 25. INSURANCE. A liability insurer can be liable for bad-faith failure to settle, even where a demand exceeds policy limits, if the insured is willing and able to pay the amount of the proposed settlement that exceeds policy coverage. 26. INSURANCE. When there is a genuine dispute regarding an insurers legal obligations, the district court can determine if the insurers actions were reasonable. 27. APPEAL AND ERROR. Supreme court reviews de novo district courts decision on reasonableness of insurers actions in connection with settlement of a claim and evaluates the insurers actions at the time it made the decision. 28. INSURANCE. An insurers obligations arise from the insurance contract and the law. 29. INSURANCE. An insurer is not required to resolve lienholder claims unless the insurance policy names the lienholder as a loss payee, the claimant is the insured, or the insured assigns the policy to the lienholder; thus, an insurer is not required to resolve a third-party claimants liens when the duty is not included in the insurance policy. 30. INSURANCE. Automobile liability insurer was not contractually obligated to file an interpleader action on insureds behalf, but its refusal to do so without informing insured of claimants offer to release insured if insurer filed the action was factor in determining whether insurer adequately informed insured, complied with duty of good faith and fair dealing, and adequately defended him. 31. INTERPLEADER. An insurer cannot rely upon a perceived conflict of interest to avoid filing an interpleader action because an insurer can give the insured and claimant an opportunity to waive any potential conflicts. 32. INSURANCE. An insurers failure to advise an insured of his or her ability to file an interpleader action may be grounds for bad faith for breach of the duty to defend. 33. INSURANCE. Automobile liability insurer had no duty to accept offer of stipulated judgment in excess of policy limits.

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[125 Nev.

34. APPEAL AND ERROR. Supreme court reviews for abuse of discretion a district courts decision to give a jury instruction. 35. APPEAL AND ERROR. Supreme court reviews de novo whether proffered instruction is an incorrect statement of the law. 36. APPEAL AND ERROR. If a jury instruction is a misstatement of the law, it only warrants reversal if it caused prejudice and, but for the error, a different result may have been reached. 37. INSURANCE. Implied covenant of good faith and fair dealing does not require liability insurer to agree to settlement offer in excess of policy limits as it has a contractual right to have an underlying judgment determined by trial or settlement and is not required to take on monetary obligations outside its insurance contract. 38. APPEAL AND ERROR; TRIAL. Trial courts refusal to give special interrogatories requested by automobile liability insurer without stating reasons on the record was abuse of discretion requiring reversal in insureds suit alleging bad faith in connection with settlement of tort claim, where two of insureds three theories were invalid and supreme court could not determine theory that jury relied on. 39. APPEAL AND ERROR. Supreme court upholds the district courts decision to permit or refuse special interrogatories unless it was arbitrary or capricious. 40. TRIAL. Where special verdicts or interrogatories are timely and properly submitted in a case involving multiple claims or multiple theories giving rise to a single claim, the district court should give the special verdicts or interrogatories or explain on the record the reason for refusing them. NRCP 49. 41. TRIAL. District court does not have a sua sponte obligation to submit to jury its own special verdicts or interrogatories or to give improperly framed special verdicts or interrogatories; it is not required to submit them if the party does not timely and properly submit proper proposed special verdicts or interrogatories. NRCP 49. 42. TRIAL. District court has discretion to impose requirements that the parties submit request for special verdicts or interrogatories no later than calendar call or other pretrial conference close to the date of trial. EDCR 2.69(a)(3). 43. CRIMINAL LAW; TRIAL. The final settling of jury instructions, special verdicts, and special interrogatories in all criminal and civil jury trials must be done on the record, and in the event of an objection by a party, the district court must concisely rule on the objection on the record. 44. INSURANCE. Neither contractual duties nor the implied covenant of good faith and fair dealing alone required automobile liability insurer to file an interpleader complaint to resolve competing claims to policy limits or to consent to a stipulated judgment in excess of policy limits.

Before the Court EN BANC.

July 2009]

Allstate Insurance Co. v. Miller OPINION

305

By the Court, GIBBONS, J.: This case arises from a bad-faith claim filed by William Miller against his insurer, Allstate Insurance Company. Miller sued Allstate for breach of contract, negligence, and bad faith. In particular, Miller sued Allstate under three theories of bad-faith liability. Miller alleged that Allstate breached the covenant of good faith and fair dealing by failing to file an interpleader complaint, failing to adequately inform Miller of a settlement offer, and refusing to agree to a stipulated judgment in excess of Millers policy limits. At the conclusion of the trial, the jury returned a verdict in Millers favor on the bad-faith claim. However, the district court denied Allstates request to submit special interrogatories to the jury to determine upon which theory of bad faith the jury returned its verdict. Allstate appeals the jury verdict and the district courts denial of Allstates motion for a new trial and judgment as a matter of law. Allstate challenges the legal sufficiency of Millers three bad-faith theories and the district courts refusal to submit Allstates special interrogatories to the jury. In this appeal, we address an insurers duties under the implied covenant of good faith and fair dealing and its duty to defend. Specifically, we address an insurers duty to inform an insured regarding settlement opportunities and its duties regarding interpleading funds and stipulated judgments. We also address the standards that govern our review of a district courts refusal to give special interrogatories when requested by a party in a civil case.
[Headnotes 1, 2]

Because a primary insurers exercise of its right and duty to defend includes settlement duties and an insurer must give equal consideration to the insureds interest, we hold that the covenant of good faith and fair dealing includes a duty to adequately inform the insured of settlement offers. This includes reasonable offers in excess of the policy limits. Failure to adequately inform an insured is a factor to consider in a bad-faith claim and, if established, can be a proximate cause of any resulting damages. We conclude that whether Allstate violated its duty to adequately inform Miller of the settlement opportunities that existed in this case presented a question of fact for the jury. Therefore, the district court did not abuse its discretion when it submitted the failure-to-inform theory of bad faith to the jury.
[Headnotes 3, 4]

Millers two alternative theories of bad faith fail. Unless the policy says otherwise, an insurer does not have an independent duty to file an interpleader action on behalf of an insured. Nor is an insurer

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required to agree to a proposed stipulated judgment between the insured and the claimant if that stipulated judgment is beyond the policy limits. As a result, we conclude that the district court erred when it submitted these issues to the jury.
[Headnote 5]

Finally, we hold that the district court abused its discretion in refusing without explanation to give the jury the special interrogatories that Allstate proposed. Not giving special interrogatories in a case involving multiple claims or theories of liability compromises our ability to review the verdict for error, since it is often impossible to say after the fact whether a jury based its general verdict on a permissible or impermissible theory of liability. See Skender v. Brunsonbuilt Constr. & Dev. Co., 122 Nev. 1430, 148 P.3d 710 (2006). Thus, we further hold that if a party submits special verdicts or interrogatories to the court pursuant to NRCP 49, the district court must approve or deny them on the record, and state its legal basis for doing so. Because the record in this case is silent regarding why the district court rejected Allstates requested special interrogatories, we conclude that the district court abused its discretion. Therefore, we affirm in part and reverse in part the district courts judgment and remand this matter for further proceedings consistent with this opinion. FACTS AND PROCEDURAL HISTORY Respondent William Miller struck and injured claimant Mark Hopkins. At the time of the accident, Millers Allstate automobile insurance policy contained a bodily injury liability limit of $25,000. After receiving a letter from attorney Steven Karen, which stated that he represented Hopkins, Allstate offered to settle Hopkins claim for the $25,000 policy limit. Karen did not accept the offer on Hopkins behalf. Allstate also informed Miller that Hopkins damages already exceeded the $25,000 policy limit, that Miller may be personally liable for any damages above the $25,000 limit, and that he had the right to hire independent legal counsel at his own expense. About a month later, attorney David Sampson replaced Karen as Hopkins lawyer. Karen then notified Allstate of his $8,325 attorney fee lien. Later, University Medical Center (UMC) informed Allstate of its $67,564.84 hospital lien. Although Sampson told Allstate that Hopkins would not accept a policy-limit check with the lienholders names included as joint payees, Allstate still sent him a $25,000 check made jointly payable to Hopkins, Sampson, Karen, and UMC. Sampson rejected the multiple-party joint check and advised Allstate that Hopkins was willing to release Miller from all liability if Allstate would agree to file an interpleader action, pursuant

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to NRCP 22, to determine the rights of Hopkins, Sampson, Karen, and UMC as to the $25,000. Allstate initially declined Hopkins interpleader offer, stating that it could not represent Hopkins in an interpleader action. However, just a few months later, and weeks after Hopkins filed his lawsuit against Miller, Allstate changed its position and agreed to file the interpleader action. By this time, Hopkins previous settlement offer had expired. Later, Hopkins made the following settlement offer to Miller: if Miller agreed to execute an excess stipulated judgment, Hopkins would release Miller from execution of the judgment if Miller pursued a bad-faith lawsuit against Allstate. Hopkins stated that this would cap Millers liability. Allstate rejected this proposal and cautioned that without its consent, the stipulated judgment could not bind Allstate. Allstate also explained that if Miller agreed to the stipulated judgment, then issues could arise regarding his insurance policys cooperation clause.1 Miller did not accept the offer. Subsequently, Hopkins obtained a verdict against Miller totaling $703,619.88. Miller filed a complaint against Allstate, alleging that Allstate breached its covenant of good faith and fair dealing when it failed to file an interpleader complaint, failed to adequately inform Miller of Hopkins settlement offer(s), and refused to consent to Hopkins stipulated excess judgment. After a seven-day trial, Allstate requested that the district court submit to the jury three special interrogatories. Allstates special interrogatories focused on Millers three theories of bad faith and asked which theory the jury found persuasive. The district court refused to submit the special interrogatories to the jury. Subsequently, the jury returned a general verdict in favor of Miller for $1,079,784.88. The district court entered a judgment on the verdict for that amount. Allstate filed a motion for a new trial and a renewed motion for judgment as a matter of law, which challenged Millers three bad-faith theories and the district courts refusal to submit Allstates special interrogatories. The district court denied these motions. Allstate now appeals. DISCUSSION In this case, Miller alleged three theories of bad-faith liability: (1) Allstates failure to file an interpleader complaint, (2) its failure to inform Miller of Hopkins interpleader offer, and (3) its refusal to agree to Hopkins excessive stipulated judgment. We first address the standards of review that apply to jury verdicts and a district courts denial of a new trial and judgment notwithstanding the verdict before turning to the merits of this appeal.
1 However, Allstate did not offer to retain independent counsel to advise Miller regarding this offer.

308

Allstate Insurance Co. v. Miller

[125 Nev.

I. Standards of review The standards of review for reversing a jury verdict and reversing a district courts denial of a motion for a new trial are different.
[Headnote 6]

In reviewing a jury verdict, [t]his court upholds a jury verdict if there is substantial evidence to support it, but will overturn it if it was clearly wrong from all the evidence presented. Soper v. Means, 111 Nev. 1290, 1294, 903 P.2d 222, 224 (1995). As a result, the jury verdict in this case cannot be reversed unless there is a lack of substantial evidence that Allstate violated the implied covenant of good faith and fair dealing.
[Headnote 7]

We review for abuse of discretion both the district courts denial of Allstates request to submit the special interrogatories and its denial of a motion for a new trial. Lehrer McGovern Bovis v. Bullock Insulation, 124 Nev. 1102, 1110, 197 P.3d 1032, 1037-38 (2008); Skender, 122 Nev. at 1435, 148 P.3d at 714. We now turn to the question of whether Allstate had a duty to inform Miller of Hopkins interpleader offer, and whether Allstate was obligated to file an interpleader action on behalf of Miller. We then address whether Allstate had a duty to accept Hopkins proposed stipulated excess judgment. II. The implied covenant of good faith and fair dealing includes a duty to adequately inform Allstate argues that Millers failure-to-inform theory, which he bases upon the allegation that Allstate failed to advise Miller about the interpleader offer, is inapplicable to this case because the issue was whether Allstate would agree to be the plaintiff in an interpleader action. We disagree. We conclude that under the facts of this case, Millers failure-to-inform theory is a viable basis for an allegation of bad faith against Allstate.
[Headnotes 8, 9]

One of the issues in this appeal is Allstates obligations under the implied covenant of good faith and fair dealing. The law, not the insurance contract, imposes this covenant on insurers. United States Fidelity v. Peterson, 91 Nev. 617, 620, 540 P.2d 1070, 1071 (1975). A violation of the covenant gives rise to a bad-faith tort claim. Id. This court has defined bad faith as an actual or implied awareness of the absence of a reasonable basis for denying benefits of the [insurance] policy. Am. Excess Ins. Co. v. MGM, 102 Nev. 601, 605, 729 P.2d 1352, 1354-55 (1986).

July 2009]

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We first discuss the relationship between an insurers duty to defend and the implied covenant of good faith and fair dealing. Then we discuss an insurers duty to inform its insured of a settlement offer. Afterwards, we apply the duty to inform to the facts of this case. A. The relationship between an insurers duty to defend and the implied covenant of good faith and fair dealing
[Headnote 10]

Primary liability insurance policies create a cascading hierarchy of duties between the insurer and the insured. At the top of this hierarchy are two general duties: the duty to defend and the duty to indemnify. The obligation of the insurer in the duty to indemnify is narrower than the insurers duty to defend. Crawford v. Weather Shield Mfg. Inc., 187 P.3d 424, 427 (Cal. 2008). But we do not address the duty to indemnify in this case. Instead, this case implicates the scope of an insurers duty to defend. The duty to defend contains two potentially conflicting rights: the insurers right to control settlement discussions and its right to control litigation against the insured. 14 Couch on Insurance 3d 200:1, 203:1 (2005). Each of these contractual rights creates additional duties for the insurer. The right to control settlement discussions creates the duty of good faith and fair dealing during negotiations. See Couch, supra, 203:1 (stating that the insurers right to control settlement negotiations may create a conflict of interest between the insurer and the insured, and therefore, the insurer must act in good faith and give the insureds interests equal consideration with its own). The right to control litigation creates the duty to defend the insured from lawsuits within the insurance policys coverage. Couch, supra, 200:1.
[Headnotes 11-13]

A primary insurers right and duty to defend attaches when the insured tenders defense of the lawsuit to the insurer and carries with it the duty to communicate to the insured any reasonable settlement offer that could affect the insureds interests. Heredia v. Farmers Ins. Exchange, 279 Cal. Rptr. 511, 519-20 (Ct. App. 1991). Thus, an insurers duty to adequately inform the insured begins upon receipt of a settlement demand and continues through litigation to final resolution of that claim. As a result, if an insurer fails to adequately inform an insured of a known reasonable settlement opportunity prior to the filing of a claimants lawsuit, the insurer may breach its duty of good faith and fair dealing. If the insurer fails to adequately inform an insured of such an opportunity after the filing of a claimants lawsuit, then the insurer has breached its duty to defend the insured against lawsuits.

310

Allstate Insurance Co. v. Miller

[125 Nev.

B. Failure to adequately inform is a factor in a bad-faith claim Miller asserts that Allstate incorrectly informed him that Hopkins was still considering Allstates policy-limits offer, and it failed to inform him of the possibility of his contributing to a settlement or initiating an interpleader action on his own. Miller testified that Natasha Szumilo, Allstates claims adjustor, never mentioned the word interpleader or provided him with the opportunity to contribute additional monies to the $25,000 settlement offer or for Miller to initiate or pay for the interpleader action that Hopkins made part of his demand. Miller also testified that Allstate informed him there was a settlement offer, but [Szumilo] told me basically that Mr. Hopkins attorney was asking her to do things that they dont do because they dont represent his client. Miller also testified that when he spoke to Szumilo, she stated that Hopkins had not rejected Allstates policy-limits offer. However, she failed to tell him that Hopkins had conditionally rejected the offer unless Allstate agreed to file an interpleader complaint.
[Headnote 14]

Although not confirmed in Szumilos testimony, there is a notation in Millers file that Allstate advised Miller of Hopkins settlement offer, but there are no details of what Allstate specifically told Miller. However, Allstate failed to provide testimonial evidence that there was no realistic possibility for settlement within the $25,000 policy limit or that Miller would not have filed, or made any contribution to the filing of, an interpleader complaint. Therefore, whether Allstate could have settled with Hopkins within the policy limits in conjunction with Miller is a disputed issue of material fact that the trier of fact must resolve.
[Headnote 15]

In addition, whether Allstate adequately informed Miller of Hopkins settlement offer is also a question of fact. This court has previously held that a bad-faith action applies to more than just an insurers denial or delay in paying a claim. Guaranty Natl Ins. Co. v. Potter, 112 Nev. 199, 206, 912 P.2d 267, 272 (1996). An insurers failure to adequately inform an insured of a settlement offer may also constitute grounds for a bad-faith claim. Allen v. Allstate Ins. Co., 656 F.2d 487, 489 (9th Cir. 1981); Miller v. Elite Ins. Co., 161 Cal. Rptr. 322, 332 (Ct. App. 1980). Many jurisdictions hold that failure to inform is a factor in a bad-faith claim. Couch, supra, 203:16. We now join these jurisdictions and conclude that an insurers failure to adequately inform an insured of a settlement offer is a factor for the trier of fact to consider when evaluating a bad-faith claim.

July 2009]
[Headnotes 16, 17]

Allstate Insurance Co. v. Miller

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This duty to adequately inform an insured arises from the special relationship between the insured and the insurer, which is similar to a fiduciary relationship. Ainsworth v. Combined Ins. Co., 104 Nev. 587, 592, 763 P.2d 673, 676 (1988) (describing the insurer-insured relationship as one of special confidence); Love v. Fire Ins. Exchange, 271 Cal. Rptr. 246, 251-52 (Ct. App. 1990) (refusing to characterize the insurer-insured relationship as fiduciary but acknowledging it is a fiduciary-type relationship). Although this court has refused to adopt a standard where an insurance company must place the insureds interests over the companys interests, the nature of the relationship requires that the insurer adequately protect the insureds interest. Powers v. United Servs. Auto. Assn, 114 Nev. 690, 701-02, 962 P.2d 596, 603 (1998), modified on other grounds, Powers v. United Servs. Auto. Assn, 115 Nev. 38, 979 P.2d 1286 (1999). Thus, at a minimum, an insurer must equally consider the insureds interests and its own. Love, 271 Cal. Rptr. at 253. In considering an insureds interests, the insurer must realize that the elements of bad faith include more than an insurers rejection of a settlement offer within the policy limits. See Guaranty, 112 Nev. at 206, 912 P.2d at 272 (holding that a bad-faith action applies to more than just an insurers denial or delay in paying a claim, such as paying from an independent medical examination); Anderson v. State Farm Mut. Ins. Co., 2 P.3d 1029, 1031 (Wash. Ct. App. 2000) (holding, as a matter of law, that bad faith includes an insurers failure to disclose the existence of underinsured/uninsured motorist coverage to an injured insured).
[Headnote 18]

Allstate contends that since it offered Millers policy limits within 13 days of the accident and it subsequently issued a check with the claimant and lienholders names, it cannot be liable for bad faith. We disagree. A primary liability insurers duty to its insured continues from the filing of the claim until the duty to defend has been discharged. We refuse to adopt the absolute rule that a primary liability insurers bad-faith liability ends upon a timely offer of the insureds policy limits. While in most cases an insurers timely policylimit offer negates a finding of bad faith because the insurer has fulfilled its contractual obligations, the mere offering of the policy limit does not necessarily end a primary liability insurers contractual obligations, specifically, its duty to defend the insured. See United Natl Ins. Co. v. Frontier Ins. Co., 120 Nev. 678, 687, 99 P.3d 1153, 1158 (2004) (stating that once the duty to defend arises, because of an insureds potential liability, the insurers duty continues throughout the entire litigation); 22 Eric Mills Holmes, Holmes Appleman on Insurance 2d 137.4[B] (2003). Further, the law

312

Allstate Insurance Co. v. Miller

[125 Nev.

binds the insurer, through the implied covenant of good faith and fair dealing, to discharge its remaining duties in a reasonable manner. See NRS 687A.150 (immunizing all member insurers from liability for reasonable actions taken during performance of their duties). Particularly, courts have recognized that an insurers failure to adequately inform an insured of a settlement offer is also grounds for a bad-faith claim. Allen, 656 F.2d at 489; Miller, 161 Cal. Rptr. at 332; Loudon v. State Farm Mut. Auto. Ins. Co., 360 N.W.2d 575, 579 (Iowa Ct. App. 1984); Henke v. Iowa Home Mut. Cas. Co., 97 N.W.2d 168, 174 (Iowa 1959) (holding that failure to adequately inform insured of possible excess liability or the status of settlement negotiations may indicate bad faith); Prosser v. Leuck, 592 N.W.2d 178, 183 (Wis. 1999) (holding that an insurers fiduciary duty includes timely informing the insured of any settlement offers received). Some courts even go as far as to hold insurers liable for bad faith not only for failing to adequately inform, but also for failing to advise the insured to contribute. Oppel v. Empire Mut. Ins., 517 F. Supp. 1305, 1306 (S.D.N.Y. 1981) (applying New York law). In recognizing an insurers bad-faith liability for failing to inform an insured of a settlement offer, other courts have outlined specific factors to consider. In Archdale v. American International Specialty Lines, 64 Cal. Rptr. 3d 632 (Ct. App. 2007), the California Court of Appeal stated that the following considerations are relevant in determining whether an insurers settlement actions were reasonable: (1) the insurer must give the interests of the insured at least as much consideration as it gives to its own interests, and (2) the insurer must act as a prudent insurer without policy limits. Id. at 644-45 (emphasis added). Similarly, the Louisiana Court of Appeal has stated that the interest of the insured is paramount when considering a settlement offer, and the following factors address whether the insurer acted in bad faith when refusing to settle: (1) the probability of the insureds liability; (2) the adequacy of the insurers investigation of the claim; (3) the extent of damages recoverable in excess of policy coverage; (4) the rejection of offers in settlement after trial; (5) the extent of the insureds exposure as compared to that of the insurer; and (6) the nondisclosure of relevant factors by the insured or insurer. Fertitta v. Allstate Ins. Co., 439 So. 2d 531, 533 (La. Ct. App. 1983) (emphasis added).
[Headnote 19]

Here, Sampson, Hopkins attorney, testified that Hopkins would have released Miller if Allstate had filed an interpleader complaint naming Hopkins and the lienholders, or transmitted the $25,000 bodily injury limit to Sampson with an express agreement for Samp-

July 2009]

Allstate Insurance Co. v. Miller

313

son to distribute the monies pursuant to a district court interpleader order. In other words, Allstate had two choices regarding the $25,000 policy limit: it could either issue a check to Hopkins and Sampson without naming the lienholders and allow Sampson to file the interpleader action, in which case Sampson would distribute the monies pursuant to a district court order, or it could deposit the monies with the court clerk and file the interpleader action itself. Under NRCP 22, either Allstate or Hopkins had standing to commence the interpleader action. Regardless of whether Allstate or Hopkins initiated the interpleader action, Hopkins was willing to release Miller under either of these options. If Allstate was opposed to filing the interpleader action itself and it was concerned about releasing the funds to Hopkins without the lienholders names on the check, there was a third logical option. Allstate could have approached Miller with Hopkins settlement offer and asked Miller to initiate the interpleader action pursuant to NRCP 22 once Allstate deposited the funds with the district court. The funds could only be distributed pursuant to a district court order. Allstate, however, never disclosed the details of Hopkins offer to Miller. Thus, Allstate denied Miller the opportunity to contribute to Hopkins settlement offer in exchange for Millers release. In sum, Allstate could have obtained a release for Miller simply by initiating an interpleader action itself or by depositing the $25,000 bodily injury limit with the district court clerk and allowing either Hopkins or Miller to initiate the interpleader action. See NRCP 22 (allowing either a plaintiff or defendant to initiate an interpleader action). But Allstate never told Miller about the details of Hopkins settlement offer. Therefore, there is a factual dispute as to whether Allstate complied with its duty to adequately inform Miller of the offer and to protect Millers interests. As a result, we conclude that Millers failure-to-inform theory is a viable basis for bad faith by itself, regardless of whether Allstate had a duty to file an interpleader complaint. Millers allegation that Allstate did not adequately inform him of Hopkins settlement offer is a question of fact. Allen, 656 F.2d at 489 (recognizing that under California law What is good faith or bad faith on an insurers part has not yet proved susceptible to [definitive] legal definition. An insurers good faith is essentially a matter of fact.). Thus, the district court did not abuse its discretion when it submitted this issue to the jury. Id. 1. Failure to adequately inform is a proximate cause of an insureds damages
[Headnote 20]

If an insurer violates its duty of good faith and fair dealing by failing to adequately inform the insured of a reasonable settlement op-

314

Allstate Insurance Co. v. Miller

[125 Nev.

portunity, the insurers actions can be a proximate cause of the insureds damages arising from a foreseeable settlement or excess judgment. See Stark Liquidation v. Florists Mut. Ins., 243 S.W.3d 385, 399 (Mo. Ct. App. 2007) (holding that an insurer who denies coverage is liable for the reasonable settlement costs incurred by the insured); Noya v. A.W. Coulter Trucking, 49 Cal. Rptr. 3d 584, 589-90 (Ct. App. 2006) (holding that a reasonable settlement is presumptive evidence of an insurers liability for breach of its obligations). In Neal v. Farmers Ins. Exchange, 582 P.2d 980, 986 (Cal. 1978), the California Supreme Court held that once an insurer violates its duty of good faith and fair dealing, it is liable to pay all compensatory damages proximately caused by its breach; however, punitive damages require proof of motive and intent to violate a duty. The insurer may challenge the reasonableness of a damages amount, but its breach of duty is a proximate cause of the insurers reasonable damages. Noya, 49 Cal. Rptr. 3d at 589-90. Here, according to Allstates own computerized record dated April 12, 2001, Miller never saw Hopkins approaching the intersection, and nothing prevented him from seeing Hopkins. The record also notes that Hopkins damages, as of that date, were approximately $45,000. As a result, Allstate recognized that Millers case was a clear limits case, meaning damages already exceeded the policy limits, and authorized resolution of the matter as soon as possible. Given Allstates recognition of Millers excess liability, Allstates failure to adequately inform Miller of Hopkins settlement offer may have prevented Miller from obtaining a release from Hopkins. The trier of fact could therefore conclude that Allstates actions were a proximate cause of the excess verdict against Miller. 2. Application of Allstates duty to inform to the facts of this case
[Headnote 21]

Here, Miller asserts that Allstate incorrectly informed him that Hopkins had not rejected Allstates offer and it failed to inform him of the possibility of Millers contributing to an interpleader action. At trial, Miller testified that he would have paid Allstates interpleader costs and that he had the financial capability to do so, although on cross-examination Miller admitted that he did not know how much the action would cost. We conclude that regardless of whether Miller had the financial capabilities to pay for the action, Allstate should have informed him of the settlement offer. Instead, Allstate rejected Hopkins offer and told Miller that Hopkins was still considering Allstates policylimit offer. Allstate breached its duty to inform when it failed to inform Miller of the offer. Miller could have chosen at that time to hire independent counsel to review the offer and pursue any avail-

July 2009]

Allstate Insurance Co. v. Miller

315

able options, such as initiating an interpleader complaint at his expense or contributing additional funds to Allstates $25,000 settlement offer in return for a release from Hopkins. At a minimum, Allstates failure to adequately inform Miller of Hopkins settlement offer prevented Miller from considering his available options. Thus, Millers failure-to-inform theory is viable and applies to the facts of this case. C. Miller is not required to show that there was a possibility of settling within the policy limits before he can proceed with his failure-to-inform theory of bad faith
[Headnote 22]

Generally, [a]n insurer who has no opportunity to settle within policy limits is not liable for an excess judgment for failing to settle the claim. 14 Couch on Insurance 3d 203:18 (2005). Other courts have held that the absence of a settlement offer within policy limits is not dispositive of the issue of the insurers good or bad faith, but just one of the factors in determining whether an insurer acted in bad faith by failing to settle. Id. 203:20 (citing Berglund v. State Farm Mut. Auto. Ins. Co., 121 F.3d 1225, 1228 (8th Cir. 1997); Hartford Ins. Co. v. Methodist Hosp., 785 F. Supp. 38, 40 (E.D.N.Y. 1992); and State Auto. Ins. Co. of Columbus, Ohio v. Rowland, 427 S.W.2d 30, 35 (Tenn. 1968)). Regardless, if there is a question of whether a settlement offer is within the policy limits or whether the insured has the ability or willingness to contribute to the offers excess, then the issues should be resolved in favor of the insured, unless the insurer can show by affirmative evidence that there was no realistic possibility for settlement within [policy] limits and that the insured would not have made any contribution to a settlement above that amount. Id. 203:18 (emphasis added).
[Headnotes 23, 24]

For example, if a claimant offers to settle for the policy limits plus court costs, then the insurer must relay that offer to the insured. Although the offer is technically beyond the policy limits, the insurer must provide the insured the opportunity to independently consider his options. In order to receive the full benefit of the special relationship between the insurer and the insured, the insurer must adequately inform the insured of the status of his case. This does not imply that the insurer must accept an excessive settlement demand; rather, it requires that the insurer adequately inform the insured so the latter can protect his interests. Therefore, whether Hopkins offer to Allstate was one that Allstate reasonably should have communicated to its insured so that he could, with Allstates policy limits, protect himself by seeking the lien resolution by interpleader that Hopkins was demanding, was a

316

Allstate Insurance Co. v. Miller

[125 Nev.

disputed issue of law and fact at the trial. At trial, Sampson, Hopkins attorney, testified that Hopkins would have released Miller if Allstate had either: (1) filed an interpleader complaint naming Hopkins and the lienholders or (2) deposited the $25,000 bodily injury limit with the district court clerk and allowed Hopkins to initiate the interpleader complaint. Allstate did not refute Sampsons testimony on cross-examination or through its own witnesses. Instead, Allstate argued that the responsibility to interplead was beyond the policy obligation and it had to protect the lienholders despite its subsequent offer to file the interpleader action. Therefore, whether all the liens could be satisfied for $25,000 is not the determining factor as to Allstates duty to Miller. If Allstate had deposited the $25,000 with the court clerk in order to facilitate an interpleader complaint, it would still have been Hopkins responsibility to resolve his liens. However, Hopkins lienholders would have no further claims against either Miller or Allstate. In Trustees v. Developers Surety, this court noted that when a party is exposed to different claims, an interpleader proceeding may be initiated under NRCP 22 to avoid exposure to double or multiple liability. The claims do not have to be identical or have a common origin. The court has the discretion to approve the interpleader and permit the [party] to deposit the [monies] remaining . . . limits with the court. The court may then discharge the [party] from any further liability and equitably distribute the proceeds among the various claimants. 120 Nev. 56, 64, 84 P.3d 59, 63-64 (2004) (citations omitted). Therefore, we conclude that the district courts decision to submit this issue to the jury was not an abuse of discretion. The evidence presented by Miller established that Allstate could have received a release for Miller from Hopkins by either initiating the interpleader action, or in exchange for Allstate depositing the $25,000 with the district court clerk and Miller paying for the costs of the interpleader action.
[Headnote 25]

Other courts have held that an insurer can be liable for bad faith failure to settle even where a demand exceeds policy limits if the insured is willing and able to pay the amount of the proposed settlement that exceeds policy coverage. Couch, supra, 203:20 (citing Continental Cas. Co. v. United States Fid. & Guar. Co., 516 F. Supp. 384, 388 (N.D. Cal. 1981)). We agree. Miller testified at trial that he would have contributed towards a settlement in excess of $25,000 by paying court costs and attorney fees to file an interpleader complaint and that he had the financial capability to do so.

July 2009]

Allstate Insurance Co. v. Miller

317

In rebuttal, Allstates attorney questioned Miller about his understanding of the costs associated with an interpleader action. However, at no point during this cross-examination did Allstate ask Miller what the limit was that he could afford to contribute or demonstrate that he would not have contributed towards either the interpleader action or a settlement with Hopkins in excess of $25,000. Therefore, Millers financial ability and willingness to contribute money to effectuate a settlement with Hopkins became an issue of fact for the jury to resolve. D. Allstate did not have an independent duty to file an interpleader action
[Headnotes 26, 27]

Miller asserts that Allstate had an independent duty to file an interpleader action on Millers behalf. When there is a genuine dispute regarding an insurers legal obligations, the district court can determine if the insurers actions were reasonable. See Lunsford v. American Guarantee & Liability Ins. Co., 18 F.3d 653, 656 (9th Cir. 1994) (interpreting California law); CalFarm Ins. Co. v. Krusiewicz, 31 Cal. Rptr. 3d 619, 629 (Ct. App. 2005) (holding that if an insurers reasonableness depends on legal precedent, then the issue is reviewed de novo). This court reviews de novo the district courts decision in such cases and evaluates the insurers actions at the time it made the decision. CalFarm Ins. Co., 31 Cal. Rptr. at 629. In Homeowners Assn v. Associated International Insurance Co., 108 Cal. Rptr. 2d 776, 783 (Ct. App. 2001), the California Court of Appeals held that a bad-faith claim requires a showing that the insurer acted in deliberate refusal to discharge its contractual duties. Thus, if the insurers actions resulted from an honest mistake, bad judgment or negligence, then the insurer is not liable under a badfaith theory. Id. (quoting Careau & Co. v. Security Pacific Business Credit, Inc., 272 Cal. Rptr. 387 (Ct. App. 1990)); see Pemberton v. Farmers Ins. Exchange, 109 Nev. 789, 793, 858 P.2d 380, 382 (1993) (holding that bad faith exists when an insurer acts without proper cause); Feldman v. Allstate Ins. Co., 322 F.3d 660, 669 (9th Cir. 2003) (interpreting and applying California law and holding that to prove bad faith, plaintiff must show insurer unreasonably or without cause withheld benefits due under the policy).
[Headnotes 28-30]

An insurers obligations arise from the insurance contract and the law. Millers policy did not require Allstate to file or prosecute an interpleader action to resolve a third-party claimants liens. Further, there are some circumstances where an insurer has a contractual duty to resolve lienholder claims, but that duty does not extend to a third-party claimant and its lienholders. In other words, an insurer

318

Allstate Insurance Co. v. Miller

[125 Nev.

is not required to resolve lienholder claims unless the insurance policy names the lienholder as a loss payee, the claimant is the insured, or the insured assigns the policy to the lienholder. Allied Mut. v. Midplains Waste Management, 612 N.W.2d 488, 499 (Neb. 2000). Thus, an insurer is not required to resolve a third-party claimants liens when the duty is not included in the insurance policy. See Heredia v. Farmers Ins. Exchange, 279 Cal. Rptr. 511, 515-16 (Ct. App. 1991) (stating that the insurer is not required to accept an offer of settlement for more than the policy limits). Here, Allstate was not contractually obligated to file an interpleader action on Millers behalf. However, an insurer still has obligations under the duty to defend, which is a legal duty that arises under the law, as opposed to a contractual duty arising from the policy.
[Headnotes 31, 32]

We conclude that under the factual circumstances presented in this case, an insurers refusal to file an interpleader action on behalf of an insured may be a factor to consider in a bad-faith lawsuit.2 Although interpleader actions are available in specific contextspotential liability to multiple, conflicting claimantsan insurer is under no contractual obligation to commence an interpleader action. Regardless, as set forth above, the failure to advise an insured of his or her ability to file an interpleader action may be grounds for bad faith for breach of the duty to defend. Benefit Trust Life Ins. Co. v. Union Nat. Bank, 776 F.2d 1174, 1177-78 (3d Cir. 1985); Schwartz v. State Farm Fire and Cas. Co., 106 Cal. Rptr. 2d 523, 533 (Ct. App. 2001). Here, Allstate rejected Hopkins demand to file an interpleader complaint without informing Miller of the settlement offer. Thus, Allstates refusal to file an interpleader complaint on Millers behalf is a factor to consider in determining whether Allstate adequately informed Miller, and therefore, whether it adequately defended Miller. III. Millers stipulated-judgment theory is not viable
[Headnote 33]

Although we conclude that Millers failure-to-inform theory of bad-faith liability is viable, we must also address his theory regarding Hopkins stipulated-excess-judgment offer. Allstate argues that the district court abused its discretion when it submitted Jury Instruction No. 42, which addressed Allstates refusal to accept as binding Hopkins stipulated judgment. We agree, because Allstate had no duty to accept a stipulated excess judgment.
2 We also note that an insurer cannot rely upon a perceived conflict of interest to avoid filing an interpleader action because an insurer can give the insured and claimant an opportunity to waive any potential conflicts.

July 2009]
[Headnotes 34-36]

Allstate Insurance Co. v. Miller

319

This court reviews for abuse of discretion a district courts decision to give a jury instruction. Skender v. Brunsonbuilt Constr. & Dev. Co., 122 Nev. 1430, 1435, 148 P.3d 710, 714 (2006). However, we review de novo whether a proffered instruction is an incorrect statement of the law. Cook v. Sunrise Hospital & Medical Center, 124 Nev. 997, 1003, 194 P.3d 1214, 1217 (2008). If a jury instruction is a misstatement of the law, it only warrants reversal if it caused prejudice and but for the error, a different result might have been reached. Id. at 1006, 194 P.3d at 1219. Here, Jury Instruction No. 42 stated that [t]he implied covenant of good faith and fair dealing requires an insurance company to not unreasonably withhold its consent to enter into a stipulated judgment in excess of the policy limits. According to Allstate, the instruction was improper for, among other reasons, the following: the instruction (1) failed to clearly outline the terms of Hopkins offer, (2) purportedly created a rule that held an insurer liable for bad faith for failing to consent to a stipulated excess judgment, and (3) required Allstate to take on noncontractual obligations. We agree and conclude that the district court abused its discretion when it submitted Jury Instruction No. 42 for the following two reasons.
[Headnote 37]

First, Sampsons May 13, 2003, letter did not contain all necessary terms of the settlement, namely the exact dollar amount. Therefore, the offer was not sufficiently defined. Second, the instruction is a misstatement of the law for two reasons. Allstate has a contractual right to have an underlying judgment determined by trial or settlement, and it is not required under the implied covenant of good faith and fair dealing to accept an excessive stipulated settlement offer between the insured and the claimant. See Crisci v. Security Insurance Co. of New Haven, Conn., 426 P.2d 173, 176-77 (Cal. 1967) (holding that the implied covenant of good faith and fair dealing only requires an insurer to accept a reasonable settlement). In addition, Allstate is not required to take on monetary obligations outside its insurance contract, which includes agreeing to an excessive settlement offer. See Hamilton v. Maryland Cas. Co., 41 P.3d 128, 138 (Cal. 2002) (holding that a stipulated judgment is not a presumptive measure of an insureds damages for the insurers unreasonable rejection of settlement offers). As a result, the district courts submission of the jury instruction was an error of law because the jury may have relied upon it when the jury rendered its verdict. For these reasons, Millers excessive-stipulated-judgment theory is not viable. We next address whether the district court erred in denying Allstates requests to submit its special interrogatories and for a new trial.

320

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[125 Nev.

IV. The district court abused its discretion when it denied Allstates request to submit its special interrogatories to the jury
[Headnotes 38, 39]

Allstate argues that the district court erred when it denied Allstates request to submit special jury interrogatories. We agree. Allstate requested the following special interrogatories: 1. If you found that Allstate breached the covenant of good faith and fair dealing, did you find that Allstate breached a duty to file an interpleader action? 2. If you found that Allstate breached the covenant of good faith and fair dealing, did you find that Allstate breached a duty to keep Mr. Miller informed of settlement offers? 3. If you found that Allstate breached the covenant of good faith and fair dealing, did you find that Allstate breached a duty not to unreasonably withhold consent for Mr. Miller to enter into a stipulated judgment in excess of policy limits? This court reviews for abuse of discretion a district courts determination to permit or refuse special interrogatories, and this court upholds the district courts decision unless it was arbitrary or capricious. Skender, 122 Nev. at 1435, 148 P.3d at 714. Here, Miller asserted three claims: breach of contract, negligence, and breach of the covenant of good faith and fair dealing. In addition to Millers three separate claims, Millers bad-faith claim encompassed the following three subtheories: Allstates failure to (1) file an interpleader complaint, (2) inform Miller of the interpleader offer and provide him with the opportunity to contribute, and (3) consent to a stipulated judgment. As discussed above, only the second of these theories was viable, and it is unclear under which theory the jury concluded that Allstate breached the implied covenant of good faith and fair dealing. There are two perspectives regarding general verdicts. On one hand, there is the absolute certainty rule, which almost always requires reversal when there is an invalid theory presented to the jury. See Kern v. Levolor Lorentzen, Inc., 899 F.2d 772, 782, 790 (9th Cir. 1990) (Kozinski, J., dissenting) (citing United States Supreme court cases from 1884, 1907, 1959, and 1962). On the other hand, other courts uphold a general verdict if there is sufficient evidence to support at least one viable theory. Kern, 899 F.2d at 777-78; McCord v. Maguire, 873 F.2d 1271, 1273-74, amended by 885 F.2d 650 (9th Cir. 1989). In Gillespie v. Sears, Roebuck & Co., the First Circuit stated that the rule in that circuit is a new trial is usually warranted if evidence is insufficient with respect to any one of multiple claims covered by a general verdict. 386 F.3d 21, 29 (1st Cir. 2004) (quoting Kerkhof v. MCI Worldcom, Inc., 282

July 2009]

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F.3d 44, 52 (1st Cir. 2002)). The First Circuit applies this rule to both general verdicts covering multiple claims and special verdicts where a single verdict question encompasses multiple theories, one of which is defective. Id. at 30. Although we do not go as far as the First Circuit by holding that a new trial is warranted whenever a general verdict encompasses a nonviable legal theory, we are holding that district courts should follow Skender by submitting timely and properly proposed special verdicts or interrogatories when a plaintiff presents claims of tort and contractual liability or multiple theories of liability under a single claim. In Skender, a constructional defect case, this court concluded that the use of special verdicts was necessary because the plaintiff asserted multiple theories of liability where comparative negligence was a defense to some but not all of the claims. Id. at 1439, 148 P.3d at 717.
[Headnote 40]

Where special verdicts or interrogatories are timely and properly submitted in a case involving multiple claims or multiple theories giving rise to a single claim, the district court should give the special verdicts or interrogatories or explain on the record the reason for refusing them. We are more inclined to reverse a general verdict where, as here, the party complaining of error associated with a claim or theory timely requested special verdicts or interrogatories and the district court denied them without stating its reasoning on the record. This is especially true when the special verdicts or interrogatories would have facilitated our review. As stated in Gillespie, [t]he reality is that the degree of confidence that the jury picked a theory with adequate evidentiary support varies along a spectrum of situations. 386 F.3d at 30. Our holding here will narrow that spectrum.
[Headnotes 41-43]

Applying Skender beyond constructional defect cases allows this court to adequately review the jurys decision and determine whether it relied on a viable theory of liability. However, the district court is not required to submit special verdicts or interrogatories to the jury if the party does not timely and properly submit proper proposed special verdicts or interrogatories to the court. NRCP 49. In other words, the district court does not have a sua sponte obligation to submit its own special verdicts or interrogatories or to give improperly framed special verdicts or interrogatories. Given the challenge preparing such interrogatories can pose, the court also has discretion to impose requirements that the parties submit their request no later than calendar call or other pretrial conference close to the date of trial. See, e.g., EDCR 2.69(a)(3) (requiring trial counsel to provide settled and contested jury instructions, including supporting

322

Allstate Insurance Co. v. Miller

[125 Nev.

authority, at the calendar call). Finally, the final settling of jury instructions, special verdicts, and special interrogatories in all criminal and civil jury trials must be done on the record. In the event of an objection by a party, the district court must concisely rule on the objection on the record.3 Our holding streamlines the appellate review process and, in doing so, supports Skender. If parties submit special verdicts or interrogatories, this court can focus on a legally valid theory and determine if there is substantial evidence supporting that theory. If there is substantial evidence supporting the theory, then this court will uphold the jurys verdict. On the other hand, if the evidence only supports a legally invalid theory, then this court can confidently reverse the jurys verdict. In either case, our holding that parties and district courts submit special verdicts or interrogatories will support this courts precedent, streamline future appellate review, conserve judicial resources, and promote confidence in this courts affirming or reversing a jurys verdict. Here, Allstate requested special interrogatories, the plaintiff objected to them, and the district court refused to give them without stating on the record its reasons. See Gillespie, 386 F.3d at 29-31 (reversing where one of several theories supporting a single claim for relief was invalid); McCord, 873 F.2d at 1273-74 (declining to reverse where, although four of eight theories supporting a single claim were invalid, four were valid and the appellant failed to request special interrogatories that would have allowed informed appellate review of the verdict). This was an abuse of discretion requiring reversal and a new trial because two of Millers three bad-faith theories were invalid and we are unable to determine what theory of bad faith the jury relied upon in this case.4 Thus, we reverse the district courts denial of Allstates motion for a new trial. CONCLUSION We conclude that under the facts of this case, Millers failure-toinform theory is a viable basis for a bad-faith claim against Allstate. Allstate was required to give Millers interest equal consideration, which required Allstate to adequately inform Miller of Hopkins interpleader settlement offer. Whether Allstate adequately
3 In the event that the district court is not reporting or recording a civil jury trial, the district court does not have to make these rulings on the record. 4 The record discusses certain additional special interrogatories that Allstate filed the Sunday before the final settling of jury instructions. The district court declined to give these interrogatories because it found there was only one claim for relief. Allstate does not cite to this discussion in its opening brief and, likewise, Miller does not cite to it in his answering brief. However, Allstate does cite to this discussion in its reply brief. As a result, it is not clear whether this discussion applies to the special interrogatories at issue.

July 2009]

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informed Miller was a question of fact for the jury to decide. As a result, the district court did not err when it submitted the issue to the jury.
[Headnote 44]

We also conclude that neither contractual duties nor the implied covenant of good faith and fair dealing alone required Allstate to file an interpleader complaint or to consent to a stipulated excess judgment. As a result, the district court erred when it submitted these issues to the jury. Finally, because Allstate did not have a duty to file an interpleader complaint or to consent to Hopkins stipulated judgment, we are unable to determine what theory of bad faith the jury relied upon. As a result, district courts should follow Skender, 122 Nev. at 1435, 148 P.3d at 714, and submit special verdicts or interrogatories in cases when a plaintiff presents claims of tort and contract liability or multiple theories of liability under a single claim and a party timely and properly requests that the district court submit the special verdicts or interrogatories. Further, if there is an objection by a party to jury instructions, special verdicts, or special interrogatories, we are requiring district courts to state on the record their reasons for rejecting or admitting the jury instructions, special verdicts, or special interrogatories. Because the district court in this case did not state on the record its reasoning for rejecting Allstates submitted special interrogatories, we reverse the district courts denial of Allstates motion for a new trial. Accordingly, we affirm in part and reverse in part the district courts judgment and remand this matter for further proceedings consistent with this opinion.5 HARDESTY, C.J., PARRAGUIRRE, DOUGLAS, and PICKERING, JJ., concur. CHERRY, J., concurring in part and dissenting in part: I agree with the majority that under the facts of this case, Millers failure-to-inform theory is a viable basis for a bad-faith claim against Allstate. Allstate was required to give Millers interest equal consideration, which required Allstate to adequately inform Miller of Hopkins interpleader settlement offer. Whether Allstate adequately informed Miller was a question of fact for the jury to decide. As a
5 Allstate also raises other issues, including whether Miller was required to present an expert witness to meet his burden of proof, whether the district court improperly denied Allstates motion for continuance, whether the district court improperly excluded Allstates evidence regarding Hopkins attorneys motive, and whether the district court abused its discretion by failing to give a curative jury instruction regarding Millers statements about Allstates ability to file an interpleader action. We conclude that each of these issues is without merit.

324

Allstate Insurance Co. v. Miller

[125 Nev.

result, I concur with the majority that the district court did not err when it submitted the issue to the jury. The majority goes on to hold that Millers two other theories of bad faith, which are Allstates failure to file an interpleader action and Allstates failure to consent to an excessive stipulated judgment, are not viable to establish the bad-faith claims against Allstate. Since the majority was unable to determine which of the three theories of bad faith the jury relied upon in this case, the majority felt constrained to reverse the jury verdict in favor of Miller and remand this matter for a new trial. The majority goes on to hold that the district court erred when it refused to submit Allstates special verdict questions to the jury. The majority reasons that if the special verdict questions were submitted to the jury, the court would then know which of the theories of bad faith the jury relied upon to find in favor of Miller and against Allstate. Further, to make sure that this court will always be aware of which theory of liability a jury relies upon to find in favor of a plaintiff in a tort case or contract case, the majority now extends Skender v. Brunsonbuilt Construction & Development Co., 122 Nev. 1430, 148 P.3d 710 (2006), which recognized special verdict questions in constructional defect cases that contained both contract and tort theories and a comparative negligence defense, to cases where the plaintiff presents claims of tort and contract liability or where the plaintiff presents multiple theories of liability made under a single claim. I do not disagree with the majority on its holding that two of the three claims of bad faith are not viable, nor do I disagree on the extension of Skender to future cases. My quarrel with the majority in reversing this matter for a new trial is multifold. First and foremost, the district judge would have had to have been a psychic to know that the court would extend Skender to cases other than constructional defect cases. Therefore, the district judge did not abuse her discretion by failing to submit Allstates special verdict questions to the jury. No one could possibly predict from a fair reading of Skender that special verdict questions should be used in tort and contract cases other than constructional defect cases and that failure to give the jury such a special verdict form would result in a reversal of a general jury verdict. As a result, the district court could not foresee that this court would significantly expand Skenders holding. Speaking as a former district court judge, the district courts are required to follow the precedent established by this court. It is unreasonable to expect district courts to predict when and how this court will alter its precedent. As a result, I disagree with the majoritys holding that the district court should have submitted Allstates special verdict questions under Skender.

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Further, the majority seems somewhat tentative on its pronouncement of extending Skender. Although the majority seems to strongly encourage and recommend the use of special verdict questions or interrogatories in cases other than constructional defect cases, the majority cites Skender throughout the opinion, giving the impression that Skender has in fact been extended to cases other than constructional defect cases. Also, the majority distorts the discretionary nature of NRCP 49. The majority states that in order to facilitate appellate review district courts should follow Skender when a plaintiff presents claims of tort and contractual liability or multiple theories of liability under a single claim. The majority goes on to say, However, the district court is not required to submit special verdicts or interrogatories to the jury if the party does not timely and properly submit proper proposed special verdicts or interrogatories to the court. NRCP 49. In other words, the majority recognizes the discretionary nature of special verdict questions and interrogatories, but it is still reversing this case because the district court refused to submit Allstates proposed special interrogatories. The majoritys reading of NRCP 49 makes it an abuse of discretion for a district court not to give special interrogatories if requested by one of the parties unless the district court makes findings as to the failure to give said special interrogatories. My reading of NRCP 49 is that said rule is completely discretionary and the majority fails to cite any authority regarding the mandatory nature of findings by the district court. Is the majority relying on the extended application of Skender? However, Skender states this court will sustain a general verdict where several counts are tried if any one count is supported by substantial evidence. 122 Nev. at 1438, 148 P. 3d at 716. Why strip a plaintiff of a sizable judgment on a general jury verdict when it is clear that said jury verdict could be based on the viable claim of bad faith and said jury verdict is supported by substantial evidence in the record of the trial proceedings? Under Skender, this court should affirm a general verdict when there is a viable claim supported by substantial evidence. Here, it is obvious that substantial evidence supported Millers viable failure-to-inform claim of bad faith against Allstate, which was in fact presented to the jury by Miller. The majority so states that under the facts of this case, Millers failure-to-inform theory is a viable basis for a badfaith claim against Allstate. I also disagree vehemently with the majority that the district judge abused her discretion because she did not state on the record her reasoning for rejecting Allstates submitted special interrogatories. What findings could the district judge have made at the trial without doing an injustice to the then present stare decisis? The district judge could have rightly stated that Skender applied only to con-

326

Allstate Insurance Co. v. Miller

[125 Nev.

structional defect cases and NRCP 49 was purely discretionary. In light of the jurisprudence that existed at the time of the settling of jury instructions and special interrogatories, it seems inconceivable that the district judge abused her discretion. What she did do is follow the existing caselaw and statutes of the State of Nevada, which leaves only one conclusion. Therefore, the district judge did not abuse her discretion by failing to submit Allstates special interrogatories to the jury. As a result, the jury verdict against Allstate and in favor of the respondent should be affirmed. Next, it is obvious that sufficient and substantial evidence of a viable claim of bad faith by Allstate was in fact presented to the jury by Miller. The majority so states that under the facts of this case, Millers failure-to-inform theory is a viable basis for a bad-faith claim against Allstate. In Cortinas v. State, 124 Nev. 1013, 195 P.3d 315 (2008), this court affirmed a conviction of first-degree murder with use of a deadly weapon and robbery with use of a deadly weapon in spite of the fact that the district court failed to give a requested jury instruction that afterthought robbery may not serve as a predicate felony for felony murder. Cortinas discusses the way to determine whether reversal is required when a trial court error allows a jury to return a verdict based on a legally invalid theory but the jury is also presented with one or more valid alternative theories. Since the absolute certainty approach1 is found to be unsound in a criminal prosecution where the burden of proof is beyond a reasonable doubt, it seems sensible that the absolute certainty approach is unsound in a civil case where the burden on the plaintiff is less stringent. Finally, the majority relies heavily on a products liability case, Gillespie v. Sears, Roebuck & Co., 386 F.3d 21 (1st Cir. 2004), in order to find an abuse of discretion by the district judge in this badfaith case against Allstate. The majority was indeed fortunate to find a First Circuit case, not a Ninth Circuit case, to justify the reversal of the jury verdict. A careful examination of Gillespie informs the reader that [i]n assessing the sufficiency of the evidence, the question for the court is whether, viewing the evidence in the light most favorable to the verdict, a rational jury could find in favor of the party who prevailed. Id. at 25 (citing DaSilva v. American Brands, Inc., 845 F.2d 356, 359 (1st Cir. 1988)). There is no question that there was sufficient evidence presented at trial to allow a rational jury to find in favor of Miller and against Allstate on the claim of bad faith. The gravamen of the majoritys rationale for reversal of the badfaith verdict is that the district judge abused her discretion in refus1 Under the absolute certainty approach, reversal is mandatory unless the court is absolutely certain that the jury relied upon the legally correct theory . . . . Stromberg v. California, 283 U.S. 359 (1931).

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ing without explanation to give the jury the special interrogatories that Allstate proposed. However, even in Gillespie, that court does not hold that there is always a reversal if evidence is insufficient with respect to any one of the multiple claims covered by a general verdict. Rather, the Gillespie court stated a new trial is usually warranted if evidence is insufficient with respect to any one of the multiple claims covered by a general verdict. Gillespie, 386 F.3d at 29 (emphasis added) (quoting Kerkhof v. MCI Worldcom, Inc., 282 F.3d 44, 52 (1st Cir. 2002)). The Gillespie court also confesses that not all circuits follow the practice of the First Circuit in this regard. Id. at 30. Rather than relying on Gillespie to reverse the bad-faith verdict against Allstate, I would affirm said verdict on the rationale of other courts, which have upheld a general verdict if there is sufficient evidence to support at least one viable theory. See Kern v. Levolor Lorentzen, Inc., 899 F.2d 772 (9th Cir. 1990); McCord v. Maguire, 873 F.2d 1271, amended by 885 F.2d 650 (9th Cir. 1989). The Gillespie court also admits that even its own approach is by no means rigid. Recognizing that a jury is likely to prefer a better supported theory to one less supported, [the First Circuit has] generously applied the harmless error concept to rescue verdicts where [it] could be reasonably sure that the jury in fact relied upon a theory with adequate evidentiary support. Gillespie, 386 F.3d at 30. It was clear in Gillespie that none of the theories was strongly supported by the evidence, id., unlike the instant case against Allstate wherein one of the three theories was indeed viable, even according to the majority. One must ask why would the majority choose the rationale of the First Circuit to reverse rather than the rationale of the Ninth Circuit to affirm this jury verdict? Unfortunately, I have no clue. For the above reasons, I would affirm the jury verdict against Allstate and in favor of Miller and hold that the district judge did not abuse her discretion in any manner whatsoever. If there is in fact error, I would hold it to be harmless in light of the substantial evidence supporting Millers failure-to-inform theory of bad faith against Allstate, which was presented to the jury. SAITTA, J., dissenting: I disagree with the majority on two points. First, Skender v. Brunsonbuilt Construction & Development Co., 122 Nev. 1430, 148 P.3d 710 (2006), should be mandatory in all civil cases, not just preferred, as the majority suggests. Second, the majoritys holding regarding Skender should be prospective, not retroactive. There was no indication at the time of trial that this court would extend Skender beyond constructional defect cases with comparative negligence de-

328

Chavez v. State

[125 Nev.

fenses. Therefore, I would affirm the jury verdict in this case and hold that the district court did not abuse its discretion by refusing to submit Allstates special interrogatories.

JAMES CHA VEZ, APPELLANT, v. THE STATE OF NEV ADA, RESPONDENT.

No. 48847 July 30, 2009 213 P.3d 476

Appeal from a judgment of conviction, pursuant to a jury verdict, of four counts of sexual assault on a child. Second Judicial District Court, Washoe County; Robert H. Perry, Judge. The supreme court held that: (1) preliminary hearing testimony of minor victim, who was deceased at time of trial, could be admitted into evidence at trial without violating Sixth Amendments confrontation clause or Crawford v. Washington, 541 U.S. 36 (2004); (2) admission of victims videotaped testimony and other statements she made to officers did not violate defendants confrontation clause rights; (3) victims written statement on medical form, stating that defendant had ripped open her vagina, was not testimonial for confrontation clause purposes; (4) there was no manifest error in district courts decision to admit evidence of prior bad acts in the form of testimony by victims sibling that defendant had physically abused him; (5) violation of district courts admonishment not to discuss any opinion about trial until case was submitted to jury occurred when alternate juror expressed her opinion that she believed defendant was guilty, and as such, alternate juror would be removed; and (6) sentence of four consecutive life terms for defendants four convictions for sexual assault on a child did not constitute cruel and unusual punishment. Affirmed. Jeremy Bosler, Public Defender, and John Reese Petty, Chief Deputy Public Defender, Washoe County, for Appellant. Catherine Cortez Masto, Attorney General, Carson City; Richard A. Gammick, District Attorney, and Joseph R. Plater, Deputy District Attorney, Washoe County, for Respondent.
1. CRIMINAL LAW. A preliminary hearing can afford a defendant an adequate opportunity to confront witnesses against him pursuant to Crawford v. Washington, 541 U.S. 36 (2004), which holds that out-of-court statements by witnesses that are testimonial are barred, under the Confrontation Clause, unless witnesses are unavailable and defendants had prior opportunity to cross-examine wit-

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2. 3.

4.

5.

6.

7.

8.

nesses, and the adequacy of the opportunity to confront will be decided on a case-by-case basis, turning upon the discovery available to the defendant at the time and the manner in which the magistrate judge allows the crossexamination to proceed. U.S. CONST. amend. 6. CRIMINAL LAW. Supreme court generally reviews a district courts evidentiary rulings for an abuse of discretion. CRIMINAL LAW. Whether a defendants Confrontation Clause rights were violated is ultimately a question of law that must be reviewed de novo. U.S. CONST. amend. 6. CRIMINAL LAW. Preliminary hearing testimony of minor victim, who was deceased at time of trial, could be admitted into evidence at trial without violating Sixth Amendments Confrontation Clause or Crawford v. Washington, 541 U.S. 36 (2004); victims testimony at preliminary hearing was testimonial, victim was deceased at time of trial and, thus, was unavailable witness, there was nothing in state law that would hinder defendants opportunity to crossexamine witness at preliminary hearing, state law did not preclude defendant from questioning witnesss credibility or motive during preliminary hearing, and defendants cross-examination of victim at preliminary hearing consisted of almost double the amount of questions that were asked on direct examination. U.S. CONST. amend. 6. CRIMINAL LAW. Under Crawford v. Washington, 541 U.S. 36 (2004), which holds that out-of-court statements by witnesses that are testimonial are barred, under the Confrontation Clause, unless witnesses are unavailable and defendants had prior opportunity to cross-examine witnesses, the threshold question is whether the statement at issue is testimonial hearsay. U.S. CONST. amend. 6. CRIMINAL LAW. Although minor victims statements were testimonial in nature because victim made them to police in formal, nonemergency setting and interviews were conducted for primary purpose of helping law enforcement build case of sexual abuse against defendant, the admission of victims videotaped testimony and other statements she made to officers did not violate defendants Confrontation Clause rights; victim was deceased at time of trial and, thus, unavailable, and because of discovery, defendant had statements that victim made to detectives, including copy of videotape, before preliminary hearing, and thus, defendant had opportunity to confront victim on all of her statements to officers at preliminary hearing. U.S. CONST. amend. 6. CRIMINAL LAW. Given the context in which it was asked, by a family therapist specializing in sexual assault victims and for the purpose of diagnosis and treatment, child victims written statement on medical form, stating that defendant had ripped open her vagina, was not testimonial for Confrontation Clause purposes; victims time with therapist served primary purpose of helping victim psychologically heal from five years of abuse, and the question that elicited victims response did not ask anything specific about act of sexual assault, but, rather, asked if victim had been to hospital or required stitches. U.S. CONST. amend. 6. CRIMINAL LAW. Therapists testimony regarding minor victims answer on medical form, namely that defendant had ripped open her vagina, was admissible nontestimonial hearsay pursuant to statute providing for the admission of

330

Chavez v. State

[125 Nev.

9.

10.

11.

12.

13.

14.

15.

16.

hearsay statements made for purposes of medical diagnosis or treatment; the question was asked and answered in context of medical/psychological treatment for sexual assault, question was part of medical form that all new patients routinely filled out, victim was at therapists office as a victim of sexual assault, and it was in that capacity that she filled out the form and made the statement. NRS 51.115. CRIMINAL LAW. Statements that are pertinent to the ongoing care of the patient are admissible pursuant to statute providing for the admission of hearsay statements made for purposes of medical diagnosis or treatment. NRS 51.115. RAPE; SODOMY. Adult magazines found during the search of defendants apartment were not relevant because they had no tendency to make the existence of any fact of consequence as to whether defendant molested his daughter more or less probable, and thus, district court abused its discretion by admitting evidence regarding the adult magazines. CRIMINAL LAW. District courts error in admitting evidence regarding adult magazines, which were found during the search of defendants apartment and which were not relevant to whether defendant molested his daughter, was harmless, given the overwhelming evidence presented by the State against defendant. CRIMINAL LAW. In prosecution of defendant for sexually assaulting victim, who was defendants oldest child, there was no manifest error in district courts decision to admit evidence of prior bad acts in the form of testimony by victims sibling that defendant had physically abused him; victims sibling testified under oath and appeared to be a credible witness, the prior bad act was relevant to show siblings fear of defendant and why sibling did not initially report the sexual abuse he had witnessed, and court instructed jury about limited use of the prior bad act. CRIMINAL LAW. A district courts decision to admit or exclude evidence of prior bad acts rests within its sound discretion and will not be reversed by supreme court on appeal absent manifest error. CRIMINAL LAW. For evidence of prior bad acts to be admissible, the district court must hold a hearing outside the presence of the jury and determine 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. CRIMINAL LAW. If evidence of a prior bad act is admitted, the district court must then issue a limiting instruction to the jury about the limited use of bad act evidence, unless waived by the defendant. CRIMINAL LAW. Exchange between prosecutor and victims sibling, which occurred on re-direct and in which sibling alluded to victims death, did not violate district courts order not to discuss circumstances of victims death, and thus, mistrial was not warranted based on this exchange between prosecutor and victims sibling; with respect to this exchange, prosecutor was trying to rehabilitate sibling because, during cross-examination, defendant questioned siblings motivation as to why he was more forthcoming at trial, when he had repeatedly told investigators he had not seen any instances of sexual abuse of victim by defendant, and at most, the exchange revealed that sib-

July 2009]

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17.

18.

19. 20.

21.

22.

23.

ling knew that victim was deceased, a fact of which jury was already aware. CRIMINAL LAW; JURY. Violation of the trial courts admonishment not to discuss any opinion about the trial until the case was submitted to the jury occurred when an alternate juror expressed her opinion to the other jurors that she believed defendant was guilty, and as such, alternate juror was removed for violating courts order. CRIMINAL LAW. Alternate jurors expressing her opinion to the other jurors that she believed defendant was guilty did not warrant mistrial; the alternate juror was removed, and while three other jurors confirmed that they heard the alternate jurors comment, they stated that they could remain impartial, and all the other jurors stated that they did not hear anyone express an opinion about the ultimate outcome of the case. CRIMINAL LAW. Supreme court reviews a district courts decision to deny a motion for a mistrial based upon juror misconduct for an abuse of discretion. SENTENCING AND PUNISHMENT. Sentence of four consecutive life terms for defendants four convictions for sexual assault on a child did not constitute cruel and unusual punishment under Eighth Amendment; defendant did not allege that the district court relied on impalpable or highly suspect evidence or that the relevant statutes were unconstitutional, and the sentence imposed was within the parameters provided by the relevant statutes. U.S. CONST. amend. 8; NRS 176.035(1). SENTENCING AND PUNISHMENT. The Eighth Amendment of the United States Constitution does not require strict proportionality between crime and sentence but forbids only an extreme sentence that is grossly disproportionate to the crime. U.S. CONST. amend. 8. SENTENCING AND PUNISHMENT. Regardless of its severity, a sentence that is within the statutory limits is not cruel and unusual punishment, within meaning of Eighth Amendment, unless the statute fixing punishment is unconstitutional or the sentence is so unreasonably disproportionate to the offense as to shock the conscience. U.S. CONST. amend. 8. CRIMINAL LAW. Supreme court will refrain from interfering with the sentence imposed so long as the record does not demonstrate prejudice resulting from consideration of information or accusations founded on facts supported only by impalpable or highly suspect evidence.

Before HARDESTY, C.J., PARRAGUIRRE, DOUGLAS, CHERRY, SAITTA, GIBBONS and PICKERING, JJ. OPINION Per Curiam: In this appeal, we consider whether the preliminary hearing testimony of an unavailable witness may be admitted into evidence at trial without violating the Sixth Amendment Confrontation Clause and Crawford v. Washington, 541 U.S. 36 (2004). We hold that it

332

Chavez v. State

[125 Nev.

can. We conclude that this issue, along with the other issues that appellant James Chavez raises on appeal, does not warrant reversal of Chavezs conviction and sentence. Therefore, we affirm. FACTS AND PROCEDURAL HISTORY Chavez and Korby Block married in 1993 and together had four children, including their eldest, D.C. Although the couple divorced in 1997, they continued to live together in Blocks apartment. In 2004, as Block was driving all four children to an outing, she asked them how it affected them when she and Chavez fought. During the conversation, one of the children told Block that Chavez was doing something to D.C. D.C. then told her mom that Chavez had been sexually molesting her. Block immediately took D.C. to the hospital. Before D.C. was examined at Northern Nevada Medical Center, police detectives interviewed Block and D.C. There, D.C. told Sergeant Patrick Dreelan of the Reno Police Department that Chavez had sexually assaulted her the day before, forcing her to have intercourse and perform oral sex on him. Sergeant Dreelan then escorted Block and D.C. to the police station where Detective Barbara Armitage interviewed them. D.C.s interview was videotaped. During the interview, D.C. stated that Chavez had sexually molested her for five years and sometimes she would spit out his semen into a sock. D.C. told Detective Armitage that the day before, when Chavez forced her to perform oral sex on him on the living room couch, she had been wearing a purple top and purple pants. During a second interview with Detective Armitage, D.C. recounted many of the same facts, but also recounted new incidents of sexual abuse. D.C. told the police that the sexual abuse began when she was five years old. D.C. revealed that the injury for which she had to be taken to the hospital when she was five years old, which resulted in her receiving stitches in her vagina, was not the result of a fall on a fence post, but rather because of Chavez sexually molesting her. She further stated that Chavez had used a purple vibrator on her private parts. With Blocks permission, police officers entered Blocks apartment and collected evidence, including the purple pants and top, several socks, evidentiary samples from the living room couch, and two vibrators. One of the socks contained adequate saliva and seminal fluid on which to perform DNA tests; those DNA tests revealed that D.C. was the dominant source of saliva and Chavez was the source of the seminal fluid. The other socks tested positive for seminal fluid, though it was not possible to develop a DNA profile. The couch samples, too, showed seminal fluid, but the low level of DNA prevented a determination of the source of the semen. The vibrators tested positive for Blocks DNA.

July 2009]

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The State charged Chavez with four counts of sexual assault on a child. On August 5, 2004, with almost all of the discovery complete, D.C. testified at a preliminary hearing. At the preliminary hearing, as a result of discovery, Chavez had a copy of D.C.s videotaped interview with police and a list of the witnesses that the State planned on calling in its case in chief. On direct, D.C. testified about the sexual abuse Chavez committed upon her, including where, when, and how the assaults occurred. During the preliminary hearing, Chavez, through his attorney, had opportunity to cross-examine D.C. In the course of the crossexamination and recross-examination, not including introductory questions, Chavez asked D.C. 240 questions. Chavezs examination of D.C. was almost twice the length of the States examination of D.C. Chavez confronted D.C. about the statements she made to the State during direct examination, including repeatedly questioning D.C. about her claims that Chavez had digitally, vaginally, and anally penetrated her during a five-year span. Chavez inquired about the details of the incidents, including where and when they took place, why D.C. did not mention the incidents earlier, and whether any of her siblings ever witnessed the sexual abuse. Chavez asked D.C. about his penis, including its size, description, and feel when he was committing the sexual abuse. He questioned D.C. about the semen and how she would use the sock to clean it off of her. Chavez confronted D.C. about the incident that occurred when she was five years old, when Chavez said D.C. fell on a fence post. He also extensively questioned D.C. about her family life, including her relationship with her mother, Block. Chavez cross-examined D.C. about her feelings toward Chavez, the familys financial issues, their living situation, and Blocks feelings about Chavez. He confronted D.C. about statements that she made about the sexual abuse to her mother, family friends, law enforcement, and health care providers. Chavez asked D.C. about her therapy sessions with her therapist, Sally Holt-Evarts. He asked D.C. whether she told Evarts about the sexual abuse and whether Block would sit in on the sessions. Chavez extensively questioned D.C. about her sexual education classes at school, including whether she knew what semen was and how she learned about semen. During this long cross-examination and recross-examination, the magistrate judge interrupted Chavez only once. The sole interruption occurred when Chavez was questioning D.C. about her mothers new boyfriend, whether he visited, and whether Block was happy with him. The magistrate judge said that he was not going to allow the line of questioning unless counsel explained why it was relevant. Without objection, Chavez moved on to other questions. After the preliminary hearing, but before trial, D.C. died. The State filed a notice of intent to admit the former testimony of deceased witness D.C. Chavez moved the district court to dismiss the

334

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[125 Nev.

charges against him. The district court denied Chavezs motion. Further, it granted the States motion to admit D.C.s former testimony, reasoning that pursuant to Crawford, Chavez had the opportunity to cross-examine D.C. at the preliminary hearing and, as D.C. was now unavailable, her testimony was therefore admissible. In light of the district courts ruling, Chavez asked the district court that the jury be instructed that D.C. was unavailable and thus preclude witnesses from mentioning that D.C. had died. The court ruled that, pursuant to NRS 51.055(1)(c), Nevadas statute on witness unavailability due to death, the jury could be instructed that D.C. was unavailable because she was deceased but that no other details concerning her death could be admitted. At trial, Evarts testified that she had nearly 25 years of experience as a family therapist and that child assault victims constituted a quarter of her family therapy practice. Evarts testified that the first time she saw D.C. was three months after D.C. first made the allegations that Chavez had sexually abused her. Evarts said that on that first visit, pursuant to her general practice, she asked D.C. to fill out a form that asked a variety of questions that would help Evarts in treating her. Evarts testified that one question on the form inquired if the patient had ever been to the hospital or required stitches, and D.C.s answer to that question was that at five years old her dad ripped open her vagina. When asked whether she ever doubted D.C.s allegations of abuse, Evarts testified that [she] had no doubt . . . at all that [D.C.] was telling the truth, and [she] didnt think that [D.C.] was coached at all. Sergeant Dreelan testified that on March 28, 2004, he was dispatched to Northern Nevada Medical Center to respond to a report of sexual assault of a child. Sergeant Dreelan testified that he met D.C. and Block in the waiting area of the hospital. He stated that they both appeared upset and emotional and that D.C. was crying. Sergeant Dreelan testified that he had a conversation with D.C. in which he asked her what had happened. Sergeant Dreelan testified that D.C. told him that her father, Chavez, had forced her to have sex with him and to perform oral sex on him the day before. Detective Barbara Armitage testified that she interviewed D.C. on two separate occasions. The first interview was conducted on March 28, 2004, and was videotaped. Over defense counsels objection, the district court allowed the State to play the videotape for the jury. In it, D.C. describes how and when she was sexually molested by her father. Doctor Ellen Clark, a specialist in clinical and forensic pathology, who performed the autopsy on D.C., testified that the autopsy revealed evidence of repetitive injury to the vaginal area, including a complete absence of a hymen. Over defense counsels objection, the district court allowed the State to present D.C.s preliminary hearing testimony. The State also presented the testimony of all of Chavez and Blocks children.

July 2009]

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D.C.s younger brother, T.C., testified that the day he and his siblings were in the car with their mother, he told Block that Chavez was doing something to D.C. He testified that he told Block because he wanted D.C. to have a better life and that he had witnessed the sexual abuse once or twice, when he saw D.C. with her head on Chavezs private part. T.C. testified that sometimes Chavez would instruct him and his other siblings to go to the bathroom or their rooms while he and D.C. remained together to clean. T.C. testified that after about a half hour, D.C. would go and clean her hands and cry. D.C.s other brother, B.C., testified that he too knew that Chavez was doing something suspicious to D.C. because Chavez would always take D.C. into a room, while asking the rest of the siblings to stay either in the living room, their rooms, or the bathroom. B.C. further testified that once Chavez thought the other children were spying on him and D.C., so Chavez knocked out B.C. and slapped his other siblings. B.C. testified that he saw Chavez with his pants down and D.C. with her head between Chavezs legs on one occasion. B.C. admitted that initially he told police that he never saw anything happen between Chavez and D.C. but explained he had been embarrassed to speak of sexual things. When asked why he was being forthcoming now, this exchange took place between B.C. and the prosecutor: Q. When you talked to the police that second time and that first time, was [D.C.] still alive? A. Yes, I think so. Q. . . . How important is it now at this point, with [D.C.] not being here anymorehow does that affect why youre wanting to talk now? A. Because since she isnt here, I can, umI know that she is gone because he Q. Stop. .... Q. I dont want you to blame anybody. Just dont say anything like that. Do you feel its your place to speak for her? A. Yes. The final sibling to testify was D.C.s sister, D.A.C. She testified that she once saw D.C. on the bed with Chavez on top of her. She further testified that another time she was in the bathroom and D.C. walked in with white stuff on her chin and that Chavez told D.C. to wipe her face clean. Chavez testified that he never sexually molested his daughter D.C. When asked about D.C.s preliminary hearing testimony, Chavez testified that he did not think that D.C. herself believed everything she was saying at the preliminary hearing. He testified that D.C. fell on the fence post outside their old home when she was

336

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[125 Nev.

five years old, requiring stitches to her vagina. He further testified that he did not believe the testimony of his other children. Rather, he believed all his children, including D.C., had lied. Chavez denied ever telling any of his children to go to their rooms while he and D.C. stayed together. He further denied physically punishing any of his children, beyond swatting them on their behinds or making them do pushups. During Chavezs cross-examination, the State sought to introduce evidence of pornographic magazines found under Chavezs bathroom sink during the search of Blocks apartment. In a pretrial hearing, the district court ruled the evidence inadmissible. However, the district court noted that during direct examination, there was a line of questioning and responses that were given that would suggest that [Chavez was] shy or bashful about sexual issues. Thus, the district court ruled that the adult magazines were relevant and allowed the State to question Chavez about the evidence. Chavez answered a series of questions regarding the adult magazines. During the trial, the district court informed the parties that an alternate juror had expressed her opinion to as many as four other jurors that Chavez was guilty. Chavez immediately moved for a mistrial. The district court decided that a voir dire of each juror would be conducted to determine whether the jury had been tainted. The next day, the district court canvassed each juror. The alternate juror stated that she indeed had expressed her opinion that Chavez was guilty. The district court excused the juror. Three other jurors confirmed that they heard the comment but could remain impartial, while all the other jurors stated they did not hear anyone express an opinion about the ultimate outcome of the case. Accordingly, the district court found that the jury would be able to remain fair and impartial and denied Chavezs motion for a mistrial. The jury convicted Chavez of four counts of sexual assault on a child. The district court sentenced him to four consecutive terms of life with the possibility of parole beginning after a minimum of 20 years had been served. On appeal, Chavez assigns numerous trial errors. The most significant issue raised on appeal is whether the admission of D.C.s preliminary hearing testimony and other statements made to police violated the Sixth Amendment Confrontation Clause. Chavez asserts an additional Confrontation Clause violation in connection with the testimony of D.C.s therapist, Evarts. Moreover, Chavez assigns several evidentiary errors, challenging the relevance of Dr. Clarks testimony and the reference to the adult magazines found in Chavezs bathroom. Chavez also argues that it was error to admit other bad act evidence with regard to how he punished his children. He further asserts that he is entitled to a new trial because the district court erred when it ruled that, pursuant to NRS 51.055, the jury could be instructed that D.C. was unavailable because she was

July 2009]

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deceased. In addition, Chavez argues that the exchange between B.C. and the prosecutor and the instance of juror misconduct warranted a mistrial. Finally, he asserts that the consecutive sentences constitute cruel and unusual punishment. DISCUSSION
[Headnote 1]

In resolving Chavezs arguments on appeal, we must first address whether the preliminary hearing process provides an adequate opportunity for the accused to confront the witnesses against him, as is required by the Sixth Amendments Confrontation Clause and Crawford v. Washington, 541 U.S. 36 (2004). We conclude that a preliminary hearing can afford a defendant an adequate opportunity to confront witnesses against him pursuant to Crawford. The adequacy of the opportunity to confront will be decided on a case-bycase basis, turning upon the discovery available to the defendant at the time and the manner in which the magistrate judge allows the cross-examination to proceed. We find support for our decision in the history and language of the Confrontation Clause and the bedrock principles of the inquisitorial process upon which the United States Supreme Court reached its decision in Crawford. The Confrontation Clause and Crawford The Confrontation Clause of the Sixth Amendment provides: In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him. U.S. Const. amend. VI. As the United States Supreme Court observed in Crawford, the scope of the right to confront was addressed just three years after the First Congress adopted the Sixth Amendment in State v. Webb, 2 N.C. 103 (1 Hayw. 1794), when a North Carolina court held that depositions could be read against an accused only if they were taken in his presence. 541 U.S. at 49. Face-to-face confrontation is the foundation upon which the United States Supreme Courts Confrontation Clause jurisprudence evolved. In Crawford, the Court held that the Confrontation Clause bars admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination. 541 U.S. at 5354. In so doing, the Supreme Court observed that the Confrontation Clause was a procedural rather than a substantive guarantee. It commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of crossexamination. Id. at 61.

338

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[125 Nev.

While much of Crawfords progeny dealt with the definition of testimonial, see Davis v. Washington, 547 U.S. 813 (2006), Crawford discussed the Confrontation Clause primarily in terms of unavailability and an opportunity for cross-examination. See Crawford, 541 U.S. at 68. Crawford is grounded in the principle that the opportunity to cross-examine is the focal point of the right to confront. See, e.g., Davis v. Alaska, 415 U.S. 308, 315 (1974) (Confrontation means more than being allowed to confront the witness physically. Our cases construing the [confrontation] clause hold that a primary interest secured by it is the right of crossexamination. (alteration in original) (quoting Douglas v. Alabama, 380 U.S. 415, 418 (1965))). This courts Confrontation Clause jurisprudence mirrors the Courts adherence to the historical roots of the Confrontation Clause. Some 200 years after the Webb decision, this court reaffirmed the cornerstone principle of the Confrontation Clause and its guarantee of a face-to-face meeting with an accuser. Smith v. State, 111 Nev. 499, 502, 894 P.2d 974, 975 (1995). In Smith, we held that the defendants Sixth Amendment right to confrontation had been violated because the prosecutor blocked the child-victims view of the defendant on direct examination. Id. at 502-03, 894 P.2d at 976. We determined that, even though Smith had an unfettered opportunity to cross-examine his accuser, it was not an effective cross-examination because the victims view of Smith had been blocked. Id. at 502, 894 P.2d at 976. In so determining, we noted that [i]t is always more difficult to tell a lie about a person to his face than behind his back. Id. (quoting Coy v. Iowa, 487 U.S. 1012, 1019 (1988)). We have applied Crawford to cases before us, stating that the testimonial hearsay of an unavailable witness requires a prior opportunity to cross-examine the witness concerning the statement for it to be admissible. Flores v. State, 121 Nev. 706, 714, 120 P.3d 1170, 1175 (2005). Further, we have observed that the Confrontation Clause guarantees an opportunity for effective crossexamination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish. Pantano v. State, 122 Nev. 782, 790, 138 P.3d 477, 482 (2006) (quoting Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986)). And we have explained that discovery is a component of an effective crossexamination. See Estes v. State, 122 Nev. 1123, 1140, 146 P.3d 1114, 1126 (2006). Today, we further clarify our post-Crawford decisions by holding that a preliminary hearing can afford a defendant an opportunity for effective cross-examination. We will determine the adequacy of the opportunity on a case-by-case basis, taking into consideration such factors as the extent of discovery that was available to the defendant

July 2009]

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at the time of cross-examination and whether the magistrate judge allowed the defendant a thorough opportunity to cross-examine the witness. We first address the standard of review for such a claim and then address each of Chavezs claims in turn. Standard of review
[Headnotes 2, 3]

We generally review a district courts evidentiary rulings for an abuse of discretion. See, e.g., Mclellan v. State, 124 Nev. 263, 267, 182 P.3d 106, 109 (2008). However, whether a defendants Confrontation Clause rights were violated is ultimately a question of law that must be reviewed de novo. U.S. v. Larson, 495 F.3d 1094, 1102 (9th Cir. 2007); see U.S. v. Holt, 486 F.3d 997, 1001 (7th Cir. 2007); U.S. v. Kenyon, 481 F.3d 1054, 1063 (8th Cir. 2007); U.S. v. Townley, 472 F.3d 1267, 1271 (10th Cir. 2007); U.S. v. Hitt, 473 F.3d 146, 155-56 (5th Cir. 2006). D.C.s preliminary hearing testimony and statements to law enforcement
[Headnote 4]

Chavez challenges the admission of D.C.s preliminary hearing testimony, her videotaped statements to police, and her other statements to law enforcement officers. We first address whether the district court erred in admitting D.C.s preliminary hearing testimony.
[Headnote 5]

The threshold question in the Crawford v. Washington framework is whether the statement at issue is testimonial hearsay. 541 U.S. 36, 68-69 (2004). While Crawford leave[s] for another day the definition of testimonial, it did observe that it applies at a minimum to prior testimony at a preliminary hearing. Id. at 68. Accordingly, D.C.s testimony at the preliminary hearing was testimonial. Further, because D.C. was deceased at the time of trial, she was an unavailable witness. Thus, the primary issue before this court is whether Chavez had an opportunity for an effective crossexamination at the preliminary hearing. Chavez argues that the limited nature of a preliminary hearing does not provide a defendant an adequate opportunity to crossexamine a witness appearing against him. He urges this court to adopt the standards set forth in People v. Fry, 92 P.3d 970 (Colo. 2004), and State v. Stuart, 695 N.W.2d 259 (Wis. 2005). Both cases are inapposite. In Fry, the Colorado Supreme Court found that a defendants opportunity to cross-examine a witness during a preliminary hearing was not adequate for Confrontation Clause purposes because of

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[125 Nev.

the limited nature of the preliminary hearing in that state. 92 P.3d at 976-77 (explaining that in Colorado a preliminary hearing is limited to matters necessary to a determination of probable cause). In contrast, Nevada law is generally more permissive with regard to a defendants right to discovery and cross-examination at the preliminary hearing. See NRS 171.196(5) (The defendant may crossexamine witnesses against him and may introduce evidence on his own behalf.); NRS 171.1965(1) (stating that, before the preliminary hearing, the defendant is entitled to written or recorded statements by the defendant or a witness, reports, and other evidence within the prosecutors custody or possession). We do not find anything in our state law that would hinder a defendants opportunity to cross-examine a witness at a preliminary hearing.1 In Stuart, the Wisconsin Supreme Court reversed a murder conviction, finding that the district court had erroneously admitted the preliminary hearing testimony of the defendants brother. 695 N.W.2d at 267. During the preliminary hearing, the magistrate ruled that pursuant to Wisconsin law, the defense could not ask the brother a question that was meant to cast doubt on the brothers credibility at the preliminary hearing stage. Id. At trial, the brother became unavailable, and the court admitted his preliminary hearing testimony. Id. The Wisconsin Supreme Court reversed, determining that, at the trial level, a defendant had a right to question a witnesss motive and credibility and, therefore, admitting the preliminary testimony violated the defendants right to confrontation. Id. Unlike Wisconsin, Nevada law does not preclude a defendant from questioning a witnesss credibility or motive during a preliminary hearing. While the defendant in Stuart could not question the witnesss credibility and motive, Chavez questioned D.C.s credibility in a wide-ranging cross-examination. Chavezs cross-examination of D.C. at the preliminary hearing consisted of almost double the amount of questions that were asked on direct examination. D.C. testified under oath and in Chavezs
1 Chavez cites Sheriff v. Witzenburg, 122 Nev. 1056, 1061, 145 P.3d 1002, 1005 (2006), for the proposition that in Nevada preliminary hearings do not afford sufficient opportunity for cross-examination. This argument misreads the case. In Witzenburg, this court held that the statutory grant of crossexamination at a preliminary examination pursuant to NRS 171.196(5) was a qualified right, subject to NRS 171.197, which provides the defendant with a mechanism to challenge affidavit testimony that the State attempts to introduce against him. Id. at 1062, 145 P.3d at 1006. Contrary to Chavezs assertion, Witzenburg does not hold that Nevadas preliminary hearing procedures limit a defendants cross-examination rights to such an extent that Confrontation Clause rights cannot be satisfied. This court held to the contrary in Aesoph v. State, 102 Nev. 316, 319-20, 721 P.2d 379, 381-82 (1986). In this pre-Crawford decision, we specifically held that cross-examination during a preliminary hearing could satisfy the Confrontation Clause, a proposition which we extend today postCrawford. Id.

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presence. At the time Chavez conducted the cross-examination, nearly all the discovery was complete. In fact, most of Chavezs extensive cross-examination consisted of questions based upon statements that D.C. had made to authorities about the sexual abuse. Specifically, we note that Chavez had a copy of D.C.s videotaped statements to police, as well as a list of the witnesses that would be testifying during the States case in chief. Therefore, Chavez had most, if not all, of the pertinent facts of the States case in chief at the preliminary hearing. Chavez used the discovery to ask D.C. specific questions about the molestation, including details about each instance of abuse, the description of her fathers penis, and how she cleaned up afterwards by using socks. He questioned D.C.s veracity and motives by repeatedly asking her whether she told specific people about the sexual abuse during the five years that it was ongoing. Chavez asked D.C. whether her brothers or her sister ever saw the sexual abuse and about the conversation in the car between D.C., her siblings, and Block, and how and why D.C. told her mother about the abuse. Chavez asked D.C. specific questions about her parents relationship. He further questioned D.C. about the alleged accident on the fence post and how it led to her initial injuries. He even asked D.C. if she was seeing a therapist. These questions were only part of the 240 questions Chavez asked D.C. The record leaves no doubt in our minds that the preliminary hearing afforded Chavez an opportunity to cross-examine the unavailable witness, D.C., on the statements that she had made to her mother, health care providers, and law enforcement officers regarding the sexual abuse. The nature of the cross-examination was extensive and thorough because the defense took, and the magistrate judge allowed, full advantage of the opportunity to crossexamine. In fact, the magistrate judge only interrupted Chavezs cross-examination once, when Chavez asked D.C. a series of questions about her mothers new boyfriend. And, even then, the magistrate judge said that he would not allow the line of questioning unless counsel could explain its relevance. Chavez simply moved on to other questions. There is no evidence that the magistrate judge placed any inappropriate restrictions on the scope of Chavezs crossexamination of D.C. Rather, the record shows, save for one appropriate admonishment, the magistrate judge allowed Chavez to extensively question D.C. on all the key pieces of evidence the State had obtained against Chavez. Because discovery was almost entirely complete, Chavez was able to take full advantage of the opportunity to cross-examine the States key witness against him at the preliminary hearing. Therefore, in this instance, because the discovery was almost entirely complete and the magistrate judge allowed Chavez unrestricted opportunity to confront D.C. on all the pertinent issues, we con-

342

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[125 Nev.

clude that Chavezs Confrontation Clause rights were not violated by the admission of D.C.s preliminary hearing testimony at trial. D.C.s other statements to law enforcement
[Headnote 6]

In concluding that the admission of D.C.s preliminary hearing testimony did not violate Chavezs rights pursuant to the Confrontation Clause and Crawford, we also conclude that the admission of D.C.s videotaped testimony and other statements she made to officers did not violate Chavezs constitutional rights. There is no question that the statements were testimonial in nature because D.C. made them to police in a formal, nonemergency setting and the interviews were conducted for the primary purpose of helping law enforcement build a case of sexual abuse against Chavez. Davis v. Washington, 547 U.S. 813, 822 (2006) (explaining that nontestimonial statements are those made during an ongoing emergency; whereas, testimonial statements are those made during an interrogation that serve the primary purpose of helping establish or prove past events potentially relevant to later criminal prosecution). The only remaining issue is whether Chavez had opportunity to cross-examine D.C. regarding the videotaped testimony and her other statements to police. Because of discovery, Chavez had the statements that D.C. made to Detective Armitage and Sergeant Dreelan, including a copy of the videotape, before the preliminary hearing. Chavez, therefore, had the opportunity to confront D.C. on all of her statements to law enforcement officers at the preliminary hearing. Whether he questioned D.C. on each and every statement is not the relevant inquiry, as the Confrontation Clause only guarantees the opportunity to cross-examine, not a cross-examination in whatever way the defense might wish. As we have already concluded, Chavez was afforded an adequate opportunity to confront D.C. at the preliminary hearing. The breadth and scope of Chavezs cross-examination did not run afoul of the Confrontation Clause because of the nearly complete discovery available to Chavez at the time and manner in which the magistrate judge allowed the crossexamination to proceed. Other testimonial hearsay
[Headnote 7]

Chavez next argues that his Confrontation Clause rights were violated when D.C.s therapist, Evarts, was allowed to testify as to how D.C. had answered a question on a medical form. Evarts testified that D.C. wrote that at five years old, her dad ripped open her vagina. We first consider Crawfords threshold question of whether the statement being offered is testimonial in nature. While we acknowl-

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edge that the police likely referred D.C. to Evarts, there is no evidence that Evarts time with D.C. served the purpose of furthering the investigation of D.C.s sexual abuse allegations. Rather, their time together served the primary purpose of helping D.C. psychologically heal from five years of abuse. One quarter of Evarts practice was made up of child assault victims. Her general practice was to have patients fill out a medical form upon their first visit. The question that elicited the response at issue did not ask anything specific about an act of sexual assault. Rather, it asked if the patient had been to the hospital or required stitches. Given the context in which it was asked, by a family therapist specializing in sexual assault victims and for the purpose of diagnosis and treatment, we conclude that D.C.s written statement was not testimonial.
[Headnotes 8, 9]

Having concluded that D.C.s statement was nontestimonial in nature, we must next determine whether it was admissible pursuant to a hearsay exception. NRS 51.115 provides for the admission of hearsay statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain or sensations, or the inception or general character of the cause or external source thereof. In essence, statements that are pertinent to the ongoing care of the patient are admissible pursuant to NRS 51.115. See Koerschner v. State, 116 Nev. 1111, 1118, 13 P.3d 451, 456 (2000). We conclude that Evarts testimony regarding D.C.s answer that her father ripped open her vagina is admissible nontestimonial hearsay pursuant to NRS 51.115. The question was asked and answered in the context of medical/psychological treatment for sexual assault. As Evarts testified, the question was part of a medical form that all new patients routinely fill out to give Evarts an introduction to the patient for treatment and diagnosis. D.C. was at Evarts office as a victim of sexual assault, and it was in that capacity that she filled out the form and made the statement. We therefore conclude that the district court did not abuse its discretion in allowing Evarts to testify as to D.C.s statement on the medical form.2 Evidentiary issues Chavez next raises several evidentiary issues. He contends that the district court abused its discretion when it admitted nonrelevant yet
2 Chavez further objects to Evarts testimony that she had no doubt . . . [D.C.] was telling the truth or that D.C. had not been coached. Chavez did not object at the time of the testimony. Rather, he moved for a mistrial the next day, alleging impermissible vouching on Evarts part. On appeal, he argues that the district court abused its discretion when it denied his motion for a mistrial. Chavezs argument is without merit. In reviewing the district courts denial of a motion for a mistrial, we will reverse the decision only if there is a clear demonstration that the district court abused its discretion. Rose

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[125 Nev.

highly prejudicial evidence at trial, namely, evidence of adult magazines found in his bathroom and evidence of prior bad acts.3 Adult magazines
[Headnotes 10, 11]

The district court initially ruled that any evidence or reference to the adult magazines found during the search of Blocks apartment was inadmissible. However, after noting that Chavez conveyed a shy attitude toward sexual issues on direct examination, the district court allowed the State to question Chavez about the adult magazines. Relevant evidence is evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence and is generally admissible. NRS 48.015; NRS 48.025. However, relevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice, of confusion of the issues or of misleading the jury. NRS 48.035(1). As previously indicated, we review a district courts decision to admit or exclude evidence for abuse of discretion. Mclellan v. State, 124 Nev. 263, 267, 182 P.3d 106, 109 (2008). We fail to see the relevance of the adult magazines because they have no tendency to make the existence of any fact of consequence as to whether Chavez molested his daughter more or less probable. Thus, we conclude that the district court abused its discretion by admitting evidence regarding the adult magazines. While the probative value was minimal at best and unrelated to the elements of the crimes charged, we conclude that the introduction of the adult magazines was harmless error, given the overwhelming evidence prev. State, 123 Nev. 194, 206-07, 163 P.3d 408, 417 (2007). Evarts did not vouch for D.C.s credibility in terms of the allegations in this case. A close review of the trial transcript reveals that Evarts was responding to a question by the State about whether she felt D.C. had been coached. The question was asked because Evarts earlier had testified that, in her experience, she had treated kids that she felt had been coached[ ] or [had] falsely accused . . . their dads. Thus, Evarts testimony went to her observations of D.C. as compared to other children she had treated, not to the veracity of D.C.s allegations. We conclude that the district court did not abuse its discretion in denying Chavezs motion for a mistrial. 3 Chavez also asserts that the testimony of Dr. Clark, who performed the autopsy on D.C., was not relevant because it was cumulative and highly prejudicial. Chavez did not make a contemporaneous objection and we therefore need not consider this claim. McKague v. State, 101 Nev. 327, 330, 705 P.2d 127, 129 (1985). However, in exercising our discretion to consider the claim under a plain error review pursuant to Green v. State, 119 Nev. 542, 545, 80 P.3d 93, 95 (2003), we determine that Chavez has failed to demonstrate a miscarriage of justice. As a practical matter, we note that Dr. Clarks testimony was highly probative, since it helped corroborate D.C.s testimony that she had been sexually assaulted repeatedly over a number of years.

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sented by the State against Chavez. See, e.g., Estes v. State, 122 Nev. 1123, 1141, 146 P.3d 1114, 1126 (2006) (determining that the introduction of a photograph at trial of the minor sexual assault victim was harmless error given the overwhelming evidence presented against defendant). Prior bad acts
[Headnote 12]

Chavez also argues that he is entitled to a new trial because the district court abused its discretion when it admitted evidence of prior bad acts in the form of testimony by his three children that he had physically abused them.
[Headnote 13]

A district courts decision to admit or exclude evidence of prior bad acts rests within its sound discretion and will not be reversed by this court on appeal absent manifest error. Somee v. State, 124 Nev. 434, 446, 187 P.3d 152, 160 (2008).
[Headnotes 14, 15]

For evidence of prior bad acts to be admissible, the district court must hold a hearing outside the presence of the jury and determine 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. Diomampo v. State, 124 Nev. 414, 430, 185 P.3d 1031, 1041 (2008) (quoting Tinch v. State, 113 Nev. 1170, 1176, 946 P.2d 1061, 1064-65 (1997)). If evidence of the prior bad act is admitted, the district court must then issue a limiting instruction to the jury about the limited use of bad act evidence, unless waived by the defendant. See, e.g., Mclellan, 124 Nev. at 269-70, 182 P.3d at 110-11. Here, the district court conducted a pretrial hearing on the States notice of intent to admit prior bad act evidence. It asked for the specific instances of conduct that the State wished to introduce and reserved ruling on the matters until trial. At trial, B.C. was the only child who testified to any prior bad acts by Chavez. B.C. testified that on one occasion Chavez knocked him out and slapped his other siblings because Chavez thought they were all spying on him and D.C. while the two were in the bedroom. We note that B.C. testified under oath and appeared to be a credible witness. Further, the prior bad act was relevant to show B.C.s fear of Chavez and why B.C. did not initially report the sexual abuse he had witnessed. Moreover, the district court instructed the jury about the limited use of the prior bad act. We therefore conclude that there was no manifest error in the district courts decision to admit B.C.s testimony regarding a prior bad act.

346

Chavez v. State

[125 Nev.

Prejudicial exchange between prosecutor and witness

[Headnote 16]

Chavez argues that the district court committed reversible error when it denied his motion for a mistrial based upon the exchange between the prosecutor and B.C. in which B.C. alluded to D.C.s death. Prior to trial, the district court ruled that the parties could not discuss the cause or circumstances of D.C.s death.4 Chavez asserts that the exchange between the prosecutor and B.C. violated that court order and educated the jury to the fact that at least one sibling blamed Chavez for D.C.s death. The exchange occurred on redirect. We note that the prosecutor was trying to rehabilitate B.C., because during cross-examination, Chavez questioned B.C.s motivation as to why he was more forthcoming at trial, when he had repeatedly told investigators he had not seen any instances of sexual abuse of D.C. by Chavez. We conclude that the exchange did not violate the district court order not to discuss the circumstances of D.C.s death. At most, it revealed that B.C. knew that D.C. was deceaseda fact of which the jury was already aware.5 Further, the district court instructed the jury not to speculate about D.C.s death and that anything counsel said was not evidence. Because this court generally presumes that juries follow district court orders and instructions, Summers v. State, 122 Nev. 1326, 1333, 148 P.3d 778, 783 (2006), we conclude the district court did not abuse its discretion when it denied Chavezs motion for a mistrial based on the exchange between the prosecutor and B.C. Juror misconduct
[Headnotes 17, 18]

Chavez further contends that reversal is required because of juror misconduct. We disagree.
[Headnote 19]

We review a district courts decision to deny a motion for a mistrial based upon juror misconduct for an abuse of discretion. Valdez
4 Because of the sensitive nature of the cause of death, the district court forbade any reference to the manner of D.C.s death. 5 Regarding D.C.s unavailability, Chavez also argues that the district court abused its discretion when it, pursuant to NRS 51.055(1)(c), informed the jury that D.C. was unavailable because she was deceased. NRS 51.055(1)(c) states, in pertinent part, that [a] declarant is unavailable as a witness if he is: . . . [u]nable to be present or to testify . . . because of death. The statute does not speak to whether the jury can be informed as to why the declarant is unavailable. However, we note that the district court created a safeguard when it permitted the jury to be instructed regarding D.C.s unavailability by ordering that nothing beyond the fact that she was deceased, such as the circumstances of her death, would be conveyed to the jury. We conclude that the measure taken was sufficient to protect Chavezs rights. Further, we note that informing the jury

July 2009]

Chavez v. State

347

v. State, 124 Nev. 1172, 1186, 196 P.3d 465, 475 (2008). We have held that a district court has discretion to remove a juror mid-trial for violating a courts admonishment, rather than declaring a mistrial. Viray v. State, 121 Nev. 159, 163, 111 P.3d 1079, 1082 (2005). Specifically, we have stated that: [i]n 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. Id. at 163-64, 111 P.3d at 1082. In this case, the district court properly determined that the violation of the admonishment occurred when the alternate juror expressed her opinion to the other jurors that she believed Chavez was guilty. The district court proceeded in accord with Viray and held a hearing to determine the nature and quality of the misconduct, conducting a voir dire of each juror to determine whether the jury had been tainted. After canvassing each juror, the district court excused the alternate juror, who had expressed her opinion that Chavez was guilty. While three other jurors confirmed that they heard the alternate jurors comment, they stated that they could remain impartial. All the other jurors stated that they did not hear anyone express an opinion about the ultimate outcome of the case. Accordingly, a mistrial was not required. We, therefore, conclude that the district court properly exercised its discretion to remove the alternate juror for violating its order not to discuss any opinion about the trial until the case was submitted to the jury. Cruel and unusual punishment
[Headnote 20]

Chavez contends that the sentence he received constitutes cruel and unusual punishment, in violation of the United States and Nevada Constitutions because the sentence was excessive. The district court sentenced Chavez to four consecutive life terms.
[Headnotes 21, 22]

The Eighth Amendment of the United States Constitution does not require strict proportionality between crime and sentence but forbids only an extreme sentence that is grossly disproportionate to the
that D.C. was unavailable because she is deceased was relevant as to why she did not testify. See U.S. v. Accetturo, 966 F.2d 631, 637 (11th Cir. 1992) (observing that the fact that the declarant was unavailable because she was dead was relevant as to why she had not testified).

348

Chavez v. State

[125 Nev.

crime. Harmelin v. Michigan, 501 U.S. 957, 1000-01 (1991) (plurality opinion). Regardless of its severity, a sentence that is within the statutory limits is not cruel and unusual punishment unless the statute fixing punishment is unconstitutional or the sentence is so unreasonably disproportionate to the offense as to shock the conscience. Blume v. State, 112 Nev. 472, 475, 915 P.2d 282, 284 (1996) (quoting Culverson v. State, 95 Nev. 433, 435, 596 P.2d 220, 222 (1979)); see also Glegola v. State, 110 Nev. 344, 348, 871 P.2d 950, 953 (1994).
[Headnote 23]

This court has consistently afforded the district court wide discretion in its sentencing decision. See Houk v. State, 103 Nev. 659, 664, 747 P.2d 1376, 1379 (1987). This court will refrain from interfering with the sentence imposed [s]o long as the record does not demonstrate prejudice resulting from consideration of information or accusations founded on facts supported only by impalpable or highly suspect evidence. Silks v. State, 92 Nev. 91, 94, 545 P.2d 1159, 1161 (1976). In the instant case, Chavez does not allege that the district court relied on impalpable or highly suspect evidence or that the relevant statutes are unconstitutional. Further, we note that the sentence imposed was within the parameters provided by the relevant statutes. See NRS 176.035(1); Warden v. Peters, 83 Nev. 298, 303, 429 P.2d 549, 552 (1967). Accordingly, we conclude that the sentence imposed does not constitute cruel and unusual punishment and, therefore, the district court did not abuse its discretion by imposing on Chavez a sentence of four consecutive life terms. CONCLUSION For the reasons discussed above, we reject all of Chavezs arguments on appeal and affirm the district courts judgment of conviction. In so doing, we clarify our Confrontation Clause jurisprudence post-Crawford, holding that a preliminary hearing can afford a defendant an adequate opportunity to confront witnesses against him. The adequacy of the opportunity will be determined on a case-bycase basis, determined by such considerations as to how much discovery was available to the defendant at the time of the crossexamination and the manner in which the magistrate judge allows the cross-examination to proceed.

July 2009]

Grosjean v. Imperial Palace

349

JAMES GROSJEAN, APPELLANT/CROSS-RESPONDENT, v. IMPERIAL PALACE, INC., AND DONNIE ESPENSEN, RESPONDENTS/CROSS-APPELLANTS.
No. 44542 July 30, 2009 212 P.3d 1068

Appeal and cross-appeal from a district court judgment on a jury verdict, certified as final under NRCP 54(b), in a bifurcated civil rights/tort action. Eighth Judicial District Court, Clark County; Lee A. Gates, Judge. Customer, who had a reputation as a skilled gambler, brought false imprisonment, conspiracy, battery, and 42 U.S.C. 1983 action against casino and casino security supervisor. After dismissing customers state law claims, the district court entered judgment on jury verdict for customer. Customer appealed, and casino and security supervisor cross-appealed. The supreme court, DOUGLAS, J., held that: (1) qualified immunity did not shield casino and casino security supervisor from customers 1983 claim, though they detained customer at the request of gaming control board (GCB) agents; (2) trial court did not abuse its discretion by sustaining objection to casinos question asking customer if his disguise was something cheaters would do; (3) trial court did not abuse its discretion by allowing customer to testify that casino security guard threatened to smack his head into a wall; (4) issue of whether casino violated customers Fourth Amendment rights by continuing to detain customer after they confirmed he was not suspect sought by GCB was for the jury; (5) trial court did not abuse its discretion by denying casinos motion for a new trial on liability and compensatory damages based on misconduct by customers attorney; (6) casino was entitled to a new trial on punitive damages based on misconduct by customers attorney; and (7) prohibition against a double recovery for a single injury precluded any further litigation by customer on his state law claims. Affirmed in part, reversed in part, and remanded with instructions. [Rehearing denied October 20, 2009] Nersesian & Sankiewicz and Thea Marie Sankiewicz and Robert A. Nersesian, Las Vegas, for Appellant/Cross-Respondent. Cooper Levenson April Niedelman Wagenheim, P.A., and Jerry S. Busby, Las Vegas, for Respondent/Cross-Appellant Imperial Palace, Inc. Lewis Brisbois Bisgaard & Smith LLP and David L. Thomas, Las Vegas, for Respondent/Cross-Appellant Donnie Espensen.

350

Grosjean v. Imperial Palace

[125 Nev.

Potter Law Offices and Cal J. Potter III and Lawrence W. Freiman, Las Vegas, for Amicus Curiae Nevada Trial Lawyers Association.
1. APPEAL AND ERROR. Supreme court reviews conclusions of law, such as those involving statutory construction, de novo. 2. CIVIL RIGHTS. Alleged constitutional violations by a corporation generally do not provide a plaintiff with a private cause of action against the corporation under 1983, unless the plaintiff can show that the corporations actions were fairly attributable to the state. 42 U.S.C. 1983. 3. CIVIL RIGHTS. Generally, qualified immunity applies to protect state officials from civil liability for damages resulting from discretionary acts, so long as those acts do not violate clearly established statutory or constitutional rights. 4. CIVIL RIGHTS. Qualified immunity did not shield casino and casino security supervisor from 1983 claim of customer who they detained at the request of gaming control board agents, as casino was a private for-profit corporation that performed independently of the government, and the public policy considerations underlying qualified immunity would not be served by permitting casino and supervisor to assert it. 42 U.S.C. 1983. 5. CIVIL RIGHTS. Though private parties, unlike state officials, are not entitled to qualified immunity from civil damages resulting from discretionary acts, the good-faith defense may apply to private parties who become liable solely because of their compliance with government agents request or in attempting to comply with the law. 6. APPEAL AND ERROR; JUDGMENT; NEW TRIAL. Decisions concerning motions for judgment notwithstanding the verdict or for a new trial rest within the district courts sound discretion and will not be disturbed absent abuse of that discretion. 7. TRIAL. A directed verdict may be entered when the evidence is so overwhelming for one party that any other verdict would be contrary to the law. NRAP 50(b). 8. JUDGMENT; NEW TRIAL; TRIAL. A court may direct a verdict in the moving partys favor or grant a new trial if, as a matter of law, the jury could not have reached the conclusion that it reached. NRCP 50(b), 59(a)(1). 9. APPEAL AND ERROR. The supreme court will not overturn a district courts decision to exclude relevant evidence unless the court is convinced that the district court abused its discretion. 10. EVIDENCE. A statement merely offered to show that the statement was made and the listener was affected by the statement, and which is not offered to show the truth of the matter asserted, is admissible as non-hearsay. 11. EVIDENCE. Trial court did not abuse its discretion by sustaining an objection to question by casino and casino security supervisor asking customer if his disguise was something a cheater might do, in trial of customers 1983 claim against casino and supervisor arising out of his detention at the direction of gaming control board (GCB) agents; though customer had a reputation as

July 2009]

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12.

13.

14.

15.

16.

17.

18.

19.

a skilled gambler and casino claimed as a result that customer had a lower expectation of privacy, customer was not seen doing anything suspicious at the casino when he was stopped by security, but instead was stopped because he fit a GCB suspects description, and trial court allowed casino to question customer about his gambling behaviors, including his disguise and gambling expertise. 42 U.S.C. 1983. EVIDENCE. Trial court did not abuse its discretion by allowing customer to testify that a casino security guard, after customer was seized and taken to security room, threatened to smack customers head into the wall, in trial of customers 1983 action against casino and casino security supervisor, despite casinos hearsay objection, as the statement was arguably introduced to show its effect on customer and not for its truth; customer testified that the statement caused him to be fearful as he had a propensity for retinal detachment. 42 U.S.C. 1983. CIVIL RIGHTS. Issue of whether casino security and gaming control board (GCB) agents continued to detain customer after they confirmed customer was not the suspect sought by GCB and thereby violated customers Fourth Amendment rights was for the jury, in trial of customers 1983 claim against casino and casino security supervisor. U.S. CONST. amend. 4; 42 U.S.C. 1983. APPEAL AND ERROR. Whether an attorneys comments are misconduct is a question of law subject to de novo review, though the supreme court gives deference to the district courts factual findings and to how it applied the standards to those facts. TRIAL. Although counsel enjoys wide latitude in arguing facts and drawing inferences from the evidence, counsel nevertheless may not make improper or inflammatory arguments that appeal solely to the emotions of the jury. APPEAL AND ERROR. When a party objects to purported attorney misconduct and that objection is sustained, reversal is warranted only if the misconduct is so extreme that the objection and admonishment could not remove the misconducts effect. APPEAL AND ERROR. When a party fails to object to attorney misconduct during the trial, the supreme court will reverse the judgment only when the misconduct amounted to irreparable and fundamental error that results in a substantial impairment of justice or denial of fundamental rights such that, but for the misconduct, the verdict would have been different. APPEAL AND ERROR. The standard governing review of attorney misconduct to which an appellant did not object at trial essentially amounts to plain error review, under which the party claiming misconduct must show that no other reasonable explanation for the verdict exists, and covers the rare occasion when the attorney misconduct offsets the evidence adduced at trial in support of the verdict. NEW TRIAL. Objected-to and sustained misconduct by attorney for casino customer, in trial of customers 1983 action against casino and casino security supervisor arising out of customers detention by casino security, by stating that defendants objected to certain testimony because they were afraid the jury would hear damaging information, by arguing casino should be penalized with punitive damages for its failure to make significant charitable con-

352

Grosjean v. Imperial Palace

[125 Nev.

20.

21.

22. 23.

24.

25. 26.

27.

tributions, and by stating that supervisor lied, was not so extreme that the sustained objections and admonishment that trial court issued in response to one of the objections were ineffective in removing the misconducts effect during the liability and compensatory portions of the trial, for purposes of determining whether casino and casino security supervisor were entitled to a new trial. 42 U.S.C. 1983. APPEAL AND ERROR. In analyzing attorney misconduct in the context of an appeal from an order denying a new trial motion, the supreme court looks at the scope, nature, and quantity of misconduct as indicators of the verdicts reliability. NEW TRIAL. Trial court did not abuse its discretion by denying motion for new trial by casino and casino security supervisor as to liability and compensatory damages based on unobjected-to misconduct by customers attorney, in trial of 1983 action arising out of customers detention by casino security in which jury awarded customer $99,000 in compensatory damages, as the evidence reasonably could support the jury verdict; though attorney argued he did not want his daughters to go through customers experience, improperly mentioned parties settlement efforts, stated police always claimed they did not violate the Fourth Amendment, improperly vouched for customer and called security personnel names, there was evidence that casino and gaming control board (GCB) agents continued to detain customer and examined the contents of customers pockets after they confirmed customer was not the suspect sought by GCB, and that guard threatened to smack customers head into a wall. U.S. CONST. amend. 4; 42 U.S.C. 1983. NEW TRIAL. The cumulative effect of attorney misconduct on a jurys verdict is relevant in determining whether a party is entitled to a new trial. APPEAL AND ERROR. Any error by trial court in deferring ruling on directed verdict motion made by casino and casino security supervisor until after jury returned its punitive damages verdict was not prejudicial, in trial of customers 1983 action arising out of customers detention by casino security, as the delay in the ruling did not prevent casino from presenting evidence to negate an award of punitive damages, and rules of civil procedure did not require the trial court to rule on a directed verdict motion before the jury returned a verdict. 42 U.S.C. 1983; NRCP 50(a). APPEAL AND ERROR. The standards for reviewing orders resolving a motion for a directed verdict and a motion for an involuntary dismissal are the same. NRCP 41(b), 50(a). CIVIL RIGHTS. Oppression, fraud, or malice can serve as the basis for a punitive damages award in a 1983 action. 42 U.S.C. 1983; NRS 42.005. TRIAL. Attorneys violate the golden rule by asking the jurors to place themselves in the plaintiffs position or nullify the jurys role by asking it to send a message to the defendant instead of evaluating the evidence. RPC 3.4(e). NEW TRIAL. Combination of objected-to and sustained and unobjected-to misconduct by attorney for casino customer was so egregious as to warrant a new trial on punitive damages, in trial of 1983 action arising out of customers detention by casino security in which jury awarded customer $500,000 in punitive damages; attorney essentially asked jury to send a message by pun-

July 2009]

Grosjean v. Imperial Palace

353

28.

29.

30.

31.

32.

ishing casino for not making substantial charitable contributions despite being highly profitable, though court sustained objection to and struck such statement; attorney proceeded to argue that casino should not have followed suggestions of gaming control board agents to continue to detain customer and started to cry; and, given that customer did not suffer physical injuries and was not jailed, the punitive damages award appeared to be driven not by evidence of malice, fraud, or oppression but by attorneys improper golden rule and emotional arguments. 42 U.S.C. 1983. TRIAL. When an attorney must continuously object to repeated or persistent misconduct, the nonoffending attorney is placed in the difficult position of having to make repeated objections before the trier of fact, which might cast a negative impression on the attorney and the party the attorney represents, emphasizing the improper point. TRIAL. One factor to consider when evaluating attorney misconduct is that, while a single instance of improper conduct might be cured by objection and admonishment, the same may not hold true when the improper conduct is repeated. DAMAGES. The prohibition against a double recovery for a single injury precluded any further litigation by customer against casino and casino security supervisor on claims arising from casino security guards acts of searching and detaining customer, regardless of whether trial court erred in dismissing customers state law false imprisonment, conspiracy, and battery claims, as customer had prevailed on his 1983 claim against casino and supervisor, and the invasion of customers Fourth Amendment rights on which his 1983 claim was premised had fundamental elements in common with the dismissed state law tort claims. U.S. CONST. amend. 4; 42 U.S.C. 1983. CIVIL RIGHTS. The purpose for allowing the recovery of money damages in a 1983 action for the violation of a constitutional right, like that of common law tort damages, is to compensate the plaintiff for his or her injury caused by the defendants breach of duty or intentional tort. 42 U.S.C. 1983. DAMAGES. Although a plaintiff may assert both a 1983 claim and tort-based claims, he or she is not entitled to a separate compensatory damage award under each legal theory; instead, if liability is found, the plaintiff is entitled to only one compensatory damage award on one or both theories of liability. 42 U.S.C. 1983.

Before the Court EN BANC.1 OPINION By the Court, DOUGLAS, J.: In this appeal and cross-appeal, we address whether qualified immunity can extend to shield private actors from civil liability in a 42 U.S.C. 1983 action and, if not, whether alleged evidentiary errors and attorney misconduct that occurred during trial on the 1983
1 THE HONORABLE RON D. PARRAGUIRRE, Justice, voluntarily recused himself from participation in the decision of this matter.

354

Grosjean v. Imperial Palace

[125 Nev.

claim warrant a new trial. In addition to the qualified immunity and alleged trial error issues, we decide whether punitive damages were properly presented to the jury and, if so, whether its subsequent award was supported by the evidence. Finally, we determine whether previously dismissed state law claims should be reinstated against the same private actors against whom a judgment was entered on the 1983 cause of action, when both the state law- and federal lawbased claims were grounded on the same conduct, an allegedly illegal detention. First, with regard to the private actor cross-appellants assertion that the 1983 claim against them should have been dismissed on qualified immunity grounds, after examining policy considerations underlying the qualified immunity doctrine on the disputed facts, we are not persuaded that such immunity extends to protect private actors. Thus, the district court properly refused to dismiss those claims. Next, addressing cross-appellants concern that allegedly erroneous evidentiary rulings and attorney misconduct led to the jurys verdict against them, we conclude that the evidentiary rulings in question were within the district courts considerable discretion and that the attorney misconduct in this case, while prevalent, did not override the jurys verdict, which was based on substantial evidence in the damages phase of the trial. As for the argument on cross-appeal that the district court improperly allowed the punitive damages request to be presented to the jury, even though the punitive damages request was grounded on a state statute and all of the pertinent state law claims had been dismissed, we conclude that the district court properly allowed the request to go forward, as the state standard conforms to federal law requirements governing punitive damage awards in 1983 actions. With regard to the punitive damages awarded, we conclude that the jurys $500,000 award was a result of continued attorney misconduct, including a golden rule violation and improper emotional arguments, such that a new trial is warranted as to punitive damages. Finally, addressing the appeal, which challenges the dismissal of certain state law claims, because appellant already recovered damages for identical conduct under 1983, he is precluded from recovering additional damages for that injury under state law-based theories. In particular, because the common law torts for which he seeks to recover coincide substantially with the 1983 action that he was allowed to maintain and for which a money judgment was entered in his favor, he may not again recover damages for that conduct, and thus we need not further review the district courts decision to dismiss the state law claims against Imperial Palace. Accordingly, we affirm the compensatory damages portion of the

July 2009]

Grosjean v. Imperial Palace

355

district courts judgment, reverse the punitive damages portion, and remand for a new trial on punitive damages only. FACTS AND PROCEDURAL HISTORY The complaint This matter arose from an incident at Imperial Palace casino in Las Vegas, Nevada, when casino security personnel and two Gaming Control Board (GCB) agents detained appellant James Grosjean because he matched the description of a person in whom another GCB agent was interested. According to the complaint later filed in the district court, even though Grosjean was undertaking no suspicious activity, he was offensively touched, handcuffed, searched, and detained by Imperial Palace security officers.2 In a proposed amendment to that complaint, Grosjean maintained that the two GCB agents instructed Imperial Palace security staff to detain him, despite lacking reasonable suspicion to do so. According to Grosjean, during the course of his detention, the GCB agents were informed by a third GCB agent that Grosjean was not the suspect for whom the GCB was looking and that he should be released. Nevertheless, Grosjean asserted, the detention continued so that the items removed from Grosjeans person during the patdown search could be further examined. The relevant allegations in the complaint asserted that the detention was executed without reasonable suspicion and named as a defendant Imperial Palace, among others. Grosjean sought compensatory and punitive damages for false imprisonment, conspiracy, and battery. Later, Grosjean filed a motion that asked, among other things, for leave to amend the complaint to add a claim for federal civil rights violations under 42 U.S.C. 1983 against, among others, Imperial Palace and Imperial Palaces security supervisor, respondent/cross-appellant Donnie Espensen. Pretrial motions As the case proceeded in the district court, the court granted Imperial Palaces motion to dismiss the state law claims against it, determining that Imperial Palace was entitled to discretionaryfunction immunity. Thereafter, the district court allowed Grosjean leave to amend the complaint to add a federal law civil rights claim under 42 U.S.C. 1983 against Imperial Palace and Espensen. Although Imperial Palace and Espensen subsequently moved to dismiss
2 The complaint also contained allegations regarding a detention incident involving Grosjean and another party that occurred at Caesars Palace ten months earlier. Because the allegations concerning the Caesars Palace incident are mostly irrelevant to our decision here, that incident is not fully discussed in this opinion.

356

Grosjean v. Imperial Palace

[125 Nev.

and for summary judgment as to that claim, arguing that it was entitled to qualified immunity from 1983 liability, the district court denied the motion. Thus, the matter proceeded on the remaining claims, including the 1983 claims against Imperial Palace and Espensen. Upon Imperial Palaces motion, the district court bifurcated the case as it related to Imperial Palace, and the case went to trial against Imperial Palace and Espensen on the only claims remaining against them, the 1983 claims. The trial on Grosjeans 1983 claims During the trial, testimony revealed that Grosjean was detained by Imperial Palace security personnel because he matched the description of a suspect being pursued by GCB agent Paul Stolberg. Grosjean testified that an Imperial Palace security guard instructed him to stop, and when Grosjean kept walking, the security guard grabbed his arm, kind of pushed [Grosjeans] face into the side [of] the wall, and handcuffed him. After being escorted to a security office, Grosjean was searched. The search revealed that Grosjean was wearing two pairs of pants containing a large sum of money (mostly $100 bills), chips from various casinos, and two sets of identification, one bearing a false identity. Espensen testified that because the GCB agents on the premises had not been able to reach agent Stolberg, they asked Espensen to delay Grosjean without letting Grosjean know of the GCBs involvement. Espensen explained to Grosjean that he would be let go if it was confirmed that he was not a suspect. Upon Espensens return to the surveillance room, a GCB agent advised that he had reached agent Stolberg, who instructed the agents to release Grosjean, but because the agents wished to examine the contents of Grosjeans pockets more closely, Grosjean was not immediately released. According to Espensen, because the agents did not want to reveal their involvement, Espensen suggested that they act as though they were Imperial Palace employees. The GCB agents did so, and after viewing Grosjeans belongings, they left the room. Testimony indicated that Grosjean ultimately was detained for approximately 20 minutes beyond when the agents had been instructed to release him. On redirect examination of Grosjean, Grosjeans attorney posed a rhetorical question, We know Don Espensen can lie, dont we? Imperial Palace objected to the question as being argumentative, and the court sustained the objection. While Imperial Palaces expert witness was testifying on direct examination about the reasonableness of Grosjeans detention, Grosjeans attorney commented that [p]olice officers always say, I didnt violate the Fourth Amendment, even when theyre violating it, and we know that. The court asked Grosjeans attorney whether he was arguing or object-

July 2009]

Grosjean v. Imperial Palace

357

ing, to which the attorney responded that he was objecting to the form of the question asked of the expert. The court sustained the objection. After the jury was excused, Imperial Palace orally moved for an NRCP 41(b) involuntary dismissal as to Grosjeans request for punitive damages, explaining that, because all of the state law tort claims had been dismissed, there was no basis to support Grosjeans request, which was grounded on a state statute, NRS 42.005. The court deferred ruling on the motion. When the jury returned to the courtroom, the court issued the jury instructions, including that the jury may, at its discretion, award punitive damages if it found, by clear and convincing evidence, fraud, oppression, or malice with respect to the conduct upon which the jury based any finding of liability. Closing arguments followed, during which Grosjeans attorney explained to the jury that its decision was so important because it would give parties in the same position as Imperial Palace the impression that these kinds of cases can get settled really quick or notand nothing goes to court and people dont have their lives upset. Imperial Palaces attorney then asked to approach the bench, which the court allowed. During this sidebar conference, according to Imperial Palace, it objected to Grosjeans reference to settlement and moved for a mistrial or at least an admonition to the jury, which, according to Imperial Palace, the district court denied. Continuing with his closing argument, Grosjeans attorney explained that he did not want to pick on security guards because one of the things that makes some of this hard for me is my mothers life was saved by [security guards]. According to Imperial Palace, Grosjeans attorney started crying when he said this; no objection was raised, however. Grosjeans attorney later stated that the kind of unconstitutional behavior that Imperial Palace engaged in has to be stopped because I dont want my daughters or your daughters or sons or the rest of us to have to be going through this and wondering why, when weve done nothing, were getting told were going to get our heads banged against the wall. . . . You heard the other lawyer stand up and object because he was afraid you were going to hear [that Imperial Palace violated Grosjeans constitutional rights] and he knew what was coming. Imperial Palace objected, arguing that it was improper to imply that its earlier objection was made because it was afraid of the evidence. After initially arguing that his comment was proper, Grosjeans attorney then apologized, acknowledging that an objection is not evidence upon which he could comment. Also during closing argument, Grosjeans attorney (while crying, according to Imperial Palace) described Imperial Palaces conduct as

358

Grosjean v. Imperial Palace

[125 Nev.

tyranny and informed the jury, this is where [the tyranny] has to stop. Please protect our Constitution. Please. In explaining to the jury why he gets emotional, Grosjeans attorney stated, Every time I think about a violation of constitutional rights, I get butterflies. I get angry. You saw me yell a couple of minutes ago. . . . [I]ts what I do, because I so passionately believe in this, and I think you saw that [Grosjeans] passion matches, if not surpasses mine. No objection was made to these comments. Before the punitive damages portion of the trial began, Imperial Palace renewed its motion to dismiss as to Grosjeans request for punitive damages. The court again deferred ruling on the motion. The jury subsequently returned a general verdict against Imperial Palace for $99,000 and against Espensen for $9. The punitive damages phase of the trial The court then asked the jury if it found any defendant liable for punitive damages, and the jury responded yes, as to Imperial Palace only. The court instructed the parties to submit briefs on the punitive damages request, and after a hearing, it allowed the punitive damages portion of the trial to proceed. During argument, Grosjeans attorney stated, I franklyI would hope the Court would agree that a company that makes over $7 million and gives back a grand total of $3,026 [to] charity needs to be told firmly . . . . At that point Imperial Palace objected and moved to strike. The court sustained the objection, ordered the statement stricken, and instructed the jury to disregard the statement. Grosjeans attorney then argued that a person should not follow a police officers instructions to do something illegal, pausing in the middle of his statement to explain, the emotion is getting over me again, at which time, according to Imperial Palace, Grosjeans attorney began crying again. The jury later returned a verdict, awarding Grosjean punitive damages, which verdict the court sealed at Imperial Palaces request. At the hearing later that week, the district court denied Imperial Palaces motion to dismiss as to the punitive damages request, and the punitive damages verdict was then unsealed, revealing a $500,000 award in favor of Grosjean. The court remitted the award to $300,000 pursuant to statute. Imperial Palace moved for judgment as a matter of law (JNOV), or, in the alternative, a new trial and remittitur. The court summarily denied the JNOV and new trial motions and summarily granted the request for remittitur, reducing the punitive damages award to $150,000. The district court then certified as final its amended judgment, which included an attorney fees and costs award in favor of Grosjean. Grosjean appealed, challeng-

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ing the dismissal of his state law claims against Imperial Palace, and Imperial Palace and Espensen cross-appealed asserting that they are entitled to qualified immunity and that various trial errors warranted reversal of the district courts amended judgment. DISCUSSION In resolving this matter, we first address whether Imperial Palace and Espensen were entitled to qualified immunity from liability on Grosjeans 1983 claims, based on their assertions that they were acting at the direction of the GCB agents when detaining Grosjean. Next, we resolve the issues regarding evidentiary rulings and attorney misconduct, and whether those alleged trial errors warrant a new trial. We then address Imperial Palaces argument that the district court improperly permitted Grosjean to seek punitive damages under state law even though his state law claims had been dismissed. After concluding that punitive damages were properly presented to the jury, we next determine whether the punitive damages award was a result of any trial errors or attorney misconduct, warranting a new trial on punitive damages. Finally, given that Grosjean recovered for the unlawful detention under 1983, we decide whether he should be allowed to proceed with his state law claims against Imperial Palace, which were grounded on the same allegations that his detention was unlawful. Motion to dismiss 1983 claim against Imperial Palace and Espensen On cross-appeal, Imperial Palace and Espensen argue that, as private corporate actors carrying out the GCBs instructions, qualified immunity should have applied to shield them from Grosjeans 1983 claim.
[Headnotes 1, 2]

This court reviews conclusions of law, such as those involving statutory construction, de novo. Martinez v. Maruszczak, 123 Nev. 433, 438, 168 P.3d 720, 724 (2007). Alleged constitutional violations by a corporation generally do not provide a plaintiff with a private cause of action against the corporation under 1983, unless the plaintiff can show that the corporations actions were fairly attributable to the state. See Lugar v. Edmondson Oil Co., 457 U.S. 922, 924 (1982). In this case, however, Imperial Palace and Espensen do not argue that their actions cannot be attributed to the state. Instead, they contend that their actions are so attributable to the state as to afford them qualified immunity from suit.
[Headnotes 3, 4]

Generally, qualified immunity applies to protect state officials from civil liability for damages resulting from discretionary acts, so

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[125 Nev.

long as those acts do not violate clearly established statutory or constitutional rights. Butler v. Bayer, 123 Nev. 450, 458, 168 P.3d 1055, 1061 (2007). Relevant to whether qualified immunity applies to private parties, the United States Supreme Court, in Richardson v. McKnight, considered whether prison guards employed by a private corporation should enjoy qualified immunity from suit in a 1983 case. 521 U.S. 399, 401-04 (1997). In reaching the conclusion that the private prison guards were not entitled to qualified immunity protections, the Court examined historical practices and the public policy considerations underlying the qualified immunity doctrine. Id. at 404-12. Recognizing that the qualified immunity doctrine serves the purposes of protecting the public from unwarranted timidity on the part of public officials, ensuring that qualified candidates are not deterred from entering public service, and reducing the chance that lawsuits will detract public officials from their duties, the Court reasoned that these purposes would not be served by extending qualified immunity to private prison guards. Id. at 410-12. The Court expressly limited its holding to the facts of that case, however, noting that the immunity question was narrowly answered in the context of a private for-profit firm organized to manage an institution with limited direct supervision by the government. Id. at 413. The Court explained that its holding did not bear on the application of qualified immunity in cases involv[ing] a private individual briefly associated with a government body, serving as an adjunct to government in an essential governmental activity, or acting under close official supervision. Id. Applying the legal principles set forth in Richardson, we cannot conclude that the qualified immunity doctrine shields Imperial Palace and Espensen from liability. Imperial Palace, acting through its employees, is a private for-profit corporation that performs independently of the government, is subject to market pressures and competes with other casinos, and engages in operational and administrative tasks with limited direct supervision by the government. See id. at 409. Thus, the policy considerations underlying qualified immunity noted above would not be served by permitting Imperial Palace and Espensen to assert qualified immunity. Id. at 409-10 (noting that competitive pressures create incentives for private organizations to avoid lawsuits and increase profits, and that these pressures, which are not present in the public sector, provide private firms with strong incentives to avoid overly timid, insufficiently vigorous, unduly fearful, or nonarduous employee job performance). Moreover, there is no firmly rooted historical basis supporting extending qualified immunity to casinos and their employees. Id. at 404-05.
[Headnote 5]

Although Imperial Palace and Espensen argue that they served as the GCBs adjunct and under its close supervision in the essential

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governmental activity of preventing crime, Grosjean maintained that Imperial Palace and Espensen acted independently. In light of the factual disputes, even though qualified immunity was not available to Imperial Palace and Espensen, we note that the district court properly allowed them to assert a good-faith defense to liability for damages associated with Grosjeans 1983 claim, see id. at 413-14 (rejecting the argument that qualified immunity should apply to shield private prison guards but leaving open the possibility of a good-faith defense); Clement v. City of Glendale, 518 F.3d 1090, 1097 (9th Cir. 2008), which defense, if accepted by the jury, would have served to insulate Imperial Palace and Espensen by providing them with protections similar to qualified immunity. See Jordan v. Fox, Rothschild, OBrien & Frankel, 20 F.3d 1250, 1276 (3d Cir. 1994); Wyatt v. Cole, 994 F.2d 1113, 1120 (5th Cir. 1993); Duncan v. Peck, 844 F.2d 1261 (6th Cir. 1988). The good-faith defense may apply to private parties who become liable solely because of their compliance with government agents request or in attempting to comply with the law. See Clement, 518 F.3d at 1097. Accordingly, under Richardson, we perceive no error in the district courts decision to deny Imperial Palaces and Espensens motion to dismiss Grosjeans 1983 claim on qualified immunity grounds and instead allowing a good-faith defense. Buzz Stew, LLC v. City of N. Las Vegas, 124 Nev. 224, 228, 181 P.3d 670, 672 (2008) (recognizing that a complaint should be dismissed only if it appears beyond a doubt that [the plaintiff] could prove no set of facts, which, if true, would entitle [the plaintiff] to relief). Imperial Palaces and Espensens motion for judgment notwithstanding the verdict, or, alternatively, a new trial Evidentiary rulings On cross-appeal, Imperial Palace and Espensen maintain that the district court improperly excluded evidence as to the totality of the circumstances surrounding Grosjeans detention, including evidence of Grosjeans gaming knowledge and reputation as a skilled gambler, which evidence, if allowed, would have supported their argument that Grosjean had a lowered expectation of privacy while in the casino and, consequently, that his Fourth Amendment rights were not violated by his detention. See United States v. Santana, 427 U.S. 38, 42 (1976) (explaining that persons in public places have a lower expectation of privacy than persons in their homes); M & R Investment Co. v. Mandarino, 103 Nev. 711, 719, 748 P.2d 488, 493 (1987) (noting that a gaming patron who was in disguise and winning a great deal of money within a short period of time due to his card-counting skills did not have a reasonable expectation that casino personnel would not investigate by requesting identification or even detaining him for questioning after he fled the premises). Thus, Imperial Palace and Espensen argue that the district court abused its

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Grosjean v. Imperial Palace

[125 Nev.

discretion by denying their motion for judgment notwithstanding the verdict or for a new trial, which was grounded in part on improperly excluded evidence. They also argue that the court abused its discretion by allowing hearsay testimony, over objection, regarding a security guards alleged threats to Grosjean.
[Headnotes 6-10]

Decisions concerning motions for judgment notwithstanding the verdict or for a new trial rest within the district courts sound discretion and will not be disturbed absent abuse of that discretion. Southern Pac. Transp. Co. v. Fitzgerald, 94 Nev. 241, 244, 577 P.2d 1234, 1236 (1978). NRCP 50(b) allows a party to renew a motion for judgment as a matter of law, notwithstanding the verdict, after trial. Such a directed verdict may be entered when the evidence is so overwhelming for one party that any other verdict would be contrary to the law. M.C. Multi-Family Dev. v. Crestdale Assocs., 124 Nev. 901, 910, 193 P.3d 536, 542 (2008) (quoting Bliss v. DePrang, 81 Nev. 599, 602, 407 P.2d 726, 727-28 (1965)). Under NRCP 59(a)(1), a new trial may be granted in the event of irregularity in the jury proceedings. Thus, a court may direct a verdict in the moving partys favor or grant a new trial if, as a matter of law, the jury could not have reached the conclusion that it reached. See Fox v. Cusick, 91 Nev. 218, 220, 533 P.2d 466, 467 (1975). As for Imperial Palaces and Espensens evidentiary concerns, we will not overturn the district courts decision to exclude relevant evidence unless we are convinced that the district court abused its discretion. Hansen v. Universal Health Servs., 115 Nev. 24, 27, 974 P.2d 1158, 1160 (1999). In terms of admissible testimony, [a] statement merely offered to show that the statement was made and the listener was affected by the statement, and which is not offered to show the truth of the matter asserted, is admissible as non-hearsay. Wallach v. State, 106 Nev. 470, 473, 796 P.2d 224, 227 (1990).
[Headnote 11]

In this case, the district court reasonably allowed Imperial Palace and Espensen to question Grosjean about his gambling behaviors, including disguise methods, and his gaming expertise. When Grosjean was asked whether his disguise methods were something that a cheater might do, the district court sustained Grosjeans objection, since Grosjean was not seen doing anything suspicious at Imperial Palace when he was stopped by security, but instead he was stopped because he fit a GCB suspects description.
[Headnote 12]

With respect to the smack his head into the wall statement that an Imperial Palace security guard allegedly made after Grosjean was seized and while he was being taken to a security

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room, Grosjean testified that it caused Grosjean to be fearful, since he had a propensity for retinal detachment. Thus, arguably, the statement was introduced to show its effect on Grosjean, and not for its truth.
[Headnote 13]

Accordingly, the district court acted within its discretion in sustaining Grosjeans objection to the cheater testimony and in allowing Grosjean to testify about the security guards statement. Further, since the other testimony and evidence revealed that the GCB agents and Imperial Palace security continued to detain Grosjean after they had confirmed that he was not a suspect, there was sufficient evidence for the 1983 claim to go to the jury. Thus, the district court did not abuse its discretion by denying the renewed motion for judgment as a matter of law. For similar reasons, the district court acted within its discretion by denying the new trial motion, since it was possible, based on the testimony and evidence, for the jury to conclude that Grosjeans constitutional rights were violated. Attorney misconduct Also on cross-appeal, Imperial Palace and Espensen contend that it was improper for Grosjeans attorney to inject his personal life into the trial by referring to his marriage, discussing his hometown during voir dire, stating that security guards saved his mothers life, and explaining that he did not want his daughters or the jurys daughters or sons to have to go through the type of experience that Grosjean had been through. According to Imperial Palace, Grosjeans attorney cried several times during the trial, again personalizing the matter. Imperial Palace and Espensen point out that Grosjeans attorney improperly mentioned the parties settlement efforts, which were not in evidence, implying that Imperial Palace unreasonably failed to settle the case. They also assert that Grosjeans attorney impermissibly vouched for Grosjeans cause, by stating that police always say that they did not violate the Fourth Amendment, and also impermissibly vouched for Grosjean, by explaining that he had known Grosjean for two years and that he knew that Grosjeans emotion on the witness stand was real. Finally, Imperial Palace and Espensen contend that Grosjeans attorney displayed improper disdain toward them and their witnesses, pointing to his comment that Espensen was a liar, references to Imperial Palaces arguments as smoke and mirrors, calling the security personnel names such as rent-a-cops and goons, and referring to Imperial Palaces expert witnesss testimony as garbage. Grosjean responds that Imperial Palace and Espensen waived any misconduct argument by not timely objecting in the district court. Regardless, he asserts, no attorney misconduct occurred in this

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[125 Nev.

case, any personal fact statements were innocuous, and exhibiting passion and showing disdain for the opposing side is permissible. Grosjean asserts that the record does not disclose that his attorney cried, although his attorney admits that his voice cracked a few times.
[Headnotes 14, 15]

Whether an attorneys comments are misconduct is a question of law, subject to de novo review. Lioce v. Cohen, 124 Nev. 1, 20, 174 P.3d 970, 982 (2008). Still, we give deference to the district courts factual findings and to how it applied the standards to those facts. Id. Although counsel enjoys wide latitude in arguing facts and drawing inferences from the evidence, Jain v. McFarland, 109 Nev. 465, 476, 851 P.2d 450, 457 (1993) (citation omitted), counsel nevertheless may not make improper or inflammatory arguments that appeal solely to the emotions of the jury. See DeJesus v. Flick, 116 Nev. 812, 819, 7 P.3d 459, 464 (2000), overruled on other grounds by Lioce, 124 Nev. 1, 174 P.3d 970; Barrett v. Baird, 111 Nev. 1496, 1514, 908 P.2d 689, 701-02 (1995), overruled on other grounds by Lioce, 124 Nev. 1, 174 P.3d 970.
[Headnotes 16-18]

We recently redefined, in Lioce v. Cohen, 124 Nev. 1, 174 P.3d 970, when a new trial is warranted based on attorney misconduct. In that case, we explained that when a party objects to purported misconduct and that objection is sustained, reversal is warranted only if the misconduct is so extreme that the objection and admonishment could not remove the misconducts effect. Id. at 17, 174 P.3d at 981. When a party fails to object to attorney misconduct during the trial, however, we will reverse the judgment only when the misconduct amounted to irreparable and fundamental error . . . that results in a substantial impairment of justice or denial of fundamental rights such that, but for the misconduct, the verdict would have been different. Id. at 19, 174 P.3d at 982. That standard essentially amounts to plain error review, under which the party claiming misconduct must show that no other reasonable explanation for the verdict exists. Id. (quoting Ringle v. Bruton, 120 Nev. 82, 96, 86 P.3d 1032, 1041 (2004)). This covers the rare occasion when the attorney misconduct offsets the evidence adduced at trial in support of the verdict. Id. Here, the statements to which Imperial Palace assigns error amounted to misconduct. See id. at 20-23, 174 P.3d at 982-84 (explaining that it is impermissible for an attorney to make a so-called golden rule argument by asking the jurors to place themselves in plaintiffs position or to nullify the jurys role by asking it to instead send a message to the defendant); see also RPC 3.4(e) (explaining that it is improper for a lawyer to offer a personal opinion as to the justness of a cause, the credibility of a witness, or the culpabil-

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ity of a civil litigant). Grosjeans attorneys comments during witness examination, during closing argument, and later during the punitive damages portion of the trial encouraged the jurors to look beyond the law and the relevant facts in deciding the issue before them. Whether that misconduct warrants a new trial, we examine under the Lioce standards.
[Headnote 19]

From the record, we discern that Imperial Palace objected to three of the challenged statements.3 The district court sustained all three objections, and in one of those instances it struck the statement and admonished the jury not to consider it. Imperial Palace, as the party moving for a new trial, bore the burden of demonstrating that the misconduct was so extreme that the objection and admonishment were ineffective in removing the misconducts effect. Lioce, 124 Nev. at 17, 174 P.3d at 981. With regard to the liability and compensatory damages phase of the trial, it did not meet that burden.
[Headnotes 20-22]

And although most of the unobjected-to statements that Imperial Palace challenges here likewise were improper, those statements did not amount to misconduct rising to a level of irreparable and fundamental error requiring reversal. In analyzing attorney misconduct in the context of an appeal from an order denying a new trial motion, we look at the scope, nature, and quantity of misconduct as indicators of the verdicts reliability. Id. at 17, 174 P.3d at 980. While the cumulative effect of such conduct is therefore relevant, under Lioces unobjected-to review standard, Imperial Palace must demonstrate that no other reasonable explanation for the verdict exists. That it failed to do. Instead, the testimony and evidence adduced during the five-day trial reasonably could support the verdict rendered here. The jury awarded Grosjean $99,000 in compensatory damages for a 45minute detention, during which no physical injury occurred, and while Imperial Palace argues that the award was excessive and could be based on nothing other than attorney misconduct and erroneous exclusion of evidence, we disagree. Both Grosjean and Imperial
3 In particular, the court sustained objections that were made after Grosjeans attorney (1) stated that Imperial Palace earlier had objected to certain testimony because it was afraid the jury would hear damaging information, (2) argued that Imperial Palace should be penalized with punitive damages for its failure to make significant charitable contributions, and (3) stated that Espensen lied. Although Imperial Palace asserts that it objected, at sidebar, when Grosjeans attorney improperly referred to settlement negotiations by implying that the jury had to sit through the trial because Imperial Palace failed to reach a settlement, and that the district court overruled the objection, Imperial Palace neglected to make a proper record of any such objection. Thus, that statement will be reviewed under the standard that applies for unobjected-to misconduct.

366

Grosjean v. Imperial Palace

[125 Nev.

Palace presented numerous witnesses and evidence during the trial, and credibility determinations and the weighing of evidence are left to the trier of fact. See El Dorado Hotel v. Brown, 100 Nev. 622, 626, 691 P.2d 436, 440 (1984), overruled on other grounds by Vinci v. Las Vegas Sands, 115 Nev. 243, 246, 984 P.2d 750, 752 (1999). Since we assume that the jury believed all of the evidence favorable to Grosjean, drawing reasonable inferences therefrom, see First Interstate Bank v. Jafbros Auto Body, 106 Nev. 54, 56, 787 P.2d 765, 767 (1990), abrogated on other grounds by Countrywide Home Loans v. Thitchener, 124 Nev. 725, 743, 192 P.3d 243, 255 (2008), we cannot conclude that the jurys verdict as to liability and compensatory damages for emotional harm was derivative solely of the attorney misconduct or that the evidence was offset by the comments from Grosjeans attorney. Accordingly, we perceive no abuse of discretion in the district courts decision to deny Imperial Palaces new trial motion on misconduct grounds as to the liability and compensatory damages phase of the trial. As explained below, however, we cannot conclude that the jurys $500,000 punitive damage award, which was $300,000 more than Grosjean had requested, was not a product of attorney misconduct, rising to a level warranting reversal. Lioce, 124 Nev. at 17-18, 174 P.3d at 981 (explaining that when misconduct is so extreme that a sustained objection and admonishment are insufficient to remove the misconducts effect, a new trial is warranted). Punitive damages Motion for a directed verdict On cross-appeal, Imperial Palace argues that the district court erred when it deferred ruling on its directed verdict motion until after the jury returned its punitive damages verdict. According to Imperial Palace, the district courts delay prevented Imperial Palace from properly presenting its punitive damages defense because there remained a question as to whether the court would allow the jury to consider punitive damages. Thus, it argues, any evidence it may have presented in opposition to punitive damages would have been objectionable.
[Headnotes 23, 24]

Here, although the court delayed in ruling on the motion, it is not clear that the delay prevented Imperial Palace from presenting evidence to negate an award of punitive damages. Regardless, although Imperial Palace inquired about the status of its motion, it was complacent in the delay, since it never objected to the courts deferral of its ruling. The district court in this case requested supplemental briefing on the punitive damages matter, and the court subsequently held a hearing to determine whether Grosjean would be allowed to request punitive damages. Although the jury had already been in-

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structed on punitive damages and returned a verdict in Grosjeans favor, nothing within NRCP 50(a) requires the district court to rule on a directed verdict motion before the jury returns a verdict.4 At any rate, we perceive no prejudicial error that would support overturning the district courts decision to deny the motion. Standard for awarding punitive damages in a 1983 action Imperial Palace argues that the court improperly allowed Grosjean to pursue his punitive damage request under NRS 42.005, when his only remaining claim against Imperial Palace was based on a federal civil rights violation under 1983. Imperial Palace asserts that there was no evidence that it acted with evil motive or reckless indifference to support a 1983 punitive damage award, also arguing that it was error for the court to allow Grosjean to assert NRS 42.005s malice standard, especially when he did not plead malice. Grosjean argues that Imperial Palace mischaracterizes punitive damages as a claim under NRS 42.005, when it is simply a remedy that was always before the court and did not evaporate with the dismissal of his state law claims. Grosjean maintains that it was appropriate to apply state punitive damages law, i.e., NRS 42.005, in a federal 1983 action, especially since Nevada law requires a higher degree of misconduct to support a punitive damages award than does federal law, so that Imperial Palace suffered no prejudice from the NRS 42.005 instruction. The United States Supreme Court set forth the requisite mental state and conduct that a jury must find to award punitive damages in a 1983 action in Smith v. Wade, 461 U.S. 30, 38 (1983). In considering whether punitive damages under 1983 were limited to intentionally malicious conduct, the Court recognized that federal and state courts generally permitted punitive awards on variously stated standards of negligence, recklessness, or other culpable conduct short of actual malicious intent. Id. at 45. Reasoning that there was no reason why a person whose federally guaranteed rights have been violated should be granted a more restrictive remedy than a person asserting an ordinary tort cause of action, id. at 48-49, the Supreme Court concluded that a jury may assess punitive damages in a 1983 action when the defendants conduct is shown to be motivated by evil motive or intent, or when it involves reckless or callous indifference to the federally protected rights of others. Id. at 56.
4 According to Grosjean, Imperial Palace never moved for a directed verdict under NRCP 50(a) but instead reserved its earlier NRCP 41(b) motion for an involuntary dismissal. Regardless, the standards for reviewing orders resolving either motion are the same, Nelson v. Heer, 123 Nev. 217, 222-23, 163 P.3d 420, 424 (2007), and whether Imperial Palace challenged the punitive damages under NRCP 41(b) or NRCP 50(a) is not material to our decision here.

368

Grosjean v. Imperial Palace

[125 Nev.

In analyzing whether a punitive damage request in a 1983 action was presented to the jury under the appropriate instruction, the Ninth Circuit concluded in Dang v. Cross, 422 F.3d 800, 805, 808 (9th Cir. 2005), that a 1983 plaintiffs proposed jury instruction that punitive damages could be awarded if the defendants acts or omissions were callously or, maliciously, or wantonly, or oppressively done, was within the scope of the standard set by Smith. The United States Court of Appeals for the Ninth Circuit concluded that a jury instruction that allows for imposing punitive damages for an act that caused the plaintiffs injury, and was oppressively done, was accurate and complete. Dang at 808 (quoting McKinley v. Trattles, 732 F.2d 1320, 1326 (7th Cir. 1984)); see also Walker v. Norris, 917 F.2d 1449, 1459 (6th Cir. 1990) (affirming an award of punitive damages in a 1983 action, concluding that the maliciously, wantonly, or oppressively done jury instruction was as strict as the standard articulated by the Supreme Court in Smith v. Wade); Garza v. City of Omaha, 814 F.2d 553, 556 (8th Cir. 1987) (explaining that punitive damages may be awarded in a 1983 action if the defendant exhibits oppression, malice, gross negligence, willful or wanton misconduct, or reckless disregard for the civil rights of the plaintiff); Stokes v. Delcambre, 710 F.2d 1120, 1126 (5th Cir. 1983) (concluding that in the 1983 context, malicious, wanton, or oppressive acts are within the traditional tort punitive damages standards as required by Smith v. Wade).
[Headnote 25]

Here, the jury was instructed under NRS 42.005, which provides that punitive damages may be recovered if the plaintiff proves by clear and convincing evidence that the defendant has been guilty of oppression, fraud or malice. Applying the standards set forth in Smith, and Dang, we conclude that the district court properly instructed the jury that oppression, fraud, or malice can serve as a basis for a punitive damages award in a 1983 action. Attorney misconduct
[Headnotes 26-28]

As explained above, attorney misconduct occurred throughout the underlying proceeding and the cumulative effect of that conduct on the jurys verdict is relevant in analyzing whether a new trial is warranted. Lioce, 124 Nev. 17, 174 P.3d at 980 (recognizing that the scope, nature, and quantity of misconduct are themselves relevant to whether the verdict is reliable). During the punitive damages phase of the trial, Grosjeans attorney essentially asked the jury to send a message to Imperial Palace by punishing it with punitive damages for not making substantial charitable contributions, despite being a highly profitable corporation. As explained in Lioce, attorneys violate the golden rule by asking the jurors to place themselves in

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the plaintiffs position or nullify the jurys role by asking it to send a message to the defendant instead of evaluating the evidence. Lioce, 124 Nev. at 20-23, 174 P.3d at 982-84; see also RPC 3.4(e) (providing that professional conduct standards prohibit an attorney from offering personal opinions regarding the justness of a cause or the culpability of the defendant). Although the district court sustained Imperial Palaces objection and struck the statement, Grosjeans attorney proceeded to argue that Imperial Palace should not have followed the GCB agents instructions to do something illegal, pausing in the middle of his statement to explain, the emotion is getting over me again, while crying, according to Imperial Palace. Imperial Palace did not object, but as pointed out in Lioce, when . . . an attorney must continuously object to repeated or persistent misconduct, the nonoffending attorney is placed in the difficult position of having to make repeated objections before the trier of fact, which might cast a negative impression on the attorney and the party the attorney represents, emphasizing the improper point. Id. at 18, 174 P.3d at 981.
[Headnote 29]

Here, there is a combination of objected-to and sustained and unobjected-to attorney misconduct. With regard to objected-to and sustained misconduct, the party seeking a new trial must demonstrate that the misconduct is so extreme that a sustained objection and admonishment are insufficient to remove the misconducts effect. With regard to unobjected-to misconduct, the moving party must show a substantial impairment of justice or denial of fundamental rights such that, but for the misconduct, the verdict would have been different. Id. at 19, 174 P.3d at 982. Another factor to consider when evaluating attorney misconduct is that, while a single instance of improper conduct might be cured by objection and admonishment, the same may not hold true when the improper conduct is repeated. Id. at 19, 174 P.3d at 981. Bearing in mind that Grosjean suffered no physical injuries and was not jailed, but instead was detained in a security office for 45 minutes, the jurys $500,000 punitive damage verdict appears driven not by evidence of malice, fraud, or oppression, but instead by Grosjeans attorneys improper golden rule and emotional arguments. Thus, having considered Grosjeans attorneys statements and behavior in light of the Lioce standards, we conclude that the misconduct in this matter is so egregious as to warrant a new trial on punitive damages. Remittitur Although Grosjean argues that, by summarily remitting the punitive damages award and failing to make any finding that the award was excessive, the court erred as a matter of law, in light of our conclusion that the attorney misconduct in this matter warrants a new

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[125 Nev.

trial as to punitive damages, we need not address Grosjeans argument in that regard. Dismissal of the state law claims against Imperial Palace Grosjean argues that because the Legislature has provided immunity only to governmental agencies, the district court improperly allowed Imperial Palace to avail itself of NRS 41.032(2)s protections, under which the State and its agents who exercise or fail to exercise discretionary functions are entitled to immunity from tort liability. Imperial Palace, on the other hand, argues that because its security guards were acting at the GCB agents direction, it should be entitled to the same discretionary-function immunity protection that applies to shield the GCB agents from liability.
[Headnote 30]

Our resolution of this particular issue is not necessary here. Grosjean was allowed to proceed with his 1983 claim against Imperial Palace, with the jury awarding him $99,000 in compensatory damages. The invasion of Grosjeans Fourth Amendment rights, on which his 1983 claim was predicated, has fundamental elements in common with the dismissed state law tort claims. Thus, the general rule against double satisfaction for a single injury precludes any further litigation against Imperial Palace on claims arising from Imperial Palace security guards acts of searching and detaining Grosjean. See Kassman v. American University, 546 F.2d 1029, 1033-34 (D.C. Cir. 1976) (noting that a plaintiff can recover no more than the loss actually suffered); Zarcone v. Perry, 434 N.Y.S.2d 437, 439-43 (App. Div. 1980) (upholding the dismissal of the plaintiffs common law tort claims, which included false arrest, defamation, and intentional infliction of mental and physical injury, in part because the plaintiff already had recovered adequate damages in a 1983 action on the same facts constituting the injury, thus precluding further recovery). Grosjean asserted claims against Imperial Palace for conspiracy, battery,5 and false imprisonment.6 His conspiracy claim was grounded on allegations that casinos, including Imperial Palace, rely on false information contained in a publication about professional gamblers, that casinos fabricate bases for arresting and prosecuting gamblers engaged in lawful gaming activities, and that casi5 With regard to his battery claim, Grosjean alleged that Imperial Palace security guards, in the process of detaining him, offensively and oppressively touched and/or handcuffed him without cause for doing so, and that as a result, he was damaged through outrage, loss of freedom, and emotional distress. 6 In a proposed amended complaint, Grosjean also sought to add a libel and slander claim against Imperial Palace. To the extent that Grosjean challenges the district courts decision to deny leave to amend as to that claim, we perceive no abuse of discretion in that decision.

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nos deter lawful gaming activities through intimidation, threats, false imprisonment, and battery. According to the complaint, the detention and battery at the Imperial Palace was part and parcel of, and in furtherance of, the conspiracy to exclude professional gamblers from participating in gaming activities. The battery and false imprisonment claims likewise were based on allegations that Imperial Palaces security guards apprehended, detained, and searched Grosjean without legal grounds, i.e., reasonable suspicion or probable cause, for doing so. While those claims were dismissed, he was allowed to amend his complaint to assert a 1983 claim, which claim proceeded to trial, resulting in a judgment in his favor.
[Headnote 31]

The purpose for allowing the recovery of money damages in a 1983 action for the violation of a constitutional right, like that of common law tort damages, is to compensate the plaintiff for his or her injury caused by the defendants breach of duty or intentional tort. Woodward & Lothrop v. Hillary, 598 A.2d 1142, 1147 (D.C. Cir. 1991) (citing Memphis Community School Dist. v. Stachura, 477 U.S. 299, 306-07 (1986), and Carey v. Piphus, 435 U.S. 247, 266 (1978)). The United States Supreme Court has instructed courts to look first to common law tort rules that apply to recovering pecuniary and nonpecuniary loss when determining the elements of damages that may be recovered in a 1983 action. Carey, 435 U.S. at 257-58. In that regard, the Supreme Court has explained that, whatever the constitutional basis for 1983 liability, such damages must always be designed to compensate injuries caused by the [constitutional] deprivation, Stachura, 477 U.S. at 309 (quoting Carey, 435 U.S. at 265), which leaves no room for noncompensatory damages measured by the jurys perception of the abstract importance of a constitutional right. Id. at 309-10. In a case that has some similar factual elements as the present matter, the New York Supreme Court, Appellate Division, concluded that a plaintiff who already had recovered damages in a 1983 action was precluded from bringing an action to recover damages for state law torts based on the same negligent or wrongful conduct of the defendants. Zarcone v. Perry, 434 N.Y.S.2d 437, 438 (App. Div. 1980). In that case, the plaintiff sued in federal court under 1983, claiming that he suffered damages from the deprivation of his Fourth Amendment rights. According to the plaintiffs complaint, he suffered both physical and mental injuries, nervous shock and humiliation, and harm to his reputation and business. Id. at 439. As a result of that action, he recovered compensatory and punitive damages against the defendants. Id. The plaintiff later commenced a state court action, alleging, among other things, that he suffered damages for false arrest, intentional infliction of mental and physical injury, and intentional in-

372

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[125 Nev.

fliction of mental distress. Id. The defendants challenged the state court action, asserting that res judicata principles and the rule against double recovery should shelter them from further attack under common law tort theories. Id. at 440. In agreeing with the defendants on the double recovery theory, the New York court explained that because the plaintiff had already recovered adequate damages in his 1983 action on the same facts constituting the injury underlying the common law tort action for false arrest, intentional infliction of mental distress, and mental and physical injury, in justice and fairness, no further recovery should be allowed. Id. at 444.
[Headnote 32]

While preclusion principles are not a bar to Grosjeans state law claims here, the prohibition against double recovery for a single injury operates to foreclose any further recovery against Imperial Palace. His tort claims and his 1983 claims are alternative theories for recovering damages resulting from the Imperial Palace security guards actions of detaining and searching him. See Zarcone, 434 N.Y.S.2d at 441 (noting that the plaintiffs causes of action for, among other things, false arrest and intentional infliction of emotional and physical harm, required virtually the same proof, both as to the prima facie elements and damages, which a cause of action under section 1983 comprehends); compare Marschall v. City of Carson, 86 Nev. 107, 110, 464 P.2d 494, 497 (1970) (noting that to establish false imprisonment, a plaintiff must prove that he was restrained of his liberty under the probable imminence of force without any legal cause or justification therefore), with Camara v. Municipal Court, 387 U.S. 523, 528 (1967) (explaining that the Fourth Amendments purpose is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials). Although a plaintiff may assert both a 1983 claim and tort-based claims, he or she is not entitled to a separate compensatory damage award under each legal theory. See Clappier v. Flynn, 605 F.2d 519, 529 (10th Cir. 1979); Zarcone, 434 N.Y.S.2d at 444. Instead, if liability is found, the plaintiff is entitled to only one compensatory damage award on one or both theories of liability. Clappier, 605 F.2d at 529 (concluding that the district court erred in awarding judgment under both negligence and deprivation of civil rights theories of liability on the claims because the interest protected by the common law of negligence, as applied to the facts, closely paralleled the interest protected by the constitutional amendment on which the plaintiff was relying, such that the relief afforded under the common law of torts and 1983 were identical); Woodward & Lothrop v. Hillary, 598 A.2d 1142, 1148 (D.C. 1991) (explaining that in cases grounded on both 1983 and tort liability the-

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ories, the jury must be explicitly instructed that the plaintiff may be compensated only for damages that fairly compensate for actual injuries in the aggregate). As for punitive damages, NRS 42.005 limits recovery based on the amount of compensatory damages awarded. Accordingly, regardless of whether the district court properly dismissed Grosjeans state law claims against Imperial Palace on discretionary-function immunity grounds, because he succeeded on his 1983 claim, the double recovery rule precludes him from now proceeding on the state law claims. Therefore, we do not further address the district courts decision to dismiss those claims. CONCLUSION First, addressing Imperial Palaces and Espensens arguments on cross-appeal that reversal is warranted because they are entitled to qualified immunity for any 1983 liability, on the disputed facts and for policy reasons, we conclude that qualified immunity does not apply to protect Imperial Palace and Espensen from liability in this matter. Next, although Imperial Palace and Espensen assert that they are entitled to a new trial based on certain evidentiary rulings, we perceive no abuse of discretion in the way in which the court managed the trial and testimony. Further, with regard to the liability and compensatory damages phase of the trial, the misconduct on behalf of Grosjeans attorney properly was addressed by the district court on those occasions when Imperial Palace objected, and any unobjected-to comments did not rise to the irreparable and fundamental error level warranting a new trial as to liability and compensatory damages. Thus, the district court acted within its discretion by denying Imperial Palaces motions for judgment notwithstanding the verdict and new trial in that regard. Next, addressing the punitive damages award, because the NRS 42.005 standard for awarding punitive damages comports with federal guidelines for determining whether punitive damages are available in 1983 actions, punitive damages properly were presented to the jury, and the district court therefore properly denied Imperial Palaces motion for a directed verdict. Since, however, the nature and extent of Grosjeans attorneys misconduct during the punitive damages phase of the trial was egregious and could not have been cured by a sustained objection, and the jurys verdict appeared controlled by the misconduct rather than the evidence, a new trial is warranted as to punitive damages. Finally, with regard to Grosjeans dismissed state law claims against Imperial Palace, because he already recovered from Imperial Palace on his 1983 claim on the same facts that would give rise to any injury allowing him to recover damages on his state law claims,

374

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[125 Nev.

he is foreclosed from further pursuing damages for that injury. Thus, Grosjean cannot now reinstate his state law claims against Imperial Palace. Accordingly, we affirm the district courts NRCP 54(b) certified judgment as to Imperial Palace and Espensen with respect to compensatory damages, reverse the judgment as to punitive damages, and remand this matter to the district court for a new trial as to the punitive damages. HARDESTY, C.J., CHERRY, SAITTA, GIBBONS, and PICKERING, JJ., concur.

CLARK COUNTY SCHOOL DISTRICT, A NEVADA POLITICAL SUBDIVISION, APPELLANT, v. VIRTUAL EDUCATION SOFT WARE, INC., A NEVADA CORPORATION, RESPONDENT.
No. 50313 August 6, 2009 213 P.3d 496

Appeal from a district court judgment on a jury verdict in a defamation action. Eighth Judicial District Court, Clark County; Valorie Vega, Judge. Provider of computer-based instruction brought defamation claim against county school district, relating to a letter from associate superintendent of districts human resources department to providers president, and to at least 12 communications to districts teachers, including e-mails sent by districts administrative staff, which letter and other communications concerned districts determination that teachers who completed providers courses would not be eligible for salary enhancement under collective bargaining agreement. The district court granted partial summary judgment to district, thereby limiting the actionable claims to the letter and five e-mail communications; the district court later entered judgment on jurys verdict finding that the letter and three e-mail communications from the associate superintendents assistant to individual teachers were defamatory and awarding provider $161,024 in damages, and also found that provider met its offer of judgment and therefore was entitled to attorney fees, awarded attorney fees and prejudgment interest to provider, and entered judgment for provider in total amount of $340,622.40. District appealed. The supreme court, HARDESTY, C.J., held that: (1) as a matter of first impression, absolute privilege from defamation claims, for communications made in the course of judicial proceedings, extends to instances where a nonlawyer makes an allegedly defamatory communication in response to threatened litigation or during a judicial proceeding; (2) letter from associate

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superintendent to providers president was absolutely privileged; (3) e-mail messages were not defamatory per se; (4) evidence did not establish malice, as element of business disparagement; and (5) evidence did not establish that pecuniary loss was proximately caused by disparaging statements in e-mail messages. Reversed. C.W. Hoffman Jr., General Counsel, and S. Scott Greenberg, Associate General Counsel, Las Vegas, for Appellant. Jolley Urga Wirth Woodbury & Standish and L. Christopher Rose and William R. Urga, Las Vegas, for Respondent.
1. APPEAL AND ERROR. An order denying summary judgment is an interlocutory decision, which is not independently appealable. NRCP 56. 2. APPEAL AND ERROR. Where a party properly raises the denial of summary judgment on appeal from the final judgment, the supreme court will review the decision de novo. NRCP 56. 3. JUDGMENT. Summary judgment is appropriate when the pleadings and other evidence establish that no genuine issue as to any material fact remains and that the moving party is entitled to a judgment as a matter of law. NRCP 56(c). 4. LIBEL AND SLANDER. Under the common law, communications made in the course of judicial proceedings, even if known to be false, are absolutely privileged from defamation claims. 5. APPEAL AND ERROR; LIBEL AND SLANDER. The applicability of the absolute privilege from defamation claims for communications made in the course of judicial proceedings is a matter of law for the trial court to decide, which the supreme court reviews de novo. 6. LIBEL AND SLANDER. Because the scope of the absolute privilege from defamation claims for communications made in the course of judicial proceedings is broad, a court determining whether the privilege applies should resolve any doubt in favor of a broad application. 7. LIBEL AND SLANDER. The purpose of the absolute privilege from defamation claims for communications made in the course of judicial proceedings is to afford all persons freedom to access the courts and freedom from liability for defamation where civil or criminal proceedings are seriously considered. Restatement (Second) of Torts 587. 8. LIBEL AND SLANDER. The absolute privilege from defamation claims for communications made in the course of judicial proceedings affords parties the same protection from liability as those protections afforded to an attorney for defamatory statements made during, or in anticipation of, judicial proceedings. Restatement (Second) of Torts 587. 9. LIBEL AND SLANDER. The protections of the absolute privilege from defamation claims for communications made in the course of judicial proceedings extend to in-

376

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[125 Nev.

10.

11.

12.

13.

14.

15.

16. 17.

18.

stances where a nonlawyer makes an allegedly defamatory communication in response to threatened litigation or during a judicial proceeding. LIBEL AND SLANDER. For the absolute privilege from defamation claims for communications made in the course of judicial proceedings to apply: (1) a judicial proceeding must be contemplated in good faith and under serious consideration, and (2) the communication must be related to the litigation. LIBEL AND SLANDER. Absolute privilege from defamation claims for communications made in the course of judicial proceedings applied to letter from nonlawyer associate superintendent of county school districts human resources department to president of provider of computer-based instruction, explaining districts decision to deny salary advancement credit, under collective bargaining agreement, to teachers who completed providers courses, where the letter responded to providers threat to initiate legal action against district. APPEAL AND ERROR. The supreme court will not overturn a jurys verdict if the verdict is supported by substantial evidence, unless, considering all the evidence, the verdict was clearly wrong. APPEAL AND ERROR. The supreme court views all facts from the viewpoint of the prevailing party and assumes that the jury believed all evidence favorable to the prevailing party. LIBEL AND SLANDER. An action for defamation requires the plaintiff to prove four elements: (1) a false and defamatory statement; (2) an unprivileged publication to a third person; (3) fault, amounting to at least negligence; and (4) actual or presumed damages. LIBEL AND SLANDER. If a defamatory communication imputes a persons lack of fitness for trade, business, or profession, or tends to injure the plaintiff in his or her business, it is deemed defamation per se and damages are presumed. LIBEL AND SLANDER. A claim for defamation per se primarily serves to protect the personal reputation of an individual. LIBEL AND SLANDER. Unlike defamation per se, communications constituting business disparagement are not directed at an individuals personal reputation, and instead they are injurious falsehoods that interfere with the plaintiffs business and are aimed at the businesss goods or services, and thus, if a statement accuses an individual of personal misconduct in his or her business or attacks the individuals business reputation, the claim may be one for defamation per se, but if the statement is directed towards the quality of the individuals product or services, the claim is one for business disparagement. LIBEL AND SLANDER. E-mail messages from the assistant to the associate superintendent of county school districts human resources department to three individual teachers, responding to individual teachers inquiries regarding whether district would grant salary advancement credit, under collective bargaining agreement, to teachers who completed courses offered by provider of computer-based instruction, were not defamatory per se, with respect to provider; statements in e-mail messages were not directed toward an individuals business or professional reputation, and instead they concerned the

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19.

20.

21.

22.

23.

24.

25.

26.

fitness of providers product, and provider did not seek to redress injury to the personal reputation of an individual and instead sought compensation for its businesss economic losses. LIBEL AND SLANDER. To succeed in a claim for business disparagement, the plaintiff must prove: (1) a false and disparaging statement, (2) the unprivileged publication by the defendant, (3) malice, and (4) special damages. LIBEL AND SLANDER. As opposed to defamation, which merely requires some evidence of fault amounting to at least negligence, business disparagement requires something more, namely, malice. LIBEL AND SLANDER. Malice, as element of business disparagement, is proven when the plaintiff can show either that the defendant published the disparaging statement with the intent to cause harm to the plaintiffs pecuniary interests, or the defendant published a disparaging remark knowing its falsity or with reckless disregard for its truth. Restatement (Second) of Torts 623A. LIBEL AND SLANDER. While defamation requires that the plaintiff prove special damages in the form of pecuniary loss only in limited circumstances, proof of special damages is an essential element of business disparagement. LIBEL AND SLANDER. In a business disparagement claim, the plaintiff must prove that the defendants disparaging comments are the proximate cause of the economic loss; hence, a cause of action for business disparagement requires that the plaintiff set forth evidence proving economic loss that is attributable to the defendants disparaging remarks. LIBEL AND SLANDER. If the plaintiff in an action for business disparagement cannot show the loss of specific sales attributable to the disparaging statement, the plaintiff may show evidence of a general decline of business; nonetheless, the general decline of business must be the result of the disparaging statements, and the plaintiff must eliminate other potential causes. LIBEL AND SLANDER. County school district was not liable to provider of computer-based instruction for business disparagement in absence of evidence of malice, relating to e-mail messages from the assistant to the associate superintendent of districts human resources department to three individual teachers, responding to individual teachers inquiries regarding whether district would grant salary advancement credit, under collective bargaining agreement, to teachers who completed courses offered by provider. LIBEL AND SLANDER. County school district was not liable to provider of computer-based instruction for business disparagement in absence of evidence that its pecuniary loss was proximately caused by the disparaging statements in e-mail messages from the assistant to the associate superintendent of districts human resources department to three individual teachers, responding to individual teachers inquiries regarding whether district would grant salary advancement credit, under collective bargaining agreement, to teachers who completed courses offered by provider.

Before HARDESTY, C.J., PARRAGUIRRE and DOUGLAS, JJ.

378

Clark County Sch. Dist. v. Virtual Educ. OPINION

[125 Nev.

By the Court, HARDESTY, C.J.: In this appeal, we consider two issues of first impression in a business defamation action. First, we consider whether the absolute privilege applies to defamatory communications made by a nonlawyer in anticipation of a judicial proceeding. Second, we consider whether allegedly defamatory statements made about a businesss product provide a basis for defamation per se or for business disparagement. We conclude that the absolute privilege affords parties to litigation the same protection from liability that exists for an attorney for defamatory statements made during, or in anticipation of, judicial proceedings. Additionally, we conclude that when allegedly defamatory statements concern a businesss product and the plaintiff seeks to redress injury to economic interest, the claim is one for business disparagement, not defamation per se. FACTS AND PROCEDURAL HISTORY Appellant Clark County School District (CCSD) and Clark County Education Association (CCEA), the local teachers union, are parties to a collective bargaining agreement, which sets the terms and conditions of employment for CCSD teachers. The agreement includes a provision for teachers to enhance their salaries by obtaining additional degrees, taking either upperdivision, graduate-level courses or completing professional development courses offered by CCSD. However, educational courses that are not credit bearing toward a degree may be excluded from the courses eligible for salary enhancement. In addition, CCSD may deny credit for courses that it deems are of a frivolous nature. Respondent Virtual Education Software, Inc. (VESI), is a Nevada corporation that markets and sells computer-based instruction for educators and business professionals. VESI markets its distance-learning classes to various colleges and universities. Until the fall of 2002, Chapman University (Chapman) and Southern Utah University (SUU) offered and administered VESI courses to CCSD teachers for salary enhancement. At that time, VESI had institutional agreements with Chapman and SUU, but VESI did not have a contractual relationship with CCSD. Dr. George Ann Rice, the associate superintendent of CCSDs human resources department in 2002, had the responsibility for making the final determination as to whether a course complied with the collective bargaining agreement. Because of concerns regarding the academic rigor of VESI courses and their compliance with the

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collective bargaining agreement, Dr. Rice asked her administrative assistant to research and evaluate the VESI courses. As a result, several teachers informed VESIs president that CCSD was researching VESI courses for eligibility for salary enhancement. Concerned about the evaluation, VESI attempted to contact CCSD and Dr. Rice and provided two VESI courses to CCSD. After reviewing VESIs courses, Dr. Rices assistant noted several concerns with the academic quality of the courses. In addition, Dr. Rices assistant was unable to confirm that VESIs courses were offered at the graduate level by either Chapman or SUU, or that the courses were credit bearing towards a degree. As a result, Dr. Rice determined that the courses did not comply with the requirements of the collective bargaining agreement between CCSD and CCEA for salary enhancement. In October 2002, VESI learned that CCSD was denying salary enhancement for its courses. VESI wrote several e-mails to CCSD, essentially demanding that CCSD accept the courses before legal means need to be pursued. On November 6, 2002, Dr. Rice sent a letter to VESIs president, with copies to other school administrators and CCSD counsel, explaining CCSDs decision to deny salary advancement credit for VESI courses. Dr. Rice stated, in pertinent part: I have researched the VESI courses that you offer for graduate credit from the following universities: Chapman, University of Phoenix, and Southern Utah University. These courses are not credit bearing toward any degree offered by these universities. In addition, some of the courses can be completed in three to five hours and the tests can be successfully passed without reading the material, as evidenced by at least two of my employees. There is no safeguard to determine that the candidate is the one who actually takes the tests. The tests are largely consistent of factual information that can be memorized or copied as notes from the slides and do not require the analysis, synthesis and application levels usually required for graduate coursework. VESI did not respond to Dr. Rices letter. When teachers inquired about the status of VESI courses, CCSD explained that it would not accept VESI courses for salary enhancement. Procedural history VESI filed a complaint with the district court, alleging five causes of action against CCSD, including defamation. The district court dismissed all but VESIs defamation claims.1 VESI based its claims
1

VESI did not appeal the dismissal of its remaining causes of action.

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[125 Nev.

for defamation on Dr. Rices November 6, 2002, letter to VESIs president, and at least 12 communications to CCSD teachers, including e-mails sent by CCSD administrative staff. CCSD filed two motions for summary judgment seeking to dismiss the defamation claims. In its first motion, CCSD argued, in part, that VESI could not prove the elements of defamation and also asserted that the alleged defamatory statements constituted business disparagement, not defamation per se. Although VESI opposed the motion, it did not specifically respond to CCSDs argument regarding business disparagement. The district court summarily denied the first motion, without addressing business disparagement. In its second motion for summary judgment, CCSD argued that VESI could not prove defamation as a matter of law because the statements were either not defamatory or were privileged. On the second motion, the district court found that none of CCSDs statements were privileged as a matter of law but limited VESIs defamation claims to the November 6, 2002, letter and five e-mail communications. At trial, VESI presented its case-in-chief, offering evidence that it had suffered an economic downturn, but only tenuously indicated that any economic damages were proximately caused by CCSDs statements. Although CCSD cross-examined VESIs witnesses, CCSD rested without presenting additional witnesses, documents, or other evidence. The jury returned a special verdict form, finding that four of the six communications constituted defamation by CCSD. Specifically, the jury found that, in addition to Dr. Rices November 6, 2002, letter, three e-mail communications to individual CCSD teachers were defamatory. All three e-mails were written by Dr. Rices assistant to individual teachers. The first e-mail provided, in part: This is not a new policy. The contract states that courses must be credit bearing towards a degree and courses such as those offered by VESI have only recently come to our attention as violating contract. Be wary of these 3rd party entities. If the university offering credit will not include them even as an elective in their program, there is something remiss with the course. The second e-mail provided, in part: Credit bearing toward a degree does NOT mean a particular individual must be in that degree program, only that the university offering it values the course enough to allow at least elective credit w/i their own university. VESI is a consulting agency and many of the courses have been deemed [frivolous.] None of the colleges sponsoring the courses offer degree credit for them so, yes, they should not be taken for salary growth.

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The third e-mail communication provided: Thank you for your recent letter to Dr. Rice regarding VESI courses. The 3 classes you have already taken . . . will be allowed for salary growth . . . but as they do not comply with the CCEA Negotiated agreement, please be sure any future courses are upper division or graduate credits and are listed in a degree program of the university offering the credit. The jury awarded damages of $161,024 to VESI. The district court also found that VESI met its offer of judgment and was therefore entitled to an award of attorney fees. Thereafter, the district court awarded VESI prejudgment interest and attorney fees and entered judgment in VESIs favor in the total amount of $340,622.40. CCSD appeals. DISCUSSION We address two of CCSDs issues on appeal. First, CCSD contends that the district court erred by denying summary judgment as to Dr. Rices November 6, 2002, letter to VESI, arguing that the letter was absolutely privileged. Second, CCSD argues that VESI could not rely on the defamation per se doctrine to excuse the need to show special damages. Specifically, CCSD maintains that VESIs defamation claim should have been alleged as a claim for business disparagement, which differs from a defamation per se claim because the former requires proof of malice and special damages whereas the latter requires a showing of negligence and presumes damages. Because we conclude that the absolute privilege applies to nonlawyers in anticipation of judicial proceedings, we hold that Dr. Rices November 6, 2002, letter was absolutely privileged. We also conclude that the elements of a claim for business disparagement should be distinguished from the elements of a claim for defamation per se.2 After determining that VESIs claims involve business disparagement, we conclude that VESI could not rely on presumed damages and did not present sufficient evidence to support the jurys verdict for economic damages. We therefore reverse the judgment.
2 In its motions for summary judgment and on appeal, CCSD further argues that the four communications were not defamatory because they were true or substantially true. In the alternative, CCSD asserts that if the statements were false, they were not defamatory because they constituted opinions rather than facts. Additionally, CCSD argued that even if the statements were defamatory, they were also privileged under the common interest privilege. Because we reverse the judgment on other grounds, we do not address these additional issues.

382

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[125 Nev.

The absolute privilege applies to communications made by nonlawyers where judicial proceedings have commenced or are under serious consideration CCSD argues that as to Dr. Rices November 6, 2002, letter, the district court erred in denying CCSDs motion for summary judgment because Dr. Rice sent the letter in response to VESIs threat to file a civil lawsuit against CCSD and the letter was therefore absolutely privileged. VESI contends that the absolute privilege does not apply because the privilege is limited to communications by lawyers representing clients.
[Headnotes 1-3]

A district courts order denying summary judgment is an interlocutory decision and is not independently appealable. GES, Inc. v. Corbitt, 117 Nev. 265, 268, 21 P.3d 11, 13 (2001). However, where a party properly raises the denial of summary judgment on appeal from the final judgment, this court will review the decision de novo. Id.; Wood v. Safeway, Inc., 121 Nev. 724, 729, 121 P.3d 1026, 1029 (2005). Summary judgment is appropriate when the pleadings and other evidence establish that no genuine issue as to any material fact [remains] and that the moving party is entitled to a judgment as a matter of law. Wood, 121 Nev. at 729, 121 P.3d at 1029 (alteration in original) (quoting NRCP 56(c)).
[Headnotes 4-6]

It is a long-standing common law rule that communications [made] in the course of judicial proceedings [even if known to be false] are absolutely privileged. Circus Circus Hotels v. Witherspoon, 99 Nev. 56, 60, 657 P.2d 101, 104 (1983). In addition, the applicability of the absolute privilege is a matter of law for the court to decide, which this court will review de novo. Id. at 62, 657 P.2d at 105; Fink v. Oshins, 118 Nev. 428, 432, 49 P.3d 640, 643 (2002). Further, because the scope of the absolute privilege is broad, a court determining whether the privilege applies should resolve any doubt in favor of a broad application. Fink, 118 Nev. at 433-34, 49 P.3d at 644.
[Headnotes 7, 8]

In Fink v. Oshins, we determined that an attorneys statements made to his client were absolutely privileged after his client began seriously considering commencing proceedings to remove the defendant as cotrustee of a trust. Id. at 434, 49 P.3d at 644. In order to support the interpretation of the absolute privilege in Fink and in other cases, we have relied on the Restatement (Second) of Torts section 587, which does not limit the application of the absolute privilege to attorney communications. Fink, 118 Nev. at 433 n.13, 49

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P.3d at 644 n.13;3 see also Pope v. Motel 6, 121 Nev. 307, 316, 114 P.3d 277, 283 (2005); K-Mart Corporation v. Washington, 109 Nev. 1180, 1191 n.7, 866 P.2d 274, 282 n.7 (1993), receded from on other grounds by Pope, 121 Nev. at 316-17, 114 P.3d at 283. The purpose of the absolute privilege is to afford all persons freedom to access the courts and freedom from liability for defamation where civil or criminal proceedings are seriously considered. Restatement (Second) of Torts 587 cmts. a, e (1977). Therefore, the absolute privilege affords parties the same protection from liability as those protections afforded to an attorney for defamatory statements made during, or in anticipation of, judicial proceedings. Restatement (Second) of Torts 587 cmt. d (1977). Thus, where a judicial proceeding has commenced or is, in good faith, under serious consideration, we determine no need to limit the absolute privilege to communications made by attorneys. See Hall v. Smith, 152 P.3d 1192, 1195-96 (Ariz. Ct. App. 2007) (The privilege applies to both attorneys and parties to litigation.). In Hall v. Smith, an Arizona Court of Appeals also relied on the Restatement (Second) of Torts section 587 to conclude that the absolute privilege applies to both attorneys and parties to litigation. Id. We concur for two reasons. First, there is no good reason to distinguish between communications between lawyers and nonlawyers. Second, it is anticipated that potential parties to litigation will communicate before formally retaining counsel.
[Headnotes 9, 10]

Consequently, we extend the protections of the absolute privilege to instances where a nonlawyer asserts an alleged defamatory communication in response to threatened litigation or during a judicial proceeding. Thus, just as we announced in Fink, for the privilege to apply (1) a judicial proceeding must be contemplated in good faith and under serious consideration, and (2) the communication must be related to the litigation. 118 Nev. at 433-34, 49 P.3d at 644.
[Headnote 11]

In this case, we conclude that Dr. Rices November 6, 2002, letter was absolutely privileged. Before November 6, 2002, VESI demanded that CCSD accept its courses for salary enhancement. VESI sent an e-mail to Dr. Rice explaining its intent to turn this matter over to legal counsel. The e-mail also informed Dr. Rice
3 Although in Fink, 118 Nev. at 435 n.16, 49 P.3d at 645 n.16, we also cite and rely on Restatement (Second) of Torts section 586, which discusses the absolute privilege as it applies to attorneys, comment e of Restatement (Second) of Torts section 587 explicitly makes clear that the protection from liability for defamation accorded to an attorney under section 586 applies equally to parties to litigation. Restatement (Second) of Torts 587 cmt. e (1977).

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that VESI attorneys planned to send a demand letter to CCSD, requiring that CCSD draft a written statement formally accepting VESI courses for salary enhancement. If CCSD did not draft the formal acceptance, VESI would file a civil petition against you, Dr. Rice, and the CCSD to allow the courts to decide on this matter. In response, Dr. Rice sent the November 6, 2002, letter to explain the reasons why CCSD would not comply with VESIs demand to accept its courses for salary enhancement. Dr. Rices letter to VESI was in response to VESIs threat to initiate legal action against CCSD. The letter would be absolutely privileged had it been drafted by CCSDs legal counsel; therefore, we conclude that the protections afforded by the absolute privilege should be extended to Dr. Rice, who was a party involved in a dispute where judicial proceedings were under serious consideration. Accordingly, we reverse the district courts denial of summary judgment as to the November 6, 2002, letter because it was absolutely privileged as a matter of law. Where the defendants defamatory communications injured the entitys business reputation, the claim is one for business disparagement, not defamation per se CCSD also maintains that the defamation per se doctrine is not applicable in this case and that VESI did not present substantial evidence of actual damages. Specifically, CCSD contends that defamation, by its definition, tends to injure individuals, and because VESI is a business, it would be unmerited for any alleged defamatory statements to necessarily constitute defamation per se. CCSD further argues that absent presumed damages under the defamation per se doctrine, VESI failed to prove actual damages, such as the loss of business or sales, attributable to CCSDs statements.
[Headnotes 12, 13]

This court will not overturn a jurys verdict if the verdict is supported by substantial evidence, unless, [considering] all the evidence . . . , the verdict was clearly wrong. Wohlers v. Bartgis, 114 Nev. 1249, 1261, 969 P.2d 949, 958 (1998) (quoting Ballys Employees Credit Union v. Wallen, 105 Nev. 553, 555-56, 779 P.2d 956, 957 (1989)). On appeal, this court views all facts from the viewpoint of the prevailing party and assumes that the jury believed all evidence favorable to the prevailing party. Id. VESI contends that CCSDs statements constituted defamation per se because they impugned VESIs lack of fitness for trade, business, or profession. VESI further argues that even if the defamation per se doctrine is not applicable, evidence adduced at trial showed a substantial decline in profits after CCSD communicated to teachers that it would not award salary enhancement for VESI courses.

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[Headnotes 14, 15]

An action for defamation requires the plaintiff to prove four elements: (1) a false and defamatory statement . . . ; (2) an unprivileged publication to a third person; (3) fault, amounting to at least negligence; and (4) actual or presumed damages. Pope, 121 Nev. at 315, 114 P.3d at 282; see Lubin v. Kunin, 117 Nev. 107, 111, 17 P.3d 422, 425 (2001). However, if the defamatory communication imputes a persons lack of fitness for trade, business, or profession, or tends to injure the plaintiff in his or her business, it is deemed defamation per se and damages are presumed. K-Mart Corporation, 109 Nev. at 1192, 866 P.2d at 282. Our opinions concerning defamation per se have discussed defamatory communications in relation to individuals. See Bongiovi v. Sullivan, 122 Nev. 556, 138 P.3d 433 (2006) (affirming that defendant plastic surgeon was liable for defamation per se after the defendant told plaintiffs potential client that the plaintiff was being investigated for the recent death of another patient); K-Mart Corporation, 109 Nev. at 1192, 866 P.2d at 282 (holding that the act of placing a customer in handcuffs and walking him throughout the store constituted defamation per se); Nevada Ind. Broadcasting v. Allen, 99 Nev. 404, 664 P.2d 337 (1983) (concluding that a political candidate was entitled to recover under defamation per se for comments that injured his professional reputation). However, we have not clearly stated whether a corporation or other business entity can proceed on a theory of defamation per se where communications concern the businesss product or injure the businesss reputation.
[Headnotes 16, 17]

A claim for defamation per se primarily serves to protect the personal reputation of an individual. 53 C.J.S. Libel and Slander; Injurious Falsehood 312 (2005); Hurlbut v. Gulf Atlantic Life Ins. Co., 749 S.W.2d 762, 766 (Tex. 1987). But where communications concern the goods or services provided by a business entity, a plaintiff generally seeks to redress injury to economic interests. 53 C.J.S. Libel and Slander; Injurious Falsehood 312 (2005). This distinction is the basis for the difference between an action for defamation per se and an action for business disparagement. Id. Unlike defamation per se, communications constituting business disparagement are not directed at an individuals personal reputation; rather, they are injurious falsehoods that interfere with the plaintiffs business and are aimed at the businesss goods or services. Aetna Cas. & Sur. Co. v. Centennial Ins. Co., 838 F.2d 346, 351 (9th Cir. 1988). Thus, if a statement accuses an individual of personal misconduct in his or her business or attacks the individuals business reputation, the claim may be one for defamation per se; however, if the statement is directed towards the quality of the individuals product or

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services, the claim is one for business disparagement. 53 C.J.S. Libel and Slander; Injurious Falsehood 312 (2005).
[Headnote 18]

Based on the foregoing authority, we conclude that the three e-mails sent by CCSD to individual teachers did not constitute defamation per se. The statements were not directed toward an individuals business or professional reputation; rather, the statements concerned the fitness of VESIs product. In addition, VESI did not seek to redress injury to the personal reputation of an individual, it sought compensation for its businesss economic losses. Therefore, we conclude that VESIs claim is not one for defamation per se, but more appropriately is one for business disparagement. Moreover, we conclude that even if VESI had properly brought its claim as one for business disparagement, it could not have prevailed as a matter of law.
[Headnotes 19-21]

The elements required to prove a cause of action for business disparagement differ from the elements required to prove classic defamation and, necessarily, defamation per se. Hurlbut, 749 S.W.2d at 766. To succeed in a claim for business disparagement, the plaintiff must prove: (1) a false and disparaging statement,4 (2) the unprivileged publication by the defendant, (3) malice, and (4) special damages. Id. Notably, the principal differences between defamation per se and business disparagement concern the elements of intent and damages. As opposed to defamation, which merely requires some evidence of fault amounting to at least negligence, business disparagement requires something more, namely, malice. Malice is proven when the plaintiff can show either that the defendant published the disparaging statement with the intent to cause harm to the plaintiffs pecuniary interests, or the defendant published a disparaging remark knowing its falsity or with reckless disregard for its truth. Pegasus v. Reno Newspapers, Inc., 118 Nev. 706, 722, 57 P.3d 82, 92-93 (2002); Hurlbut, 749 S.W.2d at 766; Restatement (Second) of Torts 623A (1977).
[Headnotes 22-24]

As for the element of damages, defamation requires that the plaintiff prove special damages in the form of pecuniary loss only in limited circumstances. Hurlbut, 749 S.W.2d at 766. However, proof of
4 Restatement (Second) of Torts section 629 defines a disparaging statement as one that is understood to cast doubt upon the quality of anothers land, chattels or intangible things, or upon the existence or extent of his property in them, and (a) the publisher intends the statement to cast doubt, or (b) the recipients understanding of it as casting the doubt was reasonable.

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special damages is an essential element of business disparagement. Id. at 767. Moreover, in a business disparagement claim, the plaintiff must prove that the defendants disparaging comments are the proximate cause of the economic loss. Id.; Advanced Training Sys. v. Caswell Equip. Co., 352 N.W.2d 1, 7-8 (Minn. 1984). Hence, a cause of action for business disparagement requires that the plaintiff set forth evidence proving economic loss that is attributable to the defendants disparaging remarks. Advanced Training Sys., 352 N.W.2d at 7. Lastly, if the plaintiff cannot show the loss of specific sales attributable to the disparaging statement, the plaintiff may show evidence of a general decline of business. Id. at 7-8; 53 C.J.S. Libel and Slander; Injurious Falsehood 322 (2005). Nonetheless, the general decline of business must be the result of the disparaging statements and the plaintiff must eliminate other potential causes. Advanced Training Sys., 352 N.W.2d at 7-8; 53 C.J.S. Libel and Slander; Injurious Falsehood 322 (2005).
[Headnote 25]

We thus conclude that VESI failed as a matter of law to establish the elements of intent and damages for a claim of business disparagement. First, although there was substantial evidence for the jury to conclude that the information contained in the e-mail communications was false and disparaging, VESI failed to prove that CCSD maliciously intended to cause VESI pecuniary loss, or that CCSD acted with malice because it knew the statements were false or acted in reckless disregard of their falsity. CCSD drafted the e-mail communications in response to individual teachers inquiries regarding whether CCSD would accept VESI courses for salary enhancement. Although there was some indication that the statements in the e-mails may be false, VESI did not present evidence for the jury to conclude that CCSD acted with reckless disregard when it responded to teachers questions or concerns regarding VESIs courses.
[Headnote 26]

Likewise, VESI did not provide sufficient evidence to prove special damages. Although VESI presented evidence showing that after the e-mails were transmitted, it suffered a loss in profit due to declining sales, it did not prove that the pecuniary loss was proximately caused by the disparaging statements. First, the statements were narrowly transmitted to individual teachers, and VESI did not prove that the recipient teachers republished the disparaging statements. Secondly, VESI failed to show that its economic losses were a result of the disparaging statements and not merely a result of CCSDs decision to deny teachers salary enhancement for VESI courses. Thus, VESI neither proved specific losses in sales attributable to CCSDs disparaging statements nor eliminated CCSDs decision to deny

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[125 Nev.

VESIs courses for purposes of salary enhancement as a cause for the general decline in business. Therefore, we conclude that, had the district court instructed the jury on a claim for business disparagement, the jury could not have found that CCSDs disparaging statements were malicious or caused VESIs pecuniary loss. See El Cortez Hotel, Inc. v. Coburn, 87 Nev. 209, 213, 484 P.2d 1089, 1091 (1971) (standing for the proposition that if the district court had not erred, the result would not have been substantially different). Accordingly, we reverse the judgment. CONCLUSION The district court improperly denied summary judgment as to Dr. Rices November 6, 2002, letter to VESI because the letter was absolutely privileged. The absolute privilege applies to both lawyers and nonlawyers who make defamatory statements during a judicial proceeding or where a judicial proceeding is under serious consideration. Because Dr. Rice sent the November 6, 2002, letter in response to VESIs threat to file a civil lawsuit against CCSD, we conclude that the letter was in response to anticipated litigation and was, therefore, absolutely privileged. Accordingly, we reverse the district courts denial of summary judgment as to the November 6, 2002, letter. Secondly, we reverse the jurys verdict as to the remaining three e-mail communications since the verdict was improperly based on a claim for defamation per se. Because VESI sought compensation for economic loss for defamatory statements about its products, VESIs claim was one for business disparagement and not defamation per se. Further, VESI could not have proven the elements of business disparagement because it did not produce sufficient evidence of malice or of special damages that were proximately caused by CCSDs disparaging statements. Accordingly, we reverse the district courts judgment. PARRAGUIRRE and DOUGLAS, JJ., concur.

STEVE FRANCIS ZAMORA, APPELLANT, v. TYSHAE PRICE, RESPONDENT.

No. 51321 August 6, 2009 213 P.3d 490

Appeal from a district court judgment entered on a jury verdict in a tort action conducted under the short trial program. Eighth Judicial District Court, Clark County; David B. Barker, Judge.

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Plaintiff brought action against defendant arising out of an automobile accident. Complaint was referred to mandatory nonbinding arbitration. Arbitrator issued award in plaintiffs favor. Defendant requested new jury trial. The judge pro tempore entered judgment on short trial jurys verdict in plaintiffs favor, and defendant appealed. The supreme court, CHERRY, J., held that: (1) statute mandating that nonbinding arbitration award be admitted for consideration by jury in any trial de novo when amount in controversy did not exceed $50,000 did not violate drivers right to jury trial, and (2) statute mandating that nonbinding arbitration award be admitted for consideration by jury in any trial de novo where amount in controversy did not exceed $50,000 did not violate equal protection. Affirmed. [Rehearing denied September 24, 2009] Keith B. Gibson, Las Vegas, for Appellant. Weiss Weiss Newark & Newark and Matthew Dion and James G. Christensen, Las Vegas, for Respondent.
1. APPEAL AND ERROR. The constitutionality of a statute, including issues related to a partys constitutional right to a jury trial, is a question of law that the supreme court reviews de novo. Const. art. 1, 3. 2. CONSTITUTIONAL LAW. Legislative enactment of substantive evidentiary rules is well within the powers conferred upon the Legislature, and the court must defer to the Legislature regarding the statutes validity. 3. CONSTITUTIONAL LAW. The burden of demonstrating a statutes unconstitutionality is met when the challenger makes a clear showing of invalidity. 4. JURY. Statute mandating that nonbinding arbitration award be admitted for consideration by jury in any trial de novo where amount in controversy did not exceed $50,000 did not violate drivers right to jury trial, in action based on tort claims arising from automobile accident; award was mere evidence for jury to consider, which evidence jury was free to accept or reject, and mandatory jury instruction provided that jury was not to give undue weight to arbitration award. Const. art. 1, 3; NRS 38.259(2). 5. ALTERNATIVE DISPUTE RESOLUTION; CONSTITUTIONAL LAW. Statute mandating that nonbinding arbitration award be admitted for consideration by jury in any trial de novo where amount in controversy did not exceed $50,000 did not violate equal protection under either federal or state constitutions based on claim that admission of award in trial where amount in controversy was at least $50,000 effectively admitted such awards only for cases below that threshold; distinction was rationally related to legitimate government interest in providing more expedited and less expensive proceedings for smaller claims, while preserving litigants right to jury trial and appeal, and in encouraging litigants to take arbitration seriously. U.S. CONST. amend. 14; NRS 38.250.

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6. CONSTITUTIONAL LAW. Both the United States and Nevada Constitutions equal protection clauses are implicated when a law treats similarly situated people differently. Const. art. 4, 21; U.S. CONST. amend. 14. 7. CONSTITUTIONAL LAW. When a law that treats similarly situated people differently and, therefore, implicates equal protection clauses of the United States and Nevada Constitutions, does not implicate a suspect class or fundamental right, it will be upheld as long as it is rationally related to a legitimate government interest. Const. art. 4, 21; U.S. CONST. amend. 14.

Before CHERRY, SAITTA and GIBBONS, JJ. OPINION By the Court, CHERRY, J.: In this appeal, we consider the constitutionality of NRS 38.259(2), which requires that, when a party requests a new trial at the conclusion of mandatory nonbinding arbitration proceedings in a short trial matter, the arbitrators findings must be admitted during the new trial. Specifically, we address whether the admission of this arbitration award deprives a party of the constitutional right to a jury trial and whether it violates equal protection rights. For the reasons set forth below, we conclude that NRS 38.259(2)s requirement that the arbitration award be admitted at the new trial does not violate a partys constitutional right to a jury trial or a partys right to equal protection under the law. PROCEDURAL HISTORY The procedural history of this case is straightforward. Respondent Tyshae Price filed a complaint in district court against appellant Steve Zamora, asserting tort claims arising out of an automobile accident. Because the amount at issue in the suit was less than $40,000, the case was referred to Nevadas nonbinding arbitration program as mandated by NRS 38.250(1).1 After a hearing, the arbitrator awarded Price $18,000. Zamora then requested a new trial, which was conducted as part of the short trial program. The short trial jury also awarded Price $18,000, and judgment was subsequently entered on that verdict by the judge pro tempore.2 Zamora now appeals.
1 Price filed her district court complaint on January 15, 2004, at which time NRS 38.250 applied to civil actions in which the amount at issue did not exceed $40,000. In 2005, NRS 38.250 was amended to require civil actions with amounts at issue not exceeding $50,000 to be submitted to nonbinding arbitration. See 2005 Nev. Stat., ch. 122, 2, at 391-92. 2 Judgment was entered prior to the effective date of amended NSTR 3(d)(4), which provides that a judge pro tempores proposed judgment is not effective

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DISCUSSION Under NRS 38.250(1)(a), civil actions for damages filed in district court that do not exceed $50,000, as the amount in controversy, must, subject to certain exceptions, first be submitted to nonbinding arbitration. This requirement is mandatory for district courts in any judicial district with populations of 100,000 or more and permissive for Nevadas remaining judicial districts. NRS 38.255(2). Within 30 days after an arbitration award is served on the parties, any party may request a new trial in district court. NAR 18(A). In those districts where the nonbinding arbitration process is mandatory, if a new trial is requested, the case is assigned to Nevadas short trial program, which provides expedited civil jury trials through the use of limited discovery, small juries, and time limits on the presentation of evidence.3 NSTR 1 and 4(a)(1). Central to the issues before us on appeal, NRS 38.259(2) requires that the written findings of the arbitratorthat is, the awardbe admitted into evidence during the new trial. NRS 38.259(2) also provides a mandatory jury instruction that, among other things, provides guidance to the jury regarding its consideration of the arbitration award. On appeal, Zamora raises two issues regarding the constitutionality of NRS 38.259(2). First, he argues that NRS 38.259(2)s requirement that the arbitration award be admitted at a new trial violated his constitutional right to a jury trial. Second, Zamora contends that NRS 38.259(2) violated his rights to equal protection under the law because, under the statutory system, arbitration awards are effectively only admitted into evidence for claims not exceeding $50,000. We address each of these arguments in turn. Standard of review
[Headnote 1]

The constitutionality of a statute, including issues related to a partys constitutional right to a jury trial, is a question of law that this court reviews de novo. Moldon v. County of Clark, 124 Nev. 507, 511, 188 P.3d 76, 79 (2008); Awada v. Shuffle Master, Inc., 123 Nev. 613, 618, 173 P.3d 707, 711 (2007). Here, the statute at issue, NRS 38.259(2), is a substantive rule of evidence requiring that the arbitration award be admitted at trial in cases subject to the nonbinding arbitration program. See McDougall v. Schanz, 597 N.W.2d 148, 156 n.15 (Mich. 1999) (noting that substantive rules of evidence involve declarations of policy, even if drafted in terms of
until expressly approved by the district court as evidenced by the signature of the district court judge. Thus, because judgment was entered prior to the effective date of the amended rule, Zamoras direct appeal from the judgment entered by the judge pro tempore was proper. 3 In all other judicial districts, establishment of a short trial program is merely permissive. NSTR 1(b).

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the admission or exclusion of evidence); see also State v. Connery, 99 Nev. 342, 345, 661 P.2d 1298, 1300 (1983) (noting that the judiciary has inherent power to govern its own procedures, but that any such rules may not abridge, enlarge or modify any substantive right (quoting NRS 2.120)).
[Headnotes 2, 3]

We note that the enactment of such substantive evidentiary rules is well within the powers conferred upon the Legislature by the Nevada Constitution, Cramer v. Peavy, 116 Nev. 575, 582, 3 P.3d 665, 670 (2000); Barrett v. Baird, 111 Nev. 1496, 1512, 908 P.2d 689, 700 (1995), overruled on other grounds by Lioce v. Cohen, 124 Nev. 1, 174 P.3d 970 (2008), and we must defer to the Legislature regarding this statutes validity. See Moldon, 124 Nev. at 511, 188 P.3d at 79 (noting that statutes are presumed to be constitutional, and the individual challenging that presumption bears the burden of showing the statutes unconstitutionality); Universal Electric v. Labor Commr, 109 Nev. 127, 129, 847 P.2d 1372, 1373-74 (1993) (noting that a party attacking a statutes validity faces a formidable task because statutes are presumed to be valid and this court will only intervene when the constitution is clearly violated). The burden of demonstrating a statutes unconstitutionality is met when the challenger makes a clear showing of invalidity. Moldon, 124 Nev. at 511, 188 P.3d at 79 (internal quotation omitted). Right to a jury trial
[Headnote 4]

Zamora contends that the introduction of the arbitrators award violated his constitutional right to a jury trial because it effectively removed the jury as the fact-finder, as demonstrated by the jury awarding the exact same amount as the arbitrator, and improperly turned the jury into an appellate body reviewing the reasonableness of the arbitration award. Zamora further asserts that this arrangement is irrational, as the only purpose for introducing the arbitration award is to prejudice the party requesting a new trial, which defeats the very purpose of having a new trial. Price, however, argues that the introduction of the arbitration award to the short trial jury did not violate Zamoras constitutional right to a jury trial because it did not undermine in any way the role of the jury as the fact-finder. She asserts that the jury was repeatedly told that its duty was to find the facts after examining all of the evidence, and that it was free to disregard any evidence, including the arbitrators award, if it chose to do so. The Nevada Constitution states, in pertinent part, that [t]he right of trial by [j]ury shall be secured to all and remain inviolate forever, Nev. Const. art. 1, 3, and guarantees the right to have factual issues determined by a jury. Barrett, 111 Nev. at 1501, 908

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P.2d at 694. The right to a jury trial extends to civil proceedings, such as the district court complaint filed in the underlying action. Chamberland v. Labarbera, 110 Nev. 701, 704, 877 P.2d 523, 524 (1994). A statute will unconstitutionally restrict the right to a jury trial when that right is burdened by the imposition of onerous conditions, restrictions or regulations which would make the right practically unavailable. Barrett, 111 Nev. at 1502, 908 P.2d at 694 (internal citations and quotation marks omitted). With regard to whether NRS 38.259(2)s requirement that the arbitration award be introduced at trial violated Zamoras right to a jury trial, we find our decision in Barrett, 111 Nev. 1496, 908 P.2d 689, particularly instructive. In Barrett, this court addressed an argument that NRS 41A.049(2) and NRS 41A.016(2) unconstitutionally denied the right to a jury trial by providing that a medical malpractice screening panels decision may be admitted at trial.4 111 Nev. 1496, 908 P.2d 689. In that case, the appellant contended that a jury was likely to be overly deferential to the panels finding of no probability of negligence and that admitting the panels decision allowed preadjudication of the issues of negligence and causation by an entity other than the jury. Id. at 1501, 908 P.2d at 693. In rejecting this argument, we explained that the admission of the screening panels decision was the equivalent of allowing an expert to testify at trial and did nothing to prevent the jury from freely accepting or rejecting that evidence. Id. at 1503, 908 P.2d at 694. The Barrett court further noted that the jury was sufficiently instructed not to give undue weight to the screening panels decision to ensure that there was no infringement on the jurys fact-finding duty. Id. at 1503-04, 908 P.2d at 695. The court cited, with approval, a Ninth Circuit Court of Appeals case, Wray v. Gregory, 61 F.3d 1414 (9th Cir. 1995), which suggested that juries should be instructed not to give the screening panels decision undue weight and in such a manner that will ensure that the evidence of the outside panels conclusions does not interpose [an] obstacle to a full contestation of all the issues, and take[ ] [a] question of fact from . . . the jury. Barrett, 111 Nev. at 1503, 908 P.2d at 695 (quoting Wray, 61 F.3d at 1419). Thus, based on the conclusions that the medical malpractice screening panels decision was evidence that the jury could accept or reject and that the instructions given to the jury were sufficient to prevent infringement on the jurys fact-finding role, the Barrett court concluded that the admission of the screening panels decision did not violate the appellants constitutional right to a jury trial. 111 Nev. at 1503, 908 P.2d at 694-95.
4 While not relevant to our analysis, we nonetheless note that NRS 41A.049 and NRS 41A.016 have since been repealed. See 2002 Nev. Stat. Spec. Sess., ch. 3, 69, at 25.

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Here, NRS 38.259(2) requires the nonbinding arbitration award to be admitted for consideration by the jury at any trial de novo. In this context, the award is mere evidence, which the jury is free to accept or reject. Barrett, 111 Nev. at 1503, 908 P.2d at 694. Indeed, nothing in NRS 38.259 precludes a party from attacking a particular arbitration award as faulty by presenting evidence demonstrating that the award represents an incorrect resolution of the case at bar. Accordingly, the fact that the arbitration award was introduced as evidence to the jury did not infringe on the jurys fact-finding duty so as to deny Zamora his constitutional right to a jury trial. Barrett, 111 Nev. at 1503-04, 908 P.2d at 694-95. Although Zamora attempts to distinguish Barrett by arguing that, unlike the medical malpractice screening panel, which the court held was akin to expert testimony, an arbitrators award cannot be considered expert testimony, we find this argument unpersuasive. Regardless of whether the award is or is not considered expert testimony, the award is nonetheless evidence that the Legislature, by enacting the substantive rule of evidence set forth in NRS 38.259(2), has authorized for admission at the trial de novo. Thus, Zamoras attempt to distinguish Barrett on this ground is immaterial to our determination of whether the introduction of the award violates Zamoras right to a jury trial.5 Further support for our conclusion that the required introduction of the arbitration award does not violate Zamoras jury trial right can be found in the mandatory jury instruction for these cases, which, as required by Barrett, provides that the jury must not give undue weight to the arbitrators decision. Specifically, the mandatory jury instruction set forth in NRS 38.259(2)(b) states, in relevant part, that [t]he findings of the arbitrator may be given the same weight as other evidence or may be disregarded. However, you must not give those findings undue weight because they were made by an arbitrator, and you must not use the findings of the arbitrator as a substitute for your independent judgment. You must weigh all the evidence that was presented at trial and arrive at a conclusion based upon your own determination of the cause of action.6 This instruction informs the jury that it is free to disregard the arbitration award and warns the jury not to give an award undue weight so as to allow the award to act as a substitute for the jurys independent judgment. Moreover, this instruction sufficiently addresses the concerns set forth in Barrett and Wray regarding unconstitutional infringement on the jurys fact-finding role and ensures that a litigants constitutional
5 Because we find this distinction irrelevant to the issue before us, we need not address whether the arbitrators award is considered expert testimony. 6 We note that Zamora does not challenge the short trial judges failure to provide an exact rendition of NRS 38.259(2)(b)s instruction.

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right to a jury trial is protected. We thus reject Zamoras attempt to distinguish Barrett in his reply brief. As set forth above, the arbitration award is mere evidence that the jury can accept or reject, Barrett, 111 Nev. at 1503, 908 P.2d at 694, and the mandatory jury instruction provides sufficient protection to ensure that the award does not infringe on the jurys fact-finding role. Id. at 1503-04, 908 P.2d at 695. Accordingly, Zamora has not met his burden of overcoming the presumption of constitutionality, and we reject Zamoras argument that NRS 38.259(2)s requirement that the nonbinding arbitration award be admitted at any subsequent new trial violates a litigants constitutional right to a jury trial.7 See id.; see also Moldon v. County of Clark, 124 Nev. 507, 511, 188 P.3d 76, 79 (2008) (explaining that statutes are presumed to be constitutional, and the individual challenging that presumption must make a clear showing of invalidity (internal quotation omitted)). Equal protection under the law
[Headnote 5]

Zamora next contends that requiring the arbitration award to be introduced at trial only for claims under NRS 38.250s threshold amount violates his equal protection rights under the United States and Nevada Constitutions because his case is subject to procedures that cases with amounts at issue greater than NRS 38.250s threshold amount are not.8 Price counters that there is clearly a rational basis for proving a simplified procedure for claims when the amount in controversy is less than the threshold amount.
[Headnotes 6, 7]

Both the United States and Nevada Constitutions equal protection clauses are implicated when a law treats similarly situated people differently.9 Secretary of State v. Burk, 124 Nev. 579, 595 n.55, 188 P.3d 1112, 1123 n.55 (2008). When the law, however, does not implicate a suspect class or fundamental right, it will be upheld as long as it is rationally related to a legitimate government interest. Id. (citing the United States Supreme Court case Romer v. Evans, 517 U.S. 620, 631 (1996)). Here, Zamora expressly states that he is not con7 We also reject as meritless Zamoras attempt to demonstrate that admitting the award at a trial is unconstitutional because he has not found any other states that similarly require admission of an arbitration award from mandatory nonbinding arbitration at a subsequent trial de novo. 8 As noted above, Price filed her district court complaint on January 15, 2004, at which time NRS 38.250 applied to civil actions where the amount at issue did not exceed $40,000. NRS 38.250 was subsequently amended to raise this minimum amount at issue to $50,000. See 2005 Nev. Stat., ch. 122, 2, at 39192. 9 See U.S. Const. amend. XIV, 1; Nev. Const. art. 4, 21.

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Zamora v. Price

[125 Nev.

tending that a suspect class or a fundamental right is implicated, and therefore we apply rational basis review. Id.; see also Barrett, 111 Nev. at 1509, 908 P.2d at 698 (indicating that the ability to bring a civil action sounding in tort is not a fundamental right and does not involve a suspect classification). This court has explained rational basis review to mean that we will not overturn a law unless the treatment of different groups is so unrelated to the achievement of any combination of legitimate purposes that we can only conclude that the [L]egislatures actions were irrational. Barrett, 111 Nev. at 1509-10, 908 P.2d at 698-99 (quoting Allen v. State Pub. Emp. Ret. Bd., 100 Nev. 130, 136, 676 P.2d 792, 796 (1984)). In Barrett, this court rejected, under a rational basis review, the contention that a statute requiring victims of medical malpractice allegedly committed by hospitals and physicians to first present their case to the medical malpractice screening panel, which did not place a similar requirement on victims of medical malpractice allegedly committed by other healthcare providers, ran afoul of the plaintiffs equal protection rights. 111 Nev. at 1509, 908 P.2d at 698. Instead, we noted that this distinction was rational, as the Legislature had evidence that hospitals and physicians were experiencing large increases in malpractice insurance premiums, whereas there was not similar evidence before the Legislature regarding other healthcare providers. Id. at 1510, 908 P.2d at 699. Similarly, here, to the extent that litigants with claims not exceeding NRS 38.250s threshold amount are treated differently than litigants with claims that do, this distinction is likewise a rational legislative choice because it provides more expedited and less expensive proceedings for smaller claims, while preserving litigants right to a jury trial and an appeal. See Arata v. Faubion, 123 Nev. 153, 160, 161 P.3d 244, 249 (2007) (explaining that, in the context of rational basis scrutiny, this court may hypothesize the legislative purpose behind a statute and that a statute will be upheld if any facts may be reasonably conceived to justify the legislation); see also Jain v. McFarland, 109 Nev. 465, 472, 851 P.2d 450, 455 (1993) (stating, in the medical malpractice context, that this court hesitates to disturb carefully crafted legislation that provides benefit to the parties, limits the burden on the courts, and reduces costs by discouraging frivolous litigation). Additionally, this court has recently stated that the quicker and less costly resolution provided by arbitration is rationally related to a legitimate governmental interest. See Hamm v. Arrowcreek Homeowners Assn, 124 Nev. 290, 301, 183 P.3d 895, 903-04 (2008) (concluding, however, in addressing an equal protection argument, that the two groups at issue were not being treated differently). Applying this Arrowcreek principle here, requiring the admission of the arbitration award is likely to provide an additional incentive to the

Aug. 2009]

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parties so that they will take the arbitration proceedings seriously, thereby furthering the legitimate governmental interest of providing quicker and less costly dispute resolution. Accordingly, we conclude that having cases with an amount in controversy below a threshold amount subject to mandatory nonbinding arbitration, and having the arbitration award introduced at a subsequent new trial, is rationally related to a legitimate governmental interest, and therefore, no equal protection clause violation exists. See Secretary of State v. Burk, 124 Nev. 579, 595 n.55, 188 P.3d 1112, 1123 n.55 (2008) (stating that, under rational basis review, a law will be upheld when it is rationally related to a legitimate government interest). CONCLUSION Because we determine that Zamora was not unconstitutionally deprived of his rights to a jury trial or equal protection under the law, we affirm the judgment entered on the short trial jurys verdict. SAITTA and GIBBONS, JJ., concur.

BOULDER OAKS COMMUNITY ASSOCIATION, A NEVADA CORPORATION, DBA RED MOUNTAIN RV RESORT, APPEL LANT, v. B & J ANDREWS ENTERPRISES, LLC, A NEVADA LIMITED LIABILITY COMPANY, DBA BOULDER OAKS RV RESORT, RESPONDENT.
No. 46010 August 20, 2009 215 P.3d 27

Petition for rehearing of Boulder Oaks Cmty. Assn v. B & J Andrews, 123 Nev. Adv. Op. No. 46, 169 P.3d 1155 (2007) (opinion withdrawn April 18, 2008).1 Appeal from a district court order granting a preliminary injunction in a real property action. Eighth Judicial District Court, Clark County; Elizabeth Goff Gonzalez, Judge. Recreational vehicle community developers successor-in-interest brought action for preliminary injunction in opposition to vote of lot owners association to amend covenants and restrictions to terminate successors exclusive right to manage lot rentals. The district court granted the injunction, and association appealed. On rehearing, the
1 The opinion was withdrawn from publication before it was printed in the Nevada Reports.

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[125 Nev.

supreme court held that: (1) successor was a land-owning declarant under covenant section governing material amendments, (2) covenant section on material amendments created an improper voting class in violation of NRS Chapter 116, (3) successors consent was not required for amendment, and (4) association bylaws allowed a vote by mail. Rehearing granted; reversed. [En banc reconsideration denied January 19, 2010] Sterling Law, LLC, and Beau Sterling, Las Vegas; Wolf, Rifkin, Shapiro, Schulman & Rabkin, LLP, and Richard J. Vilkin, Las Vegas, for Appellant. Bailus Cook & Kelesis and Mark B. Bailus and Marc P. Cook, Las Vegas, for Respondent.
1. INJUNCTION. A preliminary injunction is available when the moving party can demonstrate that the nonmoving partys conduct, if allowed to continue, will cause irreparable harm for which compensatory relief is inadequate and that the moving party has a reasonable likelihood of success on the merits. NRS 33.010. 2. APPEAL AND ERROR; INJUNCTION. A district court has discretion in deciding whether to grant a preliminary injunction, and the district courts decision will be reversed only where the district court abused its discretion or based its decision on an erroneous legal standard or on clearly erroneous findings of fact. 3. APPEAL AND ERROR. Questions of law are reviewed de novo, even in the context of an appeal from a preliminary injunction. 4. COVENANTS. Recreational vehicle community developers successor-in-interest, which sought preliminary injunction to prohibit amendment of covenants and restrictions to terminate successors exclusive right to manage lot rentals, was a land-owning declarant under covenant section allowing a material amendment to covenants and restrictions with the consent of 67 percent of the members entitled to vote and of the land-owning declarant; sections definition of declarant, which included developers successors and assigns, fit within the statutory definition provided in NRS Chapter 116, and successor owned two lots it purchased from developer. NRS 116.003, 116.035, 116.089. 5. STATUTES. When a term is defined in NRS Chapter 116, the statutory definition controls and any definition that conflicts will not be enforced. NRS 116.003. 6. COVENANTS. Section of covenants and restrictions of recreational vehicle community allowing a material amendment to covenants and restrictions with the consent of 67 percent of the members entitled to vote and of the land-owning declarant created an improper voting class in violation of NRS Chapter 116, which prohibits units from constituting a class for the purposes of voting merely because they were owned by a declarant. NRS 116.003, 116.035, 116.089, 116.2107(4).

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7. COVENANTS. Consent of recreational vehicle community developers successor-ininterest was not required under communitys covenants and restrictions to amend covenants and restrictions to terminate successors exclusive right to manage lot rentals, as amendment did not change the manner in which successor could use its two lots; removing the exclusive rental provision did not mean that successor could no longer rent lots in community, but meant that successor was not only entity that could rent lots. 8. ASSOCIATIONS; COVENANTS. Bylaws of association of lot owners in recreational vehicle community allowed a vote by mail, as opposed to by meeting, on proposed amendment to covenants and restrictions to terminate exclusive right of developers successor to manage lot rentals; bylaws stated that an action that otherwise would be taken at a meeting could be taken without a meeting, without notice and without a vote, if a consent in writing, setting forth the action so taken was signed by members with the percentage of voting power required to take such action, association mailed ballots to all members on the issue of eliminating the exclusive rental provision, and association ultimately reported that the requisite minimum 67 percent of the members had voted in favor of amendment.

Before HARDESTY, C.J., PARRAGUIRRE and SAITTA, JJ. OPINION Per Curiam: INTRODUCTION On November 1, 2007, this court issued an opinion in this appeal affirming the district courts order. Thereafter, appellant Boulder Oaks Community Association (the Association) filed a petition for rehearing pursuant to NRAP 40. On April 18, 2008, this court issued an order withdrawing the opinion from publication pending resolution of the petition for rehearing. We will consider rehearing when we have overlooked or misapprehended material facts or questions of law or when we have overlooked, misapplied, or failed to consider legal authority directly controlling a dispositive issue in the appeal. NRAP 40(c)(2). Having reviewed the briefing associated with the Associations petition for rehearing, we conclude that rehearing is warranted, and we grant the Associations petition for rehearing. We now issue this opinion in place of our prior opinion. Respondent B & J Andrews Enterprises, LLC (Andrews), owns the Boulder Oaks R.V. Resort (the resort), a common-interest community that consists of 275 recreational vehicle lots and two additional lots initially owned by BCRV, Ltd.2 The resort is governed by its covenants, conditions, and restrictions (CC&Rs). Andrews argues
2 See NRS 116.021 (defining a common-interest community as real estate with respect to which a person, by virtue of his ownership of a unit, is obligated to pay for real estate other than that unit).

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[125 Nev.

that CC&R section 5.04 gives it an exclusive right to rent the recreational vehicle lots when the lot owners are not using them and that, pursuant to CC&R section 9.04(a), the CC&Rs cannot be materially amended without its approval. Andrews moved for a preliminary injunction when the Association attempted to amend the CC&Rs to remove the exclusive rental provision without Andrews approval. The district court granted the preliminary injunction, thereby enjoining the Association from amending the CC&Rs to eliminate the exclusive rental provision. This appeal followed. Because this appeal involves a common-interest community, it is governed by NRS Chapter 116, which is Nevadas codification of the Uniform Common-Interest Ownership Act (UCIOA). On appeal, the primary questions we resolve are (1) whether Andrews is a declarant and (2) whether section 9.04(a) of the CC&Rs contravenes NRS 116.2107(4), which prohibits units from constituting a class for the purposes of voting merely because they are owned by a declarant. We conclude that Andrews is a declarant. Further, we conclude that CC&R section 9.04(a) violates NRS 116.2107(4) by creating an improper voting class in the declarant, making this part of section 9.04 void. Thus, the Association was not required to obtain Andrews consent before amending the CC&Rs. We also conclude that it was proper for the Association to vote on the proposed amendment by mail, as opposed to voting at a meeting. Therefore, because the record demonstrates that the Association received the requisite number of votes to amend the CC&Rs, we conclude that Andrews does not have a reasonable likelihood of success on the merits in the case below. Our conclusion illustrates that the amendment was proper and the Association should not have been enjoined from enforcing it. Accordingly, we reverse the district courts grant of the preliminary injunction. FACTS AND PROCEDURAL HISTORY Development of the community The resort was developed by BCRV, Ltd. Upon completion of the development, BCRV drafted and recorded the resorts CC&Rs, which fully incorporated NRS Chapter 116. In 1995, the Association, a nonprofit corporation and lot owners association, was formed. At the time the resort was developed, Boulder City prohibited recreational vehicle lot owners from occupying their lots for more than 180 days per year, and in 1996, BCRV amended the CC&Rs to add section 5.04, which governs the rental of lots.3 Sec3

In full, CC&R section 5.04 states: Rental of Lots. No restrictions are placed herein regarding an Owners right to sell his Lot. However, the Developer shall have for a period of ninety-nine (99) years from the date of this Declaration the exclusive

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tion 5.04 states that the Developer has a 99-year exclusive right to rent a lot when it is not being used by the owner or his approved guest. Section 5.04 further gives the developer the right to retain 40 percent of the rent collected, while the remaining 60 percent belongs to the lot owner. BCRV assigns its rights to Andrews In 2001, BCRV sold its two lots, the resort, and all attendant rights, including the right to manage the rentals, to Andrews. For some time after Andrews took over the resort and rental services, the lot owners continued to use Andrews services to rent their lots, as required by the CC&Rs. However, in 2002 and in apparent violation of CC&R section 5.04, a few lot owners began to rent their lots independent of Andrews. Initially, Andrews sought to enforce section 5.04 through the Association. Amendment of the CC&Rs CC&R section 9.04 governs the procedures for amending the CC&Rs. Section 9.04(a) permits a material amendment upon receiving the consent of 67 percent of the Members entitled to vote and of the Declarant, so long as the Declarant owns any land subject to this Declaration.4 CC&R section 1.12 defines declarant as BCRV and its successors and assigns. If a proposed amendment changes the uses to which a particular Lot is restricted, then section 9.04(d) provides that the affected lot owner and the majority of lot owners must consent. Section 2.06 of the Associations bylaws sets forth the procedure for taking action without a meeting. It provides that a meeting is not required if the percentage of members
right, in the absence of use by the Owner or his registered and approved guest, to rent Lots which are a part of the Resort at scheduled rates promulgated from time to time by the Developer. The Developer shall retain for its services forty percent (40%) of the gross amount of the rental collected on any Lot with the remaining sixty percent (60%) reserved for the benefit of the Lot Owner. 4 Precisely, section 9.04 states, in pertinent part: (a) Majority Vote. Except as provided in Section 9.04(c), no amendment of this Declaration shall be effective unless adopted by a majority of the Members. Notwithstanding the foregoing, the consent of sixty-seven percent (67%) of the Members entitled to vote and of the Declarant, so long as the Declarant owns any land subject to this Declaration, and the approval of Eligible Holders on Lots to which at least fifty-one percent (51%) of the votes of Lots subject to a Mortgage, shall be required to materially amend any provisions of this Declaration . . . . (d) Restrictions on Amendment. Except to the extent expressly permitted or required by the provisions of NRS Chapter 116, no amendment may change . . . the uses to which a particular Lot is restricted, in the absence of consent of the Owner of the Lot affected and the consent of a majority of the Owners of the remaining Lots.

402

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[125 Nev.

required to take the specific action give their written consent to proceed without a meeting.5 Beginning in 2004, members of the Association sought amendment of the CC&Rs to eliminate section 5.04. The Association mailed ballots to every lot owner of record, which stated that votes had to be received by the deadline or any extension thereof. The initial ballot set the voting deadline at January 15, 2004, which was apparently a typographical error because that date had already passed. The Association informed members of the error and corrected the date to be January 15, 2005. Subsequently, the Association passed two 30-day extensions. Ultimately, 187 votes, or just over 67 percent of the 277 possible votes, were cast in favor of amending the CC&Rs to remove section 5.04. Andrews immediately filed suit seeking a preliminary injunction in the district court seeking to stop the Association from eliminating section 5.04 from the CC&Rs. Andrews claimed that the amendment was invalid, arguing that in order to materially amend the CC&Rs, its consent as a land-owning declarant was required. Further, Andrews argued that the written ballot procedure used by the Association to pass the amendment violated section 2.06 of the Associations bylaws. Andrews also asserted that NRS Chapter 116 did not apply to the case. In response, the Association argued that NRS Chapter 116 applied. Accordingly, the Association argued that Andrews was not a declarant because, regardless of whether the CC&Rs categorized Andrews as such, the CC&R definition was null since Andrews was not a declarant under the terms definition as set forth in NRS 116.035. Therefore, because Andrews was not a declarant, the Association claimed that the amendment was proper because the Association was not required to obtain Andrews consent. In the alternative, the Association argued that, even if Andrews was a declarant, NRS 116.3105 authorized it to terminate any contract executed by the declarant before the lot owners assumed control of the Association. Finally, the Association argued that the vote to amend the CC&Rs was proper pursuant to NRS 82.326 and because it complied with section 2.06 of the Associations bylaws. The district court disagreed with the Association, finding that it had violated CC&R section 9.04(a) and that Andrews was entitled to injunctive relief. The district court entered an injunction enjoining the Association from eliminating CC&R section 5.04 and thereby prohibiting independent rentals by the lot owners.
5

Specifically, section 2.06 of the Associations bylaws states, in part: Any action required or permitted to be taken at a meeting of the Members may be taken without a meeting, without notice and without a vote, if a consent in writing, setting forth the action so taken, is signed by the Members with the percentage of the voting power required to take such action.

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The Association appealed the matter to this court. The Association argued that not only was the amendment proper for the reasons it had presented to the district court, but it was also proper because the clause in CC&R section 9.04(a) that required the consent of a land-owning declarant to pass a material amendment violated NRS 116.2107(4). DISCUSSION Standard for granting and reviewing a preliminary injunction
[Headnotes 1-3]

A preliminary injunction is available when the moving party can demonstrate that the nonmoving partys conduct, if allowed to continue, will cause irreparable harm for which compensatory relief is inadequate and that the moving party has a reasonable likelihood of success on the merits. See NRS 33.010; University Sys. v. Nevadans for Sound Govt, 120 Nev. 712, 721, 100 P.3d 179, 187 (2004); Dangberg Holdings v. Douglas Co., 115 Nev. 129, 142, 978 P.2d 311, 319 (1999). A district court has discretion in deciding whether to grant a preliminary injunction. University Sys., 120 Nev. at 721, 100 P.3d at 187. The district courts decision will be reversed only where the district court abused its discretion or based its decision on an erroneous legal standard or on clearly erroneous findings of fact. Attorney General v. NOS Communications, 120 Nev. 65, 67, 84 P.3d 1052, 1053 (2004) (quoting U.S. v. Nutri-cology, Inc., 982 F.2d 394, 397 (9th Cir. 1992)); see S.O.C., Inc. v. The Mirage Casino-Hotel, 117 Nev. 403, 407, 23 P.3d 243, 246 (2001). Questions of law are reviewed de novo, even in the context of an appeal from a preliminary injunction. University Sys., 120 Nev. at 721, 100 P.3d at 187; S.O.C., Inc., 117 Nev. at 407, 23 P.3d at 246. Here, we conclude that the district court abused its discretion in granting Andrews motion for a preliminary injunction because Andrews does not enjoy a reasonable likelihood of success on the merits. Although Andrews is a land-owning declarant, the Association did not need Andrews consent to amend the CC&Rs because that clause of section 9.04(a) is void for being in violation of NRS 116.2107(4). Therefore, because the Association properly voted to eliminate CC&R section 5.04, the preliminary injunction was not appropriate.6 Reasonable likelihood of success on the merits In arriving at our conclusion that the district court abused its discretion when it granted the preliminary injunction, we first deter6 Given our conclusion that Andrews does not have a reasonable likelihood of success on the merits, we need not reach the issue of whether Andrews would suffer irreparable harm.

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[125 Nev.

mine that NRS Chapter 116 applies. We next conclude that Andrews is a land-owning declarant. However, we hold that the Association did not need Andrews consent to eliminate section 5.04 from the CC&Rs because the clause from section 9.04(a) that required Andrews consent as a land-owning declarant is void for being in violation of NRS 116.2107(4). Further, we conclude that it was proper for the Association to vote on the proposed amendment by mail, instead of at a meeting. Thus, because we conclude that the Association properly amended the CC&Rs to eliminate section 5.04, Andrews has failed to demonstrate a reasonable likelihood of success on the merits and the grant of the preliminary injunction must be reversed. NRS Chapter 116 NRS Chapter 116 codifies Nevadas adoption of the UCIOA, an act adopted by the National Conference of Commissioners on Uniform State Laws. See NRS 116.001; A.B. 221, Summary of Legislation, 66th Leg. (Nev. 1991). The purpose of NRS Chapter 116 is to make uniform the law with respect to the subject of this chapter among states enacting it. NRS 116.1109(2). While NRS Chapter 116 generally applies to all Nevada common-interest communities, it only applies to communities containing lots reserved exclusively for nonresidential use if the declaration so provides. NRS 116.1201(1) and (2)(b). A lot has a residential use if it is used as a dwelling or for personal, family or household purposes by ordinary customers, whether rented to particular persons or not. NRS 116.083. Examples of residential use lots are marina boat slips, piers, stable or agricultural stalls or pens, campground spaces or plots, parking spaces or garage spaces, storage spaces or lockers and garden plots for individual use, but do not include spaces or units primarily used to derive commercial income from, or provide service to, the public. Id. Here, the CC&Rs explicitly state that they incorporate NRS Chapter 116.7 Nonetheless, Andrews attempts to convince this court that the application of NRS Chapter 116 is limited because the resort is nonresidential. Andrews bases this contention on the fact that the Boulder City Municipal Code restricts resort lot owners from occupying their spaces for more than 180 days per year. We reject this contention. Despite the 180-day restriction, we conclude that the resort is a residential common-interest community. By listing campground spaces and piers as examples of residential use lots,
7 The recitals of the CC&Rs state that BCRV was developing the resort as a recreational vehicle community and was developing the CC&Rs under a general plan of development pursuant to Chapter 116 of the Nevada Revised Statutes.

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NRS 116.083 clearly implicates that permanent occupancy is not necessary for a lot to qualify as residential. Moreover, the resort lots are not primarily used for commercial income or public service, another factor NRS 116.083 notes as defining what constitutes a residential unit. Rather, the lots are used as spaces to park recreational vehicles, just as a campground space is used as a site for tents. Further, NRS 116.083 anticipates that residential units will be rented, so the fact that resort lot owners do so does not remove the lots from being categorized as residential. For these reasons, we conclude that pursuant to NRS 116.083, the lots, and the resort generally, are residential and NRS Chapter 116 applies accordingly.8 Andrews is a declarant
[Headnote 4]

The parties contest whether Andrews is a land-owning declarant for purposes of CC&R section 9.04(a). Andrews asserts that it is a declarant because the CC&Rs define it as such. The Association counters that it is irrelevant how the CC&Rs define a declarant because the statutory definition of declarant controls and Andrews does not fit within that definition. While we agree with the Association that the statutory definition of the term declarant controls to the extent that a CC&R definition conflicts with the statutory definition, we conclude that, in this case, the CC&R definition of declarant fits neatly within the definition provided in NRS 116.035. Therefore, there is no reason to look beyond the CC&R definition, and we disagree with the Associations contentions to the contrary. Since the CC&R definition of declarant is consistent with the statutory definition, we conclude that Andrews is the declarant. NRS 116.003 states that [a]s used in this chapter and in the declaration and bylaws of an association, unless the context otherwise requires, the words and terms defined in NRS 116.005 to 116.095, inclusive, have the meanings ascribed to them in those sections. (Emphasis added.) The language of NRS 116.003 is based on UCIOA section 1-103. A.B. 221, Summary of Legislation, 66th Leg. (Nev. 1991). The UCIOA states that section 1-103 allows terms defined in the Act to be defined differently . . . declaration[s] and bylaws. UCIOA 1-103 cmt. 1 (1994). Regardless of how terms are used in those documents, however, terms have an unvarying meaning in the Act, and any restricted practice which depends on the definition of a term is not affected by a changed term in the documents. Id. The UCIOA then
8 Our conclusion is supported by the UCIOA. See UCIOA 1-103(27) & cmt. 22 (1994); cf. UCIOA 1-207(a) (stating that a nonresidential common-interest community is one in which all units are restricted exclusively to nonresidential purposes).

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[125 Nev.

explains, by example, that if a declarant attempted to alter the definition of unit owner to exclude itself in an attempt to avoid assessments for units that he owns, the attempt would fail because the Act defines a declarant as a unit owner. Id.
[Headnote 5]

When NRS 116.003 is read in context with the UCIOA, it is clear that when a term is defined in NRS Chapter 116, the statutory definition controls and any definition that conflicts will not be enforced. To read NRS 116.003 otherwise would lead to the absurd result of rendering the definitions provided in NRS 116.005 to 116.095 mere surplusage. See Speer v. State, 116 Nev. 677, 679, 5 P.3d 1063, 1064 (2000). Further, any other reading of the statute would be contrary to the express purpose of NRS Chapter 116, which is to make uniform the law with respect to the subject of this chapter among states enacting it. NRS 116.1109(2). If this court were to enforce any definition provided by a declaration, then the goal of making the laws concerning common-interest communities uniform would never be reached. See Speer, 116 Nev. at 679, 5 P.3d at 1064 (stating that statutes should not be read in a manner that violates the spirit of the act (quoting Anthony Lee R., A Minor v. State, 113 Nev. 1406, 1414, 952 P.2d 1, 6 (1997))). Here, CC&R section 1.12 defines a declarant as BCRV and its successors and assigns. NRS 116.035 defines a declarant, in part, as any person or group of persons acting in concert who . . . [r]eserves or succeeds to any special declarants right. NRS 116.089 defines special declarants rights in part, as rights reserved for the benefit of a declarant to . . . [m]aintain sales offices, management offices, signs advertising the common-interest community and models . . . . When the CC&Rs were written, BCRV entitled itself the declarant and stated in CC&R section 1.13 that its lots would be used for the operation of a sales and rental office and for the purposes of maintaining the resort generally. In other words, BCRV reserved a special declarant right. As BCRVs successor, Andrews obtained this special declarant right to maintain a sales and rental office. Thus, in this case, the CC&R definition of declarant is consistent with the definition provided in NRS 116.035. Therefore, the context does not require us to apply a definition other than that provided in CC&R section 1.12, and we conclude that Andrews is the declarant. Further, because Andrews owns the two lots it purchased from BCRV, it is also a land-owning declarant. Section 9.04 creates an improper voting class
[Headnote 6]

Because it is a land-owning declarant, Andrews argues that under CC&R section 9.04(a), the Association could not materially amend the CC&Rs without Andrews consent. We disagree.

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NRS 116.2107(4) states that [e]xcept as otherwise provided in NRS 116.31032, a declarant may not utilize cumulative or class voting for the purpose of evading any limitation imposed on declarants by this chapter nor may units constitute a class because they are owned by a declarant.9 The UCIOA acknowledges that precluding units from constituting a voting class simply because they are owned by the declarant prohibits a practice common in planned communities, where units owned by declarant constitute a separate class of units for voting and other purposes. UCIOA 2-107 cmt. 9 (1994). Thus, the provision makes clear that the votes and other attributes of ownership of a unit may not change by virtue of the identity of the owner. Id. In this case, CC&R section 9.04(a) states that to materially amend the CC&Rs, it is necessary to obtain the consent of sixty-seven percent (67%) of the Members entitled to vote and of the Declarant, so long as the Declarant owns any land subject to this Declaration. (Emphasis added.) According to the CC&Rs, lots constitute land subject to the declaration. CC&R section 9.04(d) states that an amendment may not change the uses to which a particular Lot is restricted, without the lot owner and the majority of the other owners consent. Section 9.04(d) complies with NRS 116.2117(4).10 By requiring the declarants consent for a material amendment only if the declarant owns units, the CC&Rs create the exact type of class voting that NRS 116.2107(4) prohibits. As noted above, NRS 116.2107(4) expressly states that units [may not] constitute a class because they are owned by a declarant. Therefore, we conclude that the clause requiring the consent of a land-owning declarant to materially amend the CC&Rs is impermissible pursuant to NRS 116.2107(4) and is void. See NRS 116.1206(1) (stating that [a]ny provision contained in a declaration . . . of a commoninterest community that violates the provisions of this chapter shall be deemed to conform with those provisions by operation of law, and any such declaration . . . is not required to be amended to conform to those provisions). We further note that while we conclude that this one clause of section 9.04(a) is void, this determination does not nullify the remainder of section 9.04. See NRS 116.2103(1) (noting that the inclusion of a provision in a governing document that violates any provision of this chapter does not render any other provisions of the governing document invalid or otherwise unenforceable).
9 We note that, as used in this opinion, the terms units and lots are synonymous. 10 In pertinent part, NRS 116.2117(4) states that no amendment may change . . . the uses to which any unit is restricted, in the absence of unanimous consent of the units owners affected and the consent of a majority of the owners of the remaining units.

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[125 Nev.

[Headnote 7]

Further, we conclude that Andrews consent to amend the CC&Rs was not required under section 9.04(d) or NRS 116.2117(4). While the CC&Rs state that Andrews lots are to be used for the purpose of maintaining a sales and rental office, removing the 99-year exclusive rental provision does not mean that Andrews can no longer rent lots at the resort.11 Rather, the amendment means that Andrews is not the only entity that can rent lots. Therefore, because the amendment does not change the manner in which Andrews can use its lots, its consent was not required. Therefore, because more than 67 percent of eligible members voted to eliminate CC&R section 5.04 and its exclusive rental agreement, and because Andrews consent was not necessary, we conclude that the amendment was proper.12 Mailing ballots was proper
[Headnote 8]

The ballots containing the proposed amendment to the CC&Rs eliminating section 5.04 were mailed to all members of the Association. Andrews asserts that the amendment thus fails because the declaration does not allow for an amendment to be made without a meeting.13 The Association counters that the mail-in vote was permitted according to section 2.06 of the Associations bylaws.
11 We note that CC&R section 5.03 prohibits professional, commercial or industrial operation of any kind from being conducted at the resort, unless expressly authorized by the Associations board of directors. However, because CC&R section 1.13 states that the Declarants Lot shall be used for the operation of the sales and rental office which shall be constructed on the Declarants Lot, we conclude that the CC&Rs intend for the declarants lots to be excepted from section 5.03. Therefore, because Andrews is a declarant, it can continue to maintain a rental and sales office on its lot despite the elimination of section 5.04. 12 In so concluding, we acknowledge that to materially amend the CC&Rs, section 9.04 requires not only 67 percent of eligible members to vote for the amendment but also the approval of at least 51 percent of the eligible mortgage holders. However, CC&R section 7.01(d) states that, upon written request, an eligible mortgage holder will be notified of any proposed action which would require the consent of a specified percentage of Eligible Holders. The record indicates that the Association did not receive any written requests from eligible mortgage holders stating a desire to vote on Association matters. Accordingly, whether the Association received the consent of 51 percent of eligible mortgage holders is not pertinent to the resolution of this appeal. 13 Andrews further contends that the Association improperly extended the voting deadline because NRS 82.326 does not provide for extensions. We reject this argument because NRS 82.326 does not support this conclusion. Further, we note that Andrews, and all other voting members, had notice that the voting deadline could be extended because the ballot so provided. The Association then gave all voting members notice of the subsequent extensions.

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Boulder Oaks Cmty. Assn v. B & J Andrews

409

There are no provisions within NRS Chapter 116 stating that CC&Rs may only be amended at a meeting. Further, NRS 82.326(1), which governs the action of nonprofit corporation members by written ballot in lieu of a meeting, states that unless prohibited or limited by the articles or bylaws, an action that may be taken at a regular or special meeting of members . . . may be taken without a meeting if the corporation mails or delivers a written ballot to every member entitled to vote on the matter. Section 2.06 of the Associations bylaws states that an action that otherwise would be taken at a meeting, can be taken without a meeting, without notice and without a vote, if a consent in writing, setting forth the action so taken, is signed by the Members with the percentage of the voting power required to take such action. In accordance with the bylaws, the Association mailed ballots to all members on the issue of eliminating section 5.04. The Association ultimately reported that at least 67 percent of the members had voted in favor of the amendment.14 Section 2.06 of the Associations bylaws, and its allowance for action to occur without a meeting, is permissible pursuant to NRS 82.326. Section 2.06 does not explain how the written consent must be acquired. Thus, we conclude that each member that returned a ballot was simultaneously voting and giving written consent for the amendment to take place without a meeting. Because the Association acquired the requisite 67 percent vote in favor of eliminating CC&R section 5.04, it also acquired the requisite votes necessary for the amendment to take place without a meeting, as is necessary under the bylaws. CONCLUSION We conclude that Andrews is a land-owning declarant. We also determine that the Association was not required to obtain Andrews consent before materially amending the CC&Rs to eliminate section 5.04, which created a 99-year exclusive rental agreement enjoyed by Andrews. Therefore, because Andrews consent was not necessary and because the Association acquired the requisite number of votes to pass the amendment, we conclude that Andrews has no reasonable likelihood of success on the merits. Accordingly, the district court abused its discretion in so deciding, and we reverse the order granting a preliminary injunction.
14 We note that Andrews contests how many votes were received in favor of the amendment. However, after reviewing the record, we conclude that the evidence supports the Associations assertion that 187 votes out of 277 were cast in favor of amending the CC&Rs.

410

Rivero v. Rivero MICHELLE RIVERO, APPELLANT, v. ELVIS RIVERO, RESPONDENT.

No. 46915

[125 Nev.

August 27, 2009

216 P.3d 213

Petition for rehearing of Rivero v. Rivero, 124 Nev. Adv. Op. No. 84, 195 P.3d 328 (2008),* appeal from a district court postdivorce decree order modifying a joint child custody award. Eighth Judicial District Court, Family Court Division, Clark County; Stefany Miley, Judge. Former wife brought motion to modify child custody and child support. Wife also moved to disqualify judge. Motion to disqualify was denied, and husband was awarded attorney fees. The district court modified custody but denied child support and wife appealed. The supreme court, GIBBONS, J., held that: (1) joint physical custody arrangement required that each parent had physical custody of child at least 40 percent of time; (2) for joint physical custody, each parent had to have physical custody of child at least 146 days per year; (3) primary physical custody was when one parent had physical custody of child subject to the district courts power to award other parent visitation rights; (4) on motion to modify custody, trial court was required to use Nevadas definitions for joint physical custody and primary custody, regardless of how custody agreement had defined custody; (5) trial court was required to make specific findings as to nature of custody arrangement and determine appropriate standard for modification; (6) modification of child support required proof of change in circumstances and finding that modification was in best interest of child, abrogating Scott v. Scott, 107 Nev. 837, 822 P.2d 654 (1991), and Parkinson v. Parkinson, 106 Nev. 481, 796 P.2d 229 (1990); (7) trial court was required to make specific findings as to basis for not awarding child support and reasons for deviating from child support guidelines; (8) wife did not state legally cognizable grounds for judges disqualification; (9) statute prohibiting trial court from punishing for contempt for filing motion to disqualify did not apply to prohibit trial court from awarding attorney fees to former husband for defending against wifes motion to disqualify; and (10) in order to impose sanctions for filing frivolous motion to disqualify, there must be evidence supporting district courts finding that motion was unreasonable or brought to harass. Rehearing denied; opinion withdrawn; affirmed in part, reversed in part, and remanded. PICKERING, J., dissented in part. Steinberg Law Group and Brian J. Steinberg and Jillian M. Tindall, Las Vegas, for Appellant.
*Reporters Note: The prior opinion was withdrawn from publication before it was printed in the Nevada Reports.

Aug. 2009]

Rivero v. Rivero

411

Bruce I. Shapiro, Ltd., and Bruce I. Shapiro, Henderson, for Respondent. Fahrendorf, Viloria, Oliphant & Oster, LLP, and Raymond E. Oster, Reno, for Amicus Curiae State Bar of Nevada, Family Law Section.
1. CHILD CUSTODY. Parties may enter into custody agreements and create their own custody terms and definitions, and the courts may enforce such agreements as contracts; however, once the parties move the court to modify the custody agreement, the court must use the terms and definitions under Nevada law. 2. CHILD CUSTODY. Legal custody involves having basic legal responsibility for a child and making major decisions regarding the child, including the childs health, education, and religious upbringing: sole legal custody vests this right with one parent, while joint legal custody vests this right with both parents. 3. CHILD CUSTODY. Joint legal custody requires that the parents be able to cooperate, communicate, and compromise to act in the best interest of the child. NRS 125.490(2). 4. CHILD CUSTODY. In a joint legal custody situation, the parents must consult with each other to make major decisions regarding the childs upbringing, while the parent with whom the child is residing at that time usually makes minor day-to-day decisions. NRS 125.490(2). 5. CHILD CUSTODY. In a joint legal custody situation, the parents need not have equal decision-making power, e.g., one parent may have decision-making authority regarding certain areas or activities of the childs life, like education or healthcare, but if the parents in a joint legal custody situation reach an impasse and are unable to agree on a decision, then the parties may appear before the court on an equal footing to have the court decide what is in the best interest of the child. NRS 125.490(2). 6. CHILD CUSTODY. Physical custody involves the time that a child physically spends in the care of a parent, and, during this time, the child resides with the parent and that parent provides supervision for the child and makes the day-to-day decisions regarding the child. 7. CHILD CUSTODY. Parents can share joint physical custody, or one parent may have primary physical custody while the other parent may have visitation rights. 8. CHILD CUSTODY; CHILD SUPPORT. The type of physical custody arrangement is particularly important in three situations: first, it determines the standard for modifying physical custody; second, it requires a specific procedure if a parent wants to move out of state with the child; and third, the type of physical custody arrangement affects the child support award. 9. CHILD CUSTODY. To modify a primary physical custody arrangement, the court must find that it is in the best interest of the child and that there has been a substantial change in circumstances affecting the welfare of the child. NRS 125.510(2).

412

Rivero v. Rivero

[125 Nev.

10. CHILD CUSTODY. Nevada law presumes that joint physical custody approximates a 50/50 timeshare. NRS 125.490. 11. CHILD CUSTODY. Joint custody is presumably in the best interest of the child if the parents agree to it, and this policy encourages equally shared parental responsibilities. NRS 125.490. 12. CHILD CUSTODY. Although joint physical custody must approximate an equal timeshare, given the variations inherent in child rearing, such as school schedules, sports, vacations, and parents work schedules, to name a few, an exactly equal timeshare is not always possible, and therefore, there must be some flexibility in the timeshare requirement. NRS 125.490. 13. CHILD CUSTODY. If a parent does not have physical custody of the child at least 40 percent of the time, then the arrangement is one of primary physical custody with visitation. 14. CHILD CUSTODY. Each parent must have physical custody of the child at least 40 percent of the time to constitute joint physical custody. NRS 125.490. 15. CHILD CUSTODY. In calculating the minimum 40 percent of time that a parent should have physical custody of the child in a joint physical custody arrangement, the district court should calculate the time during which a party has physical custody of the child over one calendar year; and based on a 40-percent minimum, each parent must have physical custody of the child at least 146 days per year. NRS 125.490. 16. CHILD CUSTODY. A parent has primary physical custody when he or she has physical custody of the child subject to the district courts power to award the other parent visitation rights. 17. CHILD CUSTODY. The focus of primary physical custody is the childs residence, and the party with primary physical custody is the party that has the primary responsibility for maintaining a home for the child and providing for the childs basic needs. 18. CHILD CUSTODY. The determination of who has primary physical custody revolves around where the child resides. 19. CHILD CUSTODY. The supreme court will review the district courts decisions regarding custody, including visitation schedules, for an abuse of discretion. 20. CHILD CUSTODY. District courts have broad discretion in child custody matters, but substantial evidence must support the courts findings. 21. EVIDENCE. Substantial evidence is evidence that a reasonable person may accept as adequate to sustain a judgment. 22. CHILD CUSTODY. On former wifes motion to modify custody, trial court was required to use Nevadas definitions for joint physical custody and primary custody, regardless of how custody agreement had defined custody arrangement. 23. CHILD CUSTODY. The terms of the parties custody agreement will control, except when the parties move the court to modify the custody arrangement, and, in that

Aug. 2009]

Rivero v. Rivero

413

24. 25.

26.

27.

28.

29.

30.

31.

32.

33.

34.

case, the court must use the terms and definitions provided under Nevada law. NRS 125.510(2). CONTRACTS. Parties are free to contract, and the courts will enforce their contracts if they are not unconscionable, illegal, or in violation of public policy. CHILD CUSTODY. Once parties move the court to modify an existing child custody agreement, the court must use the terms and definitions provided under Nevada law, and the parties definitions of the terms in the agreement no longer control. CHILD CUSTODY. On former wifes motion to modify custody, trial court was required to make specific findings of fact in determining nature of custody arrangement parties had in effect, determine applicable standard governing motion based on existing custody arrangement, and then make findings of fact to support its ruling. NRS 125.510(2). CHILD SUPPORT. Modification of child support required proof of change in circumstances and finding that modification was in best interest of child, abrogating Scott v. Scott, 107 Nev. 837, 822 P.2d 654 (1991), and Parkinson v. Parkinson, 106 Nev. 481, 796 P.2d 229 (1990). NRS 125B.145(2)(b). CHILD SUPPORT. The requirement of changed circumstances in modification of child support cases prevents parties from filing immediate, repetitive, serial motions until the right circumstances or the right judge allows them to achieve a different result, based on essentially the same facts; therefore, a court cannot modify a child support order if the predicate facts upon which the court issued the order are substantially unchanged. NRS 125B.145(2)(b). CHILD SUPPORT. The district court has discretion to review a support order on a motion to modify based on changed circumstances but is not required to do so. NRS 125B.145. CHILD SUPPORT. Although the statutory provisions governing modification of child support indicate when the review of a support order is mandatory or discretionary, they do not require the court to modify the order upon the basis of these mandatory or discretionary reviews. NRS 125B.145(1)(b), (2)(b), (4). CHILD SUPPORT. The district court has authority to modify a child support order if there has been a factual or legal change in circumstances since it entered the order. NRS 125B.145. CHILD SUPPORT. In evaluating whether the factual circumstances have changed since the entry of a prior child support order, in order to justify modification of the order, the district court may consider facts that were previously unknown to the court or a party, even if the facts predate the support order at issue. NRS 125B.145. CHILD SUPPORT. Although a party need not show changed circumstances for the district court to review a support order after three years, changed circumstances are still required for the district court to modify the order. NRS 125B.145(1). CHILD SUPPORT. On a motion for child support in cases of primary physical custody by one parent, the court applies the statutory formulas for calculating support,

414

Rivero v. Rivero

[125 Nev.

35.

36.

37.

38.

39.

40.

41. 42.

43.

and the noncustodial parent pays the custodial parent support. NRS 125B.080(9). CHILD SUPPORT. The amount of time spent with the child, along with the other lesserweighted statutory child support factors, can serve as a basis for the district court to modify a support award, upon a showing by the secondary custodian that payment of the statutory formula amount would be unfair or unjust given his or her substantial contributions of a financial or equivalent nature to the support of the child. NRS 125B.080(9). CHILD SUPPORT. Child support in joint physical custody arrangements is calculated based on the parents gross incomes: each parent is obligated to pay a percentage of his or her income, according to the number of children, as determined by statute, the difference between the two support amounts is calculated, and the higher-income parent is obligated to pay the lower-income parent the difference. NRS 125B.070(1)(b). CHILD SUPPORT. The purposes of the Wright v. Osburn, 114 Nev. 1367, 970 P.2d 1071 (1998), formula for calculating child support are to adjust child support to equalize the childs standard of living between parents and to provide a formula for consistent decisions in similar cases. NRS 125B.070(1)(b). CHILD SUPPORT. Maintaining the lifestyle of the child between the parties households is the goal of the Wright v. Osburn, 114 Nev. 1367, 970 P.2d 1071 (1998), formula for calculating child support awards in cases of joint physical custody, and the financial circumstances of the parties remain the most important factors. NRS 125B.070(1)(b). CHILD SUPPORT. In a joint physical custody situation, if a party seeks a reduction in child support based on the amount of time spent with the child, the party must prove that payment of the full statutory amount of child support is unfair or unjust, given that partys substantial contributions to the childs support. NRS 125B.070(1)(b), 125B.080, 125B.145. CHILD SUPPORT. On former wifes motion for child support, trial court was required to make specific findings as to basis for not awarding child support and reasons for deviating from child support guidelines and what support would have been without deviation. NRS 125B.020, 125B.080(6). CHILD SUPPORT. The supreme court reviews the district courts decisions regarding child support for an abuse of discretion. CHILD SUPPORT. Even if the record reveals the district courts reasoning for the deviation from the statutory child support formula, the court must expressly set forth its findings of fact to support its decision. NRS 125B.080(6). JUDGES. Former wifes unsupported allegations that judge was biased against her because husband was attractive man and former wife was attractive woman, without more, did not state legally cognizable grounds for inference of bias, thus warranting summary dismissal of motion to disqualify judge from presiding over motion for modification of custody and child support. NRS 1.230(1).

Aug. 2009]

Rivero v. Rivero

415

44. APPEAL AND ERROR. The supreme court gives substantial weight to a judges decision not to recuse himself or herself and will not overturn such a decision absent a clear abuse of discretion. 45. JUDGES. A judge is presumed to be unbiased, and the burden is on the party asserting the challenge to establish sufficient factual grounds warranting disqualification. NRS 1.230(1). 46. JUDGES. To disqualify a judge based on personal bias, the moving party must allege bias that stems from an extrajudicial source and results in an opinion on the merits on some basis other than what the judge learned from his or her participation in the case. NRS 1.230(1). 47. JUDGES. Where the challenge fails to allege legally cognizable grounds supporting a reasonable inference of bias or prejudice, a court should summarily dismiss a motion to disqualify a judge. NRS 1.230(1). 48. CONTEMPT. Contempt preserves the authority of the court, punishes, enforces parties rights, and coerces. 49. COSTS. The district courts discretion to award attorney fees as a sanction for bringing a frivolous motion promotes the efficient administration of justice without undue delay and compensates a party for having to defend a frivolous motion. NRS 18.010(2)(b). 50. COSTS. Statute prohibiting trial court from punishing for contempt for filing motion to disqualify did not apply to prohibit trial court from awarding attorney fees to former husband for defending against wifes motion to disqualify judge who presided over her motions to modify custody and child support. NRS 1.230(4), 18.010(2)(b). 51. COSTS. Trial courts finding that former wifes motion to disqualify judge who presided over her motion for modification of child custody and child support was meritless was not sufficient basis for awarding husband attorney fees to defend motion as sanction; rather, in order to impose sanctions for filing frivolous motion, there must be evidence supporting finding that motion was unreasonable or brought to harass. NRS 18.010(2)(b); NRCP 11; EDCR 7.60(b). 52. APPEAL AND ERROR. The supreme court reviews the district courts award of attorney fees for an abuse of discretion. 53. COSTS. The district court may award attorney fees as a sanction if it concludes that a party brought a frivolous claim, and in considering whether to impose such a sanction, the district court must determine if there was any credible evidence or reasonable basis for the claim at the time of filing. NRS 18.010(2)(b); NRCP 11; EDCR 7.60(b). 54. COSTS. Although a district court has discretion to award attorney fees as a sanction for filing a frivolous claim, there must be evidence supporting the district courts finding that the claim or defense was unreasonable or brought to harass. NRS 1.230(4), 18.010(2)(b); EDCR 7.60(b).

416

Rivero v. Rivero

[125 Nev.

Before the Court EN BANC. OPINION By the Court, GIBBONS, J.: We previously issued an opinion in this case on October 30, 2008, affirming in part, reversing in part, and remanding. Respondent Elvis Riveros petition for rehearing followed. We then ordered answers to the petition from appellant Michelle Rivero and amicus curiae, the State Bar of Nevada Family Law Section. We will consider rehearing when we have overlooked or misapprehended material facts or questions of law or when we have overlooked, misapplied, or failed to consider legal authority directly controlling a dispositive issue in the appeal. NRAP 40(c)(2). Having considered the petition and answers thereto in light of this standard, we conclude that rehearing is not warranted. Therefore, we deny the petition for rehearing. Although we deny rehearing, we withdraw our October 30, 2008, opinion and issue this opinion in its place. Ms. Rivero and Mr. Rivero stipulated to a divorce decree that provided for joint physical custody of their minor child, with Ms. Rivero having the child five days each week and Mr. Rivero having the child two days each week. The decree awarded no child support. Less than two months after entry of the divorce decree, Ms. Rivero brought a motion to modify child support. The district court dismissed the motion. Less than one year later, Ms. Rivero brought a motion to modify child custody and support. The district court ordered that the decree would remain in force, with the parties having joint custody of their child and neither party receiving child support. The district court deferred ruling on the motion to modify custody and ordered the parties to mediation to devise a timeshare plan. Ms. Rivero then requested that the district court judge recuse herself. When the judge refused to recuse herself, Ms. Rivero moved to disqualify her. The Chief Judge of the Eighth Judicial District Court denied Ms. Riveros motion for disqualification, concluding that it lacked merit. The district court later awarded Mr. Rivero attorney fees for having to defend Ms. Riveros disqualification motion. At the court-ordered mediation, the parties were unable to reach a timeshare agreement. Following mediation, after a hearing, the district court modified the custody arrangement from a five-day, twoday split to an equal timeshare. Ms. Rivero appeals. We are asked to resolve several custody and support issues on appeal. Preliminarily, the parties dispute the definition of joint physical custody. Additionally, Ms. Rivero challenges the following district court rulings: (1) the courts determination that the parties had joint physical custody, (2) the courts modification of the custody arrangement, (3) the courts denial of her motion for child support,

Aug. 2009]

Rivero v. Rivero

417

(4) the district court judges refusal to recuse herself and the chief judges denial of Ms. Riveros motion for disqualification, and (5) the courts award of attorney fees to Mr. Rivero for defending against Ms. Riveros disqualification motion. Initially, to address the definition of joint physical custody, we define legal custody, including sole legal custody and joint legal custody. We then define physical custody, including joint physical custody and primary physical custody. In defining joint physical custody, we adopt a definition that focuses on minor children having frequent associations and a continuing relationship with both parents and parents sharing the rights and responsibilities of child rearing. Consistent with the recommendation of the Family Law Section, this joint physical custody definition requires that each party have physical custody of the child at least 40 percent of the time. We then address the district courts rulings.
[Headnote 1]

First, we address the district courts finding that the parties had a joint physical custody arrangement. In reaching our conclusion, we clarify that parties may enter into custody agreements and create their own custody terms and definitions. The courts may enforce such agreements as contracts. However, once the parties move the court to modify the custody agreement, the court must use the terms and definitions under Nevada law. In this case, the district court properly disregarded the parties definition of joint physical custody in the divorce decree and applied Nevada law in determining that an equal timeshare was appropriate. Although it reached the proper conclusion, the district court abused its discretion by failing to set forth specific findings of fact to support its determination. Second, we conclude that the district court abused its discretion by modifying the custody timeshare arrangement without making specific findings of fact that the modification was in the childs best interest. Third, we conclude that the district court abused its discretion by denying Ms. Riveros motion to modify child support without making any factual findings to justify its decision. We also clarify the circumstances under which a district court may modify a child support order. Under NRS Chapter 125B and our caselaw, a court has authority to modify a child support order upon a finding of a change in circumstances since the prior order. Also, in accordance with the Family Law Sections suggestion, we withdraw the Rivero formula for calculating child support. Fourth, we conclude that the district court judge properly refused to recuse herself, and the chief judge properly denied Ms. Riveros motion for disqualification. The record contains no evidence that the district court judge had personal bias against either of the parties. Fifth and finally, we conclude that the district court abused its discretion by awarding Mr. Rivero attorney fees as a sanction for Ms.

418

Rivero v. Rivero

[125 Nev.

Riveros disqualification motion because the district court made no determination whether the motion was frivolous, and no evidence supports the sanction. FACTS AND PROCEDURAL HISTORY Ms. Rivero filed a complaint for divorce, and the parties eventually reached a settlement. The district court entered a divorce decree incorporating the parties agreement. The parties agreed to joint physical custody of the child, with Ms. Rivero having physical custody five days each week and Mr. Rivero having physical custody for the remaining two days. The divorce decree also reflected the parties agreement that neither party was obligated to pay child support. Less than two months after entry of the divorce decree, Ms. Rivero moved the court to modify the decree by awarding her child support. The district court dismissed her motion. Less than one year later, Ms. Rivero moved the district court for primary physical custody and child support. She alleged that Mr. Rivero did not spend time with the child, that instead his elderly mother took care of the child, and that he did not have suitable living accommodations for the child. Ms. Rivero also argued that she had de facto primary custody because she cared for the child most of the time. Mr. Rivero countered that Ms. Rivero denied him visitation unless he provided food, clothes, and money and denied him overnight visitation once he became engaged to another woman. Mr. Rivero requested that the district court enforce the 5/2 timeshare in the divorce decree, or, alternatively, order a 50/50 timeshare. The district court held a custody hearing, during which the parties presented contradictory testimony regarding how much time Mr. Rivero actually spent with the child. The district court ruled that the matter did not warrant an evidentiary hearing. The district court further found that the use of the term joint physical custody in the divorce decree did not accurately reflect the timeshare arrangement that the parties were actually practicing, in which Ms. Rivero seemed to have physical custody most of the time. As a result, the court denied Ms. Riveros motion for child support, found that the parties had joint physical custody, and ordered the parties to mediation to establish a more equal timeshare plan to reflect a joint physical custody arrangement. After the mediation, but before the next district court hearing, Ms. Rivero served a subpoena on Mr. Riveros employer for his employment records. The district court granted Mr. Riveros motion to quash the subpoena, explaining that under the divorce decree, each party had joint physical custody, neither party owed child support, and the only pending issue was whether the parties could agree on a timeshare plan. Ms. Rivero then argued that the district court should reopen the child support issue and allow relevant discovery.

Aug. 2009]

Rivero v. Rivero

419

When the district court refused, Ms. Rivero requested that the district court judge recuse herself. The district court judge denied the request. Ms. Rivero then moved to disqualify the district court judge, alleging that the judge did not seriously consider the facts or the law because she was biased based on the parties physical appearance. Mr. Rivero opposed the motion and moved for attorney fees. The district court judge submitted an affidavit in which she swore that she was unbiased. After considering Ms. Riveros motion to disqualify the district court judge, the supporting affidavits, and Mr. Riveros opposition, the chief judge denied the motion. She did not conduct a hearing, and Ms. Rivero did not file a reply. The chief judge concluded that Ms. Riveros claims appeared to rely on prior adverse rulings of the judge and that [r]ulings and actions of a judge during the course of official judicial proceedings do not establish legally cognizable grounds for disqualification. Thus, the chief judge found that Ms. Riveros motion was without merit. At a subsequent hearing, the district court granted Mr. Riveros motion for attorney fees, noting that Ms. Riveros disqualification motion was without merit. During the same hearing, the district court also addressed the custody timeshare arrangement because the parties had been unable to reach an agreement in mediation. Although the divorce decree provided Ms. Rivero with custody five days each week and Mr. Rivero with custody two days each week, the district court concluded that the parties actually intended an equal timeshare. The district court noted that it was just trying to find a middle ground between what the divorce decree provided and what the parties actually wanted regarding a custody timeshare. Further, the court found that the decrees order for joint physical custody was inconsistent with the decrees timeshare arrangement because the decrees five-day, two-day timeshare did not constitute joint physical custody. In its order, the district court concluded that the parties intended joint physical custody and ordered an equal timeshare. The district court found that Ms. Rivero did not have de facto primary physical custody. Therefore, the court determined that an evidentiary hearing was unnecessary because it was not changing primary custody to joint custody, but was modifying a joint physical custody arrangement. Ms. Rivero appeals, challenging the district courts order denying her motion for child support, the order denying her motion to disqualify the district court judge, and the order modifying the custody timeshare and awarding Mr. Rivero attorney fees.1
1 Given the importance of the definition of joint physical custody, this court invited the Family Law Section of the Nevada State Bar (Family Law Section) to file an amicus curiae brief regarding the issue.

420

Rivero v. Rivero

[125 Nev.

DISCUSSION In order to clarify the definition of joint physical custody, we first address the definition of legal custody. Physical and legal custody involve separate legal rights and control separate factual scenarios. Therefore, we discuss both legal and physical custody to clarify the distinctions. After defining both joint physical custody and primary physical custody, we apply those definitions to the issues on appeal. These issues include the district courts custody modification and its denial of Ms. Riveros motion to modify child support. Finally, we address Ms. Riveros motions for recusal and disqualification, and the district courts award of attorney fees to Mr. Rivero arising from those motions. The Family Law Section requests that this court define all types of legal and physical custody to create a continuum in which it is clear where one type of custody ends and another begins. It argues that such definitions will provide much needed clarity and certainty in child custody law. Our discussion of child custody involves two distinct components of custody: legal custody and physical custody. The term custody is often used as a single legal concept, creating ambiguity. NRS 125.460, NRS 125.490 (using the term joint custody). To emphasize the distinctions between these two types of custody and to provide clarity, we separately define legal custody, including joint and sole legal custody, and then we define physical custody, including joint physical and primary physical custody. I. Legal custody
[Headnotes 2-4]

Legal custody involves having basic legal responsibility for a child and making major decisions regarding the child, including the childs health, education, and religious upbringing. Mack v. Ashlock, 112 Nev. 1062, 1067, 921 P.2d 1258, 1262 (1996) (SHEARING, J., concurring); Hearing on S.B. 188 Before the Senate Judiciary Comm., 61st Leg. (Nev., Feb. 12, 1981). Sole legal custody vests this right with one parent, while joint legal custody vests this right with both parents. Mack, 112 Nev. at 1067, 921 P.2d at 1262 (SHEARING, J., concurring); Cal. Fam. Code 3003, 3006 (West 2004)2 (defining sole and joint legal custody). Joint legal custody requires that the parents be able to cooperate, communicate, and compromise to act in the best interest of the child. See Mosley v. Figli2 The Nevada Legislature relied on California family law statutes in adopting NRS 125.460 and 125.490, regarding joint custody. Hearing on S.B. 188 Before the Senate Judiciary Comm., 61st Leg. (Nev., Feb. 12, 1981). Although out-ofstate law is not controlling, we look to it as instructive and persuasive. As always, even if this court relies on out-of-state law, Nevada law still controls in interpreting the decisions of this court.

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uzzi, 113 Nev. 51, 60-61, 930 P.2d 1110, 1116 (1997) (stating that if disagreement between parents affects the welfare of the child, it could defeat the presumption that joint custody is in the best interest of the child and warrant modifying a joint physical custody order); Hearing on S.B. 188 Before the Assembly Judiciary Comm., 61st Leg. (Nev., Apr. 2, 1981) (discussing that joint legal custody requires agreement between the parents). In a joint legal custody situation, the parents must consult with each other to make major decisions regarding the childs upbringing, while the parent with whom the child is residing at that time usually makes minor day-to-day decisions. See Mack, 112 Nev. at 1067, 921 P.2d at 1262 (SHEARING, J., concurring) (discussing that the parents can bring unresolved disputes before the court); Hearing on S.B. 188 Before the Senate Judiciary Comm., 61st Leg. (Nev., Feb. 12, 1981) (comments of Senator Wagner and Senator Ashworth) (discussing that both parents are involved with making major decisions regarding the children, and if they cannot agree, the courts will settle their disputes); Fenwick v. Fenwick, 114 S.W.3d 767, 777-78 (Ky. 2003) (explaining that in a joint legal custody arrangement, the parents confer on all major decisions, but the parent with whom the child is residing makes the minor day-to-day decisions), superseded by statute on other grounds as stated in Fowler v. Sowers, 151 S.W.3d 357, 359 (Ky. Ct. App. 2004), overruled on other grounds by Frances v. Frances, 266 S.W.3d 754, 756-57 (Ky. 2008), and Pennington v. Marcum, 266 S.W.3d 759, 768 (Ky. 2008).
[Headnote 5]

Joint legal custody can exist regardless of the physical custody arrangements of the parties. NRS 125.490(2); Mack, 112 Nev. at 1067, 921 P.2d at 1262 (SHEARING, J., concurring). Also, the parents need not have equal decision-making power in a joint legal custody situation. Fenwick, 114 S.W.3d at 776. For example, one parent may have decision-making authority regarding certain areas or activities of the childs life, such as education or healthcare. Id. If the parents in a joint legal custody situation reach an impasse and are unable to agree on a decision, then the parties may appear before the court on an equal footing to have the court decide what is in the best interest of the child. Mack, 112 Nev. at 1067, 921 P.2d at 1262 (SHEARING, J., concurring); Fenwick, 114 S.W.3d at 777 n.24. II. Physical custody
[Headnotes 6, 7]

Physical custody involves the time that a child physically spends in the care of a parent. During this time, the child resides with the parent and that parent provides supervision for the child and makes

422

Rivero v. Rivero

[125 Nev.

the day-to-day decisions regarding the child.3 Parents can share joint physical custody, or one parent may have primary physical custody while the other parent may have visitation rights. See Ellis v. Carucci, 123 Nev. 145, 147, 161 P.3d 239, 240 (2007) (describing the mother as having primary physical custody and the father as having liberal visitation); Barbagallo v. Barbagallo, 105 Nev. 546, 549, 779 P.2d 532, 534 (1989) (discussing primary and secondary custodians); Cal. Fam. Code 3004, 3007 (West 2004) (defining joint and sole physical custody).
[Headnotes 8, 9]

The type of physical custody arrangement is particularly important in three situations. First, it determines the standard for modifying physical custody.4 Second, it requires a specific procedure if a parent wants to move out of state with the child. Potter v. Potter, 121 Nev. 613, 618, 119 P.3d 1246, 1249 (2005). Third, the type of physical custody arrangement affects the child support award. Barbagallo, 105 Nev. at 549, 779 P.2d at 534. Because the physical custody arrangement is crucial in making these determinations, the district courts need clear custody definitions in order to evaluate the true nature of parties agreements. Absent direction from the Legislature, we define joint physical custody and primary physical custody in light of existing Nevada law. A. Joint physical custody Ms. Rivero and the Family Law Section assert that this court should clarify the definition of joint physical custody to determine whether it requires a specific timeshare agreement. The Family Law Section suggests that we define joint physical custody by requiring
3 See Idaho Code Ann. 32-717B(2) (2006) (discussing joint physical custody regarding the time in which a child resides with or is under the care and supervision of the parties); Iowa Code Ann. 598.1(4) (West 2001) (discussing joint physical custody as involving shared parenting time, maintaining a home for the child, and physical care rights); Taylor v. Taylor, 508 A.2d 964, 967 (Md. 1986) (defining physical custody as involving providing a home and making day-to-day decisions regarding the child); Mass. Ann. Laws ch. 208, 31 (LexisNexis 2003) (describing shared physical custody as involving the child residing with and being under the supervision of each parent); Mo. Ann. Stat. 452.375(1)(3) (West 2003) (discussing residence and supervision in the context of joint legal custody); 23 Pa. Cons. Stat. Ann. 5302 (West 2001) (defining physical custody as [t]he actual physical possession and control of a child). 4 The court may modify joint physical custody if it is in the best interest of the child. NRS 125.510(2); Potter v. Potter, 121 Nev. 613, 618, 119 P.3d 1246, 1249 (2005). However, to modify a primary physical custody arrangement, the court must find that it is in the best interest of the child and that there has been a substantial change in circumstances affecting the welfare of the child. Ellis, 123 Nev. at 150, 161 P.3d at 242.

Aug. 2009]

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that each parent have physical custody of the child at least 40 percent of the time. In accordance with this suggestion, and for the reasons set forth below, we clarify Nevadas definition of joint physical custody pursuant to Nevada statutes and caselaw and create parameters to clarify which timeshare arrangements qualify as joint physical custody. Although Nevada law suggests that joint physical custody approximates an equal timeshare, to date, neither the Nevada Legislature nor this court have explicitly defined joint physical custody or specified whether a specific timeshare is required for a joint physical custody arrangement. See Potter, 121 Nev. at 619 n.16, 119 P.3d at 1250 n.16 (declining to address the issue of whether joint physical custody requires a particular timeshare); Barbagallo, 105 Nev. at 548, 779 P.2d at 534 (noting that, in 1987, when it enacted the child support formula, the Legislature declined to define primary physical custody according to a particular timeshare). In fact, even the terminology is inconsistent. This court has used the following phrases to describe situations where both parents have physical custody: shared custodial arrangements, joint physical custody, equal physical custody, shared physical custody, and joint and shared custody. See Wesley v. Foster, 119 Nev. 110, 113, 65 P.3d 251, 253 (2003) (discussing shared custodial arrangements); Wright v. Osburn, 114 Nev. 1367, 1368, 970 P.2d 1071, 1072 (1998) (using the terms joint physical custody, equal physical custody, and shared physical custody); Barbagallo, 105 Nev. at 547-48, 779 P.2d at 533-34 (utilizing the terms joint or shared custody). Given the various terms used to describe joint physical custody and the lack of a precise definition and timeshare requirement, we now define joint physical custody and the timeshare required for such arrangements. 1. Defining joint physical custody In determining custody of a minor child . . . the sole consideration of the court is the best interest of the child. NRS 125.480(1). The Legislature created a presumption that joint legal and joint physical custody are in the best interest of the child if the parents so agree. NRS 125.490(1). The policy of Nevada is to advance the childs best interest by ensuring that after divorce minor children have frequent associations and a continuing relationship with both parents . . . and [t]o encourage such parents to share the rights and responsibilities of child rearing. NRS 125.460. To further this policy, the Legislature adopted the statutes that now comprise NRS Chapter 125 to educate and encourage parents regarding joint custody arrangements, encourage parents to cooperate and work out a custody arrangement before going to court to finalize the divorce, ensure the healthiest psychological arrangement for children, and minimize the adversarial, winner-take-all approach to custody dis-

424

Rivero v. Rivero

[125 Nev.

putes. Mosley, 113 Nev. at 63-64, 930 P.2d at 1118; Hearing on S.B. 188 Before the Senate Judiciary Comm., 61st Leg. (Nev., Feb. 12, 1981) (Senator Wagners comments) (discussing parents reaching an agreement before coming to court); Hearing on S.B. 188 Before the Assembly Judiciary Comm., 61st Leg. (Nev., Apr. 2, 1981) (summary of supporting information) (enumerating flaws in the old statute). Although NRS Chapter 125 does not contain a definition of joint physical custody, the legislative history regarding NRS 125.490 reveals the Legislatures understanding of its meaning. Joint physical custody is [a]warding custody of the minor child or children to BOTH PARENTS and providing that physical custody shall be shared by the parents in such a way to ensure the child or children of frequent associations and a continuing relationship with both parents.5 Hearing on S.B. 188 Before the Assembly Judiciary Comm., 61st Leg. (Nev., Apr. 2, 1981) (summary of supporting information). This does not include divided or alternating custody, where each parent acts as a sole custodial parent at different times, or split custody, where one parent is awarded sole custody of one or more of the children and the other parent is awarded sole custody of one or more of the children. Id. 2. The timeshare required for joint physical custody
[Headnotes 10, 11]

The question then remains, what constitutes joint physical custody to ensure the child frequent associations and a continuing relationship with both parents? Our law presumes that joint physical custody approximates a 50/50 timeshare. See Wesley, 119 Nev. at 112-13, 65 P.3d at 252-53 (discussing shared custody arrangements and equal timeshare); Wright, 114 Nev. at 1368, 970 P.2d at 1071-72 (discussing joint physical custody and equal timeshare). This court has noted that the public policy, as stated in NRS 125.490, is that joint custody is presumably in the best interest of the child if the parents agree to it and that this policy encourages equally shared parental responsibilities. Mosley, 113 Nev. at 60-61 & n.4, 930 P.2d at 1116 & n.4.
[Headnote 12]

Although joint physical custody must approximate an equal timeshare, given the variations inherent in child rearing, such as school
5 Other states define joint physical custody similarly, focusing on the childs continuing contact and relationship with both parents. Cal. Fam. Code 3004 (West 2004); Haw. Rev. Stat. 571-46.1 (2006); Idaho Code Ann. 32717B(2) (2006); Mass. Ann. Laws ch. 208, 31 (LexisNexis 2003); Miss. Code Ann. 93-5-24(5)(c) (2004); Mo. Ann. Stat. 452.375(1)(3) (West 2003); 23 Pa. Cons. Stat. Ann. 5302 (West 2001); Mamolen v. Mamolen, 788 A.2d 795, 799 (N.J. Super. Ct. App. Div. 2002).

Aug. 2009]

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schedules, sports, vacations, and parents work schedules, to name a few, an exactly equal timeshare is not always possible. Therefore, there must be some flexibility in the timeshare requirement. The question then becomes, when does a timeshare become so unequal that it is no longer joint physical custody? Courts have grappled with this question and come to different conclusions. For example, this court has described a situation where the children live with one parent and the other parent has every-other-weekend visitation as primary physical custody with visitation, even when primary custody was changed for one month out of the year and the other parent would revert back to weekend visitations. Metz v. Metz, 120 Nev. 786, 788-89, 101 P.3d 779, 781 (2004). In Wright, 114 Nev. at 1368, 970 P.2d at 1071, this court described an arrangement where the parents had the children on a rotating weekly basis as joint physical custody. Similarly, the California Court of Appeal has held that [physical] custody one day per week and alternate weekends constitutes liberal visitation, not joint [physical] custody. People v. Mehaisin, 124 Cal. Rptr. 2d 683, 687 (Ct. App. 2002). Likewise, when the mother has temporary custody and the father has visitation for a one-month period, the parties do not have joint physical custody. Id. at 685, 687. Rather, the father has a period of visitation, and the mother has sole physical custody thereafter. Id. at 687. Just as Nevada has defined joint physical custody as requiring an equal timeshare, the California Court of Appeal noted that joint physical custody includes situations in which the children split their time living with each parent and spend nearly equal time with each parent. Id. Some jurisdictions have adopted bright-line rules regarding the timeshare requirements for joint physical custody so that anything too far removed from a 50/50 timeshare cannot be considered joint physical custody.6
[Headnotes 13, 14]

We conclude that, consistent with legislative intent and our caselaw, in joint physical custody arrangements, the timeshare must be approximately 50/50. However, absent legislative direction regarding how far removed from 50/50 a timeshare may be and still constitute joint physical custody, the law remains unclear. Therefore, to approximate an equal timeshare but allow for necessary flexibility, we hold that each parent must have physical custody of the child
6 See, e.g., Okla. Stat. Ann. tit. 43, 118(10) (West 2001) (requiring each parent to have physical custody for more than 120 nights each year for shared physical custody); Tenn. Code Ann. 36-6-402(4) (2005) (defining primary residential parent as the parent with whom the child resides more than 50 percent (50%) of the time); Miller v. Miller, 568 S.E.2d 914, 918 (N.C. Ct. App. 2002) (explaining that joint physical custody requires that each parent have custody for at least one-third of the year).

426

Rivero v. Rivero

[125 Nev.

at least 40 percent of the time to constitute joint physical custody. We acknowledge that the Legislature is free to alter the timeshare required for joint physical custody, but we adopt this guideline to provide needed clarity for the district courts. This guideline ensures frequent associations and a continuing relationship with both parents. If a parent does not have physical custody of the child at least 40 percent of the time, then the arrangement is one of primary physical custody with visitation. We now address how the courts should calculate the 40-percent timeshare. We note that our dissenting colleagues reliance on Barbagallo v. Barbagallo, 105 Nev. 546, 779 P.2d 534 (1989), for the proposition that this court should not adopt the 40-percent timeshare requirement, is misplaced. In Barbagallo, this court noted that the Legislature had considered adopting specific timeshare requirements for determining which parent would pay child support in a joint physical custody arrangement but declined to do so. Id. at 548, 779 P.2d at 534. Thus, Barbagallo was declining to mathematically define child custody for the purpose of creating new child support calculations. Notably, this opinion does not alter or adopt any child support formulas, but rather reaffirms the child support calculations in Barbagallo, 105 Nev. 546, 779 P.2d 534, and Wright, 114 Nev. 1367, 970 P.2d 1071, which were in effect before this case. Prior to this opinion, Barbagallo, 105 Nev. at 549, 779 P.2d at 534-35, established how to calculate child support when one parent has primary physical custody, and Wright, 114 Nev. at 1368-69, 970 P.2d at 1072, established the calculation when the parents share joint physical custody. This opinion clarifies what arrangements constitute primary and joint physical custody so that parties, attorneys, and district courts readily know which child support calculation to apply. Thus, this opinion does not adopt new custody definitions for the purpose of formulating new child support calculations. Rather, it is based on this courts precedent and clarifies custody definitions so that courts can fairly and consistently apply the Barbagallo and Wright formulas that predated this opinion. Our dissenting colleague also argues that the Legislature should be creating the custody definitions set out in this opinion. The issues in this case and the Family Law Sections amicus curiae brief demonstrate that there are gaps in the law. However, despite these gaps, attorneys must still advise their clients, public policy still favors settlement, and parties are still entitled to consistent and fair resolution of their disputes. To resolve the issues on appeal and ensure consistent and fair application of the law by district courts, this court has attempted to fill some of these gaps by defining the various types of child custody. This court has previously created predictability for litigants to fill such a gap in the law in Malmquist v. Malmquist, 106 Nev. 231, 792

Aug. 2009]

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P.2d 372 (1990). In Malmquist, this court adopted a standard formula for district courts to apply to apportion the community and separate property shares in the appreciation of a separate property residence obtained with a separate property loan prior to marriage. Id. at 238, 792 P.2d at 376. This court noted that although the district courts can make equitable determinations in individual cases, the aggregate result becomes unfair when similarly situated persons receive disparate returns on their home investments. Id. The same reasoning applies here. District courts can use their discretion to make fair determinations in individual child custody cases. However, this becomes unfair when different parties similarly situated obtain different results. Such unreliable outcomes also make it difficult for attorneys to advise their clients and for parties to settle their disputes. Therefore, the timeshare requirement that this opinion establishes is both necessary to ensure consistent and fair application of the law and proper under this courts precedent. 3. Calculating the timeshare
[Headnote 15]

The district court should calculate the time during which a party has physical custody of a child over one calendar year. Each parent must have physical custody of the child at least 40 percent of the time, which is 146 days per year. Calculating the timeshare over a one-year period allows the court to consider weekly arrangements as well as any deviations from those arrangements such as emergencies, holidays, and summer vacation. In calculating the time during which a party has physical custody of the child, the district court should look at the number of days during which a party provided supervision of the child, the child resided with the party, and during which the party made the day-to-day decisions regarding the child. The district court should not focus on, for example, the exact number of hours the child was in the care of the parent, whether the child was sleeping, or whether the child was in the care of a third-party caregiver or spent time with a friend or relative during the period of time in question. Therefore, absent evidence that joint physical custody is not in the best interest of the child, if each parent has physical custody of the child at least 40 percent of the time, then the arrangement is one of joint physical custody. B. Defining primary physical custody
[Headnotes 16-18]

We now discuss primary physical custody to contrast it with joint physical custody and to clarify its definition. A parent has primary physical custody when he or she has physical custody of the child subject to the district courts power to award the other parent visi-

428

Rivero v. Rivero

[125 Nev.

tation rights. See, e.g., Ellis, 123 Nev. at 147, 161 P.3d at 240. The focus of primary physical custody is the childs residence. The party with primary physical custody is the party that has the primary responsibility for maintaining a home for the child and providing for the childs basic needs. See Barbagallo, 105 Nev. at 549, 779 P.2d at 534 (discussing primary custodians and custodial parents in the context of child support); see Tenn. Code Ann. 36-6-402(4) (2005) (defining primary residential parent as the parent with whom the child resides for more than 50 percent of the time). This focus on residency is consistent with NRS 125C.010, which requires that a court, when ordering visitation, specify the habitual residence of the child. Thus, the determination of who has primary physical custody revolves around where the child resides. Primary physical custody arrangements may encompass a wide array of circumstances. As discussed above, if a parent has physical custody less than 40 percent of the time, then that parent has visitation rights and the other parent has primary physical custody. Likewise, a primary physical custody arrangement could also encompass a situation where one party has primary physical custody and the other party has limited or no visitation. See Metz, 120 Nev. at 78889, 101 P.3d at 781 (describing a primary physical custody situation where the nonprimary physical custodian had visitation every other weekend). III. Custody modification Having determined what constitutes joint physical custody and primary physical custody, we now consider whether the district court abused its discretion in determining that the parties had joint physical custody when their divorce decree described a 5/2 custodial timeshare but labeled the arrangement as joint physical custody.
[Headnotes 19-21]

This court reviews the district courts decisions regarding custody, including visitation schedules, for an abuse of discretion. Wallace v. Wallace, 112 Nev. 1015, 1019, 922 P.2d 541, 543 (1996). District courts have broad discretion in child custody matters, but substantial evidence must support the courts findings. Ellis, 123 Nev. at 149, 161 P.3d at 241-42. Substantial evidence is evidence that a reasonable person may accept as adequate to sustain a judgment. Id. at 149, 161 P.3d at 242. Ms. Rivero contends that the district court abused its discretion by construing the term joint physical custody in the divorce decree to mean an equal timeshare, when the parties defined joint physical custody in the divorce decree as a 5/2 timeshare. She also argues that the district court abused its discretion in finding that she and

Aug. 2009]

Rivero v. Rivero

429

Mr. Rivero had joint physical custody of their child because she asserts that she had de facto primary physical custody of the child. We conclude that the district court properly disregarded the parties definition of joint physical custody because the district court must apply Nevadas physical custody definitionnot the parties definition. We also conclude that the district court abused its discretion by not making specific findings of fact to support its decision that the custody arrangement constituted joint physical custody and that modification of the divorce decree was in the best interest of the child. A. Custody agreements
[Headnotes 22, 23]

We now address the modification of custody agreements. We conclude that the terms of the parties custody agreement will control except when the parties move the court to modify the custody arrangement. In custody modification cases, the court must use the terms and definitions provided under Nevada law.7
[Headnotes 24, 25]

Parties are free to contract, and the courts will enforce their contracts if they are not unconscionable, illegal, or in violation of public policy. See D.R. Horton, Inc. v. Green, 120 Nev. 549, 558, 96 P.3d 1159, 1165 (2004) (citing unconscionablility as a limitation on enforceability of a contract); NAD, Inc. v. Dist. Ct., 115 Nev. 71, 77, 976 P.2d 994, 997 (1999) (stating parties are free to contract in any lawful matter); Miller v. A & R Joint Venture, 97 Nev. 580, 582, 636 P.2d 277, 278 (1981) (discussing public policy as a limitation on enforceability of a contract). Therefore, parties are free to agree to child custody arrangements and those agreements are enforceable if they are not unconscionable, illegal, or in violation of public policy. However, when modifying child custody, the district courts must apply Nevada child custody law, including NRS Chapter 125C and caselaw. NRS 125.510(2) (discussing modification of a joint physical custody order); Ellis, 123 Nev. at 150, 161 P.3d at 242 (discussing modification of a primary physical custody order). Therefore, once parties move the court to modify an existing child custody agreement, the court must use the terms and definitions provided under Nevada law, and the parties definitions no longer control. In this case, Ms. Rivero moved the district court to modify the decree. Therefore, the district court properly disregarded the parties definition of joint physical custody.
7 Ms. Rivero also challenges the district courts decision not to hold an evidentiary hearing regarding child custody. Because we reverse and remand on the custody issue on other grounds, we do not reach this argument.

430

Rivero v. Rivero

[125 Nev.

B. The district courts determination that the parties custody arrangement was joint physical custody and its modification of the custody arrangement
[Headnote 26]

When considering whether to modify a physical custody agreement, the district court must first determine what type of physical custody arrangement exists because different tests apply depending on the district courts determination. A modification to a joint physical custody arrangement is appropriate if it is in the childs best interest. NRS 125.510(2). In contrast, a modification to a primary physical custody arrangement is appropriate when there is a substantial change in the circumstances affecting the child and the modification serves the childs best interest. Ellis, 123 Nev. at 150, 161 P.3d at 242. Under the definition of joint physical custody discussed above, each parent must have physical custody of the child at least 40 percent of the time. This would be approximately three days each week. Therefore, the district court properly found that the 5/2 timeshare included in the parties divorce decree does not constitute joint physical custody. The district court must then look at the actual physical custody timeshare that the parties were exercising to determine what custody arrangement is in effect. The district court summarily determined that Mr. and Ms. Rivero shared custody on approximately an equal time basis. Based on this finding, the district court determined that it was modifying a joint physical custody arrangement, and therefore, Ms. Rivero, as the moving party, had the burden to show that modifying the custody arrangement was in the childs best interest. NRS 125.510(2); Truax v. Truax, 110 Nev. 437, 438-39, 874 P.2d 10, 11 (1994). However, the district court did not make findings of fact supported by substantial evidence to support its determination that the custody arrangement was, in fact, joint physical custody. Ellis, 123 Nev. at 149, 161 P.3d at 241-42. Therefore, this decision was an abuse of discretion. Moreover, the district court abused its discretion by modifying the custody agreement to reflect a 50/50 timeshare without making specific findings of fact demonstrating that the modification was in the best interest of the child. Specific factual findings are crucial to enforce or modify a custody order and for appellate review. Accordingly, on remand, the district court must evaluate the true nature of the custodial arrangement, pursuant to the definition of joint physical custody described above, by evaluating the arrangement the parties are exercising in practice, regardless of any contrary language in the divorce decree. The district court shall then apply the appropriate test for determining whether to modify the custody arrangement and make express findings supporting its determination.

Aug. 2009]

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IV. Child support Ms. Rivero argues that the district court erred in denying her motion for child support by not reviewing the parties affidavits of financial condition and noting the discrepancies in the parties incomes.8 We conclude that the district court abused its discretion in denying Ms. Riveros motion for child support because it did not make specific findings of fact supported by substantial evidence. In reaching our conclusion, we first address the circumstances under which the district court may modify a child support order and discuss the calculation of child support in primary physical custody and joint physical custody arrangements. A. Modifying a child support order An ambiguity has arisen in our caselaw regarding when the district court has the authority to modify a child support order. Therefore, we take this opportunity to clarify that the district court only has authority to modify a child support order upon finding that there has been a change in circumstances since the entry of the order and the modification is in the best interest of the child. In so doing, we look to NRS Chapter 125B and our caselaw. 1. Modification of a child support order requires a change in circumstances
[Headnotes 27, 28]

As with custody cases, the requirement of changed circumstances in child support cases prevents parties [from filing] immediate, repetitive, serial motions until the right circumstances or the right judge allows them to achieve a different result, based on essentially the same facts. Ellis, 123 Nev. at 151, 161 P.3d at 243 (internal quotations omitted). Therefore, a court cannot modify a child support order if the predicate facts upon which the court issued the order are substantially unchanged. Mosley v. Figliuzzi, 113 Nev. 51, 58-59, 930 P.2d 1110, 1114-15 (1997) (discussing custody orders). Also, the modification must be in the best interest of the child. NRS 125B.145(2)(b).
[Headnotes 29, 30]

The Legislature has specified when a court will review a child support order. A court must review a support order, if requested by a party or legal guardian, every three years. NRS 125B.145(1)(b). The court may also review a support order upon a showing of changed circumstances. NRS 125B.145. Because the term may is discretionary, the district court has discretion to review a support
8 Ms. Rivero also challenges the district courts denial of her discovery of Mr. Riveros employment records for purposes of calculating child support. Because we reverse and remand on the support issue on other grounds, we do not reach this argument.

432

Rivero v. Rivero

[125 Nev.

order based on changed circumstances but is not required to do so. Fourchier v. McNeil Const. Co., 68 Nev. 109, 122, 227 P.2d 429, 435 (1951). However, a change of 20 percent or more in the obligor parents gross monthly income requires the court to review the support order. NRS 125B.145(4). Although these provisions indicate when the review of a support order is mandatory or discretionary, they do not require the court to modify the order upon the basis of these mandatory or discretionary reviews.
[Headnotes 31, 32]

The district court has authority to modify a support order if there has been a factual or legal change in circumstances since it entered the order. Since its enactment of the statutes that today comprise NRS Chapter 125B, the Legislature has allowed modification of child support orders upon changed circumstances. 1987 Nev. Stat., ch. 813, 3, at 2267. Nevada law also requires the district court, when adjusting the child support amount, to consider the factors in NRS 125B.070 and NRS 125B.080(9). 1987 Nev. Stat., ch. 813, 3, at 2268. We have specified that even equitable adjustments to support awards must be based on the NRS 125B.080(9) factors. Khaldy v. Khaldy, 111 Nev. 374, 376-77, 892 P.2d 584, 585 (1995). Therefore, when considering a modification motion, the district court will always consider the same factual circumstancesthose specified in NRS 125B.070 and 125B.080(9). In evaluating whether the factual circumstances have changed, the district court may consider facts that were previously unknown to the court or a party, even if the facts predate the support order at issue. See Castle v. Simmons, 120 Nev. 98, 103-06, 86 P.3d 1042, 104648 (2004) (holding that a parent may present evidence of child abuse that occurred before the entry of the last child custody order because of the presumption that physical custody with an abusive parent is not in the best interest of the child). Thus, modification is not warranted unless a change has occurred regarding the factual considerations under NRS 125B.070 or 125B.080(9). See Mosley, 113 Nev. at 58, 930 P.2d at 1114 (requiring a substantial change in circumstances to modify a joint custody order). The Legislature has specified other scenarios under which a court may modify a support order. These scenarios are examples of changes in circumstances that warrant modification of a support order. For example, inaccurate or falsified financial information that results in an inappropriate support award is a ground for modification of the award. NRS 125B.080(2). After a child support order has been entered, any subsequent modification must be based on changed circumstances except (1) pursuant to a three-year review under NRS 125B.145(1), (2) pursuant to mandatory annual adjustments of the statutory maximums under NRS 125B.070(3), or (3) pursuant to adjustments by the Division of Welfare and Supportive Services under NRS 425.450. NRS 125B.080(3).

Aug. 2009]
[Headnote 33]

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Under NRS 125B.145(1), the district court must review the support order if three years have passed since its entry. The district court must then consider the best interests of the child and determine whether it is appropriate to modify the order. NRS 125B.145(2)(b). Modification is appropriate if there has been a factual or legal change in circumstances since the district court entered the support order. Upon a finding of such a change, the district court can then modify the order consistent with NRS 125B.070 and 125B.080. Id. Therefore, although a party need not show changed circumstances for the district court to review a support order after three years, changed circumstances are still required for the district court to modify the order. Each of these three situations, which the Legislature has specified as warranting modification of a support order, is grounded in a change in a partys factual circumstances. NRS 125B.145(4) expressly states that the district court may review a child support order at any time on the basis of changed circumstances. Specifically, the new child support order must be supported by factual findings that a change in support is in the childs best interest and the modification or adjustment of the award must comply with the requirements of NRS 125B.070 and NRS 125B.080. See NRS 125B.145(2)(b). Moreover, under NRS 125B.080(9), the court is mandated to consider 12 different factors when considering whether to adjust a child support award, thereby requiring the moving party to show a change in factual circumstances that may justify a modification or adjustment to an existing child support order. 2. Scott v. Scott Ms. Rivero cites to Scott v. Scott, 107 Nev. 837, 840, 822 P.2d 654, 656 (1991), for the proposition that a court can modify a child support order according to the statutory formula without a finding of changed circumstances. In Scott, this court stated that [a] child support award can be modified in accordance with the statutory formula, regardless of a finding of changed circumstances. 107 Nev. at 840, 822 P.2d at 656 (relying on Parkinson v. Parkinson, 106 Nev. 481, 483 & n.1, 796 P.2d 229, 231 & n.1 (1990)). As shown above, a change in circumstances is required to modify an existing child support order. Thus, the statement made in Scott, that changed circumstances is not required, is incorrect. Therefore, to the extent that Scott conflicts with this clarification, we disaffirm that case on that point for two reasons. First, Scotts holding was based on changed factual circumstances. In Scott, the custodial parent moved the district court for modification of the child support order in accordance with NRS 125B.070, seeking the statutory maximum of the noncustodial parents gross monthly income, including any overtime pay. 107 Nev. at 839, 822

434

Rivero v. Rivero

[125 Nev.

P.2d at 655. Six months later, the district court modified the child support order, finding that the custodial parents loss of a roommate constituted a substantial change of circumstances. Id. The district court, however, deviated down from the statutory maximum based on the fact that the noncustodial parent had remarried and was responsible for two additional children. Id. at 840, 822 P.2d at 656. The noncustodial parent appealed on the basis that there was not a substantial change of circumstances justifying modification of the child support award. Id. at 840, 822 P.2d at 656. Without explaining that a custodial parent has the right to obtain child support in accordance with the statutory formula, as noted in footnote 1 in Parkinson, 106 Nev. at 483, 796 P.2d at 231, the Scott court expanded this rule to suggest that any child support award can be modified regardless of a change in circumstances. 107 Nev. at 840, 822 P.2d at 656. The Scott court, however, went on to consider whether the district court abused its discretion when it deviated from the statutory formula when it considered several factors enumerated in NRS 125B.080(9) to reduce the noncustodial parents support obligation. Id. at 840-41, 822 P.2d at 656. The Scott court concluded that the district court did not abuse its discretion, but the rationale is unclear. Id. It is unclear whether the Scott court determined that the district court properly found a change in circumstances or properly determined child support under NRS 125B.070 and NRS 125B.080(9). However, regardless of the rationale, to the extent that Scott suggests that changed circumstances are not necessary to modify a support order, it misstates the law. Second, in relying on Parkinson, the Scott court erroneously expanded the comment made in footnote 1 in Parkinson, 106 Nev. at 483 & n.1, 796 P.2d at 231 & n.1. In that footnote, the Parkinson court mischaracterized the holding in Perri v. Gubler, 105 Nev. 687, 782 P.2d 1312 (1989). Parkinson, 106 Nev. at 483 & n.1, 796 P.2d at 231 & n.1. In Perri, the father had custody of the children and the parties agreed that the mother would not pay child support to the father. 105 Nev. at 688, 782 P.2d 1313. Upon the fathers motion, the district court modified the decree to require the mother to pay child support to the father. Id. The Perri court reversed, concluding that because the father provided inaccurate financial information to the district court, the district court would be unable to find that the fathers circumstances had changed to warrant a modification of the support order. Id. This courts decision was correct under Nevada caselaw and under the newly amended NRS 125B.080(3), requiring changed circumstances to modify a support order when the parties did not stipulate to the support. 1989 Nev. Stat., ch. 405, 14, at 859; see Harris v. Harris, 95 Nev. 214, 216 & n.2, 591 P.2d 1147, 1148 & n.2 (1979) (interpreting former NRS 125.140(2) as allowing courts to modify child custody and support awards to accommodate changes in circumstances after entry of the order). Although the

Aug. 2009]

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Perri court did not cite to NRS 125B.080(3), it properly reasoned that because the father had provided inaccurate financial information, he had not adequately proven any changed circumstances warranting modification of the support decree. Perri, 105 Nev. at 688, 782 P.2d at 1313. However, the Parkinson court disavowed Perri insofar as it required a showing of changed circumstances to modify a support order. Parkinson, 106 Nev. at 483 & n.1, 796 P.2d at 231 & n.1. The Parkinson court cited to NRS 125B.080(1)(b) and (3) to support this proposition. Id. We conclude that the Parkinson court misread NRS 125B.080(1)(b) and (3). At the time of the Parkinson decision, as it does now, NRS 125B.080(1)(b) required courts to apply the statutory formula regarding any motion to modify child support filed after July 1, 1987. 1989 Nev. Stat., ch. 405, 14, at 859. NRS 125B.080(3) stated that once a court had established a support order pursuant to the statutory formula, any subsequent modification of that support must be based upon changed circumstances. 1989 Nev. Stat., ch. 405, 14, at 859. The plain language of the statute at the time required changed circumstances to modify an existing support order that was properly ordered pursuant to the statutory formula. Thus, we now disaffirm the footnote in Parkinson, 106 Nev. at 483 & n.1, 796 P.2d at 231 & n.1, which states a party may seek modification of a support order without changed circumstances. Accordingly, Scotts reliance on this proposition is also erroneous. 107 Nev. at 840, 822 P.2d at 656. In conclusion, we retreat from Parkinson and Scott to the extent that they may be read to allow a court to modify an existing child support order without a change in circumstances since the court issued the order. Having clarified the circumstances under which a district court may modify a child support order, we note that this case is an example of the immediate and repetitive motions that can plague the district court, even after the parties have stipulated to child support. Less than two months after the district court entered the parties divorce decree, in which they agreed that neither party would receive child support, Ms. Rivero moved the court for child support. Then she did so again, 11 months later. Such constant relitigation of a court order, especially one to which the parties stipulate, is pointless absent a change in the circumstances underlying the initial order. B. Calculating child support The Family Law Section suggests that we reformulate the Rivero child support formula set forth in our prior opinion in this case. It notes that the formula assumes a parent contributes to the financial support of the child by merely spending time with the child and shifts the focus of custody disputes to child support rather than the best interest of the child. Consistent with these points, we withdraw

436

Rivero v. Rivero

[125 Nev.

the Rivero formula and reaffirm the statutory formulas and the formulas under Barbagallo and Wright. Because joint physical custody requires a near-equal timeshare, we conclude it is unnecessary to utilize a third formula for cases of joint physical custody with an unequal timeshare. 1. Calculating child support in cases of primary physical custody
[Headnote 34]

In cases where one party has primary physical custody and the other has visitation rights, Barbagallo v. Barbagallo, 105 Nev. 546, 779 P.2d 532 (1989), controls. Under these circumstances, the court applies the statutory formulas and the noncustodial parent pays the custodial parent support. Id. at 548, 779 P.2d at 534. The court may use the factors under NRS 125B.080(9) to deviate from the formulas. The Barbagallo court cited standard of living and circumstances of the parents and the earning capacity of the parents as the most important of these factors.9 Id. at 551, 779 P.2d at 536. Under the current version of NRS 125B.080, this focus on the financial circumstances of the parties is reflected in several factors, including: the relative income of both parents, the cost of health care and child care, [a]ny public assistance paid to support the child, expenses related to the mothers pregnancy and confinement, visitation transportation costs in some circumstances, and [a]ny other necessary expenses for the benefit of the child. NRS 125B.080(9). All the other statutory factors, such as the amount of time a parent spends with a child, are of lesser weight. Barbagallo, 105 Nev. at 551, 779 P.2d at 536.
[Headnote 35]

We have noted that joint physical custody increases the total cost of raising the child. Id. at 549-50, 779 P.2d at 535. As the Family Law Section notes, the amount of time that a parent spends with a child might, but does not necessarily, reduce the cost of raising the child to the custodial parent. Id. The amount of time spent with the child, along with the other lesser-weighted factors in NRS 125B.080(9), can serve as a basis for the district court to modify a support award, upon a showing by the secondary custodian that payment of the statutory formula amount would be unfair or unjust given his or her substantial contributions of a financial or equivalent nature to the support of the child. Id. at 552, 779 P.2d at 536. This approach re9 While the Barbagallo court cited to the NRS 125B.080(8) factors, NRS 125B.080 has since been renumbered such that these factors are now located in NRS 125B.080(9). 1989 Nev. Stat., ch. 405, 14, at 860.

Aug. 2009]

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mains unchanged by the adoption of the new definition of joint physical custody because it only applies to situations in which one party has primary physical custody and the other has visitation rights. 2. Calculating child support in cases of joint physical custody In cases where the parties have joint physical custody, the Wright v. Osburn formula determines which parent should receive child support. 114 Nev. 1367, 1368-69, 970 P.2d 1071, 1072 (1998). We take this opportunity to note that Wright overrules Barbagallos application of the statutory child support formulas in joint physical custody cases. Barbagallo directs the court to identify a primary and secondary custodian and order the secondary custodian to pay the primary custodian child support in accordance with the appropriate formula. 105 Nev. at 549, 779 P.2d at 534-35. This is no longer the law.
[Headnotes 36, 37]

Rather, under Wright, child support in joint physical custody arrangements is calculated based on the parents gross incomes. Id. at 1368-69, 970 P.2d at 1072. Each parent is obligated to pay a percentage of their income, according to the number of children, as determined by NRS 125B.070(1)(b). The difference between the two support amounts is calculated, and the higher-income parent is obligated to pay the lower-income parent the difference. Id. The district court may adjust the resulting amount of child support using the NRS 125B.080(9) factors. Id. The purposes of the Wright formula are to adjust child support to equalize the childs standard of living between parents and to provide a formula for consistent decisions in similar cases. Id.
[Headnotes 38, 39]

The Wright formula also remains unchanged by the new definition of joint physical custody. When the parties have joint physical custody, as defined above, the Wright formula applies, subject to adjustments pursuant to the statutory factors in NRS 125B.080(9). Under the new definition of joint physical custody, there could be a slight disparity in the timeshare. The biggest disparity would be a case in which one party has physical custody of the child 60 percent of the time and the other has physical custody of the child 40 percent of the time. Still, maintaining the lifestyle of the child between the parties households is the goal of the Wright formula, and the financial circumstances of the parties remain the most important factors under NRS 125B.080(9). Wright, 114 Nev. at 1368, 970 P.2d at

438

Rivero v. Rivero

[125 Nev.

1072; Wesley v. Foster, 119 Nev. 110, 113, 65 P.3d 251, 253 (2003); Barbagallo, 105 Nev. at 551, 779 P.2d at 536. Thus, in a joint physical custody situation, if a party seeks a reduction in child support based on the amount of time spent with the child, the party must prove that payment of the full statutory amount of child support is unfair or unjust, given that partys substantial contributions to the childs support. Barbagallo, 105 Nev. at 552, 779 P.2d at 536. C. The district courts denial of Ms. Riveros motion for child support
[Headnote 40]

Here, in denying Ms. Rivero child support, the district court relied on the divorce decree, in which the parties agreed that neither would receive child support.
[Headnotes 41, 42]

This court reviews the district courts decisions regarding child support for an abuse of discretion. Wallace v. Wallace, 112 Nev. 1015, 1019, 922 P.2d 541, 543 (1996). Parents have a duty to support their children. NRS 125B.020. When a district court deviates from the statutory child support formula, it must set forth specific findings of fact stating the basis for the deviation and what the support would have been absent the deviation. NRS 125B.080(6). Even if the record reveals the district courts reasoning for the deviation, the court must expressly set forth its findings of fact to support its decision. Jackson v. Jackson, 111 Nev. 1551, 1553, 907 P.2d 990, 992 (1995). In this case, the district court erred by not making specific findings of fact regarding whether Ms. Rivero was entitled to receive child support under NRS Chapter 125B and explaining any deviations from the statutory formulas. Therefore, we reverse the district courts denial of Ms. Riveros motion for child support. On remand, as discussed above, the district court may only modify the divorce decree upon finding a change in circumstances since the entry of the decree, and must calculate child support pursuant to either Barbagallo or Wright, as appropriate. V. Ms. Riveros motions for recusal and disqualification
[Headnote 43]

Ms. Rivero asserts that the district court abused its discretion when the district court judge refused to recuse herself and when the chief judge denied Ms. Riveros motion to disqualify the judge. According to Ms. Rivero, the district court abused its discretion in not allowing her to file a reply to Mr. Riveros opposition to the motion to disqualify and by not permitting her to argue the merits at a hearing. We disagree because Ms. Rivero did not prove legally cogniz-

Aug. 2009]

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able grounds supporting an inference of bias, and therefore, summary dismissal of the motion was proper.
[Headnotes 44-47]

This court gives substantial weight to a judges decision not to recuse herself and will not overturn such a decision absent a clear abuse of discretion. Goldman v. Bryan, 104 Nev. 644, 649, 764 P.2d 1296, 1299 (1988), abrogated on other grounds by Halverson v. Hardcastle, 123 Nev. 245, 266, 163 P.3d 428, 443 (2007). A judge is presumed to be unbiased, and the burden is on the party asserting the challenge to establish sufficient factual grounds warranting disqualification. Id. at 649, 764 P.2d at 1299. A judge cannot preside over an action or proceeding if he or she is biased or prejudiced against one of the parties to the action. NRS 1.230(1). To disqualify a judge based on personal bias, the moving party must allege bias that stem[s] from an extrajudicial source and result[s] in an opinion on the merits on some basis other than what the judge learned from his participation in the case. In re Petition to Recall Dunleavy, 104 Nev. 784, 790, 769 P.2d 1271, 1275 (1988) (quoting United States v. Beneke, 449 F.2d 1259, 1260-61 (8th Cir. 1971)). [W]here the challenge fails to allege legally cognizable grounds supporting a reasonable inference of bias or prejudice, a court should summarily dismiss a motion to disqualify a judge. Id. at 789, 769 P.2d at 1274. In this case, Ms. Rivero alleged that the district court judge was biased in favor of Mr. Rivero because he is an attractive man and was biased against Ms. Rivero because she is an attractive woman. Ms. Rivero also alleged that the judge was determined to rule only for Mr. Rivero and that the judge was not interested in hearing the case on the merits. The only evidence of these allegations are statements in Ms. Riveros motion to disqualify and her attorneys affidavit. The hearing transcripts do not reveal any bias on the district court judges part. Thus, Ms. Rivero has not established legally cognizable grounds for disqualification. Id. Accordingly, we conclude that the district court judge did not abuse her discretion when she refused to recuse herself. We also conclude that the chief judge properly denied Ms. Riveros motion to disqualify the district court judge without considering a reply from Ms. Rivero or holding a hearing on the motion because Ms. Rivero did not establish legally cognizable grounds for an inference of bias. Therefore, summary dismissal of the motion was proper.10 Id.
10 Ms. Rivero argues that the chief judge abused her discretion because she prevented her from filing a reply brief. However, Ms. Rivero provides no citations to the record indicating that the chief judge refused to allow Ms. Rivero to file a reply brief, nor does Ms. Rivero cite to any authority requiring the chief judge to allow her to file a reply brief. NRAP 28(a)(8)(A); NRAP 28(e)(1).

440

Rivero v. Rivero

[125 Nev.

VI. The district courts award of attorney fees to Mr. Rivero In addition to denying Ms. Riveros disqualification motion, the district court awarded Mr. Rivero attorney fees arising from defending against the motion. Ms. Rivero argues that the district court abused its discretion when it awarded Mr. Rivero attorney fees because Ms. Rivero had a reasonable basis to move for the district court judges disqualification. Ms. Rivero also contends that NRS 1.230, which prohibits punishment for contempt if a party alleges that a judge should be disqualified, prohibits an award of attorney fees under NRS 18.010 and sanctions under EDCR 7.60 and NRCP 11. We disagree that the contempt prohibition of NRS 1.230(4) prohibits attorney fees as a sanction for filing a frivolous motion to disqualify a judge. However, we conclude that the district court abused its discretion in awarding attorney fees because substantial evidence does not support the sanction. A. Contempt prohibition of NRS 1.230(4)
[Headnotes 48-50]

Under NRS 1.230(4), [a] judge or court shall not punish for contempt any person who proceeds under the provisions of this chapter for a change of judge in a case. Contempt preserves the authority of the court, punishes, enforces parties rights, and coerces. Warner v. District Court, 111 Nev. 1379, 1382-83, 906 P.2d 707, 709 (1995). On the other hand, the district courts discretion to award attorney fees as a sanction under NRS 18.010(2)(b), for bringing a frivolous motion, promotes the efficient administration of justice without undue delay and compensates a party for having to defend a frivolous motion. In this case, the district court did not state the basis for the attorney fees sanction but found that Ms. Riveros motion to disqualify was meritless. It appears that the district court sanctioned Ms. Rivero to compensate Mr. Rivero for having to defend a frivolous motion, which is explicitly allowed under NRS 18.010(2)(b). This is not akin to the district court holding Ms. Rivero in contempt for simply requesting a change of judge, which is prohibited under NRS 1.230(4). Therefore, the contempt prohibition of NRS 1.230(4) does not apply. Although the contempt provision of NRS 1.230(4) does not prevent the district court from awarding attorney fees as a sanction pursuant to NRS 18.010(2)(b), we conclude that the district court abused its discretion in awarding attorney fees in this case for the reasons discussed below. B. Attorney fees sanction for filing a frivolous motion
[Headnotes 51-54]

This court reviews the district courts award of attorney fees for an abuse of discretion. Miller v. Wilfong, 121 Nev. 619, 622, 119 P.3d

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727, 729 (2005). The district court may award attorney fees as a sanction under NRS 18.010(2)(b), NRCP 11, and EDCR 7.60(b) if it concludes that a party brought a frivolous claim. The district court must determine if there was any credible evidence or reasonable basis for the claim at the time of filing. Semenza v. Caughlin Crafted Homes, 111 Nev. 1089, 1095, 901 P.2d 684, 687-88 (1995) (discussing NRS 18.010(2)(b)). Although a district court has discretion to award attorney fees as a sanction, there must be evidence supporting the district courts finding that the claim or defense was unreasonable or brought to harass. Id. Here, the district court did not explain in its order the basis for awarding Mr. Rivero attorney fees and only noted in its summary order that Ms. Riveros motion to disqualify the district court judge was without merit. Although Ms. Rivero did not prevail on the motion, and it may have been without merit, that alone is insufficient for a determination that the motion was frivolous, warranting sanctions. Nothing in the record indicates that the district court attempted to determine if there was any credible evidence or a reasonable basis for Ms. Riveros motion to disqualify. Because the chief judge did not hold a hearing or make findings of fact, no evidence demonstrates that Ms. Riveros motion was unreasonable or brought to harass. Therefore, we conclude that the district court abused its discretion in sanctioning Ms. Rivero with attorney fees for her motion to disqualify. Thus, we reverse and remand the district courts order granting an award of attorney fees to Mr. Rivero to the district court for further proceedings consistent with this opinion. CONCLUSION We conclude that the district court abused its discretion when it determined, without making specific findings of fact, that the parties had joint physical custody and when it modified the custody arrangement set forth in the divorce decree. We therefore reverse and remand this matter to the district court for further proceedings, including a new custody determination pursuant to the definition of joint physical custody clarified in this opinion. We further conclude that the district court abused its discretion in denying Ms. Riveros motion to modify child support because it did not set forth specific findings of fact to justify deviating from the statutory child support formulas. We therefore reverse and remand this matter to the district court for further proceedings to calculate child support and modify the decree if modification is proper under the standard set forth in this opinion. We further conclude that the district court judge properly refused to recuse herself, and the chief judge properly denied Ms. Riveros motion for disqualification. We therefore affirm the district courts orders regarding the recusal and disqualification.

442

Rivero v. Rivero

[125 Nev.

Finally, we conclude that the district court abused its discretion when it awarded Mr. Rivero attorney fees in relation to Ms. Riveros motion to disqualify the district court judge. We therefore reverse and remand this matter to the district court for further proceedings consistent with this opinion. HARDESTY, C.J., PARRAGUIRRE, DOUGLAS, CHERRY, and SAITTA, JJ., concur. PICKERING, J., concurring in part and dissenting in part: I respectfully dissent. While I agree that this case presents an opportunity to establish helpful precedent, I disagree with the majoritys assessment of the record facts and the law that should apply to them. This appeal grows out of a stipulated divorce decree. Two family court judges upheld the decrees stipulation for joint physical custody. The only modification either judge made was to adjust the childs residential timeshare arrangement slightly. After taking testimony from the parents, both of whom work, the second judge determined that the parents days off differed perfectly. Thus, each parent could have the child while the other was at work, minimizing the time the child had to spend in day care, if a one-day adjustment to the residential timeshare was made. I do not find in the original stipulated decree the inflexible 5/2 timeshare the majority does. After providing for joint legal custody and joint physical care, custody and control of the parties daughter, the original decree provided for the father to have the child each Sunday at 7 p.m. until Tuesday at 9:00 p.m. in addition to any time agreed on by the Parties. (Emphasis added.) The residential timeshare, as adjusted, provided for the father to have the child from Sunday at 1 p.m. until Wednesday at 2 p.m.thus adding a day to the fathers allotted two days and two hours per week but deleting the provision giving him such additional time agreed on by the Parties (who were having trouble agreeing to anything). The second family court judge made an express, on-the-record finding that, as adjusted, the residential timeshare arrangement was consistent with the stipulated decrees provision for joint physical custodyand in the childs best interest. The timeshare adjustment also obviated the mothers argument that the court should not have approved the stipulated decrees provision for a Wright-based offset, by which the parties had voluntarily agreed neither would pay child support to the other. This strikes me as a sensible, maybe even Solomon-like solution. Instead of upholding the family courts exercise of sound discretion, however, the majority reverses and remands these parents to the family court for more litigation. On remand, the family court is directed to establish the exact percentage of time the child has spent with

Aug. 2009]

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each parent over the course of the past year;1 to then apply a newly announced 40-percent formula on which joint physical custody and future child support will depend; and thereafter to enter formal findings, beyond those stated in the decree and in open court, respecting these and other matters. I submit that this result and the underlying formula the majority adopts are contrary to statute and case precedent. The family court interpreted its decree in a way that was fair, supported by the record, and consistent with applicable law. A sounder result would be to recognize the distinction other courts have drawn between true custody modification and residential timeshare adjustments and support the family courts sound exercise of discretion as to the latter in this case. DISCUSSION The formulaic approach is inconsistent with Nevada law I have a threshold concern with court-mandated formulas, in general, and with the 40-percent joint physical custody formula the majority adopts in this case, in particular, to determine child support and relocation disputes. A legislature has the capacity to debate social policy and to enact, amend, and repeal laws as experience and society dictate. Courts do not. The law courts apply is precedentdriven, or has its origin in statute or constitutional mandate. It is not only that judges tend to be innumerate, or that court-adopted formulas are of suspect provenancethough both are soit is that laws adopted by judges are difficult to change if they do not work out. Because courts decide individual questions in individual cases, a bad rule of law can take a long time to return to a court; meanwhile, reliance interests counseling against changing that law are built. As the controversy over the original opinion and its withdrawal and replacement in this case suggest, establishing formulas is ordinarily best left to the Legislature. More specifically troubling, the formulaic approach the majority adopts in this case is inconsistent with the approach the Nevada Legislature in fact chose to take. Thus, in 1987 the Nevada Legislature considered and rejected a proposal that would have established a 40percent joint physical custody timeshare test and tied it to a corollary child support formula. A.B. 424, 64th Leg. (Nev. 1987), discussed in Barbagallo v. Barbagallo, 105 Nev. 546, 548, 779 P.2d
1 The formulaic approach is especially problematic where, as here, the family court directs a highly specific timeshare. If the parties have abided by the timeshare directed, they will meet the courts formula and joint physical custody will be established under the formula. If they havent, we will be incentivizing disregard of a court order and argument over whose fault the departure was. The family courts approach seems preferable, in that it encourages selfdetermination by enforcing the parties agreed-upon decree and attempting to interpret it consistently with applicable law and the childs best interest.

444

Rivero v. Rivero

[125 Nev.

532, 534 (1989). Instead of a mathematical formula, the 1987 Legislature adopted the multifactored approach to determining support found in todays NRS 125B.080. Id. Based on this history, in 1989 this court held that it is inappropriate for the courts to adopt their own formulas when the mathematical approach to adjusting the formula in joint custody cases has been considered and rejected by the legislature. Barbagallo, 105 Nev. at 550 n.2, 779 P.2d at 535 n.2 (as amended by 786 P.2d 673 (1990)). The point is not whether a formulaic approach is good policy, providing helpful bright-line rules; or bad policy, creating a hostile on the clock mentality inconsistent with truly cooperative joint parenting. On this, reasonable policymakers differ, as the foreign state statutes catalogued, ante at 424 n.5, 425 n.6, reflect. The point is that percentage time/support formulas are for the Legislature to evaluate, not for the court to establish by fiat. The 40-percent joint physical custody test the majority adopts today, when tied, as intended, to eligibility for a child support offset under Wright v. Osburn, 114 Nev. 1367, 970 P.2d 1071 (1998), creates law indistinguishable from that Barbagallo says courts should abjure.2 As a near-contemporaneous judicial interpretation of a controlling statutory scheme, Barbagallo should control. See Neal v. United States, 516 U.S. 284, 294-95 (1996) (giving great weight to stare decisis in the area of statutory construction because the legislature is free to change this Courts interpretation of its legislation; the Legislature, not the courts, has the responsibility for revising its statutes; and [w]ere we to alter our statutory interpretations from case to case, [the Legislature] would have less reason to exercise its responsibility to correct statutes that are thought to be unwise or unfair (internal quotation omitted)). The family courts interpretation of its decree was sound The stipulated decree was not irreconcilably inconsistent with joint physical custody At its heart, this case asks how we should interpret the parties stipulated divorce decree. Historically, this court defers to a trial courts interpretation of its own decrees. It is the province of the
2 The majority justifies its adoption of a 40-percent test for joint physical custody as providing needed clarity in parental relocation as well as child support offset cases. Ante at 422, citing Potter v. Potter, 121 Nev. 613, 618, 119 P.3d 1246, 1249 (2005). Relocation is not an issue here because the stipulated decree provided that if either party moved away from Las Vegas, joint legal custody would continue but primary physical custody would shift to the mother, with liberal visitation, including full summers, for the father. If anything, the decrees relocation provision shows that the parties knew how to distinguish between joint and primary physical custody and meant what they saidan assumption that finds further support in the fact that each had experienced counsel in fashioning the stipulated decree.

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trial court to construe its judgments and decrees. Grenz v. Grenz, 78 Nev. 394, 401, 374 P.2d 891, 895 (1962). Further, [w]here a judgment is susceptible of two interpretations, that one will be adopted which renders it the more reasonable, effective and conclusive, and which makes the judgment harmonize with the facts and law of the case and be such as ought to have been rendered. Aseltine v. District Court, 57 Nev. 269, 273, 62 P.2d 701, 702 (1936) (internal quotation omitted). Both family court judges acknowledged the tension between the stipulated decrees joint physical custody provision and its original residential timeshare provision. They resolved the tension by giving priority to the parties overarching agreement to share joint legal and physical custody. The elasticity in the original timeshare provision, which gave the father such additional time as agreed to by the Parties beyond his specifically allotted time, makes this reading fair. It gives effect to all of the stipulated decrees provisions, and it is consistent with the parties apparent intent and their frank, on-therecord admissions that neither believed the other was a bad parent, their dispute being mainly over money and scheduling. The family court judges reading of the stipulated decree also comports with NRS 125.490, which states: There is a presumption, affecting the burden of proof, that joint custody would be in the best interest of a minor child if the parents have agreed to an award of joint custody. See NRS 125.480(1) and (3)(a) (stating preference for orders awarding joint custody and providing that [i]f it appears to the court that joint custody would be in the best interest of the child, the court may grant custody to the parties jointly; statement of reasons required only if joint custody denied). The parents here agreed to an award of joint custody and the family court judge specifically stated on the record that she found that the timeshare, as adjusted, was in the childs best interest because it maximized the childs time with each parent instead of at day care. Remanding for further findings regarding custody thus seems unnecessary. The mother did not establish a basis to modify child support Nor do I find a basis in the record to remand for further findings as to support. While not elaborate, the decree specified the applicable statutory percentage and stipulated that the parties were agreeing to a downward deviation and the basis therefor. It read: The parties respective obligation of child support for the parties said minor child should are [sic] hereby offset and neither party is ordered to pay to the other child support; that this represents a deviation from the statutory child support formula as set forth in NRS 125B.070 (which states that child support for one child shall be eighteen percent (18%) of the non-custodial

446

Rivero v. Rivero

[125 Nev.

parents income), based on the parties joint legal and physical custody arrangement, pursuant to NRS 125B.080, subsection (9)(j). Each party shall jointly pay for the support and care of the parties minor child. In addition, the stipulated decree obligated the father to pay for the childs health insurance at a cost of $80 per month and to contribute $50 per month to an education fund for her, controlled by the childs mother. As the majority notes, the mother filed successive motions to modify support. In connection with the first motion to modify support, the court minutes reflect that the mother reaffirmed what was represented in the stipulated decreethat the parties [stipulated to] share joint custody, and that the parties incomes are similar. Both motions to modify relied on the alleged inconsistency between the agreement for joint physical custody and the timeshare provision. But read in conformity with the presumption in NRS 125.490, the stipulated decree was not irreconcilably inconsistent with joint physical custody. Further, any theoretical inconsistency was eliminated when the second judge modified the residential timeshare by substituting Wednesday for such additional time as agreed on by the Parties, establishing a 4/3 timeshare that falls within the majoritys 40-percent rule. Because neither of the underlying motions in this case identified a basis for modifying support besides the asserted lack of true joint physical custody timeshare agreement, further proceedings and findings, beyond those the original decree stated to justify its downward deviation, are unwarranted.3 Adjusting a residential timeshare in a joint physical custody arrangement is appropriate when in the childs best interest An agreement to share joint physical custody, interpreted in light of the childs best interest, should determine the appropriate residential timeshare, not the reverse. Citing Wright, 114 Nev. at 1368, 970 P.2d at 1071-72, and Wesley v. Foster, 119 Nev. 110, 112-13, 65 P.3d 251, 252-53 (2003), the majority states that [o]ur law presumes that joint physical custody approximates a 50/50 timeshare. I do not read these cases as that definitivemuch less as supporting the majoritys holding that a residential timeshare arrangement that works out to a child spending less than 40 percent of his or her time
3 In her reply in support of the motion to disqualify, the mother argued that the father had enjoyed an increase in income that independently justified modifying child support. While this would have been a proper basis to modify support, NRS 125B.145(4), the family court could not consider it since this basis was not raised in either motion to modify, both of which predated the motion to disqualify and the reply in support thereof, where these arguments first emerged. Cf. Mosley v. Figliuzzi, 113 Nev. 51, 61, 930 P.2d 1110, 1116 (1997) (holding

Aug. 2009]

Rivero v. Rivero

447

with one parent over the course of a year automatically invalidates a presumptively valid agreement for joint physical custody. As we recognized in Mosley, 113 Nev. at 54, 930 P.2d at 1112, a decree can validly establish joint physical custody even though the timeshare contemplated at the outset is not a 50/50 (or even a 60/40) arrangement, but one that will require fine-tuning over time. Joint physical custody may ideally signify something approaching a 50/50 timeshare. However, I am concerned that our judicially mandated 40-percent formula will prove unsatisfactory, especially when used, as intended, to determine support and relocation disputes. Lives change and a childs time is divided, not just between his or her parents, but among friends, school or day care, extended family, sports, and other pursuits. Practical questions seem certain to scuff the bright-line rulequestions like how to count hours the child spends with people besides either parent, or which parent to credit for time the child spends pursuing activities both parents support. Of greater concern, making child support, relocation, and custody determinations depend on parents keeping logs of the number of hours each year a child spends with one parent or the other (leaving aside the calculation and credit questions) detracts from the type of true co-parenting our statutes try to promote. See NRS 125.460; NRS 125.490; see also In re Marriage of Birnbaum, 260 Cal. Rptr. 210, 214-15 (Ct. App. 1989) (dismissing as a popular misconception the idea that joint physical custody means the children spend exactly one-half their time with each parent; noting that [p]arents demands for equal amounts of a childs time [can] constitute a disservice to the child; and that, while [i]n some cases the nature of the relationship between the parents may necessitate this kind of inflexibility[ u]sually it is temporary, and when the former spouses have adjusted to their new and limited relationship . . . mathematical exactitude of time is no longer necessary); Rutters, California Practice Guide to Family Law 7:358 (2009) (noting that [a] joint custody order does not mean the child must equally split all of his or her time between the parents); see also Mosley, 113 Nev. at 60, 930 P.2d at 1116 (noting that NRS 125.460 dictates the public policy of this state in child custody matters [which is] that the best interests of children are served by frequent associations and a continuing relationship with both parents and by a sharing of parental rights and responsibilities of child rearing (internal quotations omitted)).
parties entitled to a written motion and advance notice of the alleged grounds before a custody modification order is entered). Now that the original decree is more than three years old, the mother is entitled to have its provisions respecting child support reviewed in any event, NRS 125B.145(1), but that is not the basis for reversal and remand.

448

Rivero v. Rivero

[125 Nev.

This case invites us to distinguish between adjusting parents residential timeshare and formal proceedings to modify custody in the stipulated joint physical custody setting. California Family Code section 3011, like NRS 125.490(1), states a presumption affecting the burden of proof that agreements providing for joint custody are in a childs best interest. Addressing joint physical custody agreements, several intermediate California courts have exhorted parents [to] understand that successful joint physical custody depends upon the quality of the parenting relationship, not the allocation of time. In re Marriage of Birnbaum, 260 Cal. Rptr. 210, 216 (Ct. App. 1989); see Enrique M. v. Angelina V., 18 Cal. Rptr. 3d 306, 313 (Ct. App. 2004). Both Birnbaum and Enrique M. recognize that disputes over the details of residential timeshare arrangements in cases involving joint physical custody are best settled by the parents, not the courts. Enrique M., 18 Cal. Rptr. 3d at 314 (noting that such adjustments are not on a par with a request to change physical custody from sole to joint custody, or vice versa). Thus, they refuse to fuel these disputes by expanding them into full blown custody proceedings, or reviewing them on appeal as if that is what they involve. If the parents cannot agree on the childs schedule, the family court should be held to possess[ ] the broadest possible discretion in adjusting coparenting residential arrangements involved in joint physical custody. Birnbaum, 260 Cal. Rptr. at 216. This rule fosters the policy presuming joint custody to be in a childs best interests and may even obviate the need for costly and time-consuming litigation to change custody, which may itself be detrimental to the welfare of minor children because of the uncertainty, stress, and even ill will that such litigation tends to generate. Enrique M., 18 Cal. Rptr. 3d at 313 (internal quotation omitted). The dispute underlying this case is not identical to those presented in Birnbaum and Enrique M., since it concerned time spent in day care, and child support, not school choice and residence during the school year. But the underlying principle is similar: When parties have agreed to joint physical custody, absent a showing that some other arrangement is in the childs best interest, courts should try to make that agreement succeed. In my estimation, we do the parties and their child a disservice by remanding this case for more litigation, instead of affirming the family court. CONCLUSION In sum, I would uphold the district courts order as consistent with Nevada statutes that presumptively favor joint custody, especially agreed-upon joint custody, and require that before a joint custody decree is modified, it must be shown that the childs best interest requires the modification. As district courts have broad discretion in deciding custody and support, so long as the policies

Sept. 2009]

D.R. Horton v. Dist. Ct.

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set by statute are applied, the district court properly adjusted the parties timeshare agreement and declined to modify the child support obligation to which the parties agreed. With the exception of the portion of the opinion affirming the order denying disqualification of the family court judge, therefore, I respectfully dissent.

D.R. HORTON, INC., A DELAWARE CORPORATION, AND RCR COMPANIES, PETITIONERS, v. THE EIGHTH JUDICIAL DISTRICT COURT OF THE STATE OF NEV ADA, IN AND FOR THE COUNTY OF CLARK, AND THE HONORABLE ALLAN R. EARL, DISTRICT JUDGE, RESPONDENTS, AND FIRST LIGHT HOMEOWNERS ASSOCIATION, A NEVADA NONPROFIT CORPORATION, FOR ITSELF AND FOR ALL OTHERS SIMILARLY SITUATED, REAL PARTY IN INTEREST.
No. 52684 September 3, 2009 215 P.3d 697

Original petition for a writ of mandamus or prohibition challenging a district court order denying partial summary judgment in a constructional defect matter. The supreme court, HARDESTY, C.J., held that: (1) nonmember developer may challenge whether a homeowners association may properly institute a constructional defect action in a representative capacity; (2) association has standing to file a representative action on behalf of its members; (3) when association asserts constructional defect claims in a representative capacity, the action must fulfill the requirements of rule governing class action lawsuits; and (4) developer may challenge whether the associations claims are subject to class certification. Petition denied. [Rehearing denied November 17, 2009] Wolfenzon, Schulman & Ryan and Bruno Wolfenzon, Las Vegas; Koeller Nebeker Carlson & Haluck, LLP, and Robert C. Carlson and Megan K. Dorsey, Las Vegas, for Petitioner D.R. Horton, Inc. Hansen Rasmussen and R. Scott Rasmussen and Vadim Veksler, Las Vegas, for Petitioner RCR Companies. Quon Bruce Christensen and Nancy E. Quon, Las Vegas; Law Office of James R. Christensen, P.C., and James R. Christensen, Las Vegas; Maddox, Isaacson & Cisneros, LLP, and Troy L. Isaacson and Norberto J. Cisneros, Las Vegas, for Real Party in Interest.

450

D.R. Horton v. Dist. Ct.

[125 Nev.

1. MANDAMUS; PROHIBITION. Supreme court would exercise its discretion to address merits of developers petition for writ of mandamus or, alternatively, writ of prohibition regarding trial courts order that denied developers motion for partial summary judgment in constructional defect action that was brought by homeowners association on behalf of itself and owners of units in commoninterest community; order was not independently appealable, and petition raised important issue of law and public policy regarding standing of association to raise claims on behalf of unit owners. Const. art. 6, 4; NRS 34.170, 34.330, 116.3102(1)(d). 2. COURTS. Supreme court has original jurisdiction to issue writs of prohibition and mandamus. Const. art. 6, 4. 3. MANDAMUS. A writ of mandamus serves to compel the performance of an act that the law requires as a duty resulting from an office, trust, or station, or to control a manifest abuse of discretion. 4. PROHIBITION. A writ of prohibition serves to stop a district court from carrying on its judicial functions when it is acting outside its jurisdiction. 5. MANDAMUS; PROHIBITION. Ordinarily, supreme court will not consider petitions for extraordinary writ relief where the petitioner challenges a district court order denying a motion for summary judgment, unless summary judgment is clearly required by a statute or rule, or an important issue of law requires clarification. 6. ASSOCIATIONS; CONDOMINIUM. A nonmember developer may challenge whether a homeowners association may properly institute against the developer a constructional defect action in a representative capacity on behalf of owners of units in a common-interest community but cannot challenge the internal procedures followed by a homeowners association in determining to institute the civil action. NRS 116.31088(3); Restatement (Third) of Property: Servitudes 6.11. 7. ASSOCIATIONS; CONDOMINIUM. Under provision of Uniform Common-Interest Ownership Act (UCIOA) governing powers of homeowners association, association has standing to file a representative action on behalf of its members for constructional defects in individual units of the common-interest community. NRS 116.017(1), 116.093, 116.3102(1)(d); Restatement (Third) of Property: Servitudes 6.11. 8. ASSOCIATIONS; CONDOMINIUM. In the absence of an express statutory grant, a common-interest communitys homeowners association does not have standing to bring suit on behalf of its member owners. NRCP 17(a). 9. STATUTES. If a statute is ambiguous, because it is susceptible to more than one reasonable interpretation, supreme court will construe the statute by considering reason and public policy to determine legislative intent. 10. STATUTES. Supreme court assumes that, when enacting a statute, the Legislature is aware of related statutes. 11. PARTIES. When a common-interest communitys homeowners association asserts constructional defect claims in a representative capacity on behalf of unit

Sept. 2009]

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12.

13.

14.

15.

16.

17.

18.

owners, the action must fulfill the requirements of rule governing class action lawsuits. NRS 116.3102(1)(d); NRCP 23. PARTIES. Though single-family residence constructional defect cases will rarely be appropriate for class action treatment, in some cases, a representative may properly bring a class action lawsuit. NRCP 23. PARTIES. If common defects predominate over individual claims, constructional defect action involving several residences may be suitable for class action treatment. NRCP 23. PARTIES. Because rule governing class actions allows a district court to grant conditional class action certification, a court may later revoke class action certification if it determines that certification is problematic and requires individual trials. NRCP 23(c)(1). PARTIES. Where a common-interest communitys homeowners association brings constructional defect action against developer on behalf of its members, a developer may challenge whether the associations claims are subject to class certification. NRS 116.3102(1)(d); NRCP 23. PARTIES. When a developer challenges whether constructional defect claims that are brought by common-interest communitys homeowners association on behalf of unit owners are subject to class certification, court must conduct and document a thorough analysis under rule governing class actions; analysis will require the court to consider whether the claims and various theories of liability satisfy the requirements of numerosity, commonality, typicality, adequacy, and whether common questions of law or fact predominate over individual questions, or whether action satisfies one of other two options set forth in the rule. NRS 116.3102(1)(d); NRCP 23. PARTIES. In a constructional defect case that is brought on behalf of unit owners by a common-interest communitys homeowners association, a shared experience alone does not satisfy the threshold requirements under rule governing class actions; instead, the court must determine, among other issues, which units have experienced constructional defects, the types of alleged defects, the various theories of liability, and the damages necessary to compensate individual unit owners. NRS 116.3102(1)(d); NRCP 23. PARTIES. District court may classify and distinguish claims that are suitable for class action certification from those requiring individualized proof. NRCP 23(c)(4).

Before the Court EN BANC. OPINION By the Court, HARDESTY, C.J.: In this petition for extraordinary writ relief, we resolve whether a homeowners association has standing to pursue constructional defect claims on behalf of its members with respect to alleged defects in individual units in a common-interest community. Because

452

D.R. Horton v. Dist. Ct.

[125 Nev.

the provisions of NRS Chapter 116, among other sources, demonstrate that a common-interest community includes individual units, we conclude that under NRS 116.3102(1)(d), a homeowners association has standing to file a representative action on behalf of its members for constructional defects in individual units of a common-interest community. However, because such actions are filed by a homeowners association in a representative capacity for individual units, the claims must be analyzed according to class action principles set forth in NRCP 23 and Shuette v. Beazer Homes Holdings Corp., 121 Nev. 837, 854-57, 124 P.3d 530, 542-44 (2005). FACTS AND PROCEDURAL HISTORY First Light is a planned, common-interest community that is located in Clark County, Nevada. Real party in interest First Light Homeowners Association (First Light HOA) oversees the community and owns the common areas of the First Light community, and its members own the individual units located within the community. First Light HOA is governed, in part, by First Light HOAs Declaration of Covenants, Conditions, and Restrictions and Reservation of Easements (CC&Rs). The CC&Rs govern, for example, the owners property and voting rights, the organization of First Light HOA, and the HOAs duties and powers. In February 2005, First Light HOA filed a complaint in its own name on behalf of itself and the unit owners against petitioner D.R. Horton, the developer of the community. Although individual homeowners were not named as parties to the complaint, First Light HOA alleged various causes of action claiming, in part, that both the individual units and the common areas of the community have constructional defects and deficiencies to, for example, the design and manufacturing of the stucco, drainage, and roofing. In August 2008, D.R. Horton filed a motion for partial summary judgment with the district court, arguing that First Light HOA lacked standing to assert the majority of the claims because the claims related to individual units and not common areas. Specifically, D.R. Horton argued that NRS 116.3102(1)(d), which permits a homeowners association to institute litigation on behalf of itself or two or more units owners on matters affecting the commoninterest community, does not confer standing on the homeowners association to assert constructional defect claims in individual units. First Light HOA opposed D.R. Hortons motion for partial summary judgment, arguing, in part, that D.R. Horton lacked standing to challenge First Light HOAs ability to represent individual homeowners on claims related to their units. Additionally, First Light HOA maintained that NRS 116.3102(1)(d) authorizes a homeowners association to maintain constructional defect claims on behalf of individual units because owners units are considered a part of the common-interest community.

Sept. 2009]

D.R. Horton v. Dist. Ct.

453

The district court denied D.R. Hortons motion for partial summary judgment, concluding that NRS 116.3102(1)(d) allows a homeowners association to file suit on behalf of its members for constructional defects affecting individual units. D.R. Horton filed this petition for a writ of mandamus or, in the alternative, a writ of prohibition, challenging the district courts denial of its partial motion for summary judgment. DISCUSSION Before addressing whether NRS 116.3102(1)(d) confers standing upon a homeowners association to file suit on behalf of its members against a developer for damages caused by constructional defects in individual units, we first consider whether a developer lacks standing to challenge an associations ability to raise claims on behalf of its members. We conclude that under NRS 116.3102(1)(d), a homeowners association has standing to assert constructional defect claims in a representative capacity on behalf of individual units. However, because damages are awarded for claims within individual owner units, such actions are subject to class action principles discussed in Shuette v. Beazer Homes Holdings Corp., 121 Nev. 837, 854-57, 124 P.3d 530, 542-44 (2005). Thus, we conclude that a nonmember developer has standing to challenge whether a homeowners association may properly assert claims in a representative capacity on behalf of its members. However, a nonmember developer is barred from challenging the adequacy of the internal procedures that a homeowners association follows before commencing a civil action on behalf of its members. Standard of review
[Headnotes 1-5]

This court has original jurisdiction to issue writs of prohibition and mandamus. Nev. Const. art. 6, 4. A writ of mandamus serves to compel the performance of an act that the law requires as a duty resulting from an office, trust, or station, or to control a manifest abuse of discretion. We the People Nevada v. Secretary of State, 124 Nev. 874, 879, 192 P.3d 1166, 1170 (2008). A writ of prohibition serves to stop a district court from carrying on its judicial functions when it is acting outside its jurisdiction. Harvey L. Lerer, Inc. v. District Court, 111 Nev. 1165, 1168, 901 P.2d 643, 645 (1995). Ordinarily, this court will not consider petitions for extraordinary writ relief where the petitioner challenges a district court order denying a motion for summary judgment, unless summary judgment is clearly required by a statute or rule, or an important issue of law requires clarification. ANSE, Inc. v. Dist. Ct., 124 Nev. 862, 867, 192 P.3d 738, 742 (2008). In addition, these extraordinary remedies may only be issued in cases where there is

454

D.R. Horton v. Dist. Ct.

[125 Nev.

not a plain, speedy and adequate remedy at law. NRS 34.170; NRS 34.330. Because a district courts order denying summary judgment is not independently appealable, GES, Inc. v. Corbitt, 117 Nev. 265, 268, 21 P.3d 11, 13 (2001), and D.R. Hortons petition raises an important issue of law and public policy, we exercise our discretion to address the merits of the petition. A nonmember developer may challenge whether a homeowners association may properly institute a constructional defect action in a representative capacity, but cannot challenge the internal procedures followed by a homeowners association in determining to institute the civil action
[Headnote 6]

First Light HOA argues that a developer lacks standing to challenge an associations ability to raise claims on behalf of its members, relying on NRS 116.31088(3) and section 6.11 of the Restatement (Third) of Property and its commentary. NRS 116.31088 governs the management of common-interest communities and sets forth the meeting and voting requirements that an association must fulfill before it files a civil action. First Light HOA argues that NRS 116.31088(3), which provides that [n]o person other than a units owner may request the dismissal of a civil action commenced by the association on the ground that the association failed to comply with any provision of this section, precludes a developer from challenging a homeowners associations ability to file an action in a representative capacity. We conclude that NRS 116.31088(3) prohibits a nonmember from challenging the adequacy of the procedure underlying the commencement of a civil action. However, nothing in NRS 116.31088 precludes a developer from challenging whether the homeowners association may properly assert claims in a representative capacity on behalf of its members.1 Similarly, we conclude that section 6.11 of the Restatement (Third) of Property and its commentary indicate that a nonmember developer is only barred from challenging the adequacy of the internal procedures that a homeowners association follows before commencing a civil action on behalf of its members. A homeowners association has standing under NRS 116.3102(1)(d) to assert causes of action for constructional defects on behalf of its members
[Headnote 7]

D.R. Horton argues that First Light HOA does not have standing to assert constructional defect claims on behalf of its members be1 The Restatement reads: Except as limited by statute or the governing documents, the association has the power to institute . . . litigation . . . in its own name, on behalf of itself, or on behalf of the member property owners in

Sept. 2009]

D.R. Horton v. Dist. Ct.

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cause NRS 116.3102(1)(d) only allows a homeowners association to assert claims on behalf of the common-interest community, and individual units are statutorily excluded from the definition of the common-interest community. In contrast, First Light HOA argues that it has standing to assert claims affecting individual units because, as defined in NRS 116.093, a unit is considered a part of the common-interest community.
[Headnote 8]

NRS Chapter 116, also known as the Uniform CommonInterest Ownership Act (UCIOA), applies to all common-interest, planned communities. The purpose of the UCIOA is to make uniform the law with respect to the subject of this chapter among states enacting it. NRS 116.1109(2). The parties dispute whether, under NRS Chapter 116, a homeowners association has standing to institute an action on behalf of its members for constructional defect claims in individual units. We recognize that in the absence of an express statutory grant, an association does not have standing to bring suit on behalf of its member owners. NRCP 17(a); Deal v. 999 Lakeshore Association, 94 Nev. 301, 304, 579 P.2d 775, 777 (1978). Therefore, the question presented by this writ proceeding is whether NRS Chapter 116 provides an express statutory grant of standing on First Light HOA to assert claims affecting individual units within the common-interest community. NRS 116.3102(1) provides, in pertinent part: Except as otherwise provided in subsection 2, and subject to the provisions of the declaration, the association may do any or all of the following: .... (d) Institute, defend or intervene in litigation or administrative proceedings in its own name on behalf of itself or two or more units owners on matters affecting the common-interest community. (Emphases added.) D.R. Horton concedes that NRS 116.3102(1) provides an express statutory grant of standing on a homeowners association; however, D.R. Horton argues that individual units are not matters that affect the common-interest community, and thus, First Light HOA does not have standing to assert constructional defect
a common-interest community on matters affecting the community. Restatement (Third) of Prop.: Servitudes 6.11 (2000). The commentary following section 6.11 of the Restatement provides: If either the members on behalf of whom the association sues or the association meets normal standing requirements, the question whether the association has the right to bring a suit on behalf of the members is an internal question, which can be raised only by a member of the association. Id. cmt. a.

456

D.R. Horton v. Dist. Ct.

[125 Nev.

claims in individual units. Therefore, to resolve this issue, we must determine whether the definition of a common-interest community includes individual units.2
[Headnotes 9, 10]

This court has previously held that when the issue presented in an original writ proceeding is a question of statutory interpretation, this court will review the district courts decision de novo. International Game Tech. v. Dist. Ct., 124 Nev. 193, 198, 179 P.3d 556, 559 (2008). This court has also established that when a statute is facially clear, it will give effect to the statutes plain meaning. Public Employees Benefits Prog. v. LVMPD, 124 Nev. 138, 147, 179 P.3d 542, 548 (2008). If, on the other hand, a statute is ambiguous, because it is susceptible to more than one reasonable interpretation, this court will construe a statute by considering reason and public policy to determine legislative intent. Cable v. EICON, 122 Nev. 120, 124-25, 127 P.3d 528, 531 (2006). This court also assumes that, when enacting a statute, the Legislature is aware of related statutes. Id. at 125, 127 P.3d at 531. We conclude that NRS 116.3102(1) is ambiguous because the statute is susceptible to two reasonable interpretationseither a common-interest community includes individual units, or it does not. Therefore, we turn to other provisions and definitions contained in NRS Chapter 116, along with the Restatement (Third) of Property and its commentary, to determine the Legislatures intent. First, we turn to the definitions of common-interest community, NRS 116.021, unit, NRS 116.093, and common elements, NRS 116.017, to determine whether a common-interest community includes individual units. A common-interest community is defined by NRS 116.021 as real estate with respect to which a person, by virtue of his ownership of a unit, is obligated to pay for real estate other than that unit. D.R. Horton argues that the phrase, other than that unit excludes units from the definition of the common-interest community. However, after reviewing the definitions of unit and common elements, we conclude that the phrase, other than that unit does not exclude units from the common-interest community; rather, it simply expands the definition to require an owner to pay for realty other than that unit that he or she owns. A unit, for example, is defined as a physical portion of the common-interest community, NRS 116.093, and common elements include all portions of the common-interest community
2 NRS 116.3102(1) includes a provision to determine whether First Light HOAs CC&Rs limit its standing to assert claims on behalf of individual unit owners. But because the CC&Rs are nearly identical to the provisions of NRS 116.3102(1) and its corresponding definitions, it is not necessary to engage in a separate analysis to determine whether the CC&Rs limit First Lights standing.

Sept. 2009]

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457

other than the units. NRS 116.017(1).3 In other words, by owning property in a common-interest community, a property owner is obligated to pay certain expenses attached to real estate in addition to the unit he or she owns. The unit, however, is nonetheless part and parcel of the common-interest community. Thus, we conclude that the collaboration of the definitions of common-interest community, NRS 116.021, unit, NRS 116.093, and common elements, NRS 116.017, lead to the conclusion that units are considered a part of the common-interest community. Accordingly, we conclude that where NRS 116.3102(1)(d) confers standing on a homeowners association to assert claims on matters affecting the common-interest community, a homeowners association has standing to assert claims that affect individual units. Our conclusion is further supported by section 6.11 of the Restatement (Third) of Property and its commentary. The Restatement provides that [e]xcept as limited by statute or the governing documents, the association has the power to instiute . . . litigation . . . in its own name, on behalf of itself, or on behalf of member property owners in a common-interest community on matters affecting the community. Restatement (Third) of Prop.: Servitudes 6.11 (2000). Notably, section 6.11 of the Restatement mirrors the UCIOA section 3-102(a)(4), which grants power to the association to bring suit on behalf of its owners, and after which NRS 116.3102(1)(d) is modeled. See Unif. Common Interest Ownership Act 3-102(a)(4), 7 U.L.A. 934 (1994); Hearing on A.B. 221 Before the Assembly Comm. on Judiciary, 66th Leg., Ex. D (Nev., March 20, 1991); Hearing on A.B. 221 Before the Senate Judiciary Comm., 66th Leg., Ex. C (Nev., May 23, 1991). Comment a to section 6.11 of the Restatement explains: If either the members on behalf of whom the association sues or the association meets normal standing requirements, the question whether the association has the right to bring a suit on behalf of the members is an internal question, which can be raised only by a member of the association. We conclude that the commentary following section 6.11 of the Restatement is persuasive and supports our conclusion that a home3 Other statutory provisions in NRS Chapter 116 support the conclusion that units are a part of the common-interest community. See, e.g., NRS 116.4103(1)(c) (requiring that a public offering statement fully disclose [t]he estimated number of units in the common-interest community); NRS 116.41035 (providing a limitation to the requirements of a public offering statement for a common-interest community composed of not more than 12 units); NRS 116.2107(3) (requiring that a declaration state the method to reallocate interest [i]f units may be added to or withdrawn from the commoninterest community); NRS 116.41095 (describing the rights and responsibilities for potential investors who enter into a purchase agreement to buy a home or a unit in a common-interest community).

458

D.R. Horton v. Dist. Ct.

[125 Nev.

owners association may assert claims on behalf of its members. See Beazer Homes Nevada, Inc. v. Dist. Ct., 120 Nev. 575, 583, 97 P.3d 1132, 1137 (2004) (noting that this court will look to the commentary of a model act where a Nevada statute is patterned after the act).
[Headnote 11]

Nevertheless, we recognize that because NRS 116.3102(1)(d) and section 6.11 of the Restatement permit a homeowners association to file an action in a representative capacity, the statutory grant must be reconciled with the principles and analysis of class action lawsuits and the concerns related to constructional defect class actions, which this court addressed in Shuette v. Beazer Homes Holdings Corp., 121 Nev. 837, 124 P.3d 530 (2005). Indeed, the commentary to Restatement (Third) of Property section 6.11, which reaffirms that a homeowners association has standing to assert claims affecting individual units, also provides, [i]n suits where no common property is involved, the association functions much like the plaintiff in a class-action litigation, and questions about the rights and duties between the association and the members with respect to the suit will normally be determined by the principles used in class-action litigation. Restatement (Third) of Prop.: Servitudes 6.11 cmt. a (2000). Therefore, because a homeowners association functions much like a plaintiff in a class action, we conclude that when an association asserts claims in a representative capacity, the action must fulfill the requirements of NRCP 23, which governs class action lawsuits in Nevada. And we turn to both NRCP 23 and the principles expressed in Shuette to determine how questions about the rights and duties between the association and the members, Restatement (Third) of Prop.: Servitudes 6.11 cmt. a, shall be resolved. When describing the policy behind class action lawsuits, this court has declared that class actions promote efficiency and justice in the legal system by reducing the possibilities that courts will be asked to adjudicate many separate suits arising from a single wrong. Shuette, 121 Nev. at 846, 124 P.3d at 537. However, in Shuette, this court announced that because a fundamental tenet of property law is that land is unique, as a practical matter, single-family residence constructional defect cases will rarely be appropriate for class action treatment. Id. at 854, 124 P.3d at 542. In other words, because constructional defect cases relate to multiple properties and will typically involve different types of constructional damages, issues concerning causation, defenses, and compensation are widely disparate and cannot be determined through the use of generalized proof. Id. at 855, 124 P.3d at 543. Rather, individual parties must substantiate their own claims and class action certification is not appropriate. Id.

Sept. 2009]
[Headnotes 12-14]

D.R. Horton v. Dist. Ct.

459

However, in some constructional defect cases, a representative may properly bring a class action lawsuit. Id. at 856, 124 P.3d at 544. If, for example, common defects predominate over individual claims, the action may be suitable for class action treatment. Id. at 857, 124 P.3d at 544. Because constructional defect actions may be complex, it is particularly important for the district court to thoroughly analyze NRCP 23s requirements and document its findings. Id. In addition, because NRCP 23(c)(1) allows a district court to grant conditional class action certification, a court may later revoke class action certification if it determines that certification is problematic and requires individual trials. Id. at 857-58, 124 P.3d at 544.
[Headnotes 15-18]

We conclude that representative actions filed by homeowners associations are amenable to the same treatment as class action lawsuits brought by individual homeowners, which we discussed in Shuette. Therefore, where a homeowners association brings suit on behalf of its members, a developer may, under Shuette, challenge whether the associations claims are subject to class certification. In doing so, the district court must conduct and document a thorough NRCP 23 analysis. This analysis will require the court to consider whether the claims and various theories of liability satisfy the requirements of numerosity, commonality, typicality, adequacy, and, as in Shuette, whether common questions of law or fact predominate over individual questions, or whether the action satisfies one of the other two options set forth in NRCP 23(b).4 See id. at 846, 850, 124 P.3d at 537, 539. Indeed, we emphasize that a shared experience alone does not satisfy the threshold requirements under NRCP 23. See id. at 858, 124 P.3d at 545. Instead, the court must determine, among other issues, which units have experienced constructional defects, the types of alleged defects, the various theories of liability, and the damages necessary to compensate individual unit owners. And if necessary, NRCP 23(c)(4) allows the district court to certify a class action with respect to certain issues or subclasses. To that end, the district court may classify and distinguish claims that are suitable for class action certification from those requiring individualized proof. In sum, a homeowners association filing a suit on behalf of its members will be treated much the same as a plaintiff in class action
4 Specifically, in addition to considering whether common questions of law or fact predominate over claims concerning individual units, the district court, upon determining that the prerequisites enumerated in NRCP 23(a) are satisfied, could also consider whether the class action satisfies NRCP 23(b)(1) or (2).

460

Dobron v. Bunch

[125 Nev.

litigation. Although an association has standing to assert claims on behalf of its members, the suit must fulfill the requirements of NRCP 23 and the principles and concerns discussed in Shuette. CONCLUSION D.R. Hortons petition raises important issues of law and public policy related to a developers standing to challenge a homeowners associations right to bring an action, and a homeowners associations standing to assert causes of action on behalf of individual unit owners within a common-interest community. We conclude that because a common-interest community includes both common elements and units, a homeowners association has standing under NRS 116.3102(1)(d) to assert a cause of action against a developer for constructional defects within individual units. Additionally, although a developer may not challenge the internal procedures that an association uses before filing an action, the developer has standing to challenge the nature of the alleged damages and whether an association may, in accordance with NRCP 23, file a representative action on behalf of individual homeowners. In this case, First Light HOA alleged various causes of action against D.R. Horton, claiming, in part, that both the individual units and the common areas of the community have defects and deficiencies pertaining to, for example, the design and manufacturing of the community, stucco, drainage, and roofing. In accordance with our analysis, we direct the district court to review the claims asserted by First Light HOA to determine whether the claims conform with class action principles, and thus, whether First Light HOA may file suit in a representative capacity for constructional defect claims within individual units. Accordingly, we deny the petition and instruct the district court to conduct further proceedings consistent with this opinion. PARRAGUIRRE, DOUGLAS, CHERRY, SAITTA, GIBBONS, and PICKERING, JJ., concur.

THOMAS DOBRON, INDIVIDUALLY, APPELLANT, v. DEL BUNCH, JR., AND ERNESTINE L. BUNCH, RESPONDENTS.
No. 48730 September 10, 2009 215 P.3d 35

Appeal from a district court judgment awarding attorney fees as damages in a contract action. Eighth Judicial District Court, Clark County; Stewart L. Bell, Judge.

Sept. 2009]

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After creditor successfully defended against debtors claims of usury, creditor brought action against guarantor to loans, seeking attorney fees and costs that were incurred during the usury lawsuit. The district court entered judgment in favor of guarantor. The supreme court remanded, concluding that attorney fees were potentially recoverable in an independent action based on the guaranty agreement. On remand, the district court found that creditor was entitled to attorney fees as damages under the guaranty agreement because defending the usury action directly affected its ability to collect the full amount of the loans, and that sufficient proof had been presented to support the amount of attorney fees awarded. Guarantor appealed. The supreme court, HARDESTY, C.J., held that guarantor was not liable under guaranty agreement for attorney fees incurred by creditor in defending against usury action brought by debtors. Reversed. Wingert Grebing Brubaker & Goodwin LLP and Stephen C. Grebing, Henderson; John S. Addams, San Diego, California, for Appellant. Ellsworth, Moody & Bennion and Charles W. Bennion, Las Vegas, for Respondents.
1. GUARANTY. Guarantor was not liable for attorney fees incurred by creditor in defending against usury action brought by debtors, which action did not include any affirmative effort on creditors part to collect any of the underlying loans; creditors defense of the usury action did not fall within the attorney fees provision of the guaranty agreement because it was not an action to collect or compromise the loan. 2. APPEAL AND ERROR. The supreme court reviews the interpretation of a contract de novo. 3. GUARANTY. General contract interpretation principles apply to interpret guaranty agreements. 4. COSTS. Where a contract provision purports to allow attorney fees in an action arising out of the terms of the instrument, the court will not construe the provision to have broader application.

Before the Court EN BANC. OPINION By the Court, HARDESTY, C.J.: This appeal raises the issue of whether a guarantor to a loan may be held liable for attorney fees incurred by the lender in defending

462

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[125 Nev.

a usury action brought by the borrowers. We have previously held that a guarantors obligation to a lender under a guaranty agreement should be strictly construed and will not require a guarantor to be responsible for obligations beyond those specified in the guaranty agreement. But we have also recognized a distinction between a surety who is compensated and one who is not and eliminated the strict construction rule in favor of the surety when the surety is compensated. While our prior precedent is unclear as to the application of this distinction to guaranty agreements, we nevertheless conclude that such a distinction is no longer necessary. Consequently, when interpreting a guaranty agreement, whether a guarantor is compensated is not relevant, and rather than apply a strict rule of construction, we will apply general contract construction rules. In this case, the guaranty agreements stated that an obligation to pay attorney fees exists only in collecting or compromising any such indebtedness or in the enforcement of the guaranty agreement against the guarantor. Under general contract rules, specifically the rule that an attorney fees provision will not be interpreted more broadly than written, we conclude that the guarantor was not liable for attorney fees incurred by the lender in defending a usury action that did not include any affirmative effort on the part of the lender to collect any of the underlying loans. Accordingly, we reverse the district courts judgment awarding attorney fees to respondents. FACTS Appellant Thomas Dobron owned a number of companies that borrowed money from respondents Del Bunch, Jr., and Ernestine L. Bunch and their company. The transactions were incorporated into five different loan agreements. In connection with these loans, Dobron signed guaranty agreements with the Bunches, in which he promised to repay the loans if the companies failed to do so. All of the guaranty agreements contained identical language, except for the identification of which loan was guaranteed. Shortly after entering into the loans, the Dobron companies filed a usury action against the Bunches in California, claiming that the interest rate on the loans was usurious and therefore illegal. Dobron, personally, was not a party to that action. Under Californias usury law, if a loans interest rate is usurious, the borrower can recover three times the amount of interest paid in damages. The Bunches successfully removed the case to federal court and then transferred it to Nevada. The Nevada federal district court held that Nevada law applied to the loans, and as Nevada does not have a usury law, ruled in favor of the Bunches. The Ninth Circuit Court of Appeals affirmed. In the Ninth Circuit, the Bunches requested that the case be remanded to the Nevada federal district court for a determination of attorney fees and costs. This request was granted, however, the

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Bunches never sought the attorney fees or costs in the federal district court. Approximately one year later, the Bunches filed suit in the Nevada state district court against Dobron personally, seeking attorney fees and costs that were incurred during the usury lawsuit. The Bunches based their claim on section 8 of the guaranty agreement, which states in relevant part that the Guarantor [Dobron] shall also pay Lenders [the Bunches] reasonable attorneys fees and all costs and other expenses which Lender expends or incurs in collecting or compromising any such indebtedness or in enforcing this Guarantee against Guarantor. Following a short bench trial, the district court found in favor of the Bunches, and Dobron appealed. After concluding that attorney fees were potentially recoverable in an independent action based on the guaranty agreement, this court remanded the case to the district court and directed the court to make specific findings as to whether the guaranty agreement provided for attorney fees for the Bunches defense of the usury action and whether the amount of attorney fees was properly proved as damages based on the guaranty agreement. On remand, the district court found that the Bunches were entitled to attorney fees as damages under the guaranty agreement because defending the usury action directly affected their ability to collect the full amount of the loans, and that sufficient proof had been presented to support the amount of attorney fees awarded. The present appeal ensued. DISCUSSION Determining the appropriate standard of review
[Headnotes 1-3]

We review the interpretation of a contract de novo. May v. Anderson, 121 Nev. 668, 672, 119 P.3d 1254, 1257 (2005). Previously, this court has held that the obligation of a guarantor will be strictly construed, Adelson v. Wilson & Co., 81 Nev. 15, 21, 398 P.2d 106, 109 (1965), and we will not require the guarantor to be responsible for anything beyond what it clearly agreed to pay. Homewood Inv. Co. v. Wilt, 97 Nev. 378, 381, 632 P.2d 1140, 1143 (1981). This court has also held, however, in the context of interpreting a surety agreement, that the strict construction rule in favor of the surety does not apply when there is a compensated surety. Zuni Constr. Co. v. Great Am. Ins. Co., 86 Nev. 364, 367, 468 P.2d 980, 982 (1970). While it is unclear how our prior precedent has applied this compensated/uncompensated distinction to guaranty contracts, we conclude that there is no sound reason to continue to use such distinctions, and thus, we reject any further use of different treatment based on whether the guarantor is compensated. In connection with removing the distinction of whether a guarantor is compensated, we

464

Dobron v. Bunch

[125 Nev.

eliminate the construction rule that a guaranty agreement be strictly construed in any partys favor. Instead, general contract interpretation principles apply to interpret guaranty agreements. This conforms with the modern trend stated in Restatement (Third) of Suretyship and Guaranty, section 14, comment c (1996). See also WXI/Z Southwest Malls v. Mueller, 110 P.3d 1080, 1083 (N.M. Ct. App. 2005). The elimination of determining whether a party is compensated and the special interpretation rule provides a clearer, less mechanical approach to the interpretation of guaranty agreements and, as recognized by the Restatement, the policy behind the strict interpretation rule to protect an accommodating guarantor who is not in the guaranty business and derives no compensation from entering into the guaranty agreement is still covered by other general contract interpretation rules and substantive law protections. Following this new approach in the present case, the applicable general contract interpretation rule concerns the interpretation of attorney fees provisions. This court has held that [w]here a contract provision purports to allow attorneys fees in an action arising out of the terms of the instrument, we will not construe the provision to have broader application. Campbell v. Nocilla, 101 Nev. 9, 12, 692 P.2d 491, 493 (1985). Such a rule has been applied on more than one occasion to determine that an attorney fees provision in a guaranty agreement that relates to collecting on the underlying note or loan, but that does not expressly state that it applies to enforcement of the guaranty agreement itself, results in no recovery for attorney fees by a lender when bringing suit against the guarantor to enforce the guaranty agreement. See Servaites v. Lowden, 99 Nev. 240, 246, 660 P.2d 1008, 1012 (1983); Securities Investment Co. v. Donnelley, 89 Nev. 341, 349, 513 P.2d 1238, 1243 (1973). The guaranty agreements attorney fees and costs provision The main issue raised in this appeal concerns whether the guaranty agreement provides for the recovery of attorney fees and costs incurred in defending the usury action. The attorney fees provision in the guaranty agreement provides two bases for recovery of attorney fees from the guarantorthe lenders attempts to collect or compromise the loan and the enforcement of the guarantee agreement: Guarantor [Dobron] shall also pay Lenders [the Bunches] reasonable attorneys fees and all costs and other expenses which Lender expends or incurs in collecting or compromising any such indebtedness or in enforcing this Guarantee against Guarantor, whether or not suit is filed, including, without limitation, all such fees, costs and expenses incurred in connection with any insolvency, bankruptcy, reorganization, arrangement or other similar proceedings involving Guarantor which in any way

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affect the exercise by Lender of its rights and remedies hereunder. The attorney fees at issue here were incurred in the defense of the usury action and did not involve an action to enforce the guaranty agreement, especially in light of the fact that Dobron, the guarantor, was not even a party to the usury action. Thus, the only issue before us for resolution is whether the defense of the usury action falls under the collecting or compromising language of the guaranty agreement as a basis for the recovery of attorney fees and costs. We conclude that it does not. Dobron argues that defending the usury action does not fit within the meaning of collecting or compromising on the loan, and therefore, he cannot be held liable for the attorney fees and costs incurred. He points to the fact that the Bunches instituted separate actions to collect on the debts to support his assertion that the defense in the usury action was not a collection or compromise. The Bunches contend that their defense in the usury action meets the requirement of collecting or compromising the loan because if they had not defended the suit they would have lost the ability to collect a large amount of the loans. The Bunches note that Californias usury laws allow for treble damages, and in the usury case, the Dobron companies sought recovery of damages in excess of $2,700,000, while the loans were for $5,708,000. Thus, according to the Bunches, if they failed to defend the action, their ability to collect the loans would have been reduced substantially. The district court held that the defense in the usury action fell under the guaranty agreement because the Bunches had to defend it in order to be able to collect the full amount of the loans given to the companies. Therefore, the court determined that the defense was sufficient to meet the requirement that the fees be incurred in collecting the loans.
[Headnote 4]

As stated above, we apply general contract interpretation rules to determine whether the clause at issue provides for the recovery of attorney fees. The applicable contract interpretation rule in this case is that [w]here a contract provision purports to allow attorneys fees in an action arising out of the terms of the instrument, we will not construe the provision to have broader application. Campbell v. Nocilla, 101 Nev. 9, 12, 692 P.2d 491, 493 (1985). Applying this rule to the present case, we conclude that the Bunches defense of the usury action did not fall within the attorney fees provision of the guaranty agreement because it was not an action to collect or compromise the loan. There was no affirmative effort on the part of the Bunches to recover the debt from either the borrowers or the guarantor Dobron in the usury action. In fact, the Bunches elected in-

466

Dobron v. Bunch

[125 Nev.

stead to file separate actions to collect the debts, in which they were entitled to recover attorney fees pursuant to the guaranty agreement. The language of the guarantee agreement does not provide, however, for the recovery of attorney fees for defending the usury claim that did not also involve an attempt to collect under the loans. Additional authority supports the conclusion that the guaranty agreements attorney fees provision does not allow for the recovery of attorney fees when there is no affirmative attempt to collect or compromise the loans Our conclusion is supported by this courts holding in Campbell v. Nocilla, 101 Nev. 9, 692 P.2d 491 (1985). In Campbell, the owners of real property brought a declaratory relief action against their real estate agent, seeking indemnification for damages from breach of contract claims brought by potential buyers of the property. Id. at 10, 692 P.2d at 492. Judgment was entered in favor of the real estate agent, along with attorney fees pursuant to the real estate listing agreement, which stated that the real estate agent was entitled to fees if suit was brought to enforce the contract. Id. at 10-12, 692 P.2d at 492-93. This court reversed the attorney fees award and determined that the property owners declaratory relief action did not involve enforcement of the contract, and therefore, the real estate agent was not entitled to attorney fees for defending the indemnification claim. Id. at 12, 692 P.2d at 493. The present case is comparable to the Campbell case, in that the usury action, similar to the declaratory relief action in Campbell, was not brought specifically to collect or enforce the underlying debts, and as a result, attorney fees are not recoverable because the action does not fall under the specific provision in the contract allowing for recovery of fees. Court decisions in other jurisdictions, which narrowly construe attorney fees obligations pursuant to guaranty agreements, are also consistent with our holding today. See First Nat. Park Bank v. Johnson, 553 F.2d 599, 602-03 (9th Cir. 1977) (holding that an attorney fees provision allowing for recovery of attorney fees for enforcing a note did not provide for recovery of attorney fees in an action against the guarantor to enforce the guaranty agreement); In re LCO Enterprises, Inc., 180 B.R. 567, 570-71 (B.A.P. 9th Cir. 1995) (holding that attorney fees incurred by the lessor in defending a bankruptcy preference action by the lessees bankruptcy trustee to recover money paid to the lessor were not recoverable under an attorney fees provision in a lease agreement because it was not an action to enforce the lease contract); In re Wetzler, 192 B.R. 109, 119-20 (Bankr. D. Md. 1996) (holding that one of several guarantors on a guaranty agreement who incurred attorney fees to settle a claim by the lender against the guarantors could not recover a portion of those attorney fees from another guarantor because the guaranty agree-

Sept. 2009]

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ment only provided for attorney fees for enforcing payment of the underlying note or performance of the guaranty, and the settlement agreement was not an action by the guarantor to enforce the note or the guaranty agreement). Particularly supportive of our conclusion is Zimmerman v. First Production Credit Assn, 412 N.E.2d 216 (Ill. App. Ct. 1980). In Zimmerman, the obligor on a note brought a declaratory relief action seeking a court order that the note was unenforceable. The note contained an attorney fees provision that required the obligor on the note to pay attorney fees if the note was given to an attorney or a lawsuit was instigated to collect on the note. Id. at 217. In resolving the appeal, the Illinois court addressed whether the obligor had to pay attorney fees to the payee on the note for the payees defense of the declaratory relief action seeking to have the note invalidated. Id. The court concluded that, because the suit was not an attempt to collect on the note, attorney fees were not available pursuant to the attorney fees clause. Id. The defense of the declaratory relief action to invalidate the note directly affected the payees ability to collect on the note. The court concluded, however, that because there was no affirmative effort to collect on the note, attorney fees were unavailable according to the language of the attorney fees clause. Id. Likewise, in the present case, while the defense of the usury action may have had a potential impact on the lenders ability to collect the debts, the absence of an affirmative action to recover the loans precludes recovery of attorney fees under section 8 of the guaranty agreement. While the Zimmerman court also relied on the contract construction rule that a contract will be construed against the drafter, which does not apply in the present case because the parties have not provided evidence or argument regarding which party drafted the guaranty agreement, the reasoning of the Zimmerman court regarding the interpretation of the attorney fees clause requiring an attempt to collect on the note to recover attorney fees is still persuasive and supports our conclusion in the present case. Dobron would not have necessarily benefited from the usury action In concluding that the guaranty agreement does not provide for the recovery of attorney fees in this case, we reject the Bunches assertion that Dobron would have necessarily benefited from a successful usury action. Dobron did not initiate the action and was not a party to the usury suit. In addition, as guarantor, Dobrons obligation on the loans was contingent in the context of the usury action because he was not required to make any payments on the loans unless and until the borrower defaulted. As the usury action was instituted by the borrowers and neither the borrowers nor the Bunches sought to bring Dobron into the action under an argument that he was currently responsible for payment of the notes, the usury action

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[125 Nev.

did not directly benefit Dobron.1 Thus, there is no support for the argument that Dobron would necessarily have benefited from the usury action and therefore should be liable for the attorney fees. CONCLUSION Based on the language of the guaranty agreement, we conclude that Dobron was not liable for the Bunches attorney fees in defending the usury action brought by the borrowers of the loans. The defense of the usury action did not constitute a recovery action by the Bunches. Therefore, since there was no affirmative attempt to collect or compromise the loans, the attorney fees provision in the guaranty agreement does not allow for the recovery of attorney fees. Accordingly, we reverse the judgment of the district court. PARRAGUIRRE, DOUGLAS, SAITTA, and GIBBONS, JJ., concur. PICKERING, J., with whom CHERRY, J., agrees, concurring: I join the majority based on the particular attorney fees clause involved. The guaranty provided for the Bunches, as Lender, to recover fees the Lender expends or incurs in collecting or compromising [the] indebtedness . . . .1 Fees spent to defend the borrowers usury suit, which apparently did not involve any affirmative claims by the Bunches against the borrower, were not incurred by the Bunches in collecting or compromising [the] indebtedness. Unlike California, Cal. Civ. Code 1717, Nevada permits one-sided attorney fees clauses, see Trustees, Carpenters v. Better Building Co., 101 Nev. 742, 746-47, 710 P.2d 1379, 1382 (1985), but the one-sided clause in favor of the lender in this case ended up being too restrictive to cover fees incurred defensively. I write separately to emphasize that the outcome depends on the fee clause involved. If the clause here had been worded more broadly, fees incurred defensively might well have been recoverable, even though incurred in a separate suit. See Exchange Nat. Bank of Chicago v. Daniels, 763 F.2d 286, 294 (7th Cir. 1985) (upholding award of fees incurred to defend separate suits and counterclaims be1 In fact, it is possible that the usury action negatively affected Dobron, as he potentially could have raised a usury defense himself in a future collection action against him under the guaranty agreement. He could be precluded from raising such a defense based on the borrowers usury action under issue preclusion principles. We need not address this issue, however, as the parties did not argue this point and it is unnecessary for resolution of this appeal. 1 The language at the end of the fee clause saying it applies to a range of reorganization or insolvency proceedings doesnt help. It is self-limiting, applying to fees incurred in proceedings involving Guarantor which in any way affect the exercise by Lender of its rights and remedies hereunder. The guarantor is Dobron, who was not a party to the usury suit, and the reference to the lenders rights and remedies hereunder applies to the guaranty, not the note. The fees at issue here were incurred to defend the Bunches rights against the borrower under the note, not rights against Dobron under the guaranty.

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cause the fee clause authorize[d] fees for all work in both the collection and the enforcement of the note); Thunderbird Investment Corporation v. Rothschild, 97 Cal. Rptr. 112, 118 (Ct. App. 1971) (upholding award of fees incurred to defend a notes interest provisions against a usury challenge where the fee clause provided for fees [i]f action be instituted on this note); see also Towers Charter & Marine Corp. v. Cadillac Ins. Co., 894 F.2d 516, 524-25 (2d Cir. 1990) (discussing differences among various fee clauses and their application to fees incurred defensively). While I join the majoritys sound opinion, including its recognition of the rule stated in the Restatement (Third) of Suretyship and Guaranty section 14 (1996), I except from my joinder its suggestion that we are adopting a special rule that requires us to narrowly construe attorney fees obligations pursuant to guaranty agreements. Ante at 466, citing First Nat. Park Bank v. Johnson, 553 F.2d 599, 602-03 (9th Cir. 1977); In re LCO Enterprises, Inc., 180 B.R. 567, 570-71 (B.A.P. 9th Cir. 1995); In re Wetzler, 192 B.R. 109, 119-20 (Bankr. D. Md. 1996). It is not clear to me that the cases cited establish this proposition,2 or that we need a special rule of construction to decide this appeal. But more importantly, by statute, Nevada allows agreements that require one party to pay the other partys attorney fees, NRS 18.010(4), with particular reference to commercial agreements involving money due or to become due on any contract. See NRS 99.050 (providing that parties may agree for the payment of any rate of interest on money due or to become due on any contract, for the compounding of interest if they choose, and for any other charges or fees (emphasis added)). Perhaps because agreements allowing one side to recover its fees from the other depart from the normal American Rule, the court has historically examined the language the parties used to establish their right to fees to be sure there was, in fact, an agreement to pay fees that applies. Cf. First Commercial Title v. Holmes, 92 Nev. 363, 550 P.2d 1271 (1976), cited in Campbell v. Nocilla, 101 Nev. 9, 12, 692 P.2d 491, 493 (1985). But I do not see this as a special rule of construction, and if it is, our cases have applied it to all fee-shifting agreements, not just those in guaranties.
2 First National Park Bank involved a guaranty fee clause that only applied to suits to collect the note, not to suits arising under the guaranty, 553 F.2d at 60203, which differs from the clause here, which specified that it applied to both. LCO involved a fee clause in a lease, not a guaranty. 180 B.R. at 568-69. And Wetzler involved a dispute between co-guarantors asserting indemnity claims against each other for fees one co-guarantor incurred dealing with litigation by the lender, which the court found were not covered by the fee clause in the guaranty, which only apply to litigation involving payment of any amount due under the Note or performance of the Guaranty. 192 B.R. at 119.

470

Bower v. Harrahs Laughlin

[125 Nev.

MICHAEL BOWER; ROBERT GARCIA; NOI LEWIS; KATHY PACE FULLER; STEVEN MARK FULLER; ANDREA DANIELS; AND DEAN DANIELS, APPELLANTS, v. HARRAHS LAUGHLIN, INC., A NEVADA CORPORATION, DBA HARRAHS LAUGHLIN HOTEL AND CASINO, RESPONDENT.
No. 49783

MICHAEL BOWER; ROBERT GARCIA; NOI LEWIS; KATHY PACE FULLER; STEVEN MARK FULLER; ANDREA DANIELS; AND DEAN DANIELS, APPELLANTS, v. HARRAHS LAUGHLIN, INC., A NEVADA CORPORATION, DBA HARRAHS LAUGHLIN HOTEL AND CASINO, RESPONDENT.
No. 50298 September 10, 2009 215 P.3d 709

Consolidated appeals from a district court summary judgment in consolidated tort actions and from post-judgment orders awarding attorney fees and costs. Eighth Judicial District Court, Clark County; Susan Johnson, Judge. Bystanders to brawl between biker gangs brought negligence actions against casino. After the actions were consolidated, the district court granted casino summary judgment, and bystanders appealed. The supreme court, GIBBONS, J., held that: (1) district court had authority to rehear casinos summary judgment motion made on grounds of issue preclusion; (2) members of biker gangs and/or their family did not adequately represent bystanders interests in federal action in which jury returned a verdict for casino, as required for nonparty issue preclusion under federal law to bar bystanders negligence claims; (3) gang members in federal action in which court applied issue preclusion against gang members did not adequately represent bystanders interests; (4) casino guests in federal action did not adequately represent bystanders interests, though guests were represented by same attorney as bystanders; (5) gang members in California action in which jury returned verdict for casino were not in privity with bystanders, as required in order for issue preclusion to bar bystanders claims under state law; (6) plaintiffs in state negligence actions in which courts applied issue preclusion against plaintiffs were not in privity with bystanders, as required in order for issue preclusion to bar bystanders claims under state law; and (7) arrest by police of two of the bystanders, during which police exposed breast of female bystander to the public and refused the other bystander seizure medication, was a superseding intervening cause of such bystanders injuries.

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Affirmed in part, reversed in part, and remanded. E. Brent Bryson, Ltd., and E. Brent Bryson and John Thayer Clark, Las Vegas, for Appellants. Olson, Cannon, Gormley & Desruisseaux and James R. Olson, David M. Jones, and Felicia Galati, Las Vegas, for Respondent.
1. JUDGMENT. District court had authority to rehear casinos summary judgment motion made on grounds of issue preclusion in consolidated negligence actions brought by bystanders against casino arising out of brawl between biker gangs, though identical motion was denied in one of the bystanders actions before actions were consolidated, as in a case involving multiple parties, a district court could revise a judgment that adjudicated the rights of less than all the parties until it entered judgment adjudicating the rights of all the parties. NRCP 54(b). 2. APPEAL AND ERROR. Supreme court can affirm a district courts summary judgment decision on alternate grounds. 3. APPEAL AND ERROR. Bystander, who prevailed on casinos motion seeking summary judgment on issue preclusion grounds in his negligence action arising out of brawl between biker gangs at casino, did not preserve for appeal assertion that district court lacked authority to rehear casinos summary judgment motion after his action was consolidated with negligence actions brought by other bystanders, where such bystander after actions were consolidated orally moved the district court to reconsider casinos prior summary judgment motion and bystander did not object to the rehearing. 4. APPEAL AND ERROR. A point not urged in the trial court, unless it goes to the jurisdiction of that court, is deemed to have been waived and will not be considered on appeal. 5. APPEAL AND ERROR. Supreme court reviews a district courts grant of summary judgment de novo. 6. JUDGMENT. Summary judgment is proper when, viewing the evidence in the light most favorable to the nonmoving party, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. 7. JUDGMENT. Issue preclusion is a proper basis for summary judgment. 8. APPEAL AND ERROR. Although whether issue preclusion applies is a mixed question of law and fact, legal issues predominate, and therefore, the supreme court reviews de novo the availability of issue preclusion. 9. JUDGMENT. To establish the preclusive effect of a previous federal decision, a party must demonstrate that the issue he seeks to preclude is: (1) identical to the one alleged in the prior litigation, (2) has been actually litigated in the prior litigation, and (3) that the resolution of the issue was a critical and necessary part of the earlier judgment.

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[125 Nev.

10. JUDGMENT. Issue preclusion under federal law is generally prohibited in cases where a party is seeking to assert a judgment against a person who was not a party in the prior case; however, there are exceptions where issue preclusion may be applied to nonparties, one of which is adequate representation. 11. JUDGMENT. Adequate representation, for purposes of issue preclusion being applied to a nonparty under federal law, only exists when the nonparty was adequately represented by someone with the same interests who was a party to the suit. 12. JUDGMENT. Adequate representation is a narrow exception under federal law to the general rule prohibiting the application of issue preclusion to nonparties. 13. JUDGMENT. Under Nevada law, issue preclusion requires that: (1) an issue be identical, (2) the initial ruling was final and on the merits, (3) the party against whom the judgment is asserted was a party or in privity with a party in the prior case, and (4) the issue was actually and necessarily litigated. 14. JUDGMENT. Issue preclusion under Nevada law is based upon the sound public policy of limiting litigation by preventing a party who had one full and fair opportunity to litigate an issue from again drawing it into controversy. 15. JUDGMENT. The doctrine of issue preclusion under Nevada law ends litigation and lends stability to judgments, thus inspiring confidence in the judicial system. 16. JUDGMENT. A party seeking to assert a judgment against another under Nevada law has the burden of proving the preclusive effect of the judgment. 17. JUDGMENT. Issue preclusion can under Nevada law only be used against a party whose due process rights have been met by virtue of that party having been a party or in privity with a party in the prior litigation. U.S. CONST. amend. 14. 18. JUDGMENT. To be in privity for purposes of issue preclusion under Nevada law, the person against whom preclusion is asserted must have acquired an interest in the subject matter affected by the judgment through one of the parties, as by inheritance, succession, or purchase. 19. COURTS. To determine the preclusive effect of a federal decision, supreme court applies federal law. 20. COURTS. To determine the issue preclusive effect of a state decision, supreme court applies Nevada issue preclusion law. 21. COURTS. When the United States Supreme Court applies a rule of law to the parties before it, every court must then give retroactive effect to that decision. 22. JUDGMENT. Members of one of the biker gangs and/or their relatives who were plaintiffs in federal negligence action against casino in which jury returned

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23. 24.

25.

26.

27.

a verdict finding that brawl between biker gangs was not foreseeable to casino did not adequately represent bystanders interests, as required in order for nonparty issue preclusion under federal law to bar bystanders consolidated state negligence actions against casino arising out of the same brawl, where there was no evidence that bystanders had notice of such plaintiffs action, that such plaintiffs knew they were representing bystanders interests, or that the court in such action took care to protect bystanders interests. JUDGMENT. An issue decided on summary judgment motion has a preclusive effect for issue preclusion purposes. JUDGMENT. Plaintiffs in federal negligence and premises liability action against casino in which the trial court granted summary judgment for casino on the ground that plaintiffs failed to establish a standard of care did not adequately represent bystanders interests, as required in order for nonparty issue preclusion under federal law to bar bystanders consolidated state negligence actions against casino arising out of brawl between biker gangs, where there was no evidence that bystanders had notice of such plaintiffs action, that such plaintiffs knew they were representing bystanders interests, or that the court in such action took care to protect bystanders interests. JUDGMENT. Plaintiff in federal negligence action against casino in which trial court granted summary judgment for casino after plaintiffs counsel failed to appear did not adequately represent bystanders interests, as required in order for nonparty issue preclusion under federal law to bar bystanders consolidated state negligence actions against casino arising out of brawl between biker gangs. JUDGMENT. Members of one of the biker gangs and/or their relatives who were plaintiffs in federal negligence action against casino arising out of brawl between biker gangs in which court granted summary judgment for casino based on issue preclusion pursuant to a virtual representation analysis did not adequately represent bystanders interests, as required in order for nonparty issue preclusion under federal law to bar bystanders consolidated state negligence actions against casino arising out of the same brawl; issue preclusion was applied against plaintiffs in such action based on jury verdicts for casino in another federal action and a state action brought by other gang members and their relatives, the plaintiffs in all three actions were represented by the same attorneys, bystanders were not members of the biker gang or relatives of members, and bystanders were not represented by the same attorney. JUDGMENT. Casino guests who were plaintiffs in federal negligence action against casino arising out of a brawl between biker gangs in which court granted summary judgment for casino based on issue preclusion pursuant to a virtual representation analysis did not adequately represent bystanders interests, as required in order for nonparty issue preclusion under federal law to bar bystanders consolidated state negligence actions against casino arising out of the same brawl; though casino guests and bystanders were represented by the same attorney and discovery in the actions was consolidated, the action that the federal court found precluded the guests was brought by biker gang members and their relatives, gang members and their relatives were not represented by the same attorney as casino guests and bystanders, guests federal action was not a class action, and there was no indication

474

Bower v. Harrahs Laughlin

[125 Nev.

28. 29.

30. 31.

32.

33.

34.

35.

36.

that casino guests in federal action were aware they were acting as representatives for bystanders. FRCP 23. COURTS. Regarding the issue preclusive effect of a Nevada or out-of-state judgment, Nevada courts apply Nevadas issue preclusion law. JUDGMENT. Biker gang members who were plaintiffs in California negligence action brought against casino arising out of brawl between two rival biker gangs, in which jury returned a verdict for casino, were not in privity with bystanders, as required in order for nonparty issue preclusion under state law to bar bystanders consolidated state negligence actions against casino arising out of the same brawl, where bystanders did not have a legal or private relationship with gang members, California action was not consolidated with other actions against casino arising out of the brawl, and there was no evidence that bystanders were aware of the California action. JUDGMENT. Nevadas privity requirement for issue preclusion protects nonparties due process rights. U.S. CONST. amend. 14. JUDGMENT. Plaintiffs, in state negligence actions brought against casino arising out of a brawl between two biker gangs in which trial courts granted casino summary judgment based on jury verdict for casino in a federal negligence action and a California negligence action which were brought by gang members were not in privity with bystanders, as required in order for nonparty issue preclusion under state law to bar bystanders consolidated state negligence actions against casino arising out of the same brawl, where bystanders did not have a legal or private relationship with either the gang members or the plaintiffs in the other state negligent actions, and there was no evidence that bystanders were aware of the other state negligence actions. PUBLIC AMUSEMENT AND ENTERTAINMENT. Arrest by police, following brawl between two biker gangs at casino, of two bystanders during which police exposed one of the bystanders breasts to the public, struck the second bystander when he complained and refused second bystanders request to return to his room for seizure medication after which he suffered two seizures, were unforeseeable intentional torts and thus a superseding intervening cause of such bystanders injuries, precluding casinos liability in bystanders negligence action against casino, as the police actions were not the type of harm expected from casinos negligence in failing to protect its patrons from the criminal acts of the gangs. JUDGMENT. On a motion for summary judgment, the substantive law determines which facts are material, and an issue is genuine when a rational trier of fact could return a verdict for the nonmoving party. NEGLIGENCE. To prevail on a negligence theory, a plaintiff generally must show that: (1) the defendant owed a duty of care to the plaintiff, (2) the defendant breached that duty, (3) the breach was the legal cause of the plaintiffs injury, and (4) the plaintiff suffered damages. NEGLIGENCE. A defendants acts are the actual cause of a plaintiffs harm, for purposes of a negligence claim, if its acts were a substantial factor in bringing about his or her injury. NEGLIGENCE. Foreseeability, for purposes of proximate cause in a negligence action, is a policy concern that limits a defendants liability to only those harms with a reasonably close connection to its breach.

Sept. 2009]

Bower v. Harrahs Laughlin

475

37. NEGLIGENCE. To determine whether an intervening cause is foreseeable for purposes of a negligence claim, supreme court considers several factors, including whether: (1) the intervention causes the kind of harm expected to result from the actors negligence, (2) the intervening event is normal or extraordinary in the circumstances, (3) the intervening source is independent or a normal result of the actors negligence, (4) the intervening act or omission is that of a third party, (5) the intervening act is a wrongful act of a third party that would subject him to liability, and (6) the culpability of the third persons intervening act. Restatement (Second) of Torts 442. 38. NEGLIGENCE. When a third party commits an intentional tort or a crime, the act is a superseding cause for purposes of a negligence claim, even when the negligent party created a situation affording the third party an opportunity to commit the tort or crime, and, in such a situation, the negligent party will only be liable if he knew or should have known at the time of the negligent conduct that he was creating such a situation and that a third party might avail himself of the opportunity to commit such a tort or crime. Restatement (Second) of Torts 448. 39. APPEAL AND ERROR. The supreme court reviews a district courts award of attorney fees for abuse of discretion. 40. COSTS. Although a district court has discretion to award attorney fees against a party for unreasonably maintaining a lawsuit, there must be evidence supporting the district courts finding that the claim or defense was unreasonable or brought to harass. NRS 18.010(2)(b). 41. COSTS. Trial courts award of attorney fees to casino on the ground that bystanders unreasonably maintained their lawsuits, in bystanders consolidated negligence actions against casino arising out of a brawl between two biker gangs, was premature and an abuse of discretion, though similar cases with different plaintiffs arising out the brawl were resolved in casinos favor, as a decision in a factually similar case with different plaintiffs did not necessarily support issue preclusion. NRS 18.010(2)(b).

Before the Court EN BANC.1 OPINION By the Court, GIBBONS, J.: This case arises out of a brawl between two biker gangs, the Hells Angels and the Mongols. The gangs brawled at Harrahs casino in Laughlin, Nevada, during its annual River Run event in 2002. Several people were killed, and many were injured. As a result, several groups of plaintiffs, who were not directly involved in the brawl, sued Harrahs under various negligence theories. These suits proceeded in California state court, Nevada state court, and Nevada federal court.
1 THE HONORABLE KRISTINA PICKERING, Justice, did not participate in the decision of this matter.

476

Bower v. Harrahs Laughlin

[125 Nev.

Appellant Michael Bower sued in Nevada state court. While his suit was pending, federal and state courts entered judgment on two jury verdicts and several summary judgment motions in favor of Harrahs. In Bowers case, Judge Denton, a state district court judge, denied Harrahs summary judgment motion based on issue preclusion. Bowers case was then consolidated with several other plaintiffs, including Robert Garcia, Noi Lewis, Kathy and Steven Fuller, and Andrea and Dean Daniels (collectively, appellants). The consolidated cases were assigned to a separate state district court judge, Judge Johnson. Judge Johnson then reheard Harrahs summary judgment motion regarding Bower and found in favor of Harrahs based on issue preclusion. The district court also granted Harrahs summary judgment motion regarding issue preclusion as to all plaintiffs and entered final judgment. Then, the district court granted Harrahs summary judgment motion regarding plaintiffs Lewis and Garcia based on the merits of their case. Appellants now appeal. We first address the district courts rehearing of Harrahs summary judgment motion regarding Bower. We conclude that the district court properly reheard the motion pursuant to NRCP 54(b), and Bower consented to the rehearing, thereby failing to preserve the issue for appeal. Second, we discuss federal and state issue preclusion. We highlight the difference between the adequate representation exception to federal issue preclusion and the privity requirement of Nevada issue preclusion. Also, we explain that we must analyze federal issue preclusion under Taylor v. Sturgell, 553 U.S. 880 (2008), which changed federal issue preclusion law after the district court rendered its decision in this case. Third, we review the district courts decision granting Harrahs summary judgment, which determined that issue preclusion barred appellants claims based on prior federal decisions. Applying federal issue preclusion law, we conclude that the district court inappropriately granted Harrahs summary judgment based on issue preclusion because the plaintiffs in the prior federal cases did not adequately represent appellants interests. Fourth, we review the district courts decision granting Harrahs summary judgment, which determined that issue preclusion barred appellants claims based on prior state decisions. Applying Nevada issue preclusion law, we conclude that the district court inappropriately granted Harrahs summary judgment based on issue preclusion because the plaintiffs in the prior state cases were not in privity with appellants. Fifth, we address the district courts decision granting Harrahs summary judgment regarding plaintiffs Garcia and Lewis based on the merits of their case. We conclude that the district court properly granted Harrahs summary judgment because the Las Vegas Metropolitan Police Department (Metro) was a superseding intervening

Sept. 2009]

Bower v. Harrahs Laughlin

477

cause of Garcias and Lewis harm, and therefore, Harrahs is not liable. Finally, we address the district courts awarding Harrahs attorney fees for defending against appellants meritless claims and its awarding Harrahs costs as the prevailing party. We hold that the district court erred in granting Harrahs attorney fees because appellants did not unreasonably maintain their claims. Given our decision in this appeal, Harrahs only prevailed against Garcia and Lewis, and therefore, we vacate the costs award against all appellants except Garcia and Lewis. FACTS AND PROCEDURAL HISTORY Two biker gangs, the Hells Angels and the Mongols, brawled at Harrahs Laughlin Hotel and Casino in Laughlin, Nevada, on April 27, 2002. As a result of that brawl, several plaintiffs filed separate lawsuits in Nevada federal court and state courts in Nevada and California. Appellants Michael Bower, Robert Garcia, Noi Lewis, Kathy and Steven Fuller, and Andrea and Dean Daniels were not members of either biker gang and were bystanders when the brawl occurred. Appellants brought various negligence claims in Nevada state district court, arising out of physical and emotional harms suffered as a result of the brawl. Specifically, Bower filed claims for premises liability, negligence, fraud, negligent representation, and unfair and deceptive trade practices. Garcia, Lewis, the Fullers, and the Danielses all claimed premises liability, negligent training, negligent supervision, negligence, and negligent infliction of emotional distress. Bowers case was initially assigned to a Nevada state district court judge, Judge Denton. Harrahs filed a summary judgment motion, which the district court denied. Harrahs then petitioned this court for a writ of mandamus or prohibition, which we denied. Harrahs Laughlin, Inc. v. Dist. Ct., Docket No. 47593 (Order Denying Petition for Writ of Mandamus or Prohibition, October 26, 2006). Subsequently, Bowers case was reassigned to Judge Johnson and consolidated with the other appellants cases. While appellants case was pending in Nevada state district court, Harrahs prevailed in other cases arising out of the same events in both state and federal court. A Nevada federal district court jury and a California superior court jury both returned verdicts for Harrahs. Yvette Barreras v. Harrahs Laughlin, Inc., No. CV-S-03-0661RLH-PAL (D. Nev. Mar. 18, 2005); Ramirez v. Harrahs Entertainment, Inc., No. 1-02 CV810665 (Cal. Super. Ct. Apr. 28, 2005). The United States district court for the district of Nevada granted Harrahs summary judgment in four separate cases. Sweers v. Harrahs Laughlin, Inc., No. CV-S-04-0378-RCJ-RJJ (D. Nev. Dec. 22, 2004); Nolan v. Harrahs Laughlin, Inc., No. CV-S-021611-PMP (LRL) (D. Nev. Jan. 14, 2005); Alcantar v. Harrahs

478

Bower v. Harrahs Laughlin

[125 Nev.

Laughlin, Inc., No. CV-S-03-1195-HDM (RJJ) (D. Nev. June 14, 2005); Schoenleber v. Harrahs Laughlin, Inc., 423 F. Supp. 2d 1109 (D. Nev. 2006). Also, the Nevada state district court granted Harrahs summary judgment in two other cases. Salvador Barreras v. Harrahs Laughlin, Inc., No. A484654 (Nev. Dist. Ct. June 13, 2005); Collins v. Harrahs Laughlin, Inc., No. A472232 (Nev. Dist. Ct. Nov. 21, 2005). At a hearing, Bower suggested that Harrahs orally move the court to reconsider Harrahs summary judgment motion against Bower, which Judge Denton had previously denied. Bower suggested this after the district court had granted Harrahs summary judgment against all the other plaintiffs to avoid wasting time preparing for trial if summary judgment against him was inevitable. At the hearing, the district court made three rulings. It granted: (1) Harrahs motion to reconsider summary judgment regarding Bower, (2) Harrahs summary judgment motion against all plaintiffs based on issue preclusion, and (3) Harrahs summary judgment motion regarding Garcia and Lewis on the merits of their case. Later, the district court also granted Harrahs post-judgment motion for attorney fees in the amount of $317,621.98, and awarded it costs in the amount of $30,788.55. DISCUSSION I. The district court properly reheard Harrahs summary judgment motion regarding Bower Judge Denton denied Harrahs summary judgment motion, based solely on issue preclusion, against Bower. Although Judge Denton made no specific findings in the order, during the hearing, he indicated that Bower was not in privity with other plaintiffs in separate cases and that Harrahs standard of care might be different for gang members and nongang members. Bowers case was then consolidated with the other appellants cases and assigned to Judge Johnson, who reheard the motion. Judge Johnson granted Harrahs rehearing because she concluded it was warranted and because additional facts or events had developed since Judge Denton decided the motion. Upon rehearing, Judge Johnson granted Harrahs summary judgment motion. Appellants argue that the district court did not have a sufficient basis to rehear Harrahs identical summary judgment motion, which Judge Denton previously decided. Harrahs argues that because Bower requested that Harrahs make the rehearing motion, he is barred from challenging the district courts rehearing of the motion. We agree with Harrahs for two reasons. First, we conclude that Judge Johnson was authorized to rehear the motion under NRCP 54(b), and second, we conclude that Bower consented to the rehearing. We now address each of these issues in turn.

Sept. 2009]
[Headnotes 1, 2]

Bower v. Harrahs Laughlin

479

The district court had the authority to rehear the motion under NRCP 54(b). Although the district court did not base its decision on NRCP 54(b) and neither party raised it in their briefs, this court can affirm the district courts decision on alternate grounds. Hotel Riviera, Inc. v. Torres, 97 Nev. 399, 403, 632 P.2d 1155, 1158 (1981). Under NRCP 54(b), in a case involving multiple parties, a district court may revise a judgment that adjudicates the rights of less than all the parties until it enters judgment adjudicating the rights of all the parties. Mallin v. Farmers Insurance Exchange, 106 Nev. 606, 609, 797 P.2d 978, 980 (1990) (holding that consolidated cases are one case for appellate purposes and an order resolving less than all the consolidated claims is not a final, appealable order). In this case, Judge Dentons denial of Harrahs summary judgment motion against Bower adjudicated only Bowers rights. We conclude that when the case was consolidated before Judge Johnson, NRCP 54(b) permitted her to review and revise the judgment before she entered final judgment as to all the parties. Therefore, under NRCP 54(b), the district court properly reheard Harrahs summary judgment motion regarding Bower.
[Headnotes 3, 4]

Further, we conclude that Bower consented to the rehearing and cannot now complain of error. A point not urged in the trial court, unless it goes to the jurisdiction of that court, is deemed to have been waived and will not be considered on appeal. Old Aztec Mine, Inc. v. Brown, 97 Nev. 49, 52, 623 P.2d 981, 983 (1981). At a hearing, Bower suggested that Harrahs orally move the district court to reconsider Harrahs prior summary judgment motion against Bower, which Judge Denton had previously denied. Thus, Bower did not object to the rehearing, and did not preserve the issue for appeal. Although Bower argues that this was a strategic decision, to prevent wasting time preparing for trial if summary judgment against him was inevitable, his consent to the rehearing prevents him from now complaining of the district courts reconsideration. II. Federal and state issue preclusion
[Headnotes 5-8]

In this case, the district court granted Harrahs summary judgment motion as to all plaintiffs, based on issue preclusion. This court reviews a district courts grant of summary judgment de novo. Wood v. Safeway, Inc., 121 Nev. 724, 729, 121 P.3d 1026, 1029 (2005). Summary judgment is proper when, viewing the evidence in the light most favorable to the nonmoving party, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Id. Issue preclusion is a proper basis

480

Bower v. Harrahs Laughlin

[125 Nev.

for summary judgment. Kahn v. Morse & Mowbray, 121 Nev. 464, 474, 117 P.3d 227, 234 (2005). Although whether issue preclusion applies is a mixed question of law and fact, legal issues predominate, and therefore, this court reviews de novo the availability of issue preclusion. University & Cmty. Coll. Sys. v. Sutton, 120 Nev. 972, 984, 103 P.3d 8, 16 (2004). Both federal and state law attempts to restrict the application of issue preclusion to parties whose due process rights have been met, such that it is fair to apply a prior decision in a separate case to their claims. Federal law does this by generally prohibiting the application of issue preclusion to those who were not parties in the prior litigation, but allowing its application if the partys interests were adequately represented in the prior litigation. Taylor v. Sturgell, 553 U.S. 880, 892-94 (2008). Nevada ensures due process by limiting the application of issue preclusion to those who were a party in the prior case or who were in privity with a party in the prior case. Paradise Palms v. Paradise Homes, 89 Nev. 27, 30-31, 505 P.2d 596, 598-99 (1973). Although both federal and state doctrines of issue preclusion seek to protect parties due process rights, the terminology and analyses differ. Therefore, we separately discuss the preclusive effect of the prior federal and state decisions. A. Federal issue preclusion
[Headnote 9]

To establish the preclusive effect of a previous federal decision, a party must demonstrate that the issue he seeks to preclude is (1) identical to the one alleged in the prior litigation, (2) has been actually litigated in the prior litigation, and (3) that the resolution of the issue was a critical and necessary part of the earlier judgment. Clark v. Bear Stearns & Co., Inc., 966 F.2d 1318, 1320 (9th Cir. 1992); Taylor, 553 U.S. at 906-07 (noting that the party asserting issue preclusion bears the burden of establishing the elements).
[Headnotes 10, 11]

Preclusion is generally prohibited in cases where a party is seeking to assert a judgment against a person who was not a party in the prior case. Taylor, 553 U.S. at 892-93. However, there are exceptions where issue preclusion may be applied to nonparties, one of which is adequate representation. Id. at 894. Adequate representation only exists when a nonparty was adequately represented by someone with the same interests who [wa]s a party to the suit. Id. (alteration in original) (quoting Richards v. Jefferson County, 517 U.S. 793, 798 (1996)). In the instant case, appellants were nonparties in the federal cases relied upon by the district court to apply issue preclusion. Adequate representation is the only exception to the

Sept. 2009]

Bower v. Harrahs Laughlin

481

general rule prohibiting the application of issue preclusion to nonparties that is at issue in this case. Id.
[Headnote 12]

Adequate representation is a narrow exception to the general rule prohibiting the application of issue preclusion to nonparties. Recently, in Taylor v. Sturgell, the United States Supreme Court clarified the law regarding the circumstances in which issue preclusion applies to persons who were nonparties to the prior case and specifically addressed adequate representation. Id. at 892-95. The Court noted that the adequate representation exception only applies if (1) the interests of the nonparty and her representative are aligned, and (2) either the party understood herself to be acting in a representative capacity or the original court took care to protect the interests of the nonparty. Id. at 900 (internal citations omitted). In addition, the Court indicated that it sometimes also requires that (3) the nonparty had notice of the original suit. Id. B. State issue preclusion
[Headnotes 13-16]

In Nevada, issue preclusion requires that (1) an issue be identical, (2) the initial ruling was final and on the merits, (3) the party against whom the judgment is asserted was a party or in privity with a party in the prior case, and (4) the issue was actually and necessarily litigated. Five Star Capital Corp. v. Ruby, 124 Nev. 1048, 1055, 194 P.3d 709, 713 (2008). Issue preclusion is based upon the sound public policy of limiting litigation by preventing a party who had one full and fair opportunity to litigate an issue from again drawing it into controversy. Thompson v. City of North Las Vegas, 108 Nev. 435, 439-40, 833 P.2d 1132, 1134-35 (1992). This doctrine ends litigation and lends stability to judgments, thus inspiring confidence in the judicial system. Willerton v. Bassham, 111 Nev. 10, 19, 889 P.2d 823, 828 (1995). The party seeking to assert a judgment against another has the burden of proving the preclusive effect of the judgment. Bennett v. Fidelity & Deposit Co., 98 Nev. 449, 452, 652 P.2d 1178, 1180 (1982).
[Headnotes 17, 18]

Issue preclusion can only be used against a party whose due process rights have been met by virtue of that party having been a party or in privity with a party in the prior litigation. Paradise Palms, 89 Nev. at 30-31, 505 P.2d at 598-99. To be in privity, the person must have acquired an interest in the subject matter affected by the judgment through . . . one of the parties, as by inheritance, succession, or purchase. Id. at 31, 505 P.2d at 599; accord Restatement (Second) of Judgments 41(1) (1982) (enumerating rep-

482

Bower v. Harrahs Laughlin

[125 Nev.

resentatives to include: trustees of an interest to which the person is a beneficiary, someone who the person invested with authority to represent him, a fiduciary to the person, an official or agency legally authorized to represent the persons interests, and a class representative in a certified class action). C. Federal and state issue preclusion in this case In determining that issue preclusion barred appellants claims, the district court employed the federal virtual representation analysis under Irwin v. Mascott, 370 F.3d 924 (9th Cir. 2004), which was the law at the time of the district courts decision. Appellants argue that Nevada issue preclusion law governs this case and that the district court erred because appellants are not in privity with any of the plaintiffs in the prior cases. Alternatively, appellants argue that should this court apply the federal adequate representation analysis, appellants were not adequately represented by the plaintiffs in the prior cases. On the other hand, Harrahs argues that this court should apply only the federal adequate representation analysis and that prior plaintiffs did adequately represent appellants, such that the district court properly determined that issue preclusion bars appellants claims. We agree with appellants that issue preclusion does not bar their claims. However, our analysis departs from that of both parties and the district court. Our analysis differs from that of the district court in two respects.
[Headnotes 19, 20]

First, the district court erred in applying federal issue preclusion to both state and federal decisions. To determine the preclusive effect of a federal decision, we apply federal law. Clark v. Columbia/HCA Info. Servs., 117 Nev. 468, 481, 25 P.3d 215, 224 (2001). To determine the issue preclusive effect of a state decision, we apply Nevada issue preclusion law. Clark v. Clark, 80 Nev. 52, 57, 389 P.2d 69, 72 (1964).
[Headnote 21]

Second, we are applying different law in analyzing the preclusive effect of prior federal decisions because federal issue preclusion law has changed since the district court entered its order. The district court entered its order regarding issue preclusion in 2007. In 2008, the United States Supreme Court issued an opinion in Taylor, 553 U.S. 880, which clarified federal issue preclusion law. When the United States Supreme Court applies a rule of law to the parties before it, every court must then give retroactive effect to that decision. Harper v. Virginia Dept. of Taxation, 509 U.S. 86, 89 (1993). Therefore, although Taylor was not decided until 2008, it states the rule of law regarding federal issue preclusion and is the law we must apply in deciding this appeal.

Sept. 2009]

Bower v. Harrahs Laughlin

483

III. The district court erred in granting Harrahs summary judgment motion based on issue preclusion regarding prior federal decisions The district court based its decision to grant Harrahs summary judgment motion, in part, on judgments in several prior federal cases. Appellants argue that they were not adequately represented by the plaintiffs in these prior cases, and therefore, issue preclusion is inapplicable. Harrahs argues that the district court properly granted it summary judgment because the prior federal plaintiffs adequately represented appellants interests. We agree with appellants argument because we conclude that the prior federal plaintiffs did not adequately represent appellants. In this case, the district court relied on five prior federal decisions in determining that issue preclusion barred appellants claims. In Yvette Barreras v. Harrahs Laughlin, Inc., No. CV-S-03-0661RLH-PAL (D. Nev. Mar. 18, 2005), the jury returned a verdict for Harrahs on similar claims but against different plaintiffs. In four other cases, federal district courts granted Harrahs summary judgment on similar claims but against different plaintiffs. Sweers v. Harrahs Laughlin, Inc., No. CV-S-04-0378-RCJ-RJJ (D. Nev. Dec. 22, 2004); Nolan v. Harrahs Laughlin, Inc., No. CV-S-02-1611PMP (LRL) (D. Nev. Jan. 14, 2005); Alcantar v. Harrahs Laughlin, Inc., No. CV-S-03-1195-HDM (RJJ) (D. Nev. June 14, 2005); Schoenleber v. Harrahs Laughlin, Inc., 423 F. Supp. 2d 1109 (D. Nev. 2006). We analyze these cases and conclude that none of the plaintiffs in these prior federal cases adequately represented appellants, and the district court erred in determining that these cases barred appellants claims based on issue preclusion. A. The district court erred in finding that issue preclusion barred appellants claims based on the Yvette Barreras case
[Headnote 22]

The district court found that the March 2005 decision in the Yvette Barreras case barred appellants claims based on issue preclusion because Yvette Barreras claims were identical to appellants claims, and the jury returned a verdict in favor of Harrahs, specifically finding that the brawl was not foreseeable to Harrahs. Appellants argue that Yvette Barreras did not adequately represent their interests, and therefore issue preclusion does not bar their claims. We agree with appellants argument. We conclude that Yvette Barreras did not adequately represent appellants because she did not know she was representing appellants interests, the court did not protect appellants interests, and appellants had no notice of Yvette Barreras suit.

484

Bower v. Harrahs Laughlin

[125 Nev.

Harrahs failed to cite to any evidence in the record to establish that Yvette Barreras knew she was representing the appellants interests. Regarding whether the Yvette Barreras court took care to protect appellants interests, Harrahs argues that discovery in the federal and state cases was consolidated, appellants attorney was involved in discovery since January 2004, and the cases were essentially treated as a class action. However, Harrahs points to no evidence in the record that appellants case was consolidated with the Yvette Barreras case or that appellants attorney was involved with discovery in the Yvette Barreras case. Also, Harrahs points to no evidence in the record indicating that appellants had notice of Yvette Barreras suit, and therefore, failed to prove this element of adequate representation. Thus, Harrahs has failed to establish that Yvette Barreras knew she was representing appellants interests, that the court took care to protect appellants interests, or that appellants had notice of her suit. Taylor, 553 U.S. at 900. Therefore, Harrahs has not met its burden to establish adequate representation, and nonparty issue preclusion based on the Yvette Barreras case does not bar appellants claims. B. The district court erred in finding that issue preclusion barred appellants claims based on the prior federal summary judgments The district court also based its decision, in part, to grant Harrahs summary judgment motion on several federal cases arising out of the same brawl, in which Harrahs prevailed on summary judgment motions. These cases included Sweers, Nolan, Alcantar, and Schoenleber.
[Headnote 23]

An issue decided on summary judgment motion has a preclusive effect for issue preclusion purposes. Scripps Clinic and Res. Found. v. Baxter Travenol, 729 F. Supp. 1473, 1475 (D. Del. 1990). We discuss each of these prior federal summary judgment decisions separately. Applying the same analysis used above regarding the Yvette Barreras case, nonparty issue preclusion was not appropriate regarding the federal summary judgments because the plaintiffs did not adequately represent appellants interests. 1. Sweers
[Headnote 24]

In Sweers, the plaintiff sued for negligence and premises liability arising out of the brawl. The district court granted Harrahs summary judgment because it concluded that Sweers failed to prove the standard of care that Harrahs owed its guests and that Harrahs breached that standard of care. Harrahs failed to establish that the plaintiffs in the Sweers case adequately represented appellants be-

Sept. 2009]

Bower v. Harrahs Laughlin

485

cause the Sweers plaintiffs did not know they were representing appellants interests, the court did not take care to protect appellants interests, and appellants did not have notice of the Sweers case. Taylor, 553 U.S. at 900. Thus, the district court erred by applying nonparty issue preclusion to bar appellants claims based on the Sweers case. 2. Nolan
[Headnote 25]

The federal court in Nolan granted Harrahs summary judgment based on issue preclusion. However, the record is unclear as to the basis for the Nolan courts decision. In January 2005, the federal district court in Nolan denied Harrahs motion for summary judgment on the merits because there were material facts in dispute, including foreseeability, proximate cause, and whether Nolan committed any wrong. Then in May 2005, the Nolan court granted Harrahs renewed motion for summary judgment when Nolans counsel failed to appear at the hearing. Harrahs states in its answering brief that the Nolan court granted Harrahs summary judgment based on issue preclusion, and the district courts order granting Harrahs summary judgment states the same. This contradicts the record, which shows that the Nolan court denied Harrahs initial summary judgment motion based on the merits of Nolans case, and then entered a default judgment against Nolan based on his counsels failure to appear. Therefore, neither decision appears to be based on issue preclusion. Also, the record does not contain Harrahs initial or renewed summary judgment motion, making it unclear if Harrahs raised issue preclusion below. Therefore, the Nolan case is postured very differently from this case because the district court ultimately entered a default judgment for Harrahs; whereas here, the district court granted Harrahs summary judgment motion based solely on issue preclusion. Also, Harrahs did not establish that the Nolan plaintiffs adequately represented appellants interests. Therefore, the district court erred in determining that nonparty issue preclusion barred appellants claims. 3. Alcantar
[Headnote 26]

The district court also relied on the Alcantar case, in which a federal district court granted Harrahs summary judgment motion based on issue preclusion. The Alcantar court relied on the prior jury verdicts for Harrahs in the Yvette Barreras and Ramirez cases in determining that issue preclusion barred Alcantars claims. However, the Alcantar case is both factually and legally distinguishable from this case.

486

Bower v. Harrahs Laughlin

[125 Nev.

Factually, the Alcantar case is distinguishable from this case for four reasons. First, the Alcantar plaintiffs and the plaintiffs in Yvette Barreras and Ramirez were all either members of the Mongols or related to members of the Mongols. Here, none of the appellants were members of or related to members of either biker gang. Second, several of the Alcantar plaintiffs testified in the Yvette Barreras and Ramirez cases. In contrast, none of the appellants testified in prior trials. Third, the same attorney represented the Alcantar plaintiffs and the Yvette Barreras and Ramirez plaintiffs. Here, appellants were not represented by the same attorney as the Alcantar plaintiffs. Fourth, the Alcantar, Yvette Barreras, and Ramirez cases were consolidated for discovery purposes; whereas the Bower case was not consolidated with the Alcantar case. Thus, there are many more factual and procedural connections between the Alcantar and Yvette Barreras and Ramirez cases than there are between the Alcantar case and appellants case. Legally, the Alcantar courts analysis is distinguishable from this case because it applied the virtual representation analysis set forth in Irwin v. Mascott, 370 F.3d 924 (9th Cir. 2004), and determined that issue preclusion was appropriate because: (1) the plaintiffs in Alcantar and Yvette Barreras and Ramirez had a close relationship because they were all members or relatives of the Mongols; (2) the Alcantar plaintiffs substantially participated in the prior cases because several of them testified in those cases; (3) the plaintiffs in all three cases participated in tactical maneuvering because they were represented by the same counsel and the cases were consolidated for discovery purposes; (4) all of the plaintiffs had a commonality of interest because they all sought to establish that the brawl was foreseeable, Harrahs owed them a duty, Harrahs breached that duty, the cases arose out of the same nucleus of facts, and the evidence was the same in all the cases; and (5) the Yvette Barreras and Ramirez plaintiffs adequately represented the Alcantar plaintiffs interests because they were all represented by the same attorney who controlled the discovery and decision making. In contrast, as discussed above, this court must apply the adequate representation analysis set forth in Taylor, 553 U.S. at 900. In this case, Harrahs presents no evidence that the Alcantar plaintiffs understood that they were representing appellants or that the Alcantar court knew of appellants cases so that it could protect their interests. The record is also void of any indication that appellants had notice of the Alcantar case. Therefore, although the Alcantar court found that issue preclusion barred the Alcantar plaintiffs claims, because of the distinguishable facts in the Alcantar case and because this court is applying Taylor, we conclude that issue preclusion does not bar appellants claims.

Sept. 2009]

Bower v. Harrahs Laughlin

487

4. Schoenleber
[Headnote 27]

The district court also relied on Schoenleber, 423 F. Supp. 2d 1109, as a basis for issue preclusion of appellants claims. The Schoenleber court granted Harrahs summary judgment based on issue preclusion. Id. at 1113-14. Appellants argue that, like in the other cases, the Schoenleber plaintiffs did not adequately represent appellants interests, and the district court erred in barring appellants claims based on issue preclusion. Harrahs argues that appellants interests were especially aligned with the Schoenleber plaintiffs because the same attorney represented appellants and the Schoenleber plaintiffs. Harrahs also argues that the district court took special care to protect appellants interests because discovery was consolidated in the appellants and Schoenleber cases, appellants attorney was involved in the discovery process, and the two cases were essentially treated as a class action. We conclude that Harrahs arguments lack merit because representation by the same attorney and the courts alleged treatment of the case as a class action are insufficient to establish adequate representation. The Schoenleber court, like the Alcantar court, applied the virtual representation analysis under Irwin, 370 F.3d 924, and determined that Yvette Barreras virtually represented the Schoenleber plaintiffs because both were guests at Harrahs who suffered damage because of the brawl, and they shared a common interest in arguing that Harrahs had a duty to protect its guest and that the brawl was reasonably foreseeable. Schoenleber, 423 F. Supp. 2d at 1113. Although this may have been an adequate basis for applying nonparty issue preclusion under Irwin, we conclude that it is insufficient to demonstrate the adequate representation exception as clarified in Taylor. Although the same attorney represented the appellants and the Schoenleber plaintiffs, the record is void of any indication that the Schoenleber plaintiffs knew they were acting as representatives for appellants. In fact, they likely believed the contrary if they knew their attorney was representing appellants but pursuing appellants claims in a separate state case. Representation by the same attorney does not establish that the Schoenleber plaintiffs were representing appellants interests, that the court protected appellants interests, or that appellants had notice of the Schoenleber case. Taylor, 553 U.S. at 900. Therefore, representation by the same attorney is insufficient to establish adequate representation. Similarly, although discovery was consolidated in the two cases, this is insufficient to prove that the district court was protecting appellants interests. In fact, in analyzing whether the adequate representation exception applies, the United States Supreme Court has

488

Bower v. Harrahs Laughlin

[125 Nev.

specifically rejected the common law kind of class action concept, holding that class actions are an exception to the general rule against nonparty preclusion because of the due process protections afforded by FRCP 23. Taylor, 553 U.S. at 900-01. For a class action to be certified, FRCP 23(a) requires that: (1) the class is so large that joinder is impracticable, (2) there be common questions of law or fact among the class members, (3) the claims and defenses of the representatives must be typical of the class, and (4) the representative parties must be able to fairly and adequately protect the interests of the class. It also provides protections for class members throughout the litigation. FRCP 23. The Supreme Court concluded that a class action not certified under FRCP 23 would not provide the necessary due process protections and would be an expansive application of nonparty preclusion. Taylor, 553 U.S. at 900-01. Because appellants case was not part of a certified class action with the Schoenleber plaintiffs, the Schoenleber plaintiffs did not adequately represent appellants interests, and the Schoenleber case does not provide an adequate basis for issue preclusion to bar appellants claims. IV. The district court erred in granting Harrahs summary judgment motion based on issue preclusion regarding the prior state decisions The district court also based its issue preclusion decision on several state decisions, including a California superior court jury verdict and several Nevada state district court summary judgments in favor of Harrahs. We conclude that the plaintiffs in the other state cases were not in privity with appellants, and therefore, issue preclusion is inapplicable and does not bar appellants claims.
[Headnote 28]

Regarding the issue preclusive effect of a Nevada or out-of-state judgment, Nevada courts apply Nevadas issue preclusion law. Clark v. Clark, 80 Nev. 52, 57, 389 P.2d 69, 71-72 (1964). Thus, Nevada law will determine the preclusive effect of the California superior court jury verdict for Harrahs in Ramirez v. Harrahs Entertainment, Inc., Case No. 1-02 CV810665 (Cal. Super. Ct. Apr. 28, 2005). A. The California superior court judgment in Ramirez
[Headnote 29]

The district court found that the California superior courts jury verdict for Harrahs in the Ramirez case barred appellants claims based on issue preclusion. The district court determined that the claims were almost identical, including negligence and premises li-

Sept. 2009]

Bower v. Harrahs Laughlin

489

ability resulting from injuries and damages sustained in the brawl, and the jury specifically found that Harrahs was not negligent. We conclude that appellants were not in privity with the Ramirez plaintiffs, and therefore, issue preclusion is not applicable. Appellants argue that they were not in privity with Mel Ramirez because he was a member of the Mongols and there is a divergence of interests between an outlaw biker and innocent bystanders. We agree with appellants argument because Harrahs erroneously relies on federal issue preclusion law in its answering brief, and it failed to prove privity between appellants and Ramirez.
[Headnote 30]

First, Harrahs erroneously relies on federal law in its answering brief, in particular, the Supreme Courts decision in Taylor, 553 U.S. 880. As discussed above, it is well established Nevada law that state law applies in determining the preclusive effect of prior state decisions. Although federal law allows nonparty issue preclusion under the adequate representation exception, Nevada requires privity to ensure due process to nonparty plaintiffs. Paradise Palms, 89 Nev. at 30-31, 505 P.2d at 599. Nevada has no exception analogous to the federal adequate representation exception. However, much like federal preclusion and the adequate representation exception, Nevadas privity requirement protects nonparties due process rights. Second, Harrahs failed to demonstrate privity between appellants and Ramirez. In this case, appellants had no legal or private relationship with Ramirez such that they were in privity with him. In fact, the record is void of any evidence demonstrating that either Ramirez or appellants knew of each others cases or had any relationship. See Marine Midland Bank v. Monroe, 104 Nev. 307, 30708, 756 P.2d 1193, 1194 (1988) (holding a creditor of a husband and wife was not bound by divorce decree assigning debt to husband because it was not a party to the proceeding). Thus, we conclude that the district court erred when it determined that the Ramirez case had a preclusive effect. Moreover, in Nevada, the negligence issue hinged on foreseeability pursuant to NRS 651.015(1)(a), because to prove Harrahs owed a duty, breached the duty, and caused appellants harm, appellants had to prove the wrongful act was foreseeable to Harrahs. However, Harrahs provides no evidence regarding what law the California court applied and whether foreseeability was as central to the Ramirez case as it was in appellants case. Further, although discovery was consolidated for liability purposes in several federal and state cases, nothing in the record indicates that the Ramirez case was consolidated with these other cases. Therefore, we are convinced that under Nevada law appellants were not in privity with Ramirez.

490

Bower v. Harrahs Laughlin

[125 Nev.

B. The Nevada state district court summary judgments in the Salvador Barreras and Collins cases
[Headnote 31]

The district court cites two Nevada district court decisions in granting Harrahs summary judgment motion based on issue preclusion. It cites to Salvador Barreras v. Harrahs Laughlin, Inc., No. A484654 (Nev. Dist. Ct. June 13, 2005), in which the district court granted Harrahs summary judgment and found that issue preclusion barred Salvador Barreras claim based on the jury verdict in the Yvette Barreras case. It also cites to the decision in Collins v. Harrahs Laughlin, Inc., No. A472232 (Nev. Dist. Ct. Nov. 21, 2005), granting Harrahs summary judgment based on issue preclusion. In Collins, the district court found that the issue of foreseeability had been fully litigated in the Yvette Barreras case, where a jury found that the criminal acts of the biker gangs were not foreseeable to Harrahs. The Collins court also found that all the Harrahs patrons were business invitees of Harrahs and were sufficiently aligned and related in their common interests to apply the same foreseeability finding to them. The Collins court also noted that two juries, in the Yvette Barreras and Ramirez cases, found that Harrahs was not negligent. For the same reasons discussed above regarding the lack of privity between the Ramirez plaintiffs and appellants, the appellants were not in privity with the Salvador Barreras or Collins plaintiffs. Therefore, neither case provides a basis for the application of issue preclusion. V. The district court properly granted Harrahs summary judgment motion regarding Garcia and Lewis based on the merits of their case After filing its final summary judgment against all plaintiffs based on issue preclusion, the district court then granted Harrahs summary judgment motion regarding plaintiffs Garcia and Lewis based on the merits of their case. Harrahs argued that Metro was a superseding intervening cause of Garcias and Lewis harm, and therefore, Garcia and Lewis could not establish proximate cause. The district court did not make any findings of fact or conclusions of law regarding its decision. However, it noted on the record that Metro treated Garcia and Lewis badly, they had settled their federal case against Metro, and it had nothing to do with Harrahs. We conclude that the district court properly granted Harrahs summary judgment because Metro was a superseding intervening cause of Garcias and Lewis harm. A. Facts of the Garcia and Lewis claims Garcia and Lewis were guests at Harrahs, attending the River Run event. They were not involved in the brawl and were not aware

Sept. 2009]

Bower v. Harrahs Laughlin

491

it had occurred when they encountered Metro. Outside the casino, police officers pointed their guns at Garcia and Lewis, told them to put their hands up, and handcuffed both of them. To handcuff Lewis, an officer took her by the arm and pushed her to the ground. During this process, the shoulder straps on her blouse and her bra slipped down her arm, exposing her breast. The officer then walked her to another area with her breast exposed. When Garcia commented to the officers about their rough treatment of Lewis, an officer struck him. The police detained Garcia and Lewis for hours, during which police denied Garcias requests to return to his room for his evening dose of seizure medication. Garcia then suffered two seizures before an ambulance took him to the hospital. Garcia and Lewis sued Harrahs for premises liability, negligent training, negligent supervision, negligence, and negligent infliction of emotional distress. B. Metro was a superseding intervening cause of Garcias and Lewis harm
[Headnote 32]

Harrahs argues that appellants cannot establish causation because Metro was solely responsible for appellants harm and was a superseding intervening force regarding any duty Harrahs owed to appellants. We agree.
[Headnotes 33, 34]

Summary judgment is proper when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Wood v. Safeway, Inc., 121 Nev. 724, 729, 121 P.3d 1026, 1029 (2005). The substantive law determines which facts are material, and an issue is genuine when a rational trier of fact could return a verdict for the nonmoving party. Id. at 731, 121 P.3d at 1031. To prevail on a negligence theory, a plaintiff generally must show that: (1) the defendant owed a duty of care to the plaintiff; (2) the defendant breached that duty; (3) the breach was the legal cause of the plaintiffs injury; and (4) the plaintiff suffered damages. Doud v. Las Vegas Hilton Corp., 109 Nev. 1096, 1100, 864 P.2d 796, 798 (1993). Here, there is no genuine issue of material fact regarding causation, and Harrahs is entitled to judgment as a matter of law.
[Headnotes 35, 36]

To prevail on their negligence claims, Garcia and Lewis must prove that Harrahs was the cause in fact and the foreseeable cause of their harm. Doud, 109 Nev. at 1105, 864 P.2d at 801. Harrahs was the actual cause of appellants harm if its actions were a substantial factor in bringing about their injury. Id. On the other hand, foreseeability is a policy concern that limits Harrahs liability to only those harms with a reasonably close connection to its breach. Id. An

492

Bower v. Harrahs Laughlin

[125 Nev.

intervening act will only be superseding and cut off liability if it is unforeseeable. Id. Thus, under Doud, we must examine whether Metros acts were foreseeable, such that they were not superseding intervening events that would preclude Harrahs liability. See id. at 1106, 864 P.2d at 801-02.
[Headnotes 37, 38]

To determine whether an intervening cause is foreseeable, we consider several factors. These include whether (1) the intervention causes the kind of harm expected to result from the actors negligence, (2) the intervening event is normal or extraordinary in the circumstances, (3) the intervening source is independent or a normal result of the actors negligence, (4) the intervening act or omission is that of a third party, (5) the intervening act is a wrongful act of a third party that would subject him to liability, and (6) the culpability of the third persons intervening act. Restatement (Second) of Torts 442 (1965). When a third party commits an intentional tort or a crime, the act is a superseding cause, even when the negligent party created a situation affording the third party an opportunity to commit the tort or crime. Id. 448. In such a scenario, the negligent party will only be liable if he knew or should have known at the time of the negligent conduct that he was creating such a situation and that a third party might avail himself of the opportunity to commit such a tort or crime. Id. Here, Metros acts were unforeseeable intentional torts and, therefore, were a superseding intervening cause, precluding Harrahs liability. Metros intervention caused Lewis to be walked by police with her breast exposed, caused them both to be handcuffed and detained, and prevented Garcia from taking his medication, causing him to suffer seizures. This harm is not the type expected from Harrahs negligence in failing to protect its patrons from the criminal acts of the gangs. Harrahs negligence would cause harm such as patrons suffering injuries in the brawl or having their stay disrupted by the brawl. Metros intentional mistreatment of Garcia and Lewis is extraordinary and outside the type of harm reasonably expected from Harrahs negligence. Also, although Metros presence may be a normal result of Harrahs negligence, Metros wrongful treatment of Garcia and Lewis was intentional and independent of Harrahs negligence. Further, Metro was a third party, and Harrahs itself was not involved in the altercation between Garcia and Lewis and Metro. Finally, Metros treatment of Garcia and Lewis was wrongful and suggests a high degree of culpability. Thus, Metros acts were unforeseeable because Harrahs could not have anticipated that Metro would take advantage of such an emergency to commit tortious acts against its patrons. After analyzing these considerations, we are persuaded that there is no genuine issue of material fact regarding the foreseeability of

Sept. 2009]

Bower v. Harrahs Laughlin

493

Metros actions. Because Metro was a superseding intervening cause of Garcias and Lewis harm, they cannot establish causation against Harrahs. Therefore, a reasonable trier of fact could not find for Garcia and Lewis regarding their negligence claims against Harrahs, and Harrahs is therefore entitled to judgment as a matter of law. Thus, the district court properly granted Harrahs summary judgment motion against Garcia and Lewis on the merits of their case. VI. The district court abused its discretion by awarding Harrahs attorney fees and costs The district court awarded Harrahs a portion of its attorney fees under NRS 18.010(2)(b) because appellants unreasonably maintained their lawsuit. It also awarded Harrahs a portion of its costs under NRS 18.020 as the prevailing party. Appellants argue that the district court abused its discretion by awarding Harrahs attorney fees and costs. Harrahs argues that the district court properly awarded it attorney fees under NRS 18.010(2)(b) because appellants claims were groundless, and the district court properly awarded it costs as the prevailing party under NRS 18.020. We agree with the appellants argument regarding attorney fees because we conclude that they did not unreasonably maintain their claims, and therefore, the district court abused its discretion in awarding Harrahs attorney fees. Also, given our decision in this appeal, Harrahs only prevailed against Garcia and Lewis, and therefore, it is only entitled to costs for prevailing against Garcia and Lewis. A. Attorney fees
[Headnotes 39, 40]

This court reviews a district courts award of attorney fees for abuse of discretion. Barozzi v. Benna, 112 Nev. 635, 638, 918 P.2d 301, 303 (1996). Under NRS 18.010(2)(b), a district court can award attorney fees if a claim or defense is brought or maintained without reasonable ground or to harass the prevailing party. Although a district court has discretion to award attorney fees under NRS 18.010(2)(b), there must be evidence supporting the district courts finding that the claim or defense was unreasonable or brought to harass. Semenza v. Caughlin Crafted Homes, 111 Nev. 1089, 1095, 901 P.2d 684, 687 (1995). The case of Kahn v. Morse & Mowbray, 121 Nev. 464, 117 P.3d 227 (2005), is instructive here. In Kahn, the appellants sued their prior attorney and his firm for legal malpractice. Id. at 467, 117 P.3d at 230. The district court granted the respondents summary judgment motion based on claim preclusion and later awarded them attorney fees under NRS 18.010(2)(b). Id. On appeal, this court affirmed in part, reversed in part, and remanded. Id. at 479-80, 117 P.3d at 238. This court concluded that claim preclusion did not bar

494

Bower v. Harrahs Laughlin

[125 Nev.

some of the claims and reversed the district courts grant of summary judgment. Id. at 474, 117 P.3d at 234. Therefore, we held that the district courts decision to award respondents their attorney fees was premature and an abuse of discretion. Id. at 479, 117 P.3d at 238.
[Headnote 41]

In this case, the district court awarded Harrahs attorney fees because it found that it was unreasonable for appellants to maintain their claims after other factually similar cases were decided in favor of Harrahs. The district court found that the March 2005 Yvette Barreras decision in favor of Harrahs made appellants claims unreasonable. It determined that appellants should have had notice of the Yvette Barreras decision by May 1, 2005, and it was unreasonable for them to maintain their claims after that. Therefore, it awarded Harrahs a portion of its attorney fees from May 1, 2005, forward, totaling $317,621.98. Like in Kahn, we conclude that the district courts award of attorney fees was premature and an abuse of discretion. As discussed above, a decision in a factually similar case with different plaintiffs does not necessarily support issue preclusion. Therefore, appellants had no reason to think that their claims were unreasonable because a jury found in favor of Harrahs in the Yvette Barreras case. Further, Judge Dentons denial of Harrahs summary judgment motion against Bower based on issue preclusion supports our conclusion that reasonable minds could disagree as to whether issue preclusion barred appellants claims. Also, although Garcia and Lewis claims do not survive summary judgment based on the merits, no evidence suggests that their claims were unreasonable or brought to harass. In conclusion, the decision in the Yvette Barreras case had no effect on the reasonableness of appellants claims. They were reasonable when appellants brought them and remained so despite decisions in favor of Harrahs in factually similar cases with different plaintiffs. Therefore, the district court abused its discretion in awarding Harrahs attorney fees under NRS 18.010(2)(b). B. Costs The district court awarded Harrahs costs under NRS 18.020(3) because Harrahs was the prevailing party. We conclude that the district court abused its discretion in awarding Harrahs its costs as to all appellants except Garcia and Lewis because the award was based on the erroneous conclusion that Harrahs was the prevailing party. This court reviews the district courts determination of allowable costs for abuse of discretion. Sheehan & Sheehan v. Nelson Malley & Co., 121 Nev. 481, 493, 117 P.3d 219, 227 (2005). Notably, if we reverse the underlying decision of the district court that made the

Sept. 2009]

Sonia F. v. Dist. Ct.

495

recipient of the costs the prevailing party, we will also reverse the costs award. Doud, 109 Nev. at 1106, 864 P.2d at 802. Because we determine that issue preclusion does not bar appellants claims, Harrahs is no longer the prevailing party under NRS 18.020(3) as to all appellants except Garcia and Lewis. We are affirming the district courts grant of summary judgment for Harrahs against Garcia and Lewis based on the merits of their claims, and therefore, Harrahs remains the prevailing party against Garcia and Lewis. We therefore vacate the district courts award of costs to Harrahs as to all appellants except Garcia and Lewis. CONCLUSION We conclude that the district court properly reheard Harrahs summary judgment motion regarding Bower. We also conclude that issue preclusion does not bar appellants claims based on federal or state law. Further, the district court properly granted Harrahs summary judgment regarding the merits of Garcia and Lewis claims. Finally, the district court erred in granting Harrahs attorney fees and erred in awarding Harrahs costs as to all appellants except Garcia and Lewis. Accordingly, we reverse and remand to the district court for proceedings consistent with this opinion. HARDESTY, C.J., PARRAGUIRRE, DOUGLAS, CHERRY, and SAITTA, JJ., concur.

SONIA F., AS PARENT AND GUARDIAN AD LITEM OF J.M., PETITIONER, v. THE EIGHTH JUDICIAL DISTRICT COURT OF THE STATE OF NEV ADA, IN AND FOR THE COUNTY OF CLARK, AND THE HONORABLE ELISSA F. CADISH, DISTRICT JUDGE, RESPONDENTS, AND AMIR AHMAD, AKA AMIR AMAD; AZIZ AHMAD; AND LAURA AHMAD, REAL PARTIES IN INTEREST.
No. 51956 September 10, 2009 215 P.3d 705

Original petition for a writ of mandamus or prohibition challenging a district court order affirming a discovery commissioners report and recommendations. The supreme court, HARDESTY, C.J., held that: (1) rape shield statute applies to criminal prosecutions and not to civil trials; but (2) the district court has broad discretion to limit the discovery of an alleged victims sexual history to protect the alleged victims interests. Petition granted in part.

496

Sonia F. v. Dist. Ct.

[125 Nev.

Law Offices of Douglas R. Johnson and Jennifer E. Sims and Douglas R. Johnson, Las Vegas; The Bach Law Firm, LLC, and Jason J. Bach, Las Vegas, for Petitioner. Michael I. Gowdey, Las Vegas, for Real Parties in Interest.
1. COURTS. Supreme court has original jurisdiction to issue writs of prohibition and mandamus. Const. art. 6, 4. 2. PROHIBITION. A writ of prohibition serves to stop a district court from carrying on its judicial functions when it is acting outside its jurisdiction. 3. MANDAMUS. A writ of mandamus is available to compel the performance of an act which the law requires as a duty resulting from an office or where discretion has been manifestly abused or exercised arbitrarily or capriciously. 4. MANDAMUS; PROHIBITION. An extraordinary writ may only be issued in cases where there is not a plain, speedy and adequate remedy at law. NRS 34.330. 5. COURTS. The consideration of an extraordinary writ is often justified where an important issue of law needs clarification and public policy is served by the supreme courts invocation of its original jurisdiction. 6. MANDAMUS; PROHIBITION. Supreme court would consider petition for extraordinary writ, filed following trial courts partial denial of motion for protective order under rape shield law in civil action, where petition raised an important issue of public policy regarding whether rape shield law applied in civil cases. 7. APPEAL AND ERROR. Supreme court reviews issues of statutory construction de novo. 8. STATUTES. When a statute is facially clear, the court will give effect to the statutes plain meaning and not go beyond the plain language to determine the Legislatures intent. 9. STATUTES. Where the Legislature has explicitly applied a rule to one type of proceeding, supreme court will presume it deliberately excluded the rules application to other types of proceedings. 10. STATUTES. If a statute is ambiguous, the supreme court will construe a statute by considering reason and public policy to determine the Legislatures intent. 11. RAPE; WITNESSES. Rape shield statute applies to criminal prosecutions but not to civil trials. NRS 50.090. 12. STATUTES. Words in a statute should be given their plain meaning unless this violates the spirit of the act. 13. PRETRIAL PROCEDURE. In civil sexual assault cases, discovery into alleged victims sexual history should not be unlimited; rather, the district court should use its sound discretion to determine whether the discovery sought is consistent with rule providing that inquiries must be relevant and reasonably calculated to lead to the discovery of admissible evidence. NRCP 26(b)(1).

Sept. 2009]

Sonia F. v. Dist. Ct.

497

14. PRETRIAL PROCEDURE. Discovery rules provide for the issuance of protective orders in civil cases to allow the district court to limit discovery as it sees fit, in order to protect an alleged sexual assault victim from annoyance, embarrassment, or oppression. NRCP 26(c)(5).

Before the Court EN BANC. OPINION By the Court, HARDESTY, C.J.: In this petition for extraordinary relief, we exercise our discretion to consider an issue of first impression; namely, whether Nevadas rape shield law, which restricts the admissibility of evidence concerning a sexual assault victims history of sexual conduct, applies in civil cases. We conclude that Nevadas rape shield law, codified under NRS 50.090, is plain and unambiguous, and applies only to criminal proceedings and not civil cases. We further conclude, however, that the district court may limit the discovery of an alleged victims sexual history under NRCP 26, if necessary to protect the victims interests. FACTS AND PROCEDURAL HISTORY In November 2006, Sonia F., petitioner and guardian ad litem of J.M., filed a civil complaint against real party in interest Amir Ahmad, alleging various causes of action,1 all of which stem from Ahmads alleged rape of J.M. Specifically, Sonia F. claims that on the morning of July 5, 2006, Ahmad, who was 20 years old, forcibly raped her 14-year-old daughter, J.M., in Ahmads parents home. As a result of Ahmads conduct, Sonia F. alleges that J.M. suffered and continues to suffer physical, emotional, and mental harm. Ahmad admits having sexual intercourse with J.M. but contends that it was consensual. During discovery, Ahmad filed a motion to compel J.M. to submit to an independent medical examination to address J.M.s claims for emotional damages. The district court granted the request for an independent examination, finding that the examination was appropriate because J.M. had placed her emotional and mental condition at issue. Subsequently, Sonia F. moved the district court for a protective order seeking, in part, to prevent Ahmad and independent psychologists from questioning J.M. about her sexual history based on
1 Specifically, Sonia F. asserted claims for sexual assault, statutory sexual seduction, battery, intentional and negligent infliction of emotional distress, gross negligence, negligence, and negligence per se.

498

Sonia F. v. Dist. Ct.

[125 Nev.

Nevadas rape shield law. Ahmad opposed the motion, arguing that Nevadas rape shield law does not apply in civil cases because the element of damages differentiates the civil case from a criminal charge. The district court denied, in part, Sonia F.s motion for a protective order. Pertinent to this petition, the district court permitted Ahmads attorneys and independent psychologists to question J.M. regarding her sexual history. In response, Sonia F. requested that the district court stay discovery so that she could file an emergency petition with this court seeking clarification of the application of Nevadas rape shield law to civil cases. The district court granted a temporary stay. Thereafter, this court granted a stay of all discovery related to J.M.s sexual history pending the resolution of this writ petition. DISCUSSION
[Headnotes 1-5]

This court has original jurisdiction to issue writs of prohibition and mandamus. Nev. Const. art. 6, 4. A writ of prohibition serves to stop a district court from carrying on its judicial functions when it is acting outside its jurisdiction. Westpark Owners Assn v. Dist. Ct., 123 Nev. 349, 356, 167 P.3d 421, 426 (2007). A writ of mandamus is available to compel the performance of an act which the law requires as a duty resulting from an office or where discretion has been manifestly abused or exercised arbitrarily or capriciously. Savage v. Dist. Ct., 125 Nev. 9, 14, 200 P.3d 77, 81 (2009) (quoting Redeker v. Dist. Ct., 122 Nev. 164, 167, 127 P.3d 520, 522 (2006)). An extraordinary writ may only be issued in cases where there is not a plain, speedy and adequate remedy at law. NRS 34.330. In addition, the consideration of an extraordinary writ is often justified where an important issue of law needs clarification and public policy is served by this courts invocation of its original jurisdiction. Mineral County v. State, Dept of Conserv., 117 Nev. 235, 243, 20 P.3d 800, 805 (2001) (quoting Business Computer Rentals v. State Treas., 114 Nev. 63, 67, 953 P.2d 13, 15 (1998)).
[Headnote 6]

Because this petition raises an important issue of public policy regarding whether Nevadas rape shield law applies in civil cases, we exercise our discretion to entertain Sonia F.s petition. Whether Nevadas rape shield law applies in civil cases The parties dispute whether the rape shield law contained in NRS 50.090 applies to civil cases. Sonia F. argues that public policy supports her argument that NRS 50.090s evidentiary limitations and protections extend to sexual assault victims who file civil actions.

Sept. 2009]

Sonia F. v. Dist. Ct.

499

Sonia F. thus argues that a sexual assault victim in a civil case, particularly a minor victim, should not be questioned regarding her sexual history. Ahmad, on the other hand, argues that NRS 50.090 is plain and unambiguous and does not apply in civil cases. Ahmad further argues that the damages element necessary to a civil prosecution for sexual assault warrants the introduction of the alleged victims sexual history. Therefore, to resolve this petition, we are called upon to interpret NRS 50.090.
[Headnotes 7-10]

This court reviews issues of statutory construction de novo. Stalk v. Mushkin, 125 Nev. 21, 25, 199 P.3d 838, 840 (2009). When a statute is facially clear, this court will give effect to the statutes plain meaning and not go beyond the plain language to determine the Legislatures intent. Public Employees Benefits Prog. v. LVMPD, 124 Nev. 138, 147, 179 P.3d 542, 548 (2008). Similarly, after reviewing the plain language of a statute, this court has concluded that [t]he mention of one thing implies the exclusion of another. State v. Wyatt, 84 Nev. 731, 734, 448 P.2d 827, 829 (1968) (BATJER, J., dissenting). Therefore, where the Legislature has, for example, explicitly applied a rule to one type of proceeding, this court will presume it deliberately excluded the rules application to other types of proceedings. See id.; see also Matter of Estate of Prestie, 122 Nev. 807, 814, 138 P.3d 520, 524 (2006). If, on the other hand, a statute is ambiguous, this court will construe a statute by considering reason and public policy to determine the Legislatures intent. Cable v. EICON, 122 Nev. 120, 124-25, 127 P.3d 528, 531 (2006).
[Headnote 11]

Nevadas rape shield statute, codified under NRS 50.090, provides: In any prosecution for sexual assault or statutory sexual seduction . . . the accused may not present evidence of any previous sexual conduct of the victim of the crime to challenge the victims credibility as a witness unless the prosecutor has presented evidence or the victim has testified concerning such conduct, or the absence of such conduct, in which case the scope of the accuseds cross-examination of the victim or rebuttal must be limited to the evidence presented by the prosecutor or victim. (Emphases added.)
[Headnote 12]

We conclude that NRS 50.090 is plain and unambiguous and applies to criminal prosecutions but not to civil trials. Markedly, the term accused generally refers to a criminal defendant, and the term prosecution generally signifies a criminal action. See

500

Sonia F. v. Dist. Ct.

[125 Nev.

Mortensen v. State, 115 Nev. 273, 280, 986 P.2d 1105, 1110 (1999) (The plain language of NRS 48.045(2) uses the term person, rather than defendant, or accused. In Nevada, words in a statute should be given their plain meaning unless this violates the spirit of the act. (quoting McKay v. Bd. of Supervisors, 102 Nev. 644, 648, 730 P.2d 438, 441 (1986)). Indeed, this court has previously stated that NRS 50.090 . . . expressly limit[s] the admission of [evidence of a victims prior sexual conduct] to prosecutions and that prosecution of a case does not exist until [criminal] charges are filed. Lane v. District Court, 104 Nev. 427, 443, 760 P.2d 1245, 1255 (1988). In this instance, the plain language of NRS 50.090 prohibits the accused from presenting evidence of a sexual assault victims sexual history in any prosecution. Unlike Federal Rule of Evidence 412(a)(1), which provides that evidence is not admissible in any civil or criminal proceeding [that is] . . . offered to prove that any alleged victim engaged in other sexual behavior, NRS 50.090 does not refer to the admissibility of evidence in civil proceedings. Therefore, under the rules of statutory construction, the Legislature specifically phrased NRS 50.090 to apply to criminal prosecutions to the exclusion of civil proceedings. See Matter of Estate of Prestie, 122 Nev. at 814, 138 P.3d at 524; see also Doe by Roe v. Orangeburg Cty. Sch. Dist., 495 S.E.2d 230, 233 (S.C. Ct. App. 1997) (noting that because South Carolinas rape shield statute refers only to prosecutions, it is not applicable in civil cases). Accordingly, we hold that NRS 50.090, Nevadas rape shield law, does not apply to civil cases.2
[Headnote 13]

Nevertheless, in civil sexual assault cases, we conclude that discovery should not be unlimited. Rather, the district court should use its sound discretion to determine whether the discovery sought is consistent with NRCP 26(b)(1), which provides that inquiries must be relevant and reasonably calculated to lead to the discovery of admissible evidence. To that end, we identify D.S. v. DePaul Institute, 32 Pa. D. & C.4th 328 (Ct. Com. Pl. 1996), as instructive on this issue. Although the DePaul court concluded that Pennsylvanias criminal rape shield law did not apply in civil cases, it determined that dis2 There are those jurisdictions that have held that the policy underlying the criminal rape shield law has similar import in civil cases. See Macon Telegraph Pub. Co. v. Tatum, 430 S.E.2d 18, 22 (Ga. Ct. App. 1993) (holding that the public policy underlying the rape shield law applies equally to civil actions), judgment reversed on other grounds by Macon Telegraph Pub. Co. v. Tatum, 436 S.E.2d 655 (Ga. 1993); In re K.W., 666 S.E.2d 490, 493 (N.C. Ct. App. 2008) (holding that the logic behind the rape shield law makes the law applicable to civil actions). However, we defer to the Legislature to determine whether the public policy underlying the criminal rape shield law should be extended to include civil cases.

Sept. 2009]

Sonia F. v. Dist. Ct.

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covery of a plaintiffs entire sexual history in a civil action was inappropriate. Id. at 333, 338. The court differentiated between the plaintiffs history of consensual sexual relationships from history of traumatic experiences, id. at 336-37, and thereafter emphasized that while consensual relationships may impact a persons emotions, [t]he law should not force plaintiffs . . . to disclose their entire [consensual] sexual . . . histories whenever they claim that they have sustained psychiatric problems from a traumatic event. Id. at 338; see also Giron v. Corrections Corp. of America, 981 F. Supp. 1406, 1408 (D.N.M. 1997) (recognizing that the plaintiffs previous experiences may be relevant as to issue of damages but only to the extent that such sexual contact caused pain and suffering).
[Headnote 14]

We agree with the reasoning employed by the DePaul court for two reasons. First, the plain language of the rape shield law limits its application to criminal cases, and second, civil actions implicate different considerations for discovery, burdens of proof, and remedies than criminal prosecutions. However, we do not adopt a steadfast rule related to discovery in all civil proceedings for sexual assault. Rather, we stress that a district court has the broad discretion under NRCP 26 to determine, on a case-by-case basis, whether an alleged sexual assault victims sexual history is discoverable. See Abbott v. State, 122 Nev. 715, 732, 138 P.3d 462, 473 (2006). And the discovery rules provide for the issuance of protective orders to allow the district court to limit discovery as it sees fit, in order to protect [an alleged sexual assault victim] from annoyance, embarrassment, [or] oppression. NRCP 26(c)(5). CONCLUSION Sonia F.s petition raises an important issue of public policy related to the applicability of Nevadas rape shield law to civil proceedings. We conclude that NRS 50.090 is plain and unambiguous and applies only to criminal proceedings and not to civil actions. Nonetheless, we conclude that if necessary the district court may limit the discovery of an alleged victims sexual history under NRCP 26 to protect the victims interests. Accordingly, we grant this petition in part. In addition, we vacate the stay on discovery that this court entered on February 2, 2009. The clerk of this court shall issue a writ of mandamus instructing the district court to conduct discovery in a manner consistent with this opinion. PARRAGUIRRE, DOUGLAS, CHERRY, SAITTA, GIBBONS, and PICKERING, JJ., concur.

502

Flamingo Paradise Gaming v. Atty General

[125 Nev.

FLAMINGO PARADISE GAMING, LLC, A NEVADA LIMITED LIABILITY COMPANY DBA TERRIBLES HOTEL AND CASINO; HIGCO, INC., A NEVADA CORPORATION DBA THREE ANGRY WIVES PUB; MARKET GAMING, INC., A NEVADA CORPORATION; CARDIV AN COMPANY, A NEVADA CORPORA TION; E-T-T, INC., A NEV ADA CORPORATION; AND NEV ADA TAVERN OWNERS ASSOCIATION, APPELLANTS, v. GEORGE CHANOS, ATTORNEY GENERAL OF THE STATE OF NEV ADA; DA VID ROGER, CLARK COUNTY DIS TRICT ATTORNEY; BILL YOUNG, SHERIFF OF LAS VEGAS MET ROPOLITAN POLICE DEPARTMENT; BRADFORD JERBIC, CITY ATTORNEY FOR THE CITY OF LAS VEGAS; KAREN COYNE, CHIEF CITY MARSHAL FOR THE CITY OF LAS VEGAS; RICHARD D. PERKINS, POLICE CHIEF OF THE CITY OF HENDERSON; SHAUNA HUGHES, CITY ATTORNEY FOR THE CITY OF HEN DERSON; JOSEPH K. FORTI, POLICE CHIEF OF THE CITY OF NORTH LAS VEGAS; CARIE A. TORRENCE, CITY ATTORNEY FOR THE CITY OF NORTH LAS VEGAS; DR. LAWRENCE SANDS, CHIEF HEALTH OFFICER FOR THE SOUTHERN NEVADA HEALTH DISTRICT; AND NEV ADA RESORT ASSOCIATION, A NONPROFIT COOPERATIVE ASSOCIATION, RESPONDENTS. GEORGE CHANOS, CROSS-APPELLANT, v. FLAMINGO PARA DISE GAMING, LLC, A NEVADA LIMITED LIABILITY COM PANY DBA TERRIBLES HOTEL AND CASINO; HIGCO, INC., A NEVADA CORPORATION DBA THREE ANGRY WIVES PUB; MARKET GAMING, INC., A NEVADA CORPORATION; CARDIVAN COMPANY, A NEVADA CORPORATION; E-T-T, INC., A NEVADA CORPORATION; AND NEVADA TAVERN OWNERS ASSOCIATION, CROSS-RESPONDENTS.
No. 49223 September 24, 2009 217 P.3d 546

Appeal and cross-appeal from a district court judgment concerning the constitutionality of the Nevada Clean Indoor Air Act, a ballot measure passed in 2006. Eighth Judicial District Court, Clark County; Douglas W. Herndon, Judge. Business entities brought action against Attorney General and other defendants, challenging the constitutionality of Nevada Clean Indoor Air Act (NCIAA). The district court entered an order that found the criminal penalty portion of the statute unconstitutionally vague, and the court ordered that portion of the statute severed. On cross-appeals, the supreme court, HARDESTY, C.J., held that: (1) criminal penalties in the NCIAA were unconstitutionally vague, (2) severance of unconstitutional portion of NCIAA was warranted, (3) remaining portion of NCIAA was not unconstitutionally vague,

Sept. 2009] Flamingo Paradise Gaming v. Atty General

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(4) NCIAA did not violate equal protection, (5) NCIAA did not constitute a permanent invasion of property that amounted to a regulatory taking, and (6) NCIAA did not constitute a physical invasion of property that constituted a taking. Affirmed. CHERRY, J., dissented in part. Jones Vargas and Bradley Scott Schrager, Kirk B. Lenhard, and Kathleen L. Fellows, Las Vegas, for Appellants/Cross-Respondents Flamingo Paradise Gaming, LLC, Higco, Inc., Market Gaming, Inc., Cardivan Company, and E-T-T, Inc. Kummer Kaempfer Bonner Renshaw & Ferrario and Mark E. Ferrario and Tami D. Cowden, Las Vegas, for Appellant Nevada Tavern Owners Association. Catherine Cortez Masto, Attorney General, Christine M. GuerciNyhus, Chief Deputy Attorney General, and Nancy D. Savage, Senior Deputy Attorney General, Carson City, for Respondent/Cross-Appellant Chanos. David J. Roger, District Attorney, and Mary-Anne Miller, Deputy District Attorney, Clark County, for Respondents Roger and Young. Bradford R. Jerbic, City Attorney, and Philip R. Byrnes, Deputy City Attorney, Las Vegas, for Respondents Jerbic and Coyne. Shauna M. Hughes, City Attorney, and David W. Mincavage, Assistant City Attorney, Henderson, for Respondents Perkins and Hughes. Carie A. Torrence, City Attorney, and Jeffrey F. Barr, Deputy City Attorney, North Las Vegas, for Respondents Forti and Torrence. Stephen F. Smith, Las Vegas, for Respondent Sands. Brownstein Hyatt Farber Schreck, LLP, and Todd L. Bice and Nathan T.H. Lloyd, Las Vegas, for Respondent Nevada Resort Association. Lemons, Grundy & Eisenberg and Robert L. Eisenberg, Reno, for Amicus Curiae American Cancer Society.
1. CRIMINAL LAW; STATUTES. A statute containing a criminal penalty is facially vague when vagueness permeates the text of the statute, while a statute that only involves civil penalties is only facially vague if it is void in all its applications.

504

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[125 Nev.

2. APPEAL AND ERROR. The determination of whether a statute is constitutional is a question of law, which the supreme court reviews de novo. 3. CONSTITUTIONAL LAW. Statutes are presumed to be valid, and the challenger bears the burden of showing that a statute is unconstitutional. 4. STATUTES. The court must interpret a statute in a reasonable manner, that is, the words of the statute should be construed in light of the policy and spirit of the law, and the interpretation made should avoid absurd results. 5. STATUTES. In reviewing a statute, it should be given its plain meaning and must be construed as a whole and not be read in a way that would render words or phrases superfluous or make a provision nugatory. 6. CONSTITUTIONAL LAW. Under two-factor test for analyzing whether a statute is unconstitutionally vague in violation of due process, an act is unconstitutionally vague if it (1) fails to provide notice sufficient to enable persons of ordinary intelligence to understand what conduct is prohibited and (2) lacks specific standards, thereby encouraging, authorizing, or even failing to prevent arbitrary and discriminatory enforcement. U.S. CONST. amend. 14. 7. CONSTITUTIONAL LAW; STATUTES. Under a facial challenge to a civil statute, the plaintiff must show that the statute is impermissibly vague in all of its applications; in making this showing, a complainant who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others. 8. CRIMINAL LAW; STATUTES. When the statute in a facial vagueness challenge involves criminal penalties or constitutionally protected rights, the case involves a higher standard of whether vagueness permeates the text. 9. STATUTES. When a statute is reviewed under the lower standard of vague in all its applications, if the statute provides sufficient guidance as to at least some conduct that is prohibited and standards for enforcement of that conduct, it will survive a facial challenge because it is not void in all its applications. 10. CRIMINAL LAW; STATUTES. Under the higher standard for a facial vagueness challenge of a statute involving criminal penalties or constitutionally protected rights, the question becomes whether vagueness so permeates the text that the statute cannot meet these requirements in most applications, and thus, this standard provides for the possibility that some applications of the law would not be void, but the statute would still be invalid if void in most circumstances. 11. CONSTITUTIONAL LAW; ENVIRONMENTAL LAW. Vagueness permeated the Nevada Clean Indoor Air Act (NCIAA) text in that it failed to provide sufficient notice of what conduct was prohibited and allowed for arbitrary enforcement, and thus, the criminal penalties in the Act could not withstand constitutional due process scrutiny; with regards to both notice and arbitrary enforcement, the statute failed to adequately define to whom the Act was enforced against, the Act failed to explain whether business owners had a responsibility to stop someone who was smoking in violation of the Act, and if so, what that responsibility entailed, and the Act failed to define several terms that did not have a plain meaning,

Sept. 2009]

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12.

13.

14.

15.

16.

17. 18.

19.

20.

including smoking paraphernalia and large room. U.S. CONST. amend. 14; NRS 202.2483. STATUTES. Under the severance doctrine, it is the obligation of the judiciary to uphold the constitutionality of legislative enactments where it is possible to strike only the unconstitutional portions. STATUTES. A statute is only severable if the remaining portion of the statute, standing alone, can be given legal effect, and if the Legislature intended for the remainder of the statute to stay in effect when part of the statute is severed. STATUTES. Severance of unconstitutional portion of Nevada Clean Indoor Air Act (NCIAA) that permitted imposition of criminal penalties was warranted; the portion severed was not the central component of the statute, the statute after severance could be legally enforced, and the statute contained a severability clause, indicating the initiatives proponents contemplated that should a constitutional challenge arise, the offending portion of the statute could be severed and the remaining portion could proceed and the smoking ban enforced. NRS 202.2483. STATUTES. In a facial challenge, under the lower standard test of whether the statute is vague in all its applications, a statute is sufficiently clear if, in any application, it does not (1) fail to provide notice sufficient to enable persons of ordinary intelligence to understand what conduct is prohibited and does not (2) lack specific standards, thereby encouraging, authorizing, or even failing to prevent arbitrary and discriminatory enforcement. CONSTITUTIONAL LAW; ENVIRONMENTAL LAW. While there was some uncertainty as to what affirmative actions, if any, a business owner had to take under the Nevada Clean Indoor Air Act (NCIAA) if someone was smoking within his or her business in violation of the statute, there was no question that the business owner was required to make his or her establishment nonsmoking and post signs designating it as such; as the main restrictions of the Act were sufficiently clear to establish specific prohibited conduct that a reasonable person could understand and did not promote arbitrary enforcement, the statute survived a facial vagueness challenge after severance of provisions that permitted imposition of criminal penalties. U.S. CONST. amend. 14; NRS 202.2483. CONSTITUTIONAL LAW. Equal protection allows different classifications of treatment, but the classifications must be reasonable. U.S. CONST. amend. 14. CONSTITUTIONAL LAW. While there are different levels of scrutiny that may apply under an equal protection analysis to determine if classifications are reasonable and therefore constitutional, when classifications do not involve a fundamental right or a suspect class, the classifications are reasonable, and the statute is constitutional, if there is a rational basis related to a legitimate government interest for treating classes differently. U.S. CONST. amend. 14. CONSTITUTIONAL LAW. Supreme court is not limited, when analyzing a rational basis review, to the reasons enunciated for enacting a statute; if any rational basis exists, then a statute does not violate equal protection. U.S. CONST. amend. 14. CONSTITUTIONAL LAW. Under a rational basis test, classifications must apply uniformly to all who are similarly situated, and the distinctions which separate those who are included within a classification from those who are not must be rea-

506

Flamingo Paradise Gaming v. Atty General

[125 Nev.

sonable, not arbitrary; the classifications must also bear a rational relationship to the legislative purpose sought to be effected. U.S. CONST. amend. 14. 21. CONSTITUTIONAL LAW; ENVIRONMENTAL LAW. Nevada Clean Indoor Air Act (NCIAA) did not violate equal protection due to exempting gaming areas in those businesses that held a nonrestricted gaming license; it was rational to apply exception to nonrestricted gaming licensees large gaming areas but not to restricted gaming licensees gaming areas, which were generally much smaller and likely too close to the other services provided by the establishment, and the exemption was rationally related to promoting nonrestricted gaming licensees further success and continued substantial benefit to the states economy. U.S. CONST. amend. 14; NRS 202.2483. 22. EMINENT DOMAIN; ENVIRONMENTAL LAW. Nevada Clean Indoor Air Act (NCIAA), which prohibited smoking in schools and indoor places of employment, did not prevent business owners from using the airspace within their buildings, and thus, it did not constitute a permanent invasion of property that amounted to a regulatory taking and required compensation. Const. art. 1, 8(6); NRS 202.2483. 23. EMINENT DOMAIN; ENVIRONMENTAL LAW. Nevada Clean Indoor Air Act (NCIAA), which required businesses to place no smoking signs, did not constitute a physical invasion of property that constituted a taking; the NCIAA did not give control over the installation or any portion of a persons property to a third party. Const. art. 1, 8(6); NRS 202.2483.

Before the Court EN BANC.1 OPINION By the Court, HARDESTY, C.J.: This appeal involves a facial challenge to the constitutionality of Nevadas Clean Indoor Air Act (NCIAA), which was passed as a ballot measure in 2006 and codified in NRS 202.2483. The NCIAA prohibits smoking in schools and indoor places of employment but provides exceptions for gaming areas in casinos, stand-alone bars, and strip clubs. In an action for injunctive and declaratory relief, appellants challenged the constitutional validity of the statute. The district court ruled that the statute was unconstitutionally vague for criminal enforcement purposes but not for civil enforcement purposes, and as a result, it severed from the statute the portion permitting the imposition of criminal penalties. In reaching this conclusion, the district court found that several terms within the statute were vague and the statute lacked a criminal intent requirement necessary to provide sufficient guidance for criminal enforcement of the statute. But the district court also found that the statute was not too vague for civil enforcement based on its conclusion that the test
1 THE HONORABLE RON PARRAGUIRRE, Justice, voluntarily recused himself from participation in the decision of this matter.

Sept. 2009] Flamingo Paradise Gaming v. Atty General

507

for constitutional vagueness is less strict for civil enforcement than criminal enforcement.
[Headnote 1]

We conclude that the district court correctly ruled that under a facial challenge the statute is constitutional for civil enforcement but unconstitutionally vague for criminal enforcement. A statute containing a criminal penalty is facially vague when vagueness permeates the text of the statute, while a statute that only involves civil penalties is only facially vague if it is void in all its applications. As vagueness permeates the text of the NCIAA, it is unconstitutionally vague for criminal enforcement. We further conclude that the district court properly severed the criminal enforcement provision from the statute because the statute, after severance, can be legally enforced and it was the intent of the proponents of the statute that the act remain in effect if a portion was severed. A review of the NCIAA, after severance, indicates that the statute survives a facial vagueness challenge, as it is not vague in all its applications. While we recognize that the NCIAA contains numerous defects that may potentially be subject to as-applied challenges, here, the civil enforcement of the statute does not violate constitutional due process rights for vagueness under the minimal requirements for surviving a facial challenge. Finally, we conclude that the statute does not violate equal protection, nor does it effect an unconstitutional government taking of private property. Accordingly, we affirm the district courts order upholding the civil enforcement of the statute and severing the statutes criminal enforcement provision as unconstitutional. FACTS AND PROCEDURAL HISTORY The Nevada Clean Indoor Air Act was enacted by initiative in 2006 and codified in NRS 202.2483.2 Its stated purpose was to protect families and children from the harmful effects of secondhand smoke. NRS 202.2483 (Revisers note). The NCIAA prohibits smoking in most indoor public places,3 with exceptions for casino
2 The NCIAA was challenged, preelection, in this court, resulting in the opinion, Herbst Gaming, Inc. v. Secretary of State, 122 Nev. 877, 141 P.3d 1224 (2006). In Herbst Gaming, several constitutional challenges to the NCIAA were raised; however, this court concluded that the constitutional challenges were premature and declined to address them at that time. Id. at 888, 141 P.3d at 1231. The voters passed the ballot petition and the NCIAA was codified as NRS 202.2483. 3 NRS 202.2483(1)(a)-(g) identifies the indoor public places in which smoking is prohibited: 1. Except as otherwise provided in subsection 3, smoking tobacco in any form is prohibited within indoor places of employment including, but not limited to, the following: (a) Child care facilities; (b) Movie theatres;

508

Flamingo Paradise Gaming v. Atty General

[125 Nev.

gaming areas, stand-alone bars and taverns, retail tobacco stores, strip clubs, and brothels.4 The statute imposes both criminal and civil penalties for violations.5 After the NCIAA passed, appellants, various business entities, brought suit in district court for declaratory and injunctive relief, arguing that the statute was unconstitutional on several grounds. The district court granted a temporary restraining order preventing the enforcement of the statute and set a hearing date for a preliminary injunction. Based on case authority suggesting that a less-strict test should be applied to civil statutes, the district court determined that it should properly review the NCIAA separately as a criminal statute and then as a civil statute. The court concluded that appellants were likely to succeed in demonstrating that the criminal portion of the statute was unconstitutional, but not the civil portion of the statute. Therefore, the district court granted a partial preliminary injunction. The parties then filed cross-motions for summary judgment, with all parties acknowledging that the issues presented concerned questions of law because only a facial challenge to the statute was asserted. The district court held a hearing on the summary judgment motions, which was in effect a continuation of the hearing for a preliminary injunction. At the conclusion of the hearing, the district court entered an order that found the criminal penalty portion of the statute unconstitutionally vague, and the court ordered that portion of the statute severed. The district court upheld, as constitutional, the remainder of the statute. This appeal and cross-appeal followed. Appellants challenge the portion of the district courts order that severed the criminal penal(c) Video arcades; (d) Government buildings and public places; (e) Malls and retail establishments; (f) All areas of grocery stores; and (g) All indoor areas within restaurants. 4 NRS 202.2483(3)(a)-(e) lists exceptions to the smoking ban: 3. Smoking tobacco is not prohibited in: (a) Areas within casinos where loitering by minors is already prohibited by state law pursuant to NRS 463.350; (b) Stand-alone bars, taverns and saloons; (c) Strip clubs or brothels; (d) Retail tobacco stores; and (e) Private residences, including private residences which may serve as an office workplace, except if used as a child care, an adult day care or a health care facility. 5 NRS 202.2483(7) provides for both criminal and civil enforcement and penalties: 7. Health authorities, police officers of cities or towns, sheriffs and their deputies shall, within their respective jurisdictions, enforce the provisions of this section and shall issue citations for violations of this section pursuant to NRS 202.2492 [criminal] and NRS 202.24925 [civil].

Sept. 2009] Flamingo Paradise Gaming v. Atty General

509

ties and declared the statute constitutional as a civil statute, arguing that the entire statute is unconstitutional. Cross-appellant George Chanos challenges the district courts determination that the criminal portion of the statute was unconstitutionally vague. An amicus curiae brief in support of respondents position was filed by the American Cancer Society. DISCUSSION Standard of review
[Headnotes 2-5]

The determination of whether a statute is constitutional is a question of law, which this court reviews de novo. Silvar v. Dist. Ct., 122 Nev. 289, 292, 129 P.3d 682, 684 (2006). Statutes are presumed to be valid, and the challenger bears the burden of showing that a statute is unconstitutional. Id. The court must interpret a statute in a reasonable manner, that is, [t]he words of the statute should be construed in light of the policy and spirit of the law, and the interpretation made should avoid absurd results. Desert Valley Water Co. v. State Engineer, 104 Nev. 718, 720, 766 P.2d 886, 886-87 (1988). In reviewing a statute, it should be given [its] plain meaning and must be construed as a whole and not be read in a way that would render words or phrases superfluous or make a provision nugatory. Mangarella v. State, 117 Nev. 130, 133, 17 P.3d 989, 991 (2001) (internal quotation omitted). Appellants challenge the constitutionality of the statute on three grounds: vagueness, equal protection, and governmental takings. First, we address appellants argument that the NCIAA violates due process rights because it is unconstitutionally vague. To analyze appellants vagueness challenge, we must initially determine the proper framework for reviewing a facial vagueness challenge, and then we apply the framework to the present case. In doing so, we address cross-appellant Chanoss contention regarding the constitutionality of the criminal enforcement of the NCIAA, whether the district court properly severed the criminal enforcement provisions, and whether the statute withstands a facial vagueness challenge after severance. Second, we examine appellants contention that the statute violates equal protection and is therefore unconstitutional. Finally, we consider appellant Nevada Tavern Owners Associations (NTOA) claim that the NCIAA is unconstitutional because it constitutes a governmental taking of private property without providing just compensation. The proper framework for analyzing a facial vagueness challenge There is a divergence of authority regarding the appropriate test that courts should apply in evaluating a facial vagueness challenge. Thus, we first address the conflicting vagueness tests and establish

510

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[125 Nev.

a framework for analyzing the facial vagueness challenge presented in this appeal. Relevant legal precedent addressing facial challenges
[Headnote 6]

When analyzing whether a statute is unconstitutionally vague in violation of due process, courts generally apply a two-factor test. Silvar, 122 Nev. at 293, 129 P.3d at 685; see also Kolender v. Lawson, 461 U.S. 352, 357 (1983). Under this two-factor test, an act is unconstitutionally vague if it (1) fails to provide notice sufficient to enable persons of ordinary intelligence to understand what conduct is prohibited and (2) lacks specific standards, thereby encouraging, authorizing, or even failing to prevent arbitrary and discriminatory enforcement. Silvar, 122 Nev. at 293, 129 P.3d at 685. Although this test is clear for as-applied challenges, how these factors apply in a facial challenge is less certain. This uncertainty lies in the United States Supreme Courts inconsistent application of these factors in its precedent. Beginning in 1982, the Supreme Court in Hoffman Estates v. Flipside, Hoffman Estates, 455 U.S. 489 (1982), stated that a facial vagueness challenge would fail unless the complainant could demonstrate that the law is impermissibly vague in all of its applications. Id. at 497. But after stating this requirement, the Hoffman Estates opinion went on to note that [t]he degree of vagueness that the Constitution tolerates . . . depends in part on the nature of the enactment and that the Court has greater tolerance of enactments with civil rather than criminal penalties because the consequences of imprecision are qualitatively less severe. Id. at 498-99. One year later, in Kolender v. Lawson, 461 U.S. 352 (1983), the Court, in a footnote, called into question the requirement that a facial challenger must establish that a statute is vague in all its applications, at least when a statute involves a constitutionally protected right or criminal penalties. Id. at 358 n.8. Relying in part on the additional language in Hoffman Estates, the Court observed that there was a varying tolerance of vagueness, depending on the nature of the statute. Id. The Kolender Court recognized that a higher standard applied to statutes involving constitutional rights or criminal penalties, however, the Court did not articulate what constituted the higher standard. Thereafter, in United States v. Salerno, 481 U.S. 739 (1987), the Supreme Court reaffirmed the requirement for facial challenges, in general, that the challenger must show that the statute is void in all its applications. Id. at 745. The Salerno opinion did not address the Kolender footnote questioning this standard. Then, in a 1999 plurality opinion, Chicago v. Morales, 527 U.S. 41, 55 n.22 (1999) (plurality opinion), the Supreme Court again called into question the requirement that a statute be void in all its

Sept. 2009] Flamingo Paradise Gaming v. Atty General

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applications for a successful facial challenge. In Morales, the Court enunciated a higher standard test, at least in cases in which the statute involved criminal penalties with no mens rea requirement and that dealt with constitutional rights, holding that such statutes would be unconstitutional if vagueness permeates the text of such a law. Id. at 55. More recently, the Supreme Court reaffirmed the requirement that a statute be void in all its applications for a facial challenge to be successful. Washington State Grange v. Washington State Republican Party, 552 U.S. 442, 449 (2008). The Court, however, recognized the disagreement among its members as to the proper standard to apply in reviewing a facial challenge, stating that some Members of the Court have criticized [the void-in-all-its-applications] formulation. Id. The Washington State Grange case did not involve a criminal statute, and therefore, it does not resolve the issue as to what standard applies to criminal statutes not involving constitutionally protected rights. Thus, the Supreme Court has announced differing rules for facial challenges. On the one hand, the Court in Hoffman Estates, Salerno, and Washington State Grange, stated the requirement that a statute must be void in all its applications. On the other hand, in Kolender and Morales, the Court questioned this standard, at least in cases with statutes involving constitutional rights or criminal penalties. As the Supreme Court precedent fails to explain with specificity the higher standard applicable to criminal statutes, several courts have expressed concerns as to when this higher standard applies and how the standard is measured. Some courts have concluded that the higher standard only applies when a First Amendment right is at issue. U.S. v. Rybicki, 354 F.3d 124, 130-31 (2d Cir. 2003) (distinguishing Morales based on the fact that Morales involved constitutionally protected conduct and the holding in Morales was a plurality opinion and not a majority opinion); People v. Molnar, 857 N.E.2d 209, 225 (Ill. 2006) (stating requirement that a facial challenge requires a void-in-all-its-applications showing, without addressing cases that question this requirement). Other courts have held that the higher standard applies when any constitutional right is at issue but not simply because criminal penalties not involving a constitutional right are present, again distinguishing Morales and Kolender because those cases involved constitutional rights. Roark & Hardee LP v. City of Austin, 522 F.3d 533, 551 n.19 (5th Cir. 2008) (distinguishing Morales on the basis that it involved constitutionally protected activity); Schwartzmiller v. Gardner, 752 F.2d 1341, 1348 (9th Cir. 1984) (limiting Kolender to its unique set of circumstances and that it involved substantial constitutional rights); State ex rel. Children, Youth & Families, 999 P.2d 1045, 1051 (N.M Ct. App. 2000) (same). Still, other courts have held that a higher standard applies to statutes involving constitutional rights or criminal penalties.

512

Flamingo Paradise Gaming v. Atty General

[125 Nev.

U.S. v. Doremus, 888 F.2d 630, 635 (9th Cir. 1989) (recognizing the holding in Hoffman that a higher standard applies when criminal penalties exist); Steffes v. City of Lawrence, 160 P.3d 843, 850 (Kan. 2007) (stating that a higher standard exists for a facial vagueness challenge of a criminal statute). Similarly, our prior opinions have applied the requirement that a statute be void in all its applications for facial challenges, Matter of T.R., 119 Nev. 646, 652, 80 P.3d 1276, 1280 (2003), but we have also recognized the higher standard of vagueness permeates the text for statutes involving criminal penalties. City of Las Vegas v. Dist. Ct., 118 Nev. 859, 862, 59 P.3d 477, 480 (2002). And our prior opinions have likewise evidenced confusion over how the higher standard applies by failing to explain or sometimes apply a higher standard. Matter of T.R., 119 Nev. at 652, 80 P.3d at 1280; Sheriff v. Burdg, 118 Nev. 853, 857, 59 P.3d 484, 486-87 (2002). That the Supreme Court has not articulated a separate test for this higher standard, or provided a clear explanation of how this higher standard should apply, compounds the ongoing confusion. Standards for reviewing facial vagueness challenge
[Headnotes 7, 8]

By examining the facial vagueness doctrine through the varied legal precedent, we conclude that there are two approaches to a facial vagueness challenge depending on the type of statute at issue. The first approach arises under a facial challenge to a civil statute and the plaintiff must show that the statute is impermissibly vague in all of its applications. Washington State Grange v. Washington State Republican Party, 552 U.S. 442, 449 (2008); United States v. Salerno, 481 U.S. 739, 745 (1987); Hoffman Estates v. Flipside, Hoffman Estates, 455 U.S. 489, 497 (1982). In making this showing, [a] complainant who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others. Matter of T.R., 119 Nev. at 652, 80 P.3d at 1280 (internal quotation omitted); Hoffman Estates, 455 U.S. at 495. But, when the statute involves criminal penalties or constitutionally protected rights, the second approach involves a higher standard of whether vagueness permeates the text.6 City of Las Vegas v. Dist. Ct., 118 Nev. at 862, 59 P.3d at 480; Chicago v. Morales, 527 U.S. 41, 55 (1999) (plurality opinion). Both of these standards are applied through the consideration of the two-factor test for vagueness challenges as stated above, whether the statute: (1) fails to provide notice sufficient to enable persons of ordinary intelligence to understand what conduct is prohibited and (2) lacks specific standards, thereby encouraging, authorizing, or even failing
6 We do not decide when the higher standard applies for statutes involving constitutional rights but not criminal penalties, as the parties agree that this case does not implicate any constitutionally protected rights.

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to prevent arbitrary and discriminatory enforcement. Silvar, 122 Nev. at 293, 129 P.3d at 685; Kolender, 461 U.S. at 357; Hoffman Estates, 455 U.S. at 498.
[Headnotes 9, 10]

Thus, when a statute is reviewed under the lower standard of vague in all its applications, if the statute provides sufficient guidance as to at least some conduct that is prohibited and standards for enforcement of that conduct, it will survive a facial challenge because it is not void in all its applications. Hoffman Estates, 455 U.S. at 497. Under the higher standard, the question becomes whether vagueness so permeates the text that the statute cannot meet these requirements in most applications; and thus, this standard provides for the possibility that some applications of the law would not be void, but the statute would still be invalid if void in most circumstances. See Kolender, 461 U.S. at 358 n.8. The NCIAA is unconstitutionally vague as to criminal enforcement, but is constitutional as to civil enforcement Having established the proper framework for analyzing a facial vagueness challenge, we now apply it to the present case. In doing so, we first consider whether the NCIAA is unconstitutionally vague for criminal enforcement. Concluding that it is, we next determine whether the district court properly severed the criminal provision from the statute. After concluding that severance was proper, we address whether the NCIAA passes a facial challenge for civil enforcement. The NCIAA is unconstitutionally vague for criminal enforcement Because the district court severed the criminal portion of the statute, to determine the proper standard to apply to this facial challenge, we first address cross-appellant Chanoss contention that the district court erred in ruling that the criminal enforcement of the statute is unconstitutionally vague. If Chanoss cross-appeal is successful, then the statute would include criminal penalties. As a result, we apply the higher standard of whether vagueness permeates the statutes text to analyze the cross-appeal.7
[Headnote 11]

We conclude that vagueness permeates the NCIAA text in that it fails to provide sufficient notice of what conduct is prohibited and allows for arbitrary enforcement. With regards to both notice and ar7 NRS 202.2483(7) states, Health authorities, police officers of cities or towns, sheriffs and their deputies shall, within their respective jurisdictions, enforce the provisions of this section and shall issue citations for violations of this section pursuant to NRS 202.2492 [criminal penalties] and NRS 202.24925 [civil penalties].

514

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[125 Nev.

bitrary enforcement, the statute fails to adequately define to whom the Act is enforced against. While it is clear that a person cannot smoke in a restricted area, it is unclear if there is an obligation to affirmatively prevent smoking by a business owner, manager, or employee. The statute fails to explain whether business owners, such as appellants, have a responsibility to stop someone who is smoking in violation of the Act, and if so, what that responsibility entails. Consequently, we question whether it is sufficient, under the statute, to ask the person to stop smoking, or does the business owner have to demand that the person leave the premises, and if the person refuses to leave the premises, is the owner required to call the police? The statute fails to provide guidelines as to what action is required and how the statute is enforced, and therefore, it creates the possibility of arbitrary and discriminatory enforcement. Vagueness also permeates the NCIAAs text by failing to define several terms included in the statute that do not have a plain meaning. These terms include smoking paraphernalia and large room. For example, as one court has recognized, the term smoking paraphernalia is too vague because the reasonable parameters of exactly what constitutes such equipment are unstated and potentially boundless. Lexington Fayette Cty Food v. Urban Cty Gov, 131 S.W.3d 745, 754 (Ky. 2004). The court reasoned that the term could include anything from cigarettes, cigars, and tools to make them, to air freshener and breath mints. Id. at 754-55. While it recognized that a fair assumption could be made that the statute covered cigarettes and cigars and did not cover air freshener and breath mints, the court stated that lying between those extremes . . . is a vast middle ground which is subject to characterization as lawful or unlawful in the discretion of the enforcing authorities. Id. at 756 (internal quotation and citation omitted). Thus, we conclude that vagueness as to the criminal penalties so permeates the NCIAA that it cannot withstand constitutional due process scrutiny. Accordingly, the statute is unconstitutionally vague for criminal enforcement under the higher standard that applies for a facial challenge of a criminal statute, and we affirm the district courts conclusion that the statutes criminal provisions could not be constitutionally enforced. Having so concluded, we next address whether the district court properly severed the criminal enforcement provisions from the statute. The district court properly severed the criminal enforcement provisions The district court determined that the statute was unconstitutionally vague when considered as a criminal statute, but not when viewed as only a civil statute. As a result, the district court severed

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the portion of the statute that provided for criminal penalties.8 Appellants argue that this was improper because the NCIAA was a ballot measure and there is no definitive way of knowing if the voters would still want the statute with the criminal portion removed. Additionally, appellants argue that the severance of the criminal provision was improper because that language is not vague, rather the statute as a whole is vague, and thus, the district court could not sever the criminal portion because that portion was not the unconstitutional part of the statute. Respondents counter that the district court properly severed the criminal penalties from the statute because the remainder of the statute stands without the offensive portion and it is clear that the voters would prefer the statute without criminal penalties as opposed to no statute at all, especially in light of the severance provision included in the NCIAA, codified as NRS 202.2483(11).9 Respondents consequently argue that because the district court concluded that the criminal portion was unconstitutional, nothing prevented it from severing that portion.
[Headnotes 12, 13]

Under the severance doctrine, it is the obligation of the judiciary to uphold the constitutionality of legislative enactments where it is possible to strike only the unconstitutional portions. Rogers v. Heller, 117 Nev. 169, 177, 18 P.3d 1034, 1039 (2001) (quotation omitted). This court has adopted a two-part test for severability: a statute is only severable if the remaining portion of the statute, standing alone, can be given legal effect, and if the Legislature intended for the remainder of the statute to stay in effect when part of the statute is severed.10 County of Clark v. City of Las Vegas, 92 Nev. 323, 336-37, 550 P.2d 779, 788 (1976). Appellants argue that severance is improper because the statute was passed as a ballot measure and with no legislative history there
8 Specifically, the district court severed the words NRS 202.2492 and (the criminal penalties) from the statute. 9 NRS 202.2483(11) expressly provides for severance of any unconstitutional section: The provisions of this section are severable. If any provision of this section or the application thereof is declared by a court of competent jurisdiction to be invalid or unconstitutional, such declaration shall not affect the validity of the section as a whole or any provision thereof other than the part declared to be invalid or unconstitutional. 10 To support their respective positions, the parties relied on a three-part test from California case authority, which requires that the improper portion can only be severed if it is grammatically, functionally and volitionally separable. Jevne v. Superior Court, 111 P.3d 954, 971 (Cal. 2005) (internal quotations omitted). The Jevne court outlines this test as follows: It is grammatically separable if it is distinct and separate and, hence, can be removed as a whole without affecting the wording of any of the mea-

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is no way to determine whether voters would still want the statute if the criminal portions are severed. Appellants focus on this courts opinion in Rogers and primarily the dissenting opinion in Nevadans for Property Rights v. Secretary of State, 122 Nev. 894, 922-29, 141 P.3d 1235, 1253-58 (2006) (HARDESTY, J., concurring in part and dissenting in part), for support. Respondents counter that Rogers and Nevadans for Property Rights dealt with pre-ballot challenges to initiative petitions, unlike this case where the NCIAA has already passed the voting process and is now a statute. Thus, respondents argue, the severance provision that applies to statutes under NRS 0.020 governs.11 Respondents also rely on Nevadans for Property Rights majority opinion, which allowed severance, even pre-ballot. Appellants respond by arguing that the reasoning of Rogers is stronger in this case because of the fact that this is now law and cannot be amended by the Legislature until December 2009, based on the requirement in Article 19, Section 2(3) of the Nevada Constitution that an initiative cannot be amended for three years after passage. In Rogers, this court declined to sever an initiative petition. 117 Nev. at 178, 18 P.3d at 1039-40. There, the petition sought to require that 50 percent of the projected revenue for the state be used for public education and imposed a new tax with a requirement that the new tax money be devoted solely to education. Id. at 174-75, 18 P.3d at 1037-38. The petition was ruled unconstitutional because the appropriation required was not covered by the new tax. Id. at 177, 18 P.3d at 1039. The proponents of the initiative asked the court to sever the 50-percent appropriation requirement and allow the remainder of the initiative to proceed. Id. The court rejected the argument that the initiative could be severed, even though it contained a severability clause. Id. at 177-78, 18 P.3d at 1039-40. The Rogers
sures other provisions. It is functionally separable if it is not necessary to the measures operation and purpose. And it is volitionally separable if it was not of critical importance to the measures enactment. Id. (internal quotations omitted). Although worded differently, the Nevada and California tests are essentially the same, in that after severance the statute must stand on its own and the removed portion must not be critical, i.e., it was intended that the rest of the statute remain even without the severed portion. 11 NRS 0.020 states as follows: 1. If any provision of the Nevada Revised Statutes, or the application thereof to any person, thing or circumstance is held invalid, such invalidity shall not affect the provisions or application of NRS which can be given effect without the invalid provision or application, and to this end the provisions of NRS are declared to be severable. 2. The inclusion of an express declaration of severability in the enactment of any provision of NRS or the inclusion of any such provision in NRS, does not enhance the severability of the provision so treated or detract from the severability of any other provision of NRS.

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court held that [i]nitiative petitions must be kept substantively intact; otherwise, the peoples voice would be obstructed. Id. at 177, 18 P.3d at 1039. The court continued, stating that initiative legislation is not subject to judicial tamperingthe substance of an initiative petition should reflect the unadulterated will of the people and should proceed, if at all, as originally proposed and signed. Id. at 178, 18 P.3d at 1039-40. In Nevadans for Property Rights, the court concluded that severance of the initiative petition was proper. 122 Nev. at 912-13, 141 P.3d at 1247-48. Nevadans for Property Rights involved a petition dealing primarily with eminent domain, but which also contained provisions regarding property rights. The Nevadans for Property Rights court concluded that the petition violated the single-subject requirement and was therefore unconstitutional. Id. at 909, 141 P.3d at 1245. The court determined, however, that the provisions concerning property rights could be severed and the remainder of the provision would satisfy the single-subject requirement. Id. at 913, 141 P.3d at 1248. In reaching this conclusion, the court held that severance would still preserve the primary purpose of the petition (eminent domain), that the severability provision included in the initiative demonstrated that the voters would still want the petition without the severed portion, and that severance would preserve the peoples right to enact law through the initiative process. Id. at 909-13, 141 P.3d at 1245-48. The Nevadans for Property Rights court distinguished the Rogers case, stating that the petition in Rogers was not severable because it would have gutted the initiatives central component and that [n]o other portion of the initiative could have stood in the absence of this central component. Nevadans for Prop. Rights, 122 Nev. at 913, 141 P.3d at 1247. Thus, while severance was improper in Rogers, the petition in Nevadans for Property Rights could be properly severed because the severed portion did not destroy the central purpose of the initiative and the remainder of the initiative could stand alone.
[Headnote 14]

Based on the Rogers and Nevadans for Property Rights holdings, especially the distinction set forth in Nevadans for Property Rights between its petition and the Rogers petition, we conclude that the district court properly severed the criminal penalty portion of the NCIAA. The portion severed was not the central component of the statute and the remainder of the statute, as explained below, can stand alone. Moreover, the NCIAA included a severability clause, which indicates that the initiatives proponents contemplated that should a constitutional challenge arise, the offending portion of the statute could be severed and the remaining portion could proceed and the smoking ban enforced.

518

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Appellants also argue that severance is only permissible if the severed portion is unconstitutional on its own, citing among other cases, Rogers, in which the court stated that severance was used to uphold the constitutionality of legislative enactments where it is possible to strike only the unconstitutional portions. 117 Nev. at 177, 18 P.3d at 1039 (quotation omitted). Appellants insist that because imposing criminal penalties for violation of a smoking statute is not in and of itself unconstitutional, the criminal penalties cannot properly be severed, as severance would only be permitted if it was in fact unconstitutional to impose criminal penalties. Appellants argument is refuted by Nevadans for Property Rights, however, in that there we severed portions of an initiative that were not unconstitutional on their own but that made the initiative unconstitutional and which, when severed, cured the initiatives unconstitutional defects. 122 Nev. 894, 141 P.3d 1235. The NCIAA falls under the Nevadans for Property Rights reasoning, in that, as explained below, the portion severed by the district court cured the statutes unconstitutional defect. Thus, the severed portion was in fact the unconstitutional portion of the statute and severance was permissible. The NCIAA passes a facial vagueness challenge for civil enforcement Having concluded that the district court properly severed the criminal enforcement provisions from the NCIAA, we now address whether the statute passes a facial vagueness test for civil enforcement. Because the statute does not contain criminal provisions in its severed state and, as all parties agree, does not involve constitutionally protected activity, we review the statute under the lower standard of whether it is vague in all its applications.12 We conclude that the statutes civil enforcement is not vague, and therefore, it survives appellants facial constitutional vagueness challenge.
[Headnote 15]

Under the lower standard test of whether the statute is vague in all its applications, the NCIAA is sufficiently clear if, in any application, it does not (1) fail[ ] to provide notice sufficient to enable
12 Appellants argue that the statute without the criminal provisions is still a quasi-criminal statute because it imposes fines, and therefore, the higher standard test should still apply. We reject this contention. The statute is not quasicriminal as to the appellant business owners because it does not include any possibility of license revocation nor does it have a stigmatizing effect. See Ford Motor Co. v. Texas Dept. of Transp., 264 F.3d 493, 508 (5th Cir. 2001). While the fact that the statute imposes fines may be sufficient to constitute a quasicriminal statute when applied to individuals, it is not sufficient when applied to appellants as business owners, id., and appellants cannot rely on the application to others in a facial challenge when it is constitutional as applied to them. Matter of T.R., 119 Nev. 646, 652, 80 P.3d 1276, 1280 (2003); Hoffman Estates, 455 U.S. at 495.

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persons of ordinary intelligence to understand what conduct is prohibited and does not (2) lack[ ] specific standards, thereby encouraging, authorizing, or even failing to prevent arbitrary and discriminatory enforcement. Silvar, 122 Nev. at 293, 129 P.3d at 685; Hoffman Estates, 455 U.S. at 498.
[Headnote 16]

We conclude that the statute is not vague in all its applications and, therefore, survives a facial challenge for civil enforcement because there are very clear applications of the statute in which no one could reasonably question whether a particular act would violate the statute. For example, smoking is clearly prohibited in certain areas, including bars and restaurants where food is served. This prohibition is unquestionably enforceable against someone who is smoking inside these restricted areas and, thus, illustrates how the statute is not impermissibly vague in all its applications. Another example as to why the statute survives a facial challenge is that the statute is clear that certain businesses cannot allow smoking and must post nosmoking signs.13 It cannot be reasonably disputed that this portion of the statute clearly outlines the requirements that a business owner prohibit smoking and post no-smoking signs. Once again, this requirement demonstrates that the statute is not unconstitutional in all its applications. Thus, under the lower level test of requiring appellants to show vagueness in all its applications, the statute is sufficiently clear to provide notice of what conduct is prohibited and adequate guidance to enforcement officials to avoid arbitrary or discriminatory enforcement. While there may be uncertainty as to what affirmative actions, if any, a business owner must take if someone smokes within his or her business in violation of the statute, there is no question that the business owner is required to make his or her establishment nonsmoking and post signs designating it as such. As the main restrictions of the Act are sufficiently clear to establish specific prohibited conduct that a reasonable person could understand and does not promote arbitrary enforcement, the statute survives a facial vagueness challenge.14
The requirement to post no-smoking signs is outlined in NRS 202.2483(6): 6. No Smoking signs or the international No Smoking symbol shall be clearly and conspicuously posted in every public place and place of employment where smoking is prohibited by this section. Each public place and place of employment where smoking is prohibited shall post, at every entrance, a conspicuous sign clearly stating that smoking is prohibited. All ashtrays and other smoking paraphernalia shall be removed from any area where smoking is prohibited. 14 In reaching this conclusion, we emphasize that this appeal involves a facial challenge to the statute. We note that the statute contains numerous defects that may be subject to as-applied challenges once the statute is enforced against a particular party, but it is improper in the context of a facial challenge review to
13

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Therefore, under a facial challenge the statute is not unconstitutionally vague for civil enforcement because the general restrictions under the statute have clear, constitutional applications. Accordingly, we affirm the district courts ruling upholding civil enforcement of the statute. The NCIAA does not violate equal protection
[Headnotes 17-20]

Appellants argue that the NCIAA is unconstitutional because it violates the Equal Protection Clauses under the Fourteenth Amendment to the United States Constitution and Article 4, Section 21 of the Nevada Constitution. Equal protection allows different classifications of treatment, but the classifications must be reasonable. State Farm v. All Electric, Inc., 99 Nev. 222, 225, 660 P.2d 995, 997 (1983), overruled on other grounds by Wise v. Bechtel Corp., 104 Nev. 750, 766 P.2d 1317 (1988). While there are different levels of scrutiny that may apply under an equal protection analysis to determine if classifications are reasonable and therefore constitutional, here, both parties agree that smoking does not involve a fundamental right or a suspect class. Thus, the classifications are reasonable, and the statute is constitutional if there is a rational basis related to a legitimate government interest for treating businesses differently. Arata v. Faubion, 123 Nev. 153, 159, 161 P.3d 244, 248 (2007). This court is not limited, when analyzing a rational basis review, to the reasons enunciated for enacting a statute; if any rational basis exists, then a statute does not violate equal protection. Id. at 160, 161 P.3d at 249. Further, under a rational basis test, classifications must apply uniformly to all who are similarly situated, and the distinctions which separate those who are included within a classification from those who are not must be reasonable, not arbiconsider these hypothetical situations. For example, as noted above, under the language of the statute, uncertainty arises regarding whether the statute imposes upon business owners an obligation to stop a person who is smoking in violation of the statute. As another example, ambiguity concerning what is included as smoking paraphernalia under the statute may potentially provide a basis for an as-applied challenge. While such arguments may be valid in an as-applied challenge, they are improper in a facial challenge to the statute under the lower level test of whether a statute is vague in all its applications. Hoffman Estates, 455 U.S. at 497. As the United States Supreme Court has stated, concerning facial challenges, [e]xercising judicial restraint in a facial challenge frees the Court not only from unnecessary pronouncement on constitutional issues, but also from premature interpretations of statutes in areas where their constitutional application might be cloudy. Washington State Grange v. Washington State Republican Party, 552 U.S. 442, 450 (2008) (internal quotation omitted). Additionally, the Supreme Court has recognized that facial challenges threaten to short circuit the democratic process by preventing laws embodying the will of the people from being implemented in a manner consistent with the Constitution. Id. at 451.

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trary. State Farm, 99 Nev. at 225, 660 P.2d at 997. The classifications must also bear[ ] a rational relationship to the legislative purpose sought to be effected. Id. Appellants argue that the NCIAA violates equal protection because the NCIAA applies to businesses that hold a restricted gaming license but does not apply to gaming areas in those businesses that hold a nonrestricted gaming license. Appellants assert that this distinction violates equal protection because no rational reason exists to allow smoking in one place but not another based solely on what type of gaming license the business holds. Respondents counter by arguing that the gaming-license holders are not similarly situated and, therefore, can be treated differently, and the differing treatment in the statute is reasonable. While the district court did not resolve this issue, it was properly raised below and on appeal, and it is therefore necessary for us to address the issue. A nonrestricted gaming license allows for, among other things, the operation of 16 or more slot machines or the combination of any amount of slot machines in connection with the operation of other games or sports pool. NRS 463.0177. A restricted gaming license only allows for the operation of 15 or fewer slot machines and no other types of gaming, and requires that the slot machines operation is incidental to the primary business of the establishment. NRS 463.0189.
[Headnote 21]

There are a number of reasons why the different treatment of license holders passes equal protection requirements. First, in the case of nonrestricted gaming licensees, their primary business is gaming and their other operations and services are incidental to gaming; the other services offered by the nonrestricted license holder are still subject to the Act. The different treatment, thus, only applies to the main gaming areas, where minors are restricted from loitering pursuant to NRS 463.350. Restricted gaming licensees, however, offer gaming only incidentally to their other primary business, which makes it much more difficult, if not impossible, to provide an exclusion from the smoking ban for their gaming areas. Thus, it is rational to provide this exception to nonrestricted gaming licensees large gaming areas but not to restricted gaming licensees gaming areas, which are generally much smaller and likely too close to the other services provided by the establishment, where minors are not excluded. Allowing different treatment on this basis is further supported by the fact that the NCIAA also provides an exception for stand-alone bars and taverns. Minors are prohibited in these businesses, NRS 202.030, just as they are prohibited from gaming areas. Thus, the purpose of the statute, to protect families and children from secondhand smoke, is not defeated by allowing an exception for large

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gaming areas in nonrestricted licensees businesses or in a standalone bar or tavern, as both places restrict access to minors. The same does not hold true to restricted gaming licensees businesses because they generally offer other services, such as food service, for which families are more likely to patronize. See NRS 202.030(1) (allowing the presence of minors in establishments where alcohol is served in connection with offering meals at tables separate from the bar). A second reason for different treatment stems from the businesses primary functions. Nonrestricted gaming licensees are in the business of gaming, NRS 463.0177, whereas restricted gaming licensees are primarily in the retail and restaurant businesses, and thus, gaming is minimal to the primary purpose of the business. NRS 463.0189. Thus, while both types of business licensees contribute to the gaming economy, a business operating under a nonrestricted license contributes substantially more to the states economy. Therefore, economics provides a rational basis for distinction in the statute. See, e.g., Batte-Holmgren v. Comr of Public Health, 914 A.2d 996, 1015 (Conn. 2007) (recognizing, in a case challenging a smoking ban statute, that economic reasons can provide a rational basis for differing treatment). Thus, the differing treatment of these types of businesses under the statute is allowed to promote nonrestricted gaming licensees further success and continued substantial benefit to the states economy. Whether these are the reasons why the classification was made is irrelevant, Arata, 123 Nev. at 160, 161 P.3d at 248, as they are rational reasons for allowing the classification. As a result, the NCIAA does not violate equal protection. Because restricted gaming licensees are not similarly situated with nonrestricted gaming licensees, it is permissible to treat them differently if a rational basis exists. There are rational reasons for the differing treatment of nonrestricted and restricted license holders. Therefore, the statute does not violate equal protection. The NCIAA does not constitute a taking of private property for which compensation is required The last issue that we address in this appeal is whether the NCIAA constituted a governmental taking of private property for which appellant Nevada Tavern Owners Association (NTOA) argues requires compensation and, therefore, asserts that the statute is unconstitutional because it failed to provide for funding of the necessary appropriations to make the compensation payments to property owners, as required under Article 1, Section 8(6) of the Nevada Constitution. In particular, NTOA contends that prohibiting smoking is a per se regulatory taking of property owners airspace and that

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requiring the posting of no smoking signs is a physical invasion of property. Per se regulatory taking This court has recognized two types of per se regulatory takings that occur: when a government regulation either (1) requires an owner to suffer a permanent physical invasion of her property or (2) completely deprives an owner of all economical beneficial use of her property. McCarran Intl Airport v. Sisolak, 122 Nev. 645, 662, 137 P.3d 1110, 1122 (2006). NTOA argues that the NCIAA constitutes a permanent physical invasion of property. NTOA relies on this courts opinion in Sisolak to support its argument. In Sisolak, this court held that ordinances that prevented Sisolak from using his airspace, because the airspace needed to be free from obstruction for plane flights, constituted a permanent invasion of the airspace for which Sisolak had to be compensated. Id. at 666-70, 137 P.3d at 1124-27. The Sisolak court explained that when determining if a regulation constitutes a permanent physical invasion, a court must determine whether the regulation has granted the government physical possession of the property or whether it merely forbids certain private uses of the space. Id. at 662, 137 P.3d at 1122. NTOA argues that, similar to the situation in Sisolak, the NCIAA prevents business owners from using their airspace within their buildings and therefore constitutes a permanent invasion.
[Headnote 22]

To the contrary, the Sisolak opinion refutes NTOAs argument, as the NCIAA only forbids certain uses of the space and does not give the government physical possession of the airspace. In Sisolak, the regulation completely prevented occupation of the airspace, whereas here, there is no such restriction in the occupation of the airspace, merely a limit on what can be done with it. Therefore, the NCIAA does not constitute a taking of the airspace under Sisolak. Physical invasion of property NTOA also argues that the requirement to post a no smoking sign is a physical invasion of property that constitutes a taking of that property based on the United States Supreme Court case Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982). In Loretto, the Supreme Court held that a regulation that required a landlord to permit a cable company to install cable television facilities on the property constituted a physical invasion requiring compensation. 458 U.S. at 438. The taking was the result of the installation of small cable boxes and wiring installed on the roof of the landlords building. Id. The statute in question essentially

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gave the cable company full control over the installation and maintenance of the cable box. NTOA argues that the requirement of posting a sign is similar to the requirement in Loretto of allowing the installation of cable boxes and, therefore, constitutes a taking. We do not agree.
[Headnote 23]

The NCIAA does not give full control over the installation and maintenance of no smoking signs to a third party, which is what occurred in Loretto. The Loretto court recognized this distinction, stating that its holding in no way alters the analysis governing the States power to require landlords to comply with building codes and provide utility connections, mailboxes, smoke detectors, fire extinguishers, and the like in the common area of a building. So long as these regulations do not require the landlord to suffer the physical occupation of a portion of his building by a third party, they will be analyzed under the multifactor inquiry generally applicable to nonpossessory governmental activity. Id. at 440. The determination of whether the landlord maintained control over the property, or if that control was given to a third party, was an important aspect of determining if there was a per se taking. Id. at 440 n.19. The Court stated that if the statute at issue had only required a landlord to allow installation, without more, then a different question would be presented because the landlord would retain control over placement and other effects of the installation. Id. As the NCIAA does not give control over the installation or any portion of a persons property to a third party, it is distinguishable from Loretto, as that opinion itself recognized. Thus, NTOAs per se taking argument must fail.15 We therefore conclude that the NCIAA does not constitute a governmental taking of private property. Business owners still maintain possession and control over their property. The fact that they are subject to certain regulations does not result in the government tak15 The conclusion that no taking is effected by requiring the posting of a sign is further supported by this courts Sisolak opinion, in which this court stated that most property rights may be the subject of valid zoning and related regulations which do not give rise to a takings claim. Sisolak, 122 Nev. at 660 n.25, 137 P.3d at 1120 n.25. Further, the United States Supreme Court has held that where an owner possesses a full bundle of property rights, the destruction of one strand of the bundle is not a taking and that all land-use regulations will have some impact on property values, but [t]reating them all as per se takings would transform government regulation into a luxury few governments could afford. Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 U.S. 302, 324, 327 (2002) (internal quotations omitted). Therefore, the NCIAA does not effect a taking of private property without compensation.

Sept. 2009] Flamingo Paradise Gaming v. Atty General

525

ing complete control over their airspace or building property. Thus, NTOAs taking argument is without merit and cannot serve as a basis for invalidating the NCIAA. CONCLUSION The NCIAA provides sufficient definiteness to avoid a facial challenge under the lower level test of whether the statute is vague in all its applications but does not survive the higher test of whether vagueness permeates its text. Thus, we conclude that the statute is not unconstitutionally vague for civil enforcement, but it is unconstitutionally vague for criminal enforcement, and the district court properly severed the criminal enforcement provisions from the Act. In addition, we conclude that the NCIAA does not violate equal protection, as there are rational bases for the classifications made within the statute. Finally, the NCIAA does not constitute a governmental taking of private property. Accordingly, we affirm the district courts judgment. DOUGLAS, SAITTA, and PICKERING, JJ., concur. GIBBONS, J., concurring: I concur with the majority. However, I wish to emphasize that in my view, this opinion does not preclude aggrieved parties, such as the appellants, from challenging the NCIAA on an as applied basis. As an example, in the event an aggrieved party receives a civil sanction, I make no conclusion as to whether the NCIAA provides sufficient guidance as to what an aggrieved partys obligation is in the event a patron chooses to smoke in the aggrieved partys establishment. CHERRY, J., concurring in part and dissenting in part: While I concur with the majoritys conclusion that the criminal provisions of Nevadas Clean Indoor Air Act (NCIAA) are unconstitutional, the majoritys equal protection analysis of the civil provisions, concluding that there are rational reasons for allowing different treatment of businesses, misses the mark. In my opinion, even if the criminal provisions are severed, the statute is unconstitutional as it violates equal protection. Therefore, I dissent from the portion of the majority opinion that upholds the statutes civil provisions. The NCIAAs purpose is to protect families and children from secondhand smoke. The NCIAA creates a distinction in treatment based primarily on whether a business holds a restricted or nonrestricted gaming license, but that distinction is arbitrary. Allowing smoking in the gaming areas of nonrestricted gaming licensees but not in restricted gaming licensees gaming areas has no rational basis and is contrary to the statutes purpose.

526

Flamingo Paradise Gaming v. Atty General

[125 Nev.

The majority concludes that the exception for smoking in a nonrestricted gaming license business is rational because it is limited to its gaming areas, a place where minors are prohibited and adults can avoid. But the majority ignores the reality that the dangers of secondhand smoke are the same whether the smoking is in a nonrestricted or restricted gaming licensees business. To me, the exclusion for nonrestricted licensees that allows smoking only in the gaming areas is spurious at best, as the secondhand smoke is not confined within those boundaries merely because the actual smoking occurs only there. The secondhand smoke carries beyond the gaming areas and still impacts families and children that are located beyond those areas. It makes no difference that minors are not permitted in the gaming areas where the smoking is permitted. The mere fact that minors are precluded from inside the gaming areas does not mean that they are not inside nongaming areas, and minors and families are often more likely to be inside a nonrestricted gaming licensee casino than inside a restricted gaming licensee bar or tavern that happens to sell food. Thus, the statute creates an arbitrary distinction that is not rationally related to the purpose of the statute. Further, the majority attempts to justify its conclusion by determining that gaming is incidental to the business of a restricted gaming licensees business, and therefore, a restricted license holder generates less gaming revenue for state economic purposes. Economics does not provide a rational basis for different treatment. First, both types of licensees have gaming and, thus, contribute to the revenues generated by the state from the gaming profits. Second, simply because a nonrestricted gaming licensee may generate more tax revenue from gaming than a restricted gaming licensee does not provide a rational basis for different treatment in the context of protecting families and children, because the secondhand smoke will have the same detrimental effect regardless of the amount of tax revenue generated from the business. The distinctions that the majority makes for upholding the civil portion of the statute do not bear a rational relation to the statutes purpose, and the NCIAA is unconstitutional because it violates equal protection. Accordingly, I dissent from the majoritys decision to uphold the civil enforcement of the NCIAA.

Sept. 2009] Argentena Consol. Mining Co. v. Jolley Urga

527

ARGENTENA CONSOLIDATED MINING COMPANY, APPELLANT, v. JOLLEY URGA WIRTH WOODBURY & STANDISH, RESPONDENT.
No. 50282 September 24, 2009 216 P.3d 779

Appeal from a district court order adjudicating an attorney-client fee dispute and the entry of judgment awarding attorney fees in a personal injury action. Eighth Judicial District Court, Clark County; Jackie Glass, Judge. Following settlement of underlying personal injury suit, law firm that had represented former client against the plaintiff in the suit filed motion requesting trial court to adjudicate its retaining lien and enter judgment in its favor for the attorney fees former client owed firm, but refused to pay it. Former client opposed motion, asserting that court lacked jurisdiction to adjudicate lien, and that firm had committed legal malpractice and was not entitled to attorney fees. The district court granted firms motion in a summary proceeding and entered judgment in favor of firm, awarding it attorney fees of $213,990.62. Former client appealed. The supreme court, HARDESTY, C.J., held that: (1) law firm did not have an enforceable charging lien, and (2) district court lacked jurisdiction to adjudicate retaining lien held by firm. Reversed. Sullivan Law Offices and J.D. Sullivan and Gene M. Kaufmann, Minden, for Appellant. Jolley Urga Wirth Woodbury & Standish and William R. Urga and Christopher D. Craft, Las Vegas, for Respondent.
1. APPEAL AND ERROR. Questions of law are subject to de novo review. 2. APPEAL AND ERROR. Attorney fee awards are reviewed under an abuse of discretion standard. 3. ATTORNEY AND CLIENT. The state recognizes two kinds of attorney liens; the first lien, a creature of statute, is a special or charging lien on the judgment or settlement that the attorney has obtained for the client; the second lien, established at common law, is a general or retaining lien, which allows a discharged attorney to withhold the clients file and other property until the court, at the request or consent of the client, adjudicates the clients rights and obligations with respect to the lien. NRS 18.015. 4. APPEARANCE; ATTORNEY AND CLIENT. The district courts in personam jurisdiction to adjudicate an attorney fee dispute based on a charging lien is derived from the fact that the client has already submitted himself or herself to the courts jurisdiction and the

528

Argentena Consol. Mining Co. v. Jolley Urga

[125 Nev.

5.

6.

7.

8.

9.

10.

11.

12. 13.

14.

15.

court has personal jurisdiction over the attorney due to the attorneys appearance as the clients counsel of record. NRS 18.015. ATTORNEY AND CLIENT. The court has in rem jurisdiction to resolve an attorney fee dispute between an attorney and client that arises from a charging lien because the attorneys fee is recovered on account of the suit or other action. NRS 18.015. ATTORNEY AND CLIENT. Because an attorneys retaining lien is a passive lien, the client determines whether it wants to extinguish the lien by requesting that the court compel the former attorney to deliver the clients files. ATTORNEY AND CLIENT. When a client seeks to extinguish an attorneys retaining lien, the client must provide adequate or substitute security in exchange for having the files returned. ATTORNEY AND CLIENT. When a client requests that the court compel the return of his or her files from the former attorney, and the client does not provide payment for the attorneys retaining lien or does not consent to posting substitute security, the court is without jurisdiction to extinguish the retaining lien. ATTORNEY AND CLIENT. The district courts jurisdiction to adjudicate an attorneys retaining lien is invoked as a result of the clients request to obtain his or her files and consent to provide adequate or substitute security in exchange. ATTORNEY AND CLIENT. If the court lacks jurisdiction to resolve an attorneys retaining lien, the attorney may keep possession of the former clients files and the attorneys recourse is to file a separate action to recover for the services expended on behalf of the former client. ATTORNEY AND CLIENT. Law firm that had obtained settlement for former client in underlying personal injury suit brought against client did not have an enforceable charging lien, as former client did not file an affirmative claim against the plaintiff in the underlying action, and, although firm obtained a dismissal of all claims against former client in underlying action, the settlement did not result in any affirmative recovery for former client. NRS 18.015. ATTORNEY AND CLIENT. An attorneys charging lien is a lien on the judgment or settlement that the attorney has obtained for the client. NRS 18.015. ATTORNEY AND CLIENT. District court lacked jurisdiction, in underlying personal injury action filed against law firms former client, to adjudicate retaining lien held by firm, resulting from firms withholding of former clients file after former client refused to pay firm attorney fees in connection with firms representation of former client in underlying action, as former client neither requested nor consented to district courts adjudication of firms retaining lien. ATTORNEY AND CLIENT. A retaining lien allows a displaced attorney to withhold a clients file and other property until the client requests or consents to the courts adjudication of the dispute. COURTS. Dicta is not controlling.

Sept. 2009] Argentena Consol. Mining Co. v. Jolley Urga

529

16. COURTS. A statement in a case is dictum when it is unnecessary to a determination of the questions involved. 17. ATTORNEY AND CLIENT. A district courts summary adjudication of an attorney fee dispute in the underlying action is inappropriate when the client asserts negligence or misconduct on the part of his former attorney. 18. ATTORNEY AND CLIENT. When an attorney does not have an enforceable charging lien, a client does not move the court to resolve the attorneys retaining lien, or the client refuses to consent to the courts adjudication of a retaining lien, the proper method by which the attorney should seek adjudication of the attorney fee dispute is an action against his or her former client in a separate proceeding. 19. COSTS. District courts, in making an attorney fee award, must make findings as to the reasonableness of the attorney fees.

Before the Court EN BANC. OPINION By the Court, HARDESTY, C.J.: This appeal arises out of a district courts order adjudicating an attorney-client fee dispute between appellant Argentena Consolidated Mining Company and its former law firm respondent Jolley Urga Wirth Woodbury & Standish. Jolley Urga defended Argentena in the underlying personal injury action between Argentena and an injured plaintiff. In this opinion, we must determine whether, in the absence of an enforceable charging lien or the clients request or consent to the district courts adjudication of a retaining lien, and in light of the clients legal malpractice allegation, a district court has jurisdiction to adjudicate an attorney-client fee dispute in the underlying action in which the attorneys services were rendered. We conclude that absent an enforceable charging lien or the clients request or consent to the district courts adjudication of a retaining lien, the district court is without jurisdiction to adjudicate an attorney-client fee dispute in the underlying action. We further conclude that when the client asserts legal malpractice as a defense against the attorneys claim for fees, it is particularly inappropriate to summarily adjudicate the fee dispute in the underlying action. We instruct that when the district court lacks jurisdiction to adjudicate the fee dispute or the client objects to the courts adjudication of the dispute based on its legal malpractice claim against the attorney, the attorney seeking to recover fees should file a separate action to do so.

530

Argentena Consol. Mining Co. v. Jolley Urga

[125 Nev.

FACTS AND PROCEDURAL BACKGROUND Argentena is a Nevada corporation that does business in Clark County, Nevada, and is the alleged owner of an abandoned mine located in southern Nevada. In the case underlying this appeal, Argentena was one of several defendants sued by the plaintiff for severe injuries, including quadriplegia, partial blindness, and brain damage, which the plaintiff sustained while inside the abandoned mine shaft during a high-tech scavenger hunt. Argentena retained Jolley Urga to represent it in the personal injury suit. After approximately three years of litigation, and near the end of a three-week trial, Jolley Urga entered into a settlement agreement with the plaintiff on behalf of Argentena. The terms of the settlement provided for a dismissal of all of the plaintiffs claims against Argentena and Argentenas waiver of any and all costs or rights to be able to go against the plaintiff in this action, which included Argentenas right to recover attorney fees from the plaintiff. After entering into the settlement agreement, Jolley Urga, on behalf of Argentena, orally moved for a good-faith settlement of the personal injury action during a hearing before the district court, which the district court granted. Shortly after the hearing regarding the good-faith settlement, Argentena terminated its attorney-client relationship with Jolley Urga and retained another law firm. Argentena claimed that it did not authorize Jolley Urga to waive its right to recover attorney fees as part of the settlement and, as a result, Argentena refused to pay Jolley Urgas fees, totaling $213,990.62. Jolley Urga maintained that it communicated the settlement agreement to Argentena and it withheld Argentenas file as a retaining lien until it obtained adequate assurances that its attorney fees would be paid. Jolley Urga then filed a motion in the underlying action requesting that the district court adjudicate its Attorneys lien and enter judgment totaling $213,990.62 in attorney fees. Argentena opposed the motion, arguing that the district court could not adjudicate the disputed fees because Jolley Urga did not have an enforceable charging lien and Argentena did not consent to the district courts adjudication of Jolley Urgas retaining lien. Moreover, Argentena alleged that by waiving Argentenas right to recover attorney fees from the plaintiff without authorization, Jolley Urga committed legal malpractice and was not entitled to attorney fees, which, according to Argentena, further rendered such summary proceedings inappropriate. Jolley Urga replied, contending that Sarman v. Goldwater, Taber and Hill, 80 Nev. 536, 396 P.2d 847 (1964), authorizes district courts to adjudicate fee disputes in the underlying actions irrespective of an attorneys lien because of the district courts incidental powers. Regarding Argentenas legal malpractice claim, al-

Sept. 2009] Argentena Consol. Mining Co. v. Jolley Urga

531

though Jolley Urga acknowledged that summary adjudication of an attorney-client fee dispute is generally improper when the client alleges that the attorney committed legal malpractice, Jolley Urga contended that the district court could properly adjudicate the dispute because, in its view, Argentenas malpractice claim was baseless. The district court granted Jolley Urgas motion in a summary proceeding and entered judgment in favor of Jolley Urga, awarding attorney fees in the amount of $213,990.62. Argentena appeals. DISCUSSION On appeal, Argentena contends that the district court lacked jurisdiction to resolve the fee dispute in the underlying action because Jolley Urga did not have an enforceable charging lien, Argentena did not request or consent to the district courts adjudication of Jolly Urgas retaining lien, and Jolley Urga committed legal malpractice. Jolley Urga argues that Sarman v. Goldwater, Taber and Hill, 80 Nev. 536, 396 P.2d 847 (1964), is dispositive of this issue and demonstrates that the district court had jurisdiction to resolve the fee dispute between Argentena and Jolley Urga in the underlying action and further alleges that Argentenas legal malpractice claim is meritless. Therefore, we are asked to determine whether, in light of Argentenas contentions, the district court had jurisdiction to summarily adjudicate the fee dispute between Argentena and Jolley Urga and enter a judgment that awarded Jolley Urga attorney fees in the underlying action in which Jolley Urgas services were rendered. Standard of review
[Headnotes 1, 2]

The primary issue before this courtwhether the district court exceeded its jurisdiction when it resolved an attorney-client fee dispute in the pending actionis a question of law. See generally Settelmeyer & Sons v. Smith & Harmer, 124 Nev. 1206, 1215, 197 P.3d 1051, 1057 (2008) (considering whether the district court lacked authority to adjudicate an attorney-client fee dispute). Questions of law are subject to de novo review. Commission on Ethics v. Hardy, 125 Nev. 285, 291, 212 P.3d 1098, 1103 (2009). Assuming that the district court had jurisdiction to resolve the fee dispute, its attorney fees award is reviewed under an abuse of discretion standard. Settelmeyer & Sons, 124 Nev. at 1215, 191 P.3d at 1057. Attorneys liens in Nevada
[Headnote 3]

Nevada recognizes two kinds of attorneys liens. Figliuzzi v. District Court, 111 Nev. 338, 342, 890 P.2d 798, 801 (1995). The first

532

Argentena Consol. Mining Co. v. Jolley Urga

[125 Nev.

lien, a creature of statute,1 is a special or charging lien on the judgment or settlement [that] the attorney has obtained for the client. Figliuzzi, 111 Nev. at 342, 890 P.2d at 801. The second lien, established at common law, is a general or retaining lien, which allows a discharged attorney to withhold the clients file and other property until the court, at the request or consent of the client, adjudicates the clients rights and obligations with respect to the lien. Id. The district courts jurisdiction over these two liens arises, however, in distinctive manners. Jurisdiction over charging and retaining liens
[Headnotes 4, 5]

This court has established that [a] district court is empowered to render a judgment either for or against a person or entity only if it has jurisdiction over the parties and the subject matter. C.H.A. Venture v. G. C. Wallace Consulting, 106 Nev. 381, 383, 794 P.2d 707, 708 (1990). The district courts in personam jurisdiction to adjudicate a fee dispute based on a charging lien is derived from the fact that the client has already submitted himself or herself to the courts jurisdiction and the court has personal jurisdiction over the attorney due to the attorneys appearance as the clients counsel of record. Earl v. Las Vegas Auto Parts, 73 Nev. 58, 63, 307 P.2d 781, 783 (1957). Concerning the courts subject matter jurisdiction, the court has in rem jurisdiction to resolve a fee dispute between an attorney and client, which arises from a charging lien, because the attorneys fee is recovered on account of the suit or other action. NRS 18.015(3); see, e.g., Johnston v. Stephens, 266 S.W. 881, 882 (Ky. 1924) (stating that the judgment [with respect to a charging lien] in the absence of pleadings, summons, or entrance of appearance would be in rem only); Rhoads v. Sommer, 931 A.2d 508, 523 (Md. 2007) (concluding that proceedings to enforce charging liens are proceedings in rem); In re Davis Estate, 169 N.Y.S.2d 983, 989 (Sur. Ct. 1957) (same). Thus, the court acquires incidental jurisdiction
1

NRS 18.015, the statute governing charging liens, provides, in pertinent part: 1. An attorney at law shall have a lien upon any claim, demand or cause of action, including any claim for unliquidated damages, which has been placed in his hands by a client for suit or collection, or upon which a suit or other action has been instituted. The lien is for the amount of any fee which has been agreed upon by the attorney and client. In the absence of an agreement, the lien is for a reasonable fee for the services which the attorney has rendered for the client on account of the suit, claim, demand or action. .... 3. The lien attaches to any verdict, judgment or decree entered and to any money or property which is recovered on account of the suit or other action, from the time of service of the notices required by this section.

Sept. 2009] Argentena Consol. Mining Co. v. Jolley Urga

533

over the parties and the subject matter. See Earl, 73 Nev. at 63, 307 P.2d at 783.
[Headnotes 6-10]

Regarding the district courts jurisdiction to adjudicate a fee dispute based on a retaining lien, this court has previously held that a retaining lien is a passive lien that cannot be actively enforced by the attorney in judicial proceedings. Figliuzzi v. District Court, 111 Nev. 338, 342, 890 P.2d 798, 801 (1995); Morse et al. v. District Court, 65 Nev. 275, 282-84, 195 P.2d 199, 202-04 (1948). Because a retaining lien is a passive lien, the client determines whether it wants to extinguish the lien by requesting that the court compel the former attorney to deliver the clients files. Figliuzzi, 111 Nev. at 343-44, 890 P.2d at 801-02. When the client seeks to extinguish the retaining lien, the client must provide adequate or substitute security in exchange for having the files returned. Id. Even when a client requests that the court compel the return of his or her files from the former attorney, and the client does not provide payment for the lien or does not consent to posting substitute security, the court is without jurisdiction to extinguish the retaining lien. Id. Consequently, the district courts jurisdiction to adjudicate a retaining lien is invoked as a result of the clients request to obtain his or her files and consent to provide adequate or substitute security in exchange. See Figliuzzi, 111 Nev. at 339, 890 P.2d at 799 (providing that the district court has jurisdiction to enforce an attorneys retaining lien upon the clients consent); Morse, 65 Nev. at 291, 195 P.2d at 20607 ([W]here the attorney is brought into court upon application of his client, to compel the attorney to turn over the money or papers upon which he claims a lien . . . the court may ascertain the extent of the lien and enforce it. (emphasis omitted) (quoting 7A C.J.S. Enforcement of Retaining Lien 290 (1980)). If the court lacks jurisdiction to resolve the retaining lien, the attorney may keep possession of the former clients files and the attorneys recourse is to file a separate action to recover for the services expended on behalf of the former client. See Don C. Smith, Jr., Cause of Action by Attorney for Recovery of Fee Under Contingent Fee Contract, in 5 Causes of Action 259, 299 (1st ed. 1983) (stating that [w]hen there is no lien involved, the attorney must proceed in a separate action at law to resolve the fee dispute); see also 7A C.J.S. Attorney & Client 419, 422 (2004) (discussing when the attorney and client agreed to the value of the attorneys services prior to representation, [t]he proper form of action by which to enforce payment, generally, is by an action at law on the contract). Having clarified when a district court has jurisdiction to adjudicate an attorney-client fee dispute in the underlying action in which the attorneys services were rendered, we examine whether the dis-

534

Argentena Consol. Mining Co. v. Jolley Urga

[125 Nev.

trict court in this case had jurisdiction to adjudicate the dispute between Jolley Urga and Argentena. The district court did not have jurisdiction based on an enforceable charging lien
[Headnote 11]

Argentena argues that the district court did not have jurisdiction over an enforceable charging lien in this case because an attorneys charging lien only exists when the client has filed suit and asserted an affirmative claim for damages. Because Argentena did not seek or obtain any affirmative recovery in the underlying action, it argues that there could be no basis for a charging lien. We agree.
[Headnote 12]

A charging lien is a lien on the judgment or settlement that the attorney has obtained for the client. NRS 18.015; Figliuzzi v. District Court, 111 Nev. 338, 342, 890 P.2d 798, 801 (1995). Here, it is undisputed that Argentena did not file an affirmative claim against the plaintiff in the underlying action. And although Jolley Urga obtained a dismissal of all claims against Argentena, the settlement did not result in any recovery for Argentena. In the absence of affirmative relief that Jolley Urga obtained for Argentena, we conclude that Jolley Urga did not have an enforceable charging lien over which the district court had incidental jurisdiction to adjudicate in the underlying case. Thus, we turn to whether the district court had jurisdiction to adjudicate Jolley Urgas retaining lien. The district court did not have jurisdiction to extinguish Jolley Urgas retaining lien
[Headnote 13]

Argentena argues that the district court did not have jurisdiction to adjudicate Jolley Urgas retaining lien because a district court obtains jurisdiction over the retaining lien only when the client requests or consents to the district courts adjudication of the lien. Because Argentena did not request or consent to such adjudication, it asserts that the district court lacked jurisdiction to resolve the fee dispute in the underlying action. We agree.
[Headnote 14]

A retaining lien allows a displaced attorney to withhold a clients file and other property until the client requests or consents to the courts adjudication of the dispute. Figliuzzi, 111 Nev. at 342, 890 P.2d at 801; Morse, 65 Nev. at 285, 195 P.2d at 204. The policy underlying this notion is based on the fact that a retaining lien is passive and cannot be actively enforced without the clients request or consent. Morse, 65 Nev. at 285, 195 P.2d at 204.

Sept. 2009] Argentena Consol. Mining Co. v. Jolley Urga

535

In this case, the parties do not dispute that Jolley Urga had a retaining lien against Argentenas file. However, Argentena neither requested nor consented to the district courts adjudication of Jolley Urgas retaining lien. Because Argentena failed to request or consent to the courts adjudication of the fee dispute in the underlying action, the district court lacked jurisdiction to ascertain the extent of the lien and to extinguish it. See Figliuzzi, 111 Nev. at 339, 890 P.2d at 799. Therefore, we conclude that the district court exceeded its jurisdiction to enforce Jolley Urgas retaining lien. Because an enforceable charging lien did not exist in this case and Argentena did not consent to the district courts adjudication of Jolley Urgas retaining lien, we must now determine whether the district court nevertheless had jurisdiction to adjudicate the fee dispute in the underlying action. The district court lacked jurisdiction to adjudicate the fee dispute in the underlying action in which Jolley Urgas services were rendered Jolley Urga argues that regardless of whether an enforceable charging lien existed or Argentena refused to consent to the courts adjudication of the fee dispute, this courts statements in Sarman v. Goldwater, Taber and Hill, 80 Nev. 536, 540-41, 396 P.2d 847, 849 (1964), demonstrate that this court has previously approved of a district courts adjudication of a fee dispute and subsequent entry of judgment against the client in the underlying action based on the district courts incidental powers to resolve fee disputes. We reject Jolley Urgas claim and clarify the breadth of the statements upon which Jolley Urga relies. In Sarman, the court considered whether the district court had jurisdiction to fix the fee of the discharged counsel and enter a binding judgment in a summary proceeding in the underlying guardianship action. 80 Nev. at 539, 396 P.2d at 849. The client in Sarman fired her attorney who represented her in the guardianship action and requested that the attorney deliver her files to her new counsel and submit a statement for services rendered. Id. at 538, 396 P.2d at 848. The former attorney notified the client that it would retain her files until the client paid for the attorneys past services. Id. The client disputed the amount of fees and sought to compel her former counsel to relinquish her file. Id. at 538-39, 396 P.2d at 848. As a result, the district court held a hearing at which evidence was submitted regarding the value of the former attorneys services. Id. at 539, 396 P.2d at 848. The client did not object to the district courts jurisdiction to resolve the dispute but consented to the procedures taken by the district court. Id. As a result of the attorneys retaining lien and the clients consent to the procedures in the underlying action, the district court enforced the lien against the client by fixing

536

Argentena Consol. Mining Co. v. Jolley Urga

[125 Nev.

the attorneys fees and ordering the attorney to deliver the files to the client upon receipt of payment or substitute security for the amount of fees due. Id. at 538, 396 P.2d at 848. On appeal, the client challenged the district courts jurisdiction to enter the order adjudicating the fee dispute. Id. The Sarman court first noted that the district court had jurisdiction to resolve the retaining lien because the client had consented to the courts procedure for resolving the fee dispute. Id. at 539, 396 P.2d at 848. The Sarman court further affirmed the district courts adjudication of the dispute, relying on the district courts original jurisdiction of guardianship matters, in light of this courts previous statement that district courts have incidental jurisdiction to adjudicate an attorney-client fee dispute in the underlying action regardless of whether a valid lien exists. Id. at 540-41, 396 P.2d at 849. The Sarman court also stated that the district courts authority is unrelated to the nature of the lien sought to be enforced. Id. at 540, 396 P.2d at 849. As a result of these statements made in Sarman, Jolley Urga contends that the district court had jurisdiction to resolve the fee dispute in the underlying action. We conclude that Jolley Urgas reliance on the statements made in Sarman regarding the district courts powers is misplaced because those statements constitute dicta and are overbroad. Moreover, we note that Sarman and the cases that it relied on are factually inapposite from the matter presented to this court in this appeal. Sarmans statements regarding incidental jurisdiction constitute dicta and are, nevertheless, overbroad
[Headnotes 15, 16]

Dicta is not controlling. Kaldi v. Farmers Ins. Exch., 117 Nev. 273, 282, 21 P.3d 16, 22 (2001). A statement in a case is dictum when it is unnecessary to a determination of the questions involved. See St. James Village, Inc. v. Cunningham, 125 Nev. 211, 216, 210 P.3d 190, 193 (2009) (quoting Stanley v. Levy & Zentner Co., 60 Nev. 432, 448, 112 P.2d 1047, 1054 (1941)). Because the attorney in Sarman had a retaining lien, and the client consented to the district courts adjudication of the fee dispute in that case, it was unnecessary for the Sarman court to consider whether the district court had jurisdiction to resolve an attorney-client fee dispute in a pending action regardless of whether the client sought to extinguish the attorneys retaining lien. As such, we conclude that the statements concerning a courts incidental jurisdiction to resolve an attorney-client fee dispute in a pending matter when the client is moving the court to resolve a retaining lien are not binding, as they constitute dicta. As previously noted, a district court has jurisdiction to resolve a fee dispute based on a retaining lien when the client consents, as were the facts in Sarman.

Sept. 2009] Argentena Consol. Mining Co. v. Jolley Urga

537

To the extent that the Sarman court held that a court has incidental jurisdiction to resolve an attorney-client fee dispute regardless of whether a valid lien existed, we conclude that the Sarman opinion is overbroad. Specifically, in stating that a district court has power to resolve fee disputes in the underlying action irrespective of whether the attorney sought to enforce a lien, the Sarman court relied, in part, on Gordon v. Stewart, 74 Nev. 115, 116, 324 P.2d 234, 235 (1958). In Gordon, the attorney had neither a charging or retaining lien against the client. Rather, the withdrawing attorneys simply asked the court to fix the compensation due them for services performed prior to their withdrawal, which, according to the Sarman court, indicated that a courts power to resolve an attorneyclient fee dispute is unrelated to the nature of the lien sought to be enforced, so that the court could adjudicate the fee dispute regardless of whether the attorney sought adjudication of a lien or not. Sarman, 80 Nev. at 540, 396 P.2d at 849. In reviewing the Gordon opinion, however, like the Sarman court, the Gordon court conflated statements made in Earl v. Las Vegas Auto Parts, 73 Nev. 58, 307 P.2d 781 (1957), and improperly extended the Earl courts holding. See Gordon, 74 Nev. at 116, 324 P.2d at 235. In Gordon, the attorneys, on behalf of the client, filed counterclaims against the plaintiffs. Id. The attorneys and the client agreed that the attorneys would receive a contingency fee from the damages recovered by the counterclaim. Id. Thereafter, the attorneys withdrew as counsel for the client. Id. As a result, the attorneys had neither a charging nor a retaining lien. Nonetheless, the attorneys moved the district court to fix their compensation based on quantum meruit principles. Id. The client consented to the district courts jurisdiction to ascertain the reasonable value of the fees sought by the attorneys. Consequently, the district court fixed the attorneys compensation. Id. On appeal, the Gordon court affirmed the fee award, in part, on the basis that the district court had incidental jurisdiction to adjudicate the attorney-client fee dispute in the action in which the attorneys services were rendered . . . relative to the establishment of an attorneys lien. 74 Nev. at 118, 324 P.2d at 236. In reaching this conclusion, the Gordon court relied on statements made by the Earl court. The Earl court was asked to consider the district courts jurisdiction to resolve a fee dispute that arose from an attorneys charging lien and affirmed the district courts adjudication of a fee dispute that arose from a charging lien. Earl, 73 Nev. at 60, 307 P.2d at 781-82. The Earl court specifically held that a courts power to enforce or determine the validity of the attorneys claimed lien in the pending action was due to the courts personal jurisdiction over the parties and subject matter jurisdiction of the charging lien. Id. at 62-64, 307 P.2d at 783.

538

Argentena Consol. Mining Co. v. Jolley Urga

[125 Nev.

As stated previously, a district court may enter judgment against a person or entity if the court has personal and subject matter jurisdiction over the parties and matter in dispute. C.H.A. Venture v. G.C. Wallace Consulting, 106 Nev. 381, 383, 794 P.2d 707, 708 (1990). In Earl, the district court had personal jurisdiction over the parties to the fee dispute, and because a district court obtains in rem jurisdiction to adjudicate a charging lien, the district court had jurisdiction to extinguish the charging lien. Thus, in Earl, the district court had incidental jurisdiction to resolve the attorneys charging lien in the action in which the attorneys services were rendered. Gordon, however, did not involve a charging lien. And the attorney in that case voluntarily withdrew, compared to the Earl attorney who was discharged by the client; furthermore, the Gordon client consented to the district courts adjudication of the fee dispute. Because of these factual distinctions, we conclude that the Gordon court improperly extended the Earl courts holding. Hence, we reject Sarman and Gordon to the extent that those opinions indicate that the district court has the power to resolve a fee dispute in the underlying action irrespective of whether the attorney sought adjudication of a lien. We also note that Gordon and Earl are inapposite to Sarman because Gordon did not involve an attorney seeking to enforce any type of lien and Earl involved a charging lien, whereas Sarman involved a retaining lien. Because the Sarman courts statements indicating that district courts have incidental jurisdiction to adjudicate fee disputes in the underlying action and that the court has power to do so irrespective of the type of attorneys lien at issue and whether the attorney sought to enforce a lien at all constitute dicta and are overbroad, we limit or reject those statements to the extent that they are contrary to our holding in this opinion. We reiterate that the district court has jurisdiction to adjudicate a fee dispute in the underlying action upon the existence of an enforceable charging lien or the clients request or consent to the courts adjudication of a retaining lien. Sarman is factually inapposite to the appeal at hand Aside from the fact that the statements in Sarman constitute dicta and are overbroad, we further conclude that Sarman is inapposite to the disposition of this case based on two important facts. First, as explained above, the client in Sarman consented to the district courts adjudication of the displaced attorneys retaining lien, as the Sarman court explicitly explained that the client in that case did not object to the power of the lower court to hear evidence and determine the fee due her displaced attorneys, but consented to the procedure outlined by the court. 80 Nev. at 539, 396 P.2d at 848. Unlike the client in Sarman, Argentena did not request or consent to the district courts adjudication of Jolley Urgas retaining lien.

Sept. 2009] Argentena Consol. Mining Co. v. Jolley Urga

539

Second, the client in Sarman (and the clients in Gordon and Earl, the cases upon which the Sarman and Gordon courts relied) did not assert a legal malpractice claim against the fee-seeking attorney as a defense. This court has stated that when the client asserts that the attorney committed legal malpractice, it is proper for the district court to refuse to decide those issues in a summary proceeding in the pending case. Morse et al. v. District Court, 65 Nev. 275, 287-88, 195 P.2d 199, 204-05 (1948). In this case, Argentena argued that Jolley Urga was not authorized to waive Argentenas right to recover attorney fees from the plaintiff. While Jolley Urga concedes that a summary proceeding is inappropriate when the client asserts a legal malpractice claim against its former attorney, Jolley Urga argues that the district courts summary proceedings were proper in this case because Argentenas legal malpractice claim lacked merit.
[Headnote 17]

We reject Jolley Urgas proposition that the district courts summary adjudication of the dispute was proper because Argentenas legal malpractice defense allegedly lacked merit. Instead, we reiterate statements made in Morse and conclude that a district courts summary adjudication of a fee dispute in the underlying action is inappropriate when the client asserts negligence or misconduct on the part of their former attorney. See 65 Nev. at 287-88, 195 P.2d at 204-05. For these reasons, we determine that Sarman is distinguishable from the facts of this case and conclude that Sarman is inapposite. In sum, because a district court lacks jurisdiction to summarily adjudicate an attorney-client fee dispute in the underlying action when the attorney does not have an enforceable charging lien or the client does not request that a retaining lien be extinguished or consent to the district courts adjudication of a retaining lien, we conclude that the district court was without power to adjudicate the fee dispute between Argentena and Jolley Urga. Because the district court exceeded its jurisdiction, we conclude that the district courts order is void. We further note that even if the district court had jurisdiction to resolve the fee dispute in this case, such summary proceedings would have been improper in light of Argentenas objection to the courts adjudication based on its legal malpractice claim. Accordingly, we reverse.
[Headnote 18]

In reversing the district courts order and judgment, we further instruct that when an attorney does not have an enforceable charging lien, a client does not move the court to resolve the retaining lien, or the client refuses to consent to the courts adjudication of a retaining lien, the proper method by which the attorney should seek

540

Argentena Consol. Mining Co. v. Jolley Urga

[125 Nev.

adjudication of the fee dispute is an action against his or her former client in a separate proceeding. See Don C. Smith, Jr., Cause of Action by Attorney for Recovery of Fee Under Contingent Fee Contract, in 5 Causes of Action 259, 299 (1st ed. 1983) (stating that [w]hen there is no lien involved, the attorney must proceed in a separate action at law to resolve the fee dispute); see also 7A C.J.S. Attorney & Client 419, 422 (2004) (when the attorney and client agreed to the value of the attorneys services prior to representation, [t]he proper form of action by which to enforce payment, generally, is by an action at law on the contract). Therefore, because the district court lacked jurisdiction to summarily adjudicate the dispute in this case, if Jolley Urga seeks resolution of the dispute, it must file a separate action against Argentena. CONCLUSION
[Headnote 19]

We conclude that in the absence of an enforceable charging lien, a clients request to extinguish a retaining lien, or the clients consent to the district courts adjudication of a retaining lien, the district court lacks jurisdiction to adjudicate the attorney-client fee dispute in the underlying action in which the attorneys services are rendered. Because Jolley Urga did not have an enforceable charging lien and Argentena did not request or consent to the district courts summary adjudication of Jolley Urgas retaining lien, we conclude that the district court exceeded its jurisdiction by employing the summary proceedings in the underlying action.2 We further conclude that
2 In addition, while we conclude that the district courts order is void for lack of jurisdiction, we further conclude that even if the district court had jurisdiction to resolve the dispute in the underlying action, we would nevertheless reverse the judgment because the court failed to include any basis for its decision in awarding the fees. The district court summarily granted Jolley Urgas request for adjudication and simultaneously entered judgment stating: The law firm of Jolley Urga Wirth Woodbury and Standish (the JUWWS) represented Argentena Consolidated Mining Company (Argentena) in the above-captioned matter. Following trial of the matter, Argentena refused to pay its attorneys fees. Following a Motion brought by JUWWS, it was determined by the Court that JUWWS was rightly owed attorneys fees in the amount of $213,990.62. Accordingly, it is hereby ORDERED, ADJUDGED and DECREED that JUWWS shall have and recover $213,990.6[2] from Argentena, with interest accruing at the statutory rate from August 1, 2007 moving forward. As illustrated by the district courts conclusory judgment, the court failed to render any findings of the reasonableness of Jolley Urgas attorney fees. Even when district courts have jurisdiction to resolve fee disputes, courts must still make findings of reasonableness on awards of attorney fees under Brunzell v. Golden Gate Natl Bank, 85 Nev. 345, 349-50, 455 P.2d 31, 33-34 (1969). We conclude that the district courts failure to make any findings on this issue would constitute an abuse of discretion if the district court had jurisdiction to resolve the fee dispute.

Sept. 2009]

Zana v. State

541

even if the district court had jurisdiction to adjudicate the fee dispute, such summary proceedings were improper in light of Argentenas objections to the proceedings based on its legal malpractice allegations. Therefore, we reverse the district courts order adjudicating the fee dispute and the entry of judgment against Argentena in the amount of $213,990.62 in attorney fees. PARRAGUIRRE, DOUGLAS, CHERRY, SAITTA, GIBBONS, and PICKERING, JJ., concur.

MARK R. ZANA, APPELLANT, v. THE STATE OF NEV ADA, RESPONDENT.

No. 50786 September 24, 2009 216 P.3d 244

Appeal from a judgment of conviction, pursuant to a jury verdict, of one count of open or gross lewdness, three counts of lewdness with a child under the age of 14, and six counts of possession of visual representation depicting sexual conduct of a person under the age of 16. Eighth Judicial District Court, Clark County; Jackie Glass, Judge. The supreme court, DOUGLAS, J., held that: (1) testimony of alleged victims of prior incidents involving defendant was admissible even though the records of the court proceedings that followed the prior incidents were sealed or expunged, (2) jurors independent search of the Internet for a particular pornographic website that was mentioned during trial amounted to the use of extrinsic evidence in violation of the Confrontation Clause, (3) such juror misconduct did not prejudice defendant, and (4) defendant was not entitled to severance of charges of lewdness with a child under the age of 14 from charges of possession of visual representation depicting sexual conduct of a person under the age of 16. Affirmed. Christopher R. Oram, Las Vegas, for Appellant. Catherine Cortez Masto, Attorney General, Carson City; David J. Roger, District Attorney, Steven S. Owens, Chief Deputy District Attorney, and Thomas M. Carroll, Deputy District Attorney, Clark County, for Respondent.
1. CRIMINAL LAW. Testimony of alleged victims of prior incidents involving defendant was admissible at a lewdness trial even though the records of the court pro-

542

Zana v. State

[125 Nev.

2. 3.

4.

5.

6.

7.

8.

9.

10.

ceedings that followed the prior incidents were sealed or expunged; trial court was not required to ignore the recollections of defendants accusers, and testimony regarding the court proceedings that were subject to the sealing or expungement orders was excluded. NRS 179.285. CRIMINAL LAW. A denial of a motion for a new trial based upon juror misconduct will be upheld absent an abuse of discretion by the trial court. CRIMINAL LAW. Absent clear error, a trial courts findings of fact in connection with a motion for a new trial based upon juror misconduct will not be disturbed. CRIMINAL LAW. Where juror misconduct involves allegations that the jury was exposed to extrinsic evidence in violation of the Confrontation Clause, de novo review of a trial courts conclusions regarding the prejudicial effect of any misconduct is appropriate. U.S. CONST. amend. 6. CRIMINAL LAW. To justify a new trial on the ground of juror misconduct, a defendant must, through admissible evidence, demonstrate the nature of the juror misconduct and that there is a reasonable probability that it affected the verdict. CRIMINAL LAW. When analyzing extrinsic material to determine whether a jurys exposure to material resulted in prejudice to a defendant, so as to justify a new trial on the ground of juror misconduct, the trial court is required to objectively evaluate the effect it had on the jury and determine whether it would have influenced the average, hypothetical juror. CRIMINAL LAW. Several factors guide an inquiry into whether a jurys exposure to extrinsic material resulted in prejudice to the defendant and thus warrants a new trial on the ground of juror misconduct, including how long the jury discussed the extrinsic material, when that discussion occurred relative to the verdict, the specificity or ambiguity of the information, and whether the issue involved was material. CRIMINAL LAW. Jurors independent search of the Internet for a particular pornographic website that was mentioned during trial amounted to the use of extrinsic evidence in violation of the Confrontation Clause at a trial for lewdness with a child under the age of 14 and possession of visual representation depicting sexual conduct of a person under the age of 16. U.S. CONST. amend. 6. CRIMINAL LAW. Jurors independent search of the Internet for a particular pornographic website that was mentioned during trial, which amounted to the use of extrinsic evidence in violation of the Confrontation Clause, did not prejudice defendant at a trial for open or gross lewdness, lewdness with a child under the age of 14, and possession of visual representation depicting sexual conduct of a person under the age of 16; the search was fruitless, the jury only briefly discussed the search and then continued with its deliberation for at least a few more hours, and the search was highly ambiguous. U.S. CONST. amend. 6. CRIMINAL LAW. Defendant was not entitled to severance of charges of lewdness with a child under the age of 14 from charges of possession of visual representation depicting sexual conduct of a person under the age of 16; evidence of pornography found on defendants computer was admissible to prove the in-

Sept. 2009]

Zana v. State

543

tent element of the lewdness charges, and evidence of defendants lewd behavior was admissible to prove the knowing and willful element of the pornography charges. NRS 200.730, 201.230. 11. CRIMINAL LAW. Joinder decisions are within the sound discretion of the trial court and will not be reversed absent an abuse of discretion. NRS 173.115. 12. CRIMINAL LAW. Charges with mutually cross-admissible evidence are properly joined because in such a situation the accused would fare no better from a severance and trial of the severed counts independently. NRS 173.115.

Before the Court EN BANC. OPINION By the Court, DOUGLAS, J.: This appeal presents three main issues. First, we consider whether testimony regarding prior bad acts is admissible when the resulting court proceedings were sealed or expunged. Second, we address whether the jury committed misconduct in this case, and if so, whether such misconduct warranted a new trial. Third, we discuss whether the district court erred in denying the motion to sever the lewdness counts from the child pornography counts.1 We conclude that the district court may permit testimony that is confined to a witnesss personal experiences so long as the witness does not rely on the previously sealed or expunged court proceedings and does not indicate that such proceedings took place. Next, we conclude that any jury misconduct that occurred in this case did not prejudice the verdict, and thus, a new trial was not warranted. Finally, we conclude that the district court did not abuse its discretion by denying the motion to sever the lewdness counts from the pornography counts because the evidence presented in each case was admissible in the other case. We therefore affirm appellant Mark R. Zanas conviction.
1 Appellant also argues that: (1) he is entitled to a new trial based upon the introduction of inadmissible evidence of other crimes, wrongs, or acts; (2) the testimony about his prior bad acts was inadmissible pursuant to NRS 48.045(2); (3) the district court erred when it permitted several instances of hearsay testimony to be admitted; (4) the district court erred when it failed to suppress images obtained from his computer because the search warrant did not contain sufficient information to support probable cause; (5) insufficient evidence supported his conviction of possession of visual representation depicting sexual conduct of a person under the age of 16; (6) the district court erred when it failed to dismiss the child pornography counts based on improper pleading and notice; and (7) his convictions must be reversed based upon the cumulative errors committed during trial. We have carefully considered these issues and conclude that these additional challenges are without merit.

544

Zana v. State

[125 Nev.

FACTS AND PROCEDURAL HISTORY The case before us arose out of multiple allegations by several female students that Zana, a fifth-grade teacher, had touched them inappropriately while they were under his supervision. In total, six girls came forward alleging Zana would touch their breasts and/or invite them to place their hand in his pocket to get candy. During the investigation of these allegations, two previous allegations against Zana came to light. In 1992, while Zana was living in Pennsylvania, he was accused of pinning a 13-year-old girl against his bed and fondling her breast. The case against Zana was concluded when he agreed to a plea bargain that prohibited him from teaching minors. The records of the case were subsequently expunged pursuant to the plea agreement and in accordance with Pennsylvania law. Then, in 1998 while working as a teacher in Henderson, Nevada, Zana was accused of enticing a second-grader to touch his penis by telling her she could retrieve candy from his pocket. Criminal proceedings were also initiated as a result of the allegation in Henderson, but that case was dismissed because the victims parents did not want her to have to testify. The records of the dismissed Henderson case were subsequently sealed. Prior to trial, the State filed a motion to unseal the records of the 1998 Henderson case, arguing it was going to prosecute Zana for that incident as well. The justice court unsealed the records for that limited purpose.2 The State charged Zana with 9 counts of lewdness with a child under the age of 14. He was also charged with 12 counts of possession of visual representations depicting sexual conduct of a person under the age of 16 stemming from pictures investigators found on his computer. At trial, the State introduced the prior allegations against Zana through the testimony of his alleged victims pursuant to NRS 48.045. Through this testimony, the State sought to prove Zanas motive in touching his female students and to rebut Zanas claims that the touching was accidental, misinterpreted, or an isolated mistake. Because records of the previous incidents were sealed or ex2 Zana appealed the unsealing of these records to the district court and the record does not disclose the issues ultimate resolution. Moreover, no party contests, and we decline to consider, the propriety of unsealing these records. We do note, however, that to inspect sealed records of a defendants prior offense, the State must demonstrate that based on newly discovered evidence it has sufficient evidence to reasonably conclude that the defendant will be tried for that prior offense. NRS 179.295; see Walker v. Dist. Ct., 120 Nev. 815, 820, 101 P.3d 787, 791 (2004) (implying that the States failure to arrest for prior offense used to justify records unsealing suggests unsealing was error). Here, the State never charged Zana in the 1998 Henderson case.

Sept. 2009]

Zana v. State

545

punged, the district court limited the victims testimony to Zanas actual conduct and the witnesses experiences, and excluded testimony regarding subsequent charges and judicial proceedings.3 DISCUSSION First, we will discuss the admissibility of testimony regarding prior bad acts by the defendant, where the records of the criminal proceedings resulting from those acts have been sealed or expunged. Next, we will address whether jury misconduct occurred in this case and, if so, whether it was prejudicial and, thus, warranted a new trial. Finally, we will consider whether the district court should have granted Zanas motion to sever the lewdness charges from the pornography charges. Sealed or expunged cases
[Headnote 1]

Zana contends that the testimony about the allegations in Pennsylvania and Henderson were improperly admitted because these cases had previously been sealed or expunged. Zana believes that the testimony about these previous allegations violated the courts prior orders to seal or expunge the records. We disagree. When a court orders a record sealed, [a]ll proceedings recounted in the record are deemed never to have occurred. NRS 179.285. This fiction permits the subject of the sealed proceedings to properly deny his or her arrest, conviction, dismissal, or acquittal in connection with the proceedings. See Yllas v. State, 112 Nev. 863, 867, 920 P.2d 1003, 1005 (1996). In this way, sealing orders are intended to permit individuals previously involved with the criminal justice system to pursue law-abiding citizenship unencumbered by records of past transgressions. See Baliotis v. Clark County, 102 Nev. 568, 570-71, 729 P.2d 1338, 1340 (1986). It is clear, however, that such authorized disavowals cannot erase history. Nor can they force persons who are aware of an individuals criminal record to disregard independent facts known to them. Id. at 571, 729 P.2d at 1340. Thus, as we have previously observed, while a sealing order erases many of the consequences that potentially flow from past criminal transgressions, it is beyond the power of any court to
3 One witness tangentially referenced a prior court proceeding, but the reference was inadvertent, brief, and the district court acted quickly to rectify the situation. Outside the presence of the jury, the district court admonished the witness and subsequent witnesses not to refer to any court proceeding. Because the reference was fleeting and did not explicitly refer to a court case, we conclude its erroneous admission was harmless and do not address it further.

546

Zana v. State

[125 Nev.

unring a bell. See id. For example, in Baliotis, the Las Vegas Metropolitan Police Department recommended denial of a convicted felons application for a private detectives license based on his prior felonies even though records of the applicants felony convictions were sealed. Id. at 569, 729 P.2d at 1339. This court upheld the recommendation because the officers investigating the applicants character had personal knowledge of the applicants criminal history. Id. at 570-71, 729 P.2d at 1339-40. In so doing, we respected the sealing statutes limited effect: it erases an individuals involvement with the criminal justice system of record, not his actual conduct and certainly not his conducts effect on others. See id. at 571, 729 P.2d at 1340. Here, the district court properly excluded testimony regarding the court proceedings that were subject to the sealing orders in order to preserve the effect of the orders, while it correctly admitted testimony to which the sealing orders did not apply. Neither the Pennsylvania order nor the Henderson order erased the witnesses memories of Zanas inappropriate conduct. Just as the sealing statute did not require the licensing commission in Baliotis to disregard the investigating officers independent knowledge, it does not require the district court to ignore the recollections of Zanas accusers. Although statutes empower courts to seal a proceedings records, individual memories of events outside the courtroom are beyond such judicial control. Moreover, the district courts exclusion of testimony regarding the proceedings that were subject to the sealing orders secured the integrity of the sealing orders. Coincident with the purpose of the sealing statutes, the State did not use records of prior proceedings against Zana. Instead, the State admitted testimony of the prior events against Zana and illuminated Zanas pattern of behavior without implicating the sealed records. We therefore conclude that the district court did not err in admitting the testimony. Instead, it properly restricted the scope of the testimony to preserve the statutory effect of the previous cases sealing or expungement orders while allowing relevant testimony. Jury misconduct Zana contends the district court erred when it denied his motion for a mistrial in the face of juror misconduct. Although the jurors behavior was inappropriate, we conclude that the misconduct did not prejudice the jurys decision and, thus, affirm the district courts decision to deny the motion for mistrial. While investigating the allegations of inappropriate touching, investigators discovered what appeared to be pornographic pictures of young females on Zanas home computer. The central question left

Sept. 2009]

Zana v. State

547

to the jurys determination was the actual age of the females pictured in the photographs relating to the counts of possession of visual representation depicting sexual conduct of a person under the age of 16. At trial, there was competing expert testimony regarding the age of the females. The jury deliberations in this case began on a Friday and finished on a Monday. While at home over the weekend, one juror engaged in an Internet search for a particular pornographic website that was mentioned during the trial.4 Despite the jurors efforts, he was unable to locate the website. Upon returning on Monday to deliberate, he advised his fellow jurors of his fruitless search but came to no conclusion about the meaning of that failure. After discussing the search for a short time, the jury returned to its deliberations and rendered a verdict a few hours later. When Zana later learned of the jurors online research, he moved for a mistrial. At the hearing on the matter, every juror available testified about the Internet search and the resulting discussion. The district court then concluded that while the juror had committed misconduct by conducting his own investigation, the information obtained through the jurors independent research was vague, ambiguous, and only discussed for a brief time, and therefore, the misconduct was not prejudicial. Based on this conclusion, the district court denied the motion for a mistrial.
[Headnotes 2-4]

A denial of a motion for a new trial based upon juror misconduct will be upheld absent an abuse of discretion by the district court. Absent clear error, the district courts findings of fact will not be disturbed. Meyer v. State, 119 Nev. 554, 561, 80 P.3d 447, 453 (2003) (internal citations omitted). However, where the misconduct involves allegations that the jury was exposed to extrinsic evidence in violation of the Confrontation Clause, de novo review of a trial courts conclusions regarding the prejudicial effect of any misconduct is appropriate. Id. at 561-62, 80 P.3d at 453.
[Headnotes 5-7]

To justify a new trial, [t]he defendant must, through admissible evidence, demonstrate the nature of the juror misconduct and that there is a reasonable probability that it affected the verdict. Id. at 565, 80 P.3d at 456. When analyzing extrinsic material to determine
4 Zana also characterized additional juror behavior as misconduct, including attempting to guess the ages of churchgoers and testing the accessibility of a seated mans pants pocket. Because we conclude such behavior is not misconduct but simply observation based on matters generally experienced by people in their everyday lives, we confine our discussion of the jury misconduct to the Internet search. Meyer v. State, 119 Nev. 554, 568, 80 P.3d 447, 458 (2003).

548

Zana v. State

[125 Nev.

whether the jurys exposure to the material resulted in prejudice to the defendant, the district court is required to objectively evaluate the effect it had on the jury and determine whether it would have influenced the average, hypothetical juror. Id. at 566, 80 P.3d at 456. Several factors guide the juror prejudice inquiry, including how long the jury discussed the extrinsic material, when that discussion occurred relative to the verdict, the specificity or ambiguity of the information, and whether the issue involved was material. Id.
[Headnote 8]

We conclude that the jurors independent search of the Internet did amount to the use of extrinsic evidence in violation of the Confrontation Clause. However, we conclude that one jurors inability to locate a website mentioned during trial is not so prejudicial as to necessitate a new trial.
[Headnote 9]

Upon review of the jurors testimony at the hearing, it is clear that the jury only briefly discussed the fruitless search and then continued with its deliberation for at least a few more hours. Moreover, the fruitless search was highly ambiguous; there are many possible interpretations of the extrinsic information the juror presented and this resulted in little, if any, probative information being relayed to the other jurors. Furthermore, although the issue that motivated the searchthe ages of the females depicted in the photographs on Zanas computerwas material, the fruitless search could in no way affect the jurys inquiry. Because the searchs implications are ambiguous, it could not speak to a material issue in the case. Information so ostensibly irrelevant could not prejudice the average, hypothetical juror. For the foregoing reasons, we conclude that the district courts denial of Zanas motion for a mistrial, based on juror misconduct, was not an abuse of discretion. Joinder of charges
[Headnote 10]

We now turn to Zanas argument that the district court erred in denying his motion to sever the lewdness charges from the pornography charges. Zana contends that because the pornography charges are unconnected with the lewdness charges, the district court should have severed the two. However, given the cross-admissibility of the evidence in the two cases, we disagree.
[Headnote 11]

[J]oinder decisions are within the sound discretion of the trial court and will not be reversed absent an abuse of discretion.

Sept. 2009]

Zana v. State

549

Tillema v. State, 112 Nev. 266, 268, 914 P.2d 605, 606 (1996) (quoting Robins v. State, 106 Nev. 611, 619, 798 P.2d 558, 563 (1990)). Criminal charges are properly joined whenever: (1) the acts leading to the charges are part of the same transaction, scheme, or plan or (2) the evidence of each charge would be admissible in the separate trial of the other charge. NRS 173.115; Mitchell v. State, 105 Nev. 735, 738, 782 P.2d 1340, 1342 (1989); see generally Robinson v. United States, 459 F.2d 847, 855-56 (D.C. Cir. 1972).
[Headnote 12]

Charges with mutually cross-admissible evidence are properly joined because in such a situation the accused would fare no better from a severance and trial of the severed counts independently. Robinson, 459 F.2d at 855-56. Moreover, severance in such a case would naturally result in separate trials presenting identical evidence and consequentially result in needless judicial inefficiency. See Robinson, 459 F.2d at 856. Here, we conclude that joinder was proper because, had the district court granted the motion to sever the lewdness counts from the pornography counts, the evidence of each charge would have been admissible in the separate trial of the other charge. First, the lewdness charge required the State to prove that Zana touched his young victims for the purpose of gratifying his lusts, passions, or sexual desires. NRS 201.230. The pornography found on Zanas computer suggests that Zana found pornographic images of young females sexually gratifying. The pornography evidence indicates Zana intentionally touched his female students for the purpose of satiating his sexual appetite, and that the touching was not by mistake or accident. Therefore, evidence of the pornography was admissible to prove the mental state required for the lewdness charge. Likewise, evidence of Zanas lewd behavior with young girls under his supervision suggests that the pornography found on Zanas computer was not the result of an accident or mistake. To prove the underage pornography charge against Zana, the State had to prove that he knowingly and willfully possessed the materials. NRS 200.730. Evidence that he inappropriately touched young girls suggests contact with young girls sexually gratified Zana. It is reasonable to then infer that he did not possess pornographic photographs of young females accidently, but rather knowingly and willfully downloaded the photographs to satisfy the sexual desires his inappropriate touching evidences. Therefore, evidence of Zanas lewd behavior was admissible to prove the knowing and willful element of the pornography charge. Thus, because evidence of the two charges was cross-admissible, the district court did not abuse its discretion in denying Zanas motion to sever the charges.

550

In re Estate of Miller

[125 Nev.

CONCLUSION We conclude that the district court properly exercised its discretion in admitting the testimony of Zanas prior victims, denying his motion for a mistrial based on juror misconduct, and denying his motion to sever lewdness and pornography charges. Accordingly, we affirm the judgment of conviction. HARDESTY, C.J., PARRAGUIRRE, CHERRY, SAITTA, GIBBONS, and PICKERING, JJ., concur.

IN

THE

MATTER

OF THE

ESTATE AND LIVING TRUST OF ROSE MILLER.

BARBARA LEPOME, AN INDIVIDUAL, APPELLANT/CROSS RESPONDENT, v. MARILYN BERKSON, AN INDIVI DUAL AND GERTRUDE MALACKY, AN INDIVIDUAL, RESPONDENTS/CROSS-APPELLANTS.
No. 51891 September 24, 2009 216 P.3d 239

Appeal and cross-appeal from a district court order denying a motion for attorney fees but awarding costs. Eighth Judicial District Court, Clark County; Mark R. Denton, Judge. Individuals who had formerly been named primary beneficiaries of decedents estate plan filed suit against primary beneficiary who had been named in estate plan by decedent shortly before her death, seeking to invalidate estate plan revision. Beneficiary made separate offers of judgment to each of the individuals, which were rejected. Following a trial, a jury returned a verdict in favor of individuals, but on appeal, the supreme court reversed. Thereafter, beneficiary filed motion for attorney fees and costs. The district court denied motion. Appeal and cross-appeal were taken. The supreme court, PICKERING, J., held that beneficiary was entitled to reasonable attorney fees and costs incurred at trial and appellate levels under statute and rule governing offers of judgment. Reversed and remanded. [Rehearing denied December 16, 2009] Marquis & Aurbach and Terry A. Coffing, Micah S. Echols, and Tye S. Hanseen, Las Vegas, for Appellant/Cross-Respondent. Cary Colt Payne, Las Vegas; Bruce L. Gale, Las Vegas, for Respondents/Cross-Appellants.

Sept. 2009]

In re Estate of Miller

551

1. COSTS. An award of attorney fees is generally entrusted to the sound discretion of the district court. 2. APPEAL AND ERROR. When a partys eligibility for an attorney fee award is a matter of statutory interpretation, a question of law is presented, which the supreme court reviews de novo. 3. COSTS. Primary beneficiary of decedents estate plan, against whom suit had been brought by individuals who had formerly been named primary beneficiaries of estate plan until decedent revised plan shortly before her death, was entitled to reasonable attorney fees and costs from individuals under statute and rule permitting fee-shifting penalties to be assessed against an offeree who rejects an offer and fails to obtain a more favorable judgment, incurred at trial court and appellate levels, as beneficiary had made separate offers of judgment to each individual, which were rejected, and, while jury returned verdict in favor of individuals at trial court level, supreme court reversed decision on appeal, such that individuals ultimately failed to receive more favorable judgments than beneficiary had offered. NRS 17.115; NRCP 68(f). 4. COSTS. For purposes of statute and rule governing offers of judgment, permitting fee-shifting penalties to be assessed against an offeree who rejects an offer and fails to obtain a more favorable judgment, the word judgment connotes a final judgment. NRS 17.115; NRCP 68(f). 5. COSTS. Statute and rule governing offers of judgment, permitting fee-shifting penalties to be assessed against an offeree who rejects an offer and fails to obtain a more favorable judgment, apply to the judgment that determines the final outcome in the case which, in the event of an appellate reversal, may be different from the judgment originally entered by the district court. NRS 17.115; NRCP 68. 6. COSTS. Statute and rule governing offers of judgment, permitting fee-shifting penalties to be assessed against an offeree who rejects an offer and fails to obtain a more favorable judgment, extend to fees incurred on and after appeal. NRS 17.115; NRCP 68. 7. COSTS. Proper person litigants may not recover attorney fees for their efforts in representing themselves. 8. COSTS. Pursuant to statute and rule governing offers of judgment, permitting fee-shifting penalties to be assessed against an offeree who rejects an offer and fails to obtain a more favorable judgment, an unrepresented party who serves an offer of judgment may recover post-offer fees incurred and paid to a lawyer who thereafter appears in the case on the offering partys behalf. NRS 17.115; NRCP 68.

Before the Court EN BANC.1

1 THE HONORABLE MICHAEL L. DOUGLAS and THE HONORABLE MARK GIBBONS, Justices, voluntarily recused themselves from participation in the decision of this matter.

552

In re Estate of Miller OPINION

[125 Nev.

By the Court, PICKERING, J.: This appeal presents three narrow but previously undecided issues concerning offer of judgment practice under NRCP 68 and NRS 17.115. Reversing, we hold that (1) a judgment obtained on or after appeal can qualify as a more favorable judgment for purposes of the fee-shifting provisions of NRCP 68 and NRS 17.115, (2) appellate fees are recoverable, and (3) an unrepresented party who serves an offer of judgment may recover fees later paid to a lawyer hired to prosecute or defend the case. FACTS AND PROCEDURAL BACKGROUND The underlying dispute involves a contest over the distribution of Rose Millers estate. Shortly before her death, Miller amended her estate plan to name appellant/cross-respondent Barbara LePome as her main beneficiary. Before this amendment, respondents/cross-appellants Marilyn Berkson and Gertrude Malacky had been Millers primary beneficiaries. Alleging that LePome had exercised undue influence, Berkson and Malacky sued to invalidate Millers estate plan revision. Proceeding without a lawyer, LePome made separate $12,500 offers of judgment to each of them. When her offers of judgment were rejected, LePome turned the defense of the suit over to counsel. The jury favored Berkson and Malacky with a unanimous verdict. On appeal, however, this court reversed and ruled that because substantial evidence did not support the verdict, LePome deserved judgment as a matter of law. As a result, Berkson and Malacky ultimately failed to receive more favorable judgments than LePome had offered. After the remittitur issued on our judgment of reversal, LePome moved the district court for attorney fees and costs pursuant to NRCP 68 and NRS 17.115. The district court initially determined that LePomes offers of judgment entitled her to $28,730.25 in costs and $100,000 in attorney fees. Upon reconsideration, the district court reversed its decision and held as a matter of law that the offer of judgment rules do not apply to judgments won by appellate reversal. In the district courts view, the Nevada Supreme Court settlement conference program is the appropriate mechanism for facilitating settlements on appeal, see NRAP 16, not the fee-shifting offer of judgment rules. DISCUSSION
[Headnotes 1, 2]

Although the award of attorney fees is generally entrusted to the sound discretion of the district court, Bergmann v. Boyce, 109 Nev.

Sept. 2009]

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553

670, 674, 856 P.2d 560, 563 (1993), when a partys eligibility for a fee award is a matter of statutory interpretation, as is the case here, a question of law is presented, which we review de novo. See, e.g., Barney v. Mt. Rose Heating & Air, 124 Nev. 821, 825, 192 P.3d 730, 733 (2008).
[Headnote 3]

Berkson and Malacky first argue that a judgment rendered as the result of appellate reversal cannot serve as the predicate for an award of attorney fees and costs under Nevadas offer of judgment rules. In their view, the district court and appellate results are separate. Since the judgment they originally obtained in the district court was more favorable than the $12,500 judgments LePome had offered, they argue that the fee-shifting provisions should not apply. Thus, despite our reversal and despite the judgment in favor of LePome that resulted from the prior appeal, they urge us to focus solely on the initial district court result. Berkson and Malacky attempt to support their argument with the language of NRCP 68 and NRS 17.115. Neither the rule nor the statute uses the word final in referring to judgment. Rather, under NRCP 68(f), fee-shifting penalties are assessed against an offeree who rejects an offer and fails to obtain a more favorable judgment. The language of NRS 17.115 is substantially similar. See NRS 17.115(4).
[Headnote 4]

We conclude that the word judgment in this context connotes a final judgment. The trial and appellate stages are naturally related, and if an appeal is taken, the final outcome may change depending on the outcome on appeal. When this court reverses a judgment on a jury verdict for insufficient evidence and declares the appellant entitled to judgment as a matter of law, the reversal and remittitur comprise the judgment by which the parties and the district court are thereafter bound. See NRS 17.160 (making reference to the judgment of appellate court in defining the district courts docket); NRAP 36(a) (noting that this courts opinion is its judgment). Absent some language in NRCP 68 or NRS 17.115 that signifies a different interpretation of judgment, we conclude that the policy of promoting settlement does not end in district court but continues until the case is resolved. Although the procedural inverse of this case, Tipton v. Heeren, 109 Nev. 920, 924-25, 859 P.2d 465, 467 (1993), supports our conclusion. In Tipton, we held that, [i]n view of our decision reversing the district courts judgment, attorneys fees are not available pursuant to NRCP 68 and NRS 17.115 because on remand Tipton will obtain a judgment more favorable than Heerens pre-trial settlement offer. Id. at 925, 859 P.2d at 467. The appellate reversal in Tipton resulted in the offeree obtaining a more favorable judgment

554

In re Estate of Miller

[125 Nev.

than had been offered, and this defeated an award of attorney fees and costs. Id. In contrast, the appellate reversal on the prior appeal in this case produced a less favorable judgment for the offerees, resulting in a judgment that qualified the offeror for an award of attorney fees and costs. Despite being procedurally opposite, the basic principle of Tipton applies: The judgment looked to in determining whether the judgment obtained is more or less favorable than that which was offered is the final judgment in the case, which may or may not be the initial judgment entered by the district court. See Uniroyal Goodrich Tire v. Mercer, 111 Nev. 318, 322, 890 P.2d 785, 788 (1995) (When there is a pretrial offer of judgment that the offeree refuses and the final judgment results in an outcome less favorable to the offeree, NRCP 68 and NRS 17.115 authorize the trial judge to make awards of costs, attorney fees and interest on the judgment to the offeror. (emphasis added)), superseded by statute on other grounds as stated in RTTC Communications v. Saratoga Flier, 121 Nev. 34, 41-42 & n.20, 110 P.3d 24, 29 & n.20 (2005); Ramadanis v. Stupak, 104 Nev. 57, 59, 752 P.2d 767, 768 (1988) (we note additionally that Stupaks offer of judgment was made specifically pursuant to NRCP 68, which does not provide for the denial of prejudgment interest when the final judgment is less favorable than the offer of judgment (emphasis added)), superseded by statute on other grounds as stated in RTTC Communications v. Saratoga Flier, 121 Nev. at 41-42 & n.20, 110 P.3d at 29 & n.20. Although the wording in NRCP 68 and NRS 17.115 is somewhat unique, other jurisdictions with comparable statutes and rules similarly interpret their cost-shifting provisions to apply to judgments rendered on and after an appeal. See Pouillon v. Little, 326 F.3d 713, 718-19 (6th Cir. 2003) (recognizing that defendants failure to renew offer of judgment did not preclude plaintiff from being required to pay defendants costs when plaintiff obtained an amount less than the offer on remand); Payne v. Milwaukee County, 288 F.3d 1021, 1024-25 (7th Cir. 2002) (holding that defendants failure to renew offer of judgment after trial did not prevent the offer from barring plaintiff from recovering costs after plaintiff lost at retrial); Mackie v. Chizmar, 965 P.2d 1202, 1204-05 (Alaska 1998) (concluding that offers of judgment remain effective after appeal and remand because the judgment by which an offeror is entitled to costs may be a judgment entered after appeal).
[Headnote 5]

Accordingly, we hold that the fee-shifting provisions in NRCP 68 and NRS 17.115 apply to the judgment that determines the final outcome in the case which, in the event of an appellate reversal, may be different from the judgment originally entered by the district court. Next, we determine whether an offer of judgment permits a party to recover post-offer fees and costs incurred on appeal, as well as in the trial court.

Sept. 2009]
[Headnote 6]

In re Estate of Miller

555

States with fee-shifting rules or statutes similar to Nevadas have held they apply to appellate fees. See Rosenaur v. Scherer, 105 Cal. Rptr. 2d 674, 693 (Ct. App. 2001) (holding that a statute authorizing an attorney fees award at the trial court level includes appellate attorney fees unless the statute specifically provides otherwise); Williams v. Brochu, 578 So. 2d 491, 495 (Fla. Dist. Ct. App. 1991) ([a]lthough we find no case in point, because an appeal is but part of the same action being appealed, we perceive no reason why a defendants right to recover reasonable costs and attorneys fees under section 768.79(1) does not apply to those incurred on appeal in the same action), abrogated on other grounds by White v. Steak and Ale of Florida, Inc., 816 So. 2d 546 (Fla. 2002). In other contexts, we have held that an attorney fees award includes fees incurred on appeal. See Musso v. Binick, 104 Nev. 613, 614, 764 P.2d 477, 477-78 (1988) (holding that a contract provision for attorneys fees includes an award of fees for successfully bringing or defending an appeal). Additionally, nothing in the language of NRCP 68 and NRS 17.115 suggests that their fee-shifting provisions cease operation when the case leaves trial court. We therefore hold that the fee-shifting provisions in NRCP 68 and NRS 17.115 extend to fees incurred on and after appeal.
[Headnote 7]

Berkson and Malackys third contention is that LePome should be deemed as a matter of law to have made her offer of judgment in bad faith, making it inappropriate to award fees and costs. In particular, they claim that LePome, who was initially proceeding as a proper person litigant, failed to disclose that she had already retained a lawyers services when she made the offers of judgment. Proper person litigants may not recover attorney fees for their efforts in representing themselves. See Sellers v. Dist. Ct., 119 Nev. 256, 259, 71 P.3d 495, 498 (2003) (holding that all proper person litigants, whether attorney or non-attorney, [must] be obligated to pay attorney fees as a prerequisite for an award of prevailing party attorney fees). Berkson and Malacky argue that this makes it unfair to award post-offer fees, because they rejected LePomes offer of judgment believing she did not have a lawyer and would not be entitled to attorney fees if they failed to obtain a more favorable judgment.
[Headnote 8]

This view, however, perverts the statutory policy promoting settlement by removing a litigants incentive to accept an offer of judgment from a proper person litigant. In evaluating an offer of judgment, a party should not rely on whether the offeror then has counsel. Rather, the party should be aware that a proper person litigant may change his mind about representation decisions, especially if the case cannot be settled. An unrepresented party who serves an offer of judgment may recover post-offer fees incurred and paid to

556

Ozawa v. Vision Airlines

[125 Nev.

a lawyer who thereafter appears in the case on the offering partys behalf. Finally, we note LePome appears to have recovered costs for photocopies, scanning, faxes, and Westlaw charges without providing sufficient itemization or explanation of those costs, making reevaluation of the cost award appropriate on remand. See Bobby Berosini, Ltd. v. PETA, 114 Nev. 1348, 1352, 971 P.2d 383, 385-86 (1998). Therefore, we reverse the judgment of the district court and remand for the award of reasonable attorney fees and costs under NRCP 68 and NRS 17.115.2 On remand, the district court should award reasonable post-rejection fees incurred at the district court and appellate levels both on this appeal and the prior appeal. Furthermore, the district court should reconsider the award of costs to LePome and confirm the award only if LePome provides sufficient explanation to justify them. HARDESTY, C.J., PARRAGUIRRE, CHERRY, and SAITTA, JJ., concur.

LELAND OZAWA, APPELLANT, v. VISION AIRLINES, INC., FKA AVIATION VENTURES, INC., A NEVADA CORPORA TION; VISION A VIATION HOLDINGS, INC., DBA VISION AIR, A NEVADA CORPORATION, RESPONDENTS.
No. 49435

LELAND OZAWA, APPELLANT/CROSS-RESPONDENT, v. VISION AIRLINES, INC., FKA AVIATION VENTURES, INC., A NEV ADA CORPORATION; AND VISION A VIATION HOLD INGS, INC., DBA VISION AIR, A NEVADA CORPORATION, RESPONDENTS/CROSS-APPELLANTS.
No. 49660 October 1, 2009 216 P.3d 788

Consolidated appeals from a district court summary judgment in an employment action and from a post-judgment order denying in part and granting in part a motion for attorney fees and costs. Eighth Judicial District Court, Clark County; J. Charles Thompson, Judge (Docket No. 49435); James Bixler, Judge (Docket No. 49660). Pilot brought retaliatory discharge and breach of contract action against airline. The district court granted summary judgment to air2 This disposition makes it unnecessary to decide LePomes alternative argument for fees based on NRS 18.010(2)(b).

Oct. 2009]

Ozawa v. Vision Airlines

557

line, but denied fees and costs in part. Both parties appealed. The supreme court held that: (1) pilot had an alternative remedy for retaliatory discharge claim, and thus no claim for tortious discharge existed; (2) district court did not abuse its discretion in denying airline attorney fees; but (3) district courts grant of a setoff to award of costs was an abuse of discretion. Affirmed in part, reversed in part, and remanded. [Rehearing denied November 12, 2009] [En banc reconsideration denied March 17, 2010] Kemp & Kemp and James P. Kemp, Las Vegas, for Appellant/Cross-Respondent. Lemons, Grundy & Eisenberg and Alice Campos Mercado, Reno, for Respondents/Cross-Appellants.
1. LABOR AND EMPLOYMENT. Pilot who alleged retaliatory discharge against airline had an alternative remedy under the federal Railway Labor Act that provided employees shall have the right to organize and bargain collectively, and that it was unlawful for airline to interfere with pilots efforts to organize or participate in a labor union, and the federal courts which had read an implied private right of action from this provision, and thus, since pilot failed to avail himself of this remedy, no claim for tortious discharge existed. 45 U.S.C. 152. 2. APPEAL AND ERROR. The supreme court reviews an order granting summary judgment de novo. 3. JUDGMENT. Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. 4. LABOR AND EMPLOYMENT. Since employees are presumed to be at-will, an employer can dismiss an at-will employee with or without cause, so long as the dismissal does not offend this states public policy. 5. LABOR AND EMPLOYMENT. Exceptions to the at-will employment doctrine are severely limited to those rare and exceptional cases where the employers conduct violates strong and compelling public policy. 6. LABOR AND EMPLOYMENT. The supreme court will not recognize an action for tortious discharge when a plaintiff has an adequate, comprehensive, statutory remedy. 7. COSTS. District court did not abuse its discretion in denying airline attorney fees pursuant to the offer of judgment rule, and as the prevailing party in pilots retaliatory discharge and breach of contract action, where trial court found pilots claims were brought in good faith, and his rejection of airlines offer of $2,500 in settlement of his claims was not grossly unreasonable. NRCP 68. 8. APPEAL AND ERROR; COSTS. A district courts award of attorney fees and costs pursuant to offer of judgment rule is reviewed for an abuse of discretion; a clear disregard of the guiding legal principles may constitute an abuse of discretion. NRCP 68.

558

Ozawa v. Vision Airlines

[125 Nev.

9. COSTS. In making an award of attorney fees pursuant to the offer of judgment rule, the district court must carefully review the following factors: (1) whether the plaintiff brought the claim in good faith, (2) whether the defendants offer of judgment was reasonable and brought in good faith in both its amount and timing, (3) whether it was grossly unreasonable or an act in bad faith for the plaintiff to reject the offer and proceed to trial, and (4) whether the fees sought are reasonable and justifiable in amount. NRCP 68. 10. COSTS. District courts grant of a setoff to pilot from costs awarded to airline as prevailing party pursuant to offers of judgment rule, for alleged earned and unpaid vacation and paid time off, was an abuse of discretion, in pilots retaliatory discharge and breach of contract action, where the court had already dismissed or granted airline summary judgment on all causes of action. NRCP 68.

Before PARRAGUIRRE, DOUGLAS and PICKERING, JJ. OPINION Per Curiam: In these consolidated appeals, we consider two issues. First, we are asked to recognize a new exception to the at-will employment doctrine and to allow a claim for tortious discharge related to an employees termination for attempting to organize his fellow employees. Because we conclude that the appellant had an available statutory remedy, we decline to recognize this claim for tortious discharge and we affirm the district courts order granting summary judgment on this claim. Second, we review whether the district court abused its discretion in its resolution of respondents request for attorney fees and costs. Although we affirm the district courts denial of respondents motion for attorney fees based on our conclusion that the district court properly weighed the relevant factors, we reverse in part the district courts costs award that attempts to provide compensation for a previously dismissed cause of action. FACTS AND PROCEDURAL HISTORY Appellant/cross-respondent Leland Ozawa was employed as a pilot for respondents/cross-appellants Vision Airlines, f.k.a. Aviation Ventures, Inc., and Vision Aviation Holdings, Inc., d.b.a. Vision Air (collectively, Vision Airlines). Although Ozawa was at one point offered the opportunity to sign an employment agreement with Vision Airlines, he declined to do so and instead chose parttime, at-will employment. During the period of Ozawas employment with Vision Airlines, some of the pilots at the company apparently became disgruntled over a requirement to attend training. Ozawa took a leadership role in the preparation of a responsive petition re-

Oct. 2009]

Ozawa v. Vision Airlines

559

questing additional compensation for attending any training. Shortly thereafter, Ozawa was contacted by Vision Airlines director of human resources and told to bring his pilot manuals and company identification to the company office. Although the parties dispute the details surrounding Ozawas subsequent resignation, Ozawa stopped working for Vision Airlines. The district court proceedings in this matter were initiated by Ozawas complaint, which alleged retaliatory discharge, intentional infliction of emotional distress, and breach of contract. The district court dismissed the intentional infliction of emotional distress claim, which Ozawa had abandoned, and granted summary judgment to Vision Airlines on the remaining claims after concluding that Ozawas claim for retaliatory discharge was not recognized by Nevada law and that the breach of contract claim failed because Ozawa was an at-will employee. The district court subsequently denied a motion for reconsideration and denied in part and granted in part a motion by Vision Airlines for attorney fees and costs. Ozawa has appealed the order granting summary judgment to Vision Airlines.1 Vision Airlines has cross-appealed from the attorney fees and costs order. This court has consolidated these appeals. DISCUSSION In resolving the issues presented in these appeals, we first address, in Docket No. 49435, Ozawas argument that this court should recognize a new exception to the at-will employment doctrine and permit a claim for retaliatory discharge when an employee is allegedly terminated for collectively organizing his coworkers. Then, on cross-appeal, in Docket No. 49660, we address Vision Airlines challenges to the district courts post-judgment order regarding its request for attorney fees and costs. Summary judgment was proper as Ozawa failed to avail himself of an available remedy in federal court
[Headnote 1]

Ozawa argues that the district court erred in dismissing his claim for retaliatory discharge because terminating an employee for organizing his coworkers to collectively seek increased compensation violates the public policy of this state and, thus, should constitute an
1 Although Ozawa filed a notice of appeal in Docket No. 49660 that indicated an intent to challenge the district court order granting in part and denying in part Vision Airlines request for attorney fees and costs, neither his opening brief nor his reply brief challenge this order, and thus, we treat Ozawas appeal of this order as abandoned. See Edwards v. Ghandour, 123 Nev. 105, 118-19 & n.31, 159 P.3d 1086, 1095 & n.31 (2007) (noting that this court need not consider alleged errors when not supported by any pertinent legal authority), abrogated on other grounds by Five Star Capital Corp. v. Ruby, 124 Nev. 1048, 1053-54, 194 P.3d 709, 712-13 (2008).

560

Ozawa v. Vision Airlines

[125 Nev.

additional exception to the at-will employment doctrine. Ozawa cites to NRS 614.090, NRS 613.220, and the National Labor Relations Act as support for the exception he seeks to the at-will employment doctrine. He argues that failing to protect this public policy will have a chilling effect on Nevada employees who might seek collectively to better their compensation or working conditions. Vision Airlines, however, argues that the district court correctly dismissed the retaliatory discharge claim because termination for seeking increased compensation does not constitute an exception to the at-will employment doctrine.
[Headnotes 2-6]

This court reviews an order granting summary judgment de novo. Wood v. Safeway, Inc., 121 Nev. 724, 729, 121 P.3d 1026, 1029 (2005). Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Id. at 731, 121 P.3d at 1031. Since employees in Nevada are presumed to be at-will, an employer can dismiss an atwill employee with or without cause, so long as the dismissal does not offend this states public policy. State of Nevada v. Dist. Ct. (Anzalone), 118 Nev. 140, 151, 42 P.3d 233, 240 (2002). While this court has recognized certain exceptions to the at-will employment doctrine, see DAngelo v. Gardner, 107 Nev. 704, 719, 819 P.2d 206, 216 (1991) (adopting an exception based on the public policy of this state favor[ing] safe employment practices and the protection of the health and safety of workers on the job), these exceptions are severely limited to those rare and exceptional cases where the employers conduct violates strong and compelling public policy. Sands Regent v. Valgardson, 105 Nev. 436, 440, 777 P.2d 898, 900 (1989) (declining to create an additional exception to the at-will employment doctrine for age discrimination). Further, this court will not recognize an action for tortious discharge when a plaintiff has an adequate, comprehensive, statutory remedy. DAngelo, 107 Nev. at 720-22, 819 P.2d at 217-18. Here, we decline to recognize the claim for tortious discharge. While Ozawa has identified NRS 614.090 2 and NRS 613.220 3 as
NRS 614.090(1) declares as public policy of this state that it is necessary that the individual workman have full freedom of association, self-organization, and designation of representatives of his own choosing to negotiate the terms and conditions of his employment, and that he shall be free from the interference, restraint or coercion of employers . . . in self-organization or in other concerted activities for the purpose of collective bargaining or other mutual aid or protection. 3 NRS 613.220 provides that no part of NRS Chapter 613 shall be construed to restrict or prohibit the orderly and peaceable assembling or cooperation of persons employed in any profession, trade or handicraft for the purpose of securing an advance in the rate of wages or compensation, or for the maintenance of such rate.
2

Oct. 2009]

Ozawa v. Vision Airlines

561

support for his contention that it is the public policy of this state to protect the ability of employees to enhance or protect the conditions of their employment, we have previously explained that the mere identification of a public policy is not the entire analysis. See DAngelo, 107 Nev. at 719-20, 819 P.2d at 216-17 (noting that a determination that public policy has been violated does not end the matter of whether an additional exception to the at-will employment doctrine should be recognized). In DAngelo, this court explained that it will not recognize a claim for tortious discharge when an adequate statutory remedy already exists, as it would be unfair to a defendant to allow additional tort remedies under such circumstances. 107 Nev. at 720, 819 P.2d at 217. Having reviewed the parties briefs and researched the availability of alternative remedies, we conclude that Ozawa had an alternative remedy under the federal Railway Labor Act, 45 U.S.C. 151-188 (2006). Specifically, 45 U.S.C. 152 Fourth sets forth in relevant part that [e]mployees shall have the right to organize and bargain collectively through representatives of their own choosing and that it is unlawful for an airline to interfere with an employees efforts to organize or participate in a labor union. The United States Supreme Court has recognized this provision as addressing primarily the precertification rights and freedoms of unorganized employees. TWA, Inc. v. Flight Attendants, 489 U.S. 426, 440 (1989). Further, federal courts have read in an implied private right of action from this provision in recognition that since the National Mediation Board lacks authority to redress [an allegedly wrongful discharge for labor union activity], and since there is apparently . . . no board of adjustment to which these grievances might be brought, [the federal courts are] not without power to decide this case. Intern. Assn of Machinists, Etc. v. Altair Airlines, 481 F. Supp. 1359, 1360 (E.D. Pa. 1979). Determinative in our resolution of this matter is the fact that this private right of action is recognized by the Ninth Circuit Court of Appeals. See Fennessy v. Southwest Airlines, 91 F.3d 1359, 1365 (9th Cir. 1996); but see Carmak v. National R.R. Passenger Corp., 486 F. Supp. 2d 58, 94 (D. Mass. 2007) (noting that the existence of a private right of action has not been finally decided in the First or Fifth Circuits). Thus, we conclude that Ozawa had the opportunity to avail himself of this remedy but did not. Accordingly, because Ozawa had an adequate remedy, we affirm the district court order in Docket No. 49435 granting summary judgment on his claim for tortious discharge.4 DAngelo, 107 Nev. at 720-22, 819 P.2d at 217-18.
4 Because Ozawa makes no arguments regarding the district courts disposition of his claims for intentional infliction of emotional distress or breach of contract, we do not address these claims. See Edwards v. Ghandour, 123 Nev. 105, 11819 & n.31, 159 P.3d 1086, 1095 & n.31 (2007) (noting that this court need not

562

Ozawa v. Vision Airlines

[125 Nev.

The district courts attorney fees and costs award On cross-appeal, Vision Airlines argues that the district court abused its discretion in declining to award attorney fees and in setting the award of costs. We address each of these issues in turn. Attorney fees
[Headnote 7]

Regarding the attorney fees, Vision Airlines contends that although the district courts post-judgment order analyzes the factors set forth in Beattie v. Thomas, 99 Nev. 579, 588-89, 668 P.2d 268, 274 (1983), the district court failed to give the factors truly meaningful consideration because it felt that Ozawa had, in its words, already taken it in the shorts. Ozawa disagrees.
[Headnotes 8, 9]

A district courts award of attorney fees and costs pursuant to NRCP 68 is reviewed for an abuse of discretion. Wynn v. Smith, 117 Nev. 6, 13, 16 P.3d 424, 428 (2001). A clear disregard of the guiding legal principles may constitute an abuse of discretion. Allianz Ins. Co. v. Gagnon, 109 Nev. 990, 993, 860 P.2d 720, 722-23 (1993). In making such an award of attorney fees, the district court must carefully review the following factors: (1) whether the plaintiff brought the claim in good faith, (2) whether the defendants offer of judgment was reasonable and brought in good faith in both its amount and timing, (3) whether it was grossly unreasonable or an act in bad faith for the plaintiff to reject the offer and proceed to trial, and (4) whether the fees sought are reasonable and justifiable in amount. Beattie, 99 Nev. at 588-89, 668 P.2d at 274. Here, the district court found that Ozawas claims were brought in good faith and that his rejection of Vision Airlines $2,500 offer of judgment was in good faith and not grossly unreasonable. Having reviewed the record in this matter, including the transcript of the May 9, 2007, district court proceedings, we conclude that the district court based its decision upon a proper consideration of the factors set forth in Beattie and did not abuse its discretion in declining to award Vision Airlines attorney fees. Costs
[Headnote 10]

In regard to the award of costs, Vision Airlines argues that the district court erred by (1) awarding costs to Vision Airlines based on its
consider alleged errors when not supported by any pertinent legal authority), abrogated on other grounds by Five Star Capital Corp. v. Ruby, 124 Nev. 1048, 1053-54, 194 P.3d 709, 712-13 (2008).

Oct. 2009]

Ozawa v. Vision Airlines

563

original, as opposed to amended, memorandum of costs, which added $320.75 to the costs bill; and (2) improperly granting Ozawa a set-off against its costs award based on a claim in Ozawas complaint that Vision Airlines owed him accrued vacation and paid time off. Vision Airlines argues that the judgment in its favor precludes Ozawa from receiving this set-off in the costs award. Ozawa does not dispute Vision Airlines arguments regarding the district courts use of the memorandum of costs rather than the amended memorandum of costs, conceding the point. See Bates v. Chronister, 100 Nev. 675, 682, 691 P.2d 865, 870 (1984) (treating the failure to respond to an argument as a confession of error). Thus, Vision Airlines award of costs should be supplemented to include the additional $320.75. As for Ozawas accrued vacation and paid time off, in the facts common to all counts section of his district court complaint, Ozawa alleged that Vision Airlines owed him $723.23 in earned and unpaid vacation and paid time off. Because the district court had already dismissed or granted Vision Airlines summary judgment on all of the causes of action in Ozawas complaint, we conclude that it was an abuse of discretion for the district court to nevertheless reduce its award of costs to Vision Airlines by $723.45 based on an allegation in the dismissed complaint. Allianz Ins. Co., 109 Nev. at 993, 860 P.2d at 722-23 (explaining that a clear disregard of guiding legal principles may constitute an abuse of discretion). Thus, Vision Airlines award of costs should be further amended to reinstate this $723.45.5 CONCLUSION As we determine that Ozawa failed to avail himself of an available statutory remedy, we decline to recognize a tortious discharge claim for the alleged termination of Ozawas employment with Vision Airlines based on his efforts to organize his coworkers. Accordingly, we affirm the district courts grant of summary judgment in Docket No. 49435. Further, while we conclude that the district court did not abuse its discretion in declining to award attorney fees under NRCP 68 and affirm that portion of the district courts postjudgment order in Docket No. 49660, we reverse the order in part and remand this matter to the district court with instructions to amend respondents award of costs by reinstating the $723.45 previously deducted as an off-set and adding $320.75 to reflect the difference in the amended memorandum of costs and disbursements.
5 We note that there is a minor discrepancy between the amount requested in Ozawas complaint and the amount described in the district courts order. Because the parties do not challenge this discrepancy, we do not address it.

564

Delgado v. American Family Ins. Group

[125 Nev.

DIONICIA DELGADO AND DIEGO DELGADO, APPELLANTS, v. AMERICAN FAMILY INSURANCE GROUP, A WISCON SIN CORPORATION DBA AMERICAN FAMILY MUTUAL INSURANCE CO., RESPONDENT.
No. 49008 October 1, 2009 217 P.3d 563

Appeal from a district court order, certified as final pursuant to NRCP 54(b), granting summary judgment in a contract action. Eighth Judicial District Court, Clark County; Valerie Adair, Judge. Automobile passenger brought breach of contract action against underinsured (UIM) carrier for failure to pay for injuries and damages caused by underinsured motorist. The district court granted summary judgment in favor of insurer, and passenger appealed. The supreme court, HARDESTY, C.J., held that: (1) passengers claim was not barred by judicial estoppel; (2) antistacking prohibition set forth in Peterson v. Colonial Insurance Co., 100 Nev. 474, 686 P.2d 239 (1984), and Baker v. Criterion Insurance, 107 Nev. 25, 805 P.2d 599 (1991), was not implicated in passengers breach of contract action; (3) allowing passenger to recover both liability and UIM benefits under single policy of insurance was consistent with purpose of underinsured coverage; and (4) injured passenger could recover under permissive drivers UIM policy for third-party tortfeasors negligence if both drivers were adjudged jointly negligent. Reversed and remanded. Benson, Bertoldo, Baker & Carter, Chtd., and Steven M. Baker, Las Vegas, for Appellants. Prince & Keating, LLP, and Dennis M. Prince and Douglas J. Duesman, Las Vegas, for Respondent.
1. INSURANCE. The antistacking rule set forth in Peterson v. Colonial Insurance Co., 100 Nev. 474, 686 P.2d 239 (1984), and Baker v. Criterion Insurance, 107 Nev. 25, 805 P.2d 599 (1991), is not implicated when a passenger, whose injuries are attributable to two jointly negligent drivers, exhausts the liability limits of the permissive drivers automobile insurance policy without satisfying his or her damages, and seeks recovery under the permissive drivers underinsured motorist policy based on the other drivers underinsured status. 2. INSURANCE. An insurance company may limit coverage only if the limitation does not contravene public policy. 3. INSURANCE. A passenger who is injured by two concurrently negligent drivers may recover from both the permissive drivers single automobile insurance policy liability benefits based on the permissive drivers negligence in addition

Oct. 2009]

Delgado v. American Family Ins. Group

565

4.

5.

6.

7. 8.

9.

10.

11.

12.

13.

to recovering under the permissive drivers underinsured motorist policy if the other tortfeasor driver is underinsured. ESTOPPEL. Automobile passengers underinsured motorist claim was not barred by judicial estoppel, even though passenger named the wrong motorist in her complaint, where passenger argued the correct underinsured motorist in her opposition to automobile insurers motion for summary judgment, without objection by insurer, and passenger did not assert inconsistent arguments to obtain an unfair result. ESTOPPEL. The doctrine of judicial estoppel is an extraordinary remedy that is invoked to protect the integrity of the justice system when a party argues two conflicting positions to abuse the legal system. ESTOPPEL. Judicial estoppel will bar a party from raising an argument only when the following conjunctive test is satisfied: (1) the same party has taken two positions; (2) the positions were taken in judicial or quasi-judicial administrative proceedings; (3) the party was successful in asserting the first position, i.e., the tribunal adopted the position or accepted it as true; (4) the two positions are totally inconsistent; and (5) the first position was not taken as a result of ignorance, fraud, or mistake. APPEAL AND ERROR. The supreme court reviews a district courts decision granting summary judgment de novo. JUDGMENT. Summary judgment is appropriate if, after viewing the record before the district court in the light most favorable to the nonmoving party, no genuine issue of material fact exists, and the moving party is entitled to judgment as a matter of law. JUDGMENT. When determining whether to grant summary judgment, whether an issue of fact is material or irrelevant is controlled by the substantive law at issue in the case. JUDGMENT. When determining whether to grant summary judgment, a factual dispute is genuine if the evidence is such that a rational trier of fact could return a verdict for the nonmoving party. INSURANCE. Antistacking prohibition set forth in Peterson v. Colonial Insurance Co., 100 Nev. 474, 686 P.2d 239 (1984), and Baker v. Criterion Insurance, 107 Nev. 25, 805 P.2d 599 (1991), was not implicated in passengers breach of contract action against permissive drivers automobile insurer, where passenger was not asserting that vehicle she was riding in was underinsured, rather her claim was based on the concurrent negligence of a third-party tortfeasor, and the underinsured status of the third-party tortfeasors vehicle. INSURANCE. Allowing injured passenger to recover both liability and underinsured motorist benefits under permissive drivers single policy of insurance was consistent with the purpose of uninsured/underinsured motorist coverage, as the passenger was being compensated for damages caused by the joint negligence of third-party underinsured driver. INSURANCE. Injured passenger could recover under permissive drivers underinsured policy for third-party tortfeasors negligence, and based on the third-

566

Delgado v. American Family Ins. Group

[125 Nev.

party tortfeasors vehicles underinsured status, if both drivers were adjudged jointly negligent, even though the permissive drivers vehicle would not qualify as an underinsured vehicle under the terms of her policy, where under permissive drivers policy, passenger was a lawful occupant of permissive drivers vehicle, and the third-party tortfeasors vehicle did qualify as an underinsured vehicle.

Before HARDESTY, C.J., PARRAGUIRRE and DOUGLAS, JJ. OPINION By the Court, HARDESTY, C.J.: Appellant Dionicia Delgado was injured when the automobile in which she was a passenger collided with another automobile, allegedly as a result of the drivers concurrent negligence. In this appeal, we consider whether a passenger, such as Dionicia, may recover under the permissive drivers insurance policy both liability benefits based on the policyholders negligence and underinsured motorist benefits based on the other drivers underinsured status.1 Here, a passenger made a claim against both at-fault drivers insurance policies and recovered the liability limits under those policies. However, alleging that her damages exceeded the limits of both liability policies, the passenger then made a claim against the permissive drivers underinsured motorist policy. The permissive drivers insurance company denied the claim, arguing that, under Nevada law, an insured who is covered under the liability policy cannot also recover under the underinsured motorist provision of that same policy, as such recovery amounts to impermissible stacking of the policies. The district court granted summary judgment in favor of the insurance company, concluding that a passenger involved in a two-car automobile accident who alleged that both drivers were negligent 2 could not recover liability benefits and underinsured motorist benefits under the permissive drivers single insurance policy pursuant to Peterson v. Colonial Insurance Co., 100 Nev. 474, 686 P.2d 239 (1984), and Baker v. Criterion Insurance, 107 Nev. 25, 805 P.2d 599 (1991).
[Headnote 1]

We conclude that a passenger who is injured by two concurrently negligent drivers may recover from both the permissive drivers sin1 Respondent American Family Insurance Group claims that the Delgados are judicially estopped from raising this argument on appeal. However, the Delgados preserved the argument when they maintained in their opposition to American Familys motion for summary judgment that their first-party underinsured motorist claim was based on the factual assertion that the Dean vehicle was underinsured. 2 Liability has not been adjudicated in this matter.

Oct. 2009]

Delgado v. American Family Ins. Group

567

gle insurance policy liability benefits based on the permissive drivers negligence and underinsured motorist benefits based on the other drivers underinsured status. In so doing, we clarify that Peterson and Baker are not determinative on this issue. The antistacking rule set forth in Peterson and Baker is not implicated when a passenger, whose injuries are attributable to two jointly negligent drivers, exhausts the liability limits of the permissive drivers policy without satisfying his or her damages, and seeks recovery under the permissive drivers underinsured motorist policy based on the other drivers underinsured status. Accordingly, we reverse the district courts grant of summary judgment. FACTUAL AND PROCEDURAL BACKGROUND In December 2004, appellant Dionicia Delgado was injured in an automobile accident while riding as a passenger in a car owned and operated by Eunice Marcelino. Marcelino had attempted to turn left across the lanes of northbound traffic on Nellis Boulevard in Las Vegas. A northbound car, owned and operated by Toquanda Dean, struck Marcelinos car, severely injuring Dionicia. Marcelino was insured by American Family Insurance Group for liability up to $50,000 per person and had underinsured motorist coverage up to $25,000 per person. Dean carried an insurance policy with a $15,000 liability limitation. Marcelinos underinsured motorist policy with American Family promises that American Family will pay compensatory damages for bodily injury which an insured person is legally entitled to recover from the owner or operator of an underinsured motor vehicle. Marcelinos underinsured motorist policy defines the [i]nsured person as the contracting party, relatives, [a]nyone else occupying [Marcelinos] . . . insured car, and anyone claiming damages due to bodily injury caused by a person in the car. The parties do not dispute that because Dionicia was occupying Marcelinos car as a guest passenger at the time of the accident, Dionicia was an [i]nsured person under Marcelinos underinsured motorist provision. American Familys policy further defined an [u]nderinsured motor vehicle as a motor vehicle which is insured by a liability bond or policy at the time of the accident and the amount of the bond or policy . . . [i]s less than the limit of underinsured motorists coverage under this policy. Although the policy specifically excludes Marcelinos vehicle from uninsured/underinsured motorist coverage, another drivers vehicle may qualify as underinsured under the policy if the other driver carried less liability coverage than the limit of Marcelinos underinsured motorist coverage. Dionicia offered to settle her claims with American Family for a total of $75,000$50,000 for the liability coverage limit plus

568

Delgado v. American Family Ins. Group

[125 Nev.

$25,000 for the underinsured motorist coverage limit. (Dionicia also offered to settle with Deans insurance carrier for the extent of Deans $15,000 liability policy.) American Family denied Dionicias underinsured motorist claim, reasoning that Marcelinos vehicle could not qualify as an underinsured vehicle according to the policy terms. Dionicia and her husband, appellant Diego Delgado, filed suit, complaining, in relevant part, that American Family breached its contract by denying Dionicias demand for payment of Marcelinos underinsured motorist policy limits. The Delgados complaint specifically alleged that Marcelinos underinsured motorist policy created a contractual duty and obligation on the part of [American Family] to . . . compensate [Dionicia] for injuries and damages caused by an underinsured motorist, in this instance Defendant [Marcelino]. (Emphases added.) Thus, the Delgados grounded their breach of contract claim on the factual assertion that Marcelinos vehicle qualified as the underinsured vehicle. American Family moved for summary judgment on the Delgados breach of contract claim, arguing that the Delgados could not recover under the factual assertion that Marcelinos car was the underinsured vehicle because the coverage endorsement in Marcelinos policy with American Family excluded Marcelinos car from qualifying as underinsured.3 In support of its argument, American Family cited to this courts decisions in Peterson and Baker, in which this court precluded recovery under both liability and underinsured motorist coverage provisions of a single insurance policy. In their opposition, the Delgados argued that the coverage endorsement did not prohibit recovery in this case because the coverage endorsement only excluded vehicles covered under the insurance policy, and the Delgados alleged that their underinsured motorist claim was based on the Dean vehicle being underinsured. Further, the Delgados distinguished their case from Peterson and Baker by arguing that, unlike the claimants in Peterson and Baker, they are not seeking to recover under Marcelinos liability and underinsured motorist policies based on Marcelinos negligence alone. Instead, according to the Delgados, in addition to recovering under the liability policy for Marcelinos vehicle, they were seeking to recover underinsured motorist benefits based on Deans joint negligence and the Dean vehicle being underinsured. The record does not reflect that American Family filed a reply to the Delgados opposition. The district court concluded in its order granting summary judgment that Marcelinos vehicle was not underinsured as defined by
3 American Family also sought summary judgment on the Delgados breach of contract claim regarding third-party liability benefits, which the district court granted. At oral argument, the parties conceded that this issue is now moot.

Oct. 2009]

Delgado v. American Family Ins. Group

569

the policy and that Peterson and Baker completely barred recovery for both liability and underinsured motorist benefits under a single insurance policy. This appeal followed. DISCUSSION As an initial matter, American Family contends that the Delgados underinsured motorist claim is barred by the doctrine of judicial estoppel because the Delgados named the wrong motorist in their complaint. We disagree since the Delgados argued the correct underinsured in their opposition to American Familys motion for summary judgment, without objection by American Family.
[Headnote 2]

On appeal, the Delgados argue that the district court erred by granting summary judgment because their case is factually distinguishable from Peterson and Baker, and the stacking prohibition set forth in those cases is inapplicable to this case. American Family argues, on the other hand, that the Delgados argument is identical to the arguments presented in Peterson and Baker, which this court rejected, and that recovery under these circumstances would amount to stacking Marcelinos underinsured motorist policy on top of her liability policy to impermissibly increase her liability limits.4
[Headnote 3]

In resolving this appeal, we address an issue of first impression: whether, in light of Peterson and Baker, a passenger who is injured in a two-car collision where both drivers are concurrently negligent may recover liability benefits under the permissive drivers policy based on the permissive drivers negligence, and also recover underinsured motorist benefits under the same policy for the negligence of the other driver, whose vehicle was underinsured. We determine that, so long as the passenger is injured by joint tortfeasors and is deemed the insured upon the occurrence of an accident, that passenger may recover under the permissive drivers liability policy in addition to recovering under the permissive drivers underinsured motorist policy if the other tortfeasor driver is underinsured.
4 The Delgados also challenge the policys vehicle exclusion provision, arguing that it is void for violating public policy because it is more restrictive than NRS 687B.145(2). An insurance company may limit coverage only if the limitation does not contravene public policy. State Farm Mut. Auto. Ins. v. Hinkel, 87 Nev. 478, 481, 488 P.2d 1151, 1153 (1971). However, upon review of the record, we determine that the Delgados waived this argument by failing to raise it below. See Kahn v. Morse & Mowbray, 121 Nev. 464, 480 n.24, 117 P.3d 227, 238 n.24 (2005). Moreover, even if the issue was properly raised on appeal, the Delgados argument is without merit because the exclusion is consistent with our holdings in Peterson and Baker; therefore, no public policy exists to void the exclusion.

570

Delgado v. American Family Ins. Group

[125 Nev.

Judicial estoppel
[Headnote 4]

Prior to reaching the merits of this appeal, we must first address whether the doctrine of judicial estoppel precludes the Delgados from basing their underinsured motorist claim on the Dean vehicle being underinsured, not Marcelinos, as stated in the Delgados complaint. We conclude that the doctrine of judicial estoppel does not bar the Delgados from raising this claim on appeal. We further conclude that the Delgados did not waive the issue, as they argued this point in their opposition to American Familys motion for summary judgment without contest. American Family argues that the doctrine of judicial estoppel precludes the Delgados from raising the argument that their breach of contract claim was based on the Dean vehicle being underinsured, and not Marcelinos, as specified in the Delgados complaint. We disagree.
[Headnotes 5, 6]

The doctrine of judicial estoppel is an extraordinary remedy that is invoked to protect the integrity of the justice system when a party argues two conflicting positions to abuse the legal system. Mainor v. Nault, 120 Nev. 750, 765, 101 P.3d 308, 318 (2004) (quoting Kitty-Anne Music Co. v. Swan, 4 Cal. Rptr. 3d 796, 800 (Ct. App. 2003)). This court has emphasized that the doctrine should be cautiously applied only when a partys inconsistent position [arises] from intentional wrongdoing or an attempt to obtain an unfair advantage. Id. (alterations in original) (quoting Swan, 4 Cal. Rptr. 3d at 800). Thus, judicial estoppel will bar a party from raising an argument only when the following conjunctive test is satisfied: (1) the same party has taken two positions; (2) the positions were taken in judicial or quasi-judicial administrative proceedings; (3) the party was successful in asserting the first position (i.e., the tribunal adopted the position or accepted it as true); (4) the two positions are totally inconsistent; and (5) the first position was not taken as a result of ignorance, fraud, or mistake. Marcuse v. Del Webb Communities, 123 Nev. 278, 287, 163 P.3d 462, 468-69 (2007) (quoting NOLM, LLC v. County of Clark, 120 Nev. 736, 743, 100 P.3d 658, 663 (2004)). For the reasons set forth below, we determine that the test is not satisfied in this case. Here, the Delgados do not assert inconsistent arguments to obtain an unfair result. At all times, the Delgados have argued that, based on the concurrent negligence of both drivers involved in the accident, both of whose liability limits were less than Dionicias dam-

Oct. 2009]

Delgado v. American Family Ins. Group

571

ages, Dionicia was entitled to recover both liability and underinsured motorist benefits under Marcelinos policy with American Family. Moreover, while this court will not consider an argument raised for the first time on appeal, Kahn v. Morse & Mowbray, 121 Nev. 464, 480 n.24, 117 P.3d 227, 238 n.24 (2005), we determine that the Delgados effectively raised their argumentthat their underinsured motorist claim is based on the Dean vehicle being underinsuredin their opposition to American Familys motion for summary judgment. American Family failed to reply to the Delgados opposition or argue that the Delgados complaint was insufficient to support their first-party insurance claim. The Delgados allege in their complaint that Marcelinos underinsured motorist policy created a contractual duty and obligation on the part of [American Family] to . . . compensate [Dionicia] for injuries and damages caused by an underinsured motorist, in this instance Defendant [Marcelino]. However, later in their complaint the Delgados alleged that American Family denied their underinsured motorist claim because American Familys representative either misunderstood or misstated [Dionicias] UIM claim for benefits, given the fact that Defendant [Dean] was underinsured. (Emphasis added.) We conclude that neither judicial estoppel nor waiver doctrines bar the Delgados from asserting on appeal that their underinsured motorist claim was grounded in the factual assertion that the Dean vehicle was underinsured.5 Standard of review
[Headnotes 7-10]

This court reviews a district courts [decision granting] summary judgment de novo. Wood v. Safeway, Inc., 121 Nev. 724, 729, 121 P.3d 1026, 1029 (2005). Summary judgment is appropriate if, after viewing the record before the district court in the light most favorable to the nonmoving party, no genuine issue of material fact exists, and the moving party is entitled to judgment as a matter of law. Id. at 731, 121 P.3d at 1031. Whether an issue of fact is material or irrelevant is controlled by the substantive law at issue in the case. Id. A factual dispute is genuine if the evidence is such that a rational trier of fact could return a verdict for the nonmoving party. Id.
5 Based on this conclusion, we determine that American Familys argument that the coverage endorsement in Marcelinos insurance policy bars the Delgados from recovering underinsured motorist benefits because Marcelinos vehicle is not an underinsured vehicle is without merit. Since we conclude that the Delgados effectively argued that their underinsured motorist claim was based on the Dean vehicle being underinsured, the fact that the policy excludes Marcelinos vehicle from being considered underinsured is not pertinent to our analysis. Moreover, nothing in Marcelinos insurance policy precludes a passenger from receiving underinsured motorist benefits under the facts presented in this case, as further discussed in this opinion.

572

Delgado v. American Family Ins. Group

[125 Nev.

Peterson v. Colonial Insurance Co. and Baker v. Criterion Insurance are not controlling in this case Next, we consider the Delgados contention that, notwithstanding Peterson v. Colonial Insurance Co., 100 Nev. 474, 686 P.2d 239 (1984), and Baker v. Criterion Insurance, 107 Nev. 25, 805 P.2d 599 (1991), a passenger who is injured by the concurrent negligence of two drivers may recover liability benefits under the permissive drivers liability policy based on the permissive drivers negligence in addition to recovering underinsured motorist benefits under the same insurance policy for the negligence of the other driver, whose vehicle was underinsured. As discussed below, we conclude that neither Peterson nor Baker preclude the Delgados from recovering under the facts presented in this case. Moreover, we conclude that such a result coheres with the purpose of uninsured/underinsured motorist coverage and is consonant with the reasoning applied in other jurisdictions addressing this issue. Peterson In Peterson, this court addressed whether a passenger is entitled to recover benefits under both the bodily injury and the uninsured/underinsured motorist coverages afforded by a single insurance policy. 100 Nev. at 475, 686 P.2d at 239. That case stemmed from an accident where the motorcycle on which Peterson was riding as a passenger collided with another vehicle. Id. Solely claiming negligence on the part of the motorcycles operator, Peterson recovered under the motorcycle owners liability policy. Id. After Peterson exhausted the limits of the owners policy, she made an uninsured/underinsured motorist claim under that same policy of insurance, again based on the permissive drivers negligence. Id. Because Peterson sought recovery based only on the permissive drivers negligence, but under both coverages in the single insurance policy, this court concluded that Peterson was essentially attempting to increase the liability coverage under the owners policy. Id. at 476, 686 P.2d at 240. The Peterson court therefore held that the stacking of a liability policy on top of an uninsured/underinsured motorist policy was impermissible. Id. Baker Later, in Baker, this court again considered whether a passenger could recover benefits under both the liability and uninsured/underinsured motorist provisions of a single policy of insurance. 107 Nev. at 26, 805 P.2d at 599-600. In that case, the passenger sought to recover liability and uninsured/underinsured motorist benefits under her own policy of insurance, and not the permissive drivers. Id. at 26, 805 P.2d at 600. Based on this difference, Baker argued that her case was distinguishable from Peter-

Oct. 2009]

Delgado v. American Family Ins. Group

573

son. Id. Determining that this difference was inconsequential, we reaffirmed Peterson, concluding that once a passenger has recovered under the vehicle owners liability policywhether that policy is the permissive drivers policy or the passengers own policythe passenger may not also recover under the owners uninsured/underinsured motorist policy, although the guest passenger may stack their own UM/UIM coverage with the benefits they receive from the owners policy. Id. The district court erred when it relied upon Peterson and Baker in granting American Familys motion for summary judgment Because the district court in this case relied on Peterson and Baker in granting summary judgment, the Delgados assert error, arguing that their case is factually distinguishable from Peterson and Baker. Specifically, the Delgados maintain that unlike the Peterson and Baker cases, which involved single automobiles and the vehicles respective insurance policies, their case involves the concurrent negligence of two drivers, with separate insurance policies, both of which were insufficient according to Dionicia. In response, American Family asserts that the Delgados argument is meritless because it is identical to the insureds argument rejected by this court in Peterson and reaffirmed in Baker. As a result, American Family argues, because the Delgados are seeking to stack the underinsured motorist benefits on top of the liability benefits to increase the total available liability coverage for the loss caused by Marcelino, their recovery should be barred. We disagree. In both Peterson and Baker, we based our decisions, in part, on the following pertinent language in NRS 687B.145(2): Uninsured and underinsured vehicle coverage must include a provision which enables the insured to recover up to the limits of his own coverage any amount of damages for bodily injury from his insurer which he is legally entitled to recover from the owner or operator of the other vehicle. Peterson, 100 Nev. at 475, 686 P.2d at 240; Baker, 107 Nev. at 27, 805 P.2d at 600. This court interpreted that language to require the tortious involvement of a party and vehicle other than the insured and the insureds vehicle. Peterson, 100 Nev. at 476, 686 P.2d at 240; see also Baker, 107 Nev. at 27, 805 P.2d at 600. We reasoned that allowing a passenger to recover under the permissive drivers liability and uninsured/underinsured motorist policies based solely on the permissive drivers negligence would impermissibly increase the liability limit for the owner/insured. Peterson, 100 Nev. at 476, 686 P.2d at 240; Baker, 107 Nev. at 27, 805 P.2d at 600. While we determined in Peterson and Baker that a passenger may not recover under both coverages of a permissive drivers single insurance policy based on the permissive drivers negligence, we did not consider whether a guest passenger, whose injuries are at-

574

Delgado v. American Family Ins. Group

[125 Nev.

tributed to jointly negligent drivers, may recover liability benefits under the permissive drivers policy based on the permissive drivers negligence, in addition to recovering underinsured motorist benefits under the same policy for damages caused by the other driver, who is underinsured. Although American Family argues that Peterson and Baker are authoritative on this matter, we disagree.6
[Headnote 11]

Neither Peterson nor Baker precludes recovery of underinsured benefits under the facts presented in this case. The passengerclaimants in Peterson and Baker did not properly allege that the vehicle involved in the accident was uninsured or underinsured. Rather, both passengers alleged that although both vehicles were insured vehicles under their respective policies, the vehicle in which they were riding was the uninsured or underinsured vehicle, not the other vehicle involved in the accident. Moreover, both claims were based on the negligence of the permissive driver, not a third-party tortfeasor. Peterson, 100 Nev. at 475, 686 P.2d at 239; Baker, 107 Nev. at 27, 805 P.2d at 600. Recovery under those circumstances would have amounted to impermissible stacking of the uninsured/underinsured motorist coverage on top of the liability coverage. Contrary to the facts presented in Peterson and Baker, in this case, Dionicia made her underinsured motorist claim based on Deans concurrent negligence and the Dean vehicle being underinsured. The Delgados are not asserting that Marcelinos vehicle qualifies as an underinsured vehicle. This difference is substantial because the stacking prohibition set forth in Peterson and Baker is not implicated in this situation. Allowing recovery of underinsured benefits under the facts presented in this case coheres with the purpose of uninsured/underinsured motorist coverage
[Headnote 12]

This court has stated that the purpose of uninsured/underinsured motorist coverage is to compensate the insured for damages based
6 American Family argues that its reading of Peterson and Baker is consistent with the Illinois case Mercury Indemnity Co. of Illinois v. Kim, 830 N.E.2d 603, 619 (Ill. App. Ct. 2005). We disagree. In Mercury, like Peterson and Baker, the passengers recovered under the permissive drivers liability provision and then sought additional recovery under the permissive drivers underinsured motorist provision under the same policy, basing both claims on the sole negligence of the permissive driver. Mercury, 830 N.E.2d at 604-05. And similar to our reasoning in Peterson and Baker, the Mercury court rejected such recovery because the passengers were attempting to stack the liability and underinsured motorist provisions under a single policy of insurance based on one drivers negligencenot the concurrent negligence and underinsured status of a third-party tortfeasor and his or her vehicle. Id. at 611-12, 615.

Oct. 2009]

Delgado v. American Family Ins. Group

575

upon the tort liability of the uninsured, underinsured, or hit-and-run driver. St. Paul Fire v. Employers Ins. Co. of Nev., 122 Nev. 991, 993, 146 P.3d 258, 260 (2006). Allowing a passenger to recover both liability and underinsured motorist benefits under a single policy of insurance in this situation is consistent with the purpose of uninsured/underinsured motorist coverage, as the passenger is being compensated for damages caused by the joint negligence of an uninsured/underinsured driver. Various insurance treatises, while they are persuasive authority only, provide comprehensive explanations on uninsured/ underinsured motorist benefits. For example, [a]s a general rule, a passenger who has made a liability recovery under [the permissive drivers] policy may also make an underinsured motorist recovery under the same policy where a second negligent vehicle involved in the accident was underinsured. 3 Irvin E. Schermer & William J. Schermer, Automobile Liability Insurance 39:12 (4th ed. 2004). Despite the language in the permissive drivers liability policy excluding the vehicle the permissive user is driving from being deemed underinsured, it is the jointly liable tortfeasors lack of adequate liability coverage which is the pivotal factor in allowing recovery for underinsured motorist benefits. Id. Likewise, passenger-claimants are entitled to recover both under a bodily injury liability coverage and an uninsured motorist coverage included in the same insurance policy . . . when . . . [the] passenger [is] in an insured automobile and is injured in an accident with an uninsured motorist that is caused by the negligence of both drivers. 1 Alan I. Widiss & Jeffrey E. Thomas, Uninsured and Underinsured Motorist Insurance 14.6 (3d ed. 2005). Because the insurance company is liable to the passenger under the liability provision of the policy for the insured drivers negligence, the passenger may recover liability benefits. Id. And because the other motorist was jointly negligent and underinsured, and the passenger is generally defined as an insured under the uninsured/underinsured motorist policy, the policy extends coverage to occupants of the insured vehicle. See id. Therefore, the insured passenger may recover uninsured/underinsured motorist benefits. Id. Moreover, other courts addressing this issue have determined that a guest passenger may recover for another drivers negligence under his or the permissive drivers uninsured or underinsured motorist policy and recover for the permissive drivers negligence as a thirdparty claimant. See, e.g., Dairyland Ins. Co. v. Bradley, 451 S.E.2d 765 (W. Va. 1994). In Dairyland Insurance Co. v. Bradley, the mother of a passenger who perished when the motorcycle on which she was riding collided with another vehicle sought recovery for her daughters death under both the liability and underinsured motorist provisions of the mo-

576

Delgado v. American Family Ins. Group

[125 Nev.

torcycle drivers policy. Id. at 765. The accident resulted from the concurrent negligence of both the motorcycle driver and the other driver. Id. After exhausting the liability limits of the motorcycle drivers and the other drivers policies, the estate of the deceased passenger sought to recover underinsured motorist benefits under the motorcycle drivers policy. Id. at 766. Thus, similar to the facts presented in this case, the passenger was attempting to recover underinsured motorist benefits based on the other drivers negligence and underinsured status. See id. In rejecting the insurance companys argument that a guest passenger could not recover both liability and underinsured motorist benefits under a single policy of insurance, the Dairyland court held that when the [permissive] drivers policy language specifically provides coverage of a guest passenger as insured, a guest passenger who is injured by the concurrent negligence of the [permissive] driver and a third party may recover under the [permissive] drivers underinsured motorist insurance if the limits of liability of the third-party tortfeasor are such as to make him an underinsured motorist within the contemplation of the [permissive] drivers underinsured motorist policy. Id. at 768. The court reasoned that while such passengers are precluded from recovering underinsured benefits based on the permissive drivers negligencei.e., when the permissive drivers policy excludes the permissive drivers vehicle from being deemed underinsureda passenger could recover underinsured motorist benefits for injuries caused by a jointly negligent and underinsured motorist involved in the accident when the permissive drivers policy language extended coverage to that passenger. Id. at 767-68. Pursuant to the express language of the motorcycle drivers insurance policy, the guest passenger was deemed an insured. Id. As a result, the Dairyland court permitted the insured passengers estate to recover both liability and underinsured motorist benefits, stating that the limits of liability of the third-party tortfeasor are such as to make him an underinsured motorist within the contemplation of the motorcycle drivers underinsured motorist policy, after determining that the guest passenger was injured by the concurrent negligence of the motorcycle driver and the other driver. Id. at 768. Other courts have similarly reasoned that the prohibition against stacking policies is not implicated when a passenger seeks to recover liability and uninsured/underinsured motorist benefits when his or her injuries are attributable to joint tortfeasors and the other driver is uninsured or underinsured. See, e.g., Woodard v. Pa. Nat. Mut. Ins. Co., 534 So. 2d 716, 721 (Fla. Dist. Ct. App. 1988) (explain-

Oct. 2009]

Delgado v. American Family Ins. Group

577

ing that because the passenger was attempting to collect uninsured motorist benefits based on the other drivers concurrent negligence and uninsured status, the passenger was not attempting to impermissibly stack the uninsured motorist and liability coverages); Lahr v. American Family Mut. Ins. Co., 528 N.W.2d 257, 260 (Minn. Ct. App. 1995) (stating that when a vehicle other than the one in which the passenger is riding is potentially at fault, the prohibition against converting the passengers drivers [underinsured motorist] coverage into liability coverage is not applicable since it is the other vehicles lack of sufficient liability coverage [that] triggers the passengers claim for [underinsured motorist] benefits from her drivers insurer); cf. Casson v. Dairyland Ins. Co., 400 So. 2d 713, 716 (La. Ct. App. 1981) (noting that a guest passenger can recover against [the permissive] driver under the liability coverage on the [permissive drivers] vehicle and also against the driver of another vehicle under the uninsured motorist coverage on the [permissive drivers] vehicle).
[Headnote 13]

Applying this rationale to the facts of this case, we conclude that if Marcelino and Dean are adjudged jointly negligent, the Delgados can recover under Marcelinos underinsured motorist policy for Deans negligence and the Dean vehicles underinsured status. Under Marcelinos policy, Dionicia was a lawful occupant of Marcelinos vehicle; therefore, the policy extended underinsured motorist coverage to Dionicia at the time of the accident. Although Marcelinos vehicle could not qualify as an underinsured vehicle under the terms of the policy, the Dean vehicle could. If the Delgados can prove that Dionicia is legally entitled to recover damages from Dean, they may recover the amount of excess damages under Marcelinos underinsured motorist policy with American Family. Therefore, we conclude that American Family was not entitled to judgment as a matter of law and reverse the district courts grant of summary judgment. CONCLUSION We conclude that judicial estoppel does not preclude the Delgados from raising the argument that their first-party underinsured motorist claim was based on the concurrent negligence of both drivers involved in the accident (both of whom had insufficient liability policies to suffice Dionicias damages). Accordingly, we determine that Dionicia was entitled to recover under both the liability and underinsured motorist provisions of Marcelinos policy with American Family. In addition, because we conclude that this case is factually distinguishable from Peterson and Baker, we hold that the stacking pro-

578

Rodriguez v. Primadonna Company

[125 Nev.

hibition set forth in those cases is inapplicable to the facts presented here. Therefore, we reverse the district courts order and remand this matter to the district court for further proceedings consistent with this opinion. PARRAGUIRRE and DOUGLAS, JJ., concur.

MARTIN

RODRIGUEZ, INDIVIDUALLY AND AS GUARD IAN AD LITEM OF FABIAN SANTIAGO, A MINOR CHILD, APPELLANT/CROSS-RESPONDENT, v. THE PRIMA DONNA COMPANY, LLC, A NEVADA CORPORATION, DBA BUFFALO BILLS RESORT AND CASINO, AKA PRIMM VALLEY CASINO RESORTS; AND MGM MIRAGE, RESPONDENTS/CROSS-APPELLANTS.
No. 49409 216 P.3d 793

October 1, 2009

Appeal and cross-appeal from a district courts grant of summary judgment in a tort action. Eighth Judicial District Court, Clark County; Elizabeth Goff Gonzalez and Stewart L. Bell, Judges. Seventeen-year-old hotel patrons guardian brought negligence action against hotel alleging hotel security personnel acted unreasonably when they evicted patron who subsequently suffered injuries in an automobile accident. The district court entered summary judgment in favor of hotel, and guardian appealed. The supreme court, HARDESTY, C.J., held that: (1) hotel did not have an affirmative duty to prevent injury to intoxicated patron subsequent to eviction from hotel premises, (2) district court did not abuse its discretion in refusing to award attorney fees to hotel as prevailing party, and (3) hotel had no right to equitable indemnity for attorney fees and costs against mother of patron. Affirmed. White, Meany & Wetherall, LLP, and Peter C. Wetherall, Las Vegas, for Appellant/Cross-Respondent. Kravitz, Schnitzer, Sloane, Johnson & Eberhardy, Chtd., and Martin J. Kravitz, Regina M. McConnell, and Gina M. Mushmeche-Buras, Las Vegas, for Respondents/Cross-Appellants.
1. APPEAL AND ERROR. The supreme court reviews orders granting summary judgment de novo.

Oct. 2009]

Rodriguez v. Primadonna Company

579

2. JUDGMENT. Summary judgment is appropriate if the pleadings and other evidence on file, viewed in a light most favorable to the nonmoving party, demonstrate that no genuine issue of material fact remains in dispute and that the moving party is entitled to judgment as a matter of law; general allegations supported with conclusory statements fail to create issues of fact. 3. APPEAL AND ERROR; JUDGMENT. The supreme court is reluctant to affirm summary judgment in negligence cases because negligence is ordinarily a question of fact for the jury; however, a defendant is entitled to summary judgment if the defendant is able to show that one of the elements of the plaintiffs prima facie case is clearly lacking as a matter of law. 4. APPEAL AND ERROR. Because the question of whether the defendant owes the plaintiff a duty of care is a question of law, if the supreme court determines that no duty exists, it will affirm summary judgment. 5. INTOXICATING LIQUORS. Commercial liquor vendors, including hotel proprietors, cannot be held liable for damages related to any injuries caused by the intoxicated patron, which are sustained by either the intoxicated patron or a third party; this rule applies equally when the intoxicated patron is a minor. 6. TORTS. Individuals, drunk or sober, are responsible for their torts. 7. INNKEEPERS. When a hotel proprietor rightly evicts a disorderly, intoxicated patron, the hotel proprietor is not liable for any torts that an evicted patron commits after he or she is evicted that result in injury. 8. INNKEEPERS. When evicting a person from the premises, a hotel proprietor has a duty to act reasonably under the circumstances. 9. INNKEEPERS. So long as a proprietor does not use unreasonable force in evicting a patron, the hotel proprietor is not required to consider a patrons level of intoxication in order to prevent speculative injuries that could occur off the proprietors premises. 10. AUTOMOBILES; INNKEEPERS. Hotel did not have an affirmative duty to prevent injury to intoxicated 17-year-old minor subsequent to eviction from hotel premises, or to arrange safer transportation, prevent an intoxicated driver from driving, or prevent minor from riding with drunk driver, even though hotel security personnel asked men to leave hotel parking lot and may have known driver was intoxicated and could not safely drive, minor chose to ride with intoxicated driver. 11. INTOXICATING LIQUORS. A commercial alcohol vendor is not required to monitor the intoxication level or other factors related to patrons who elect to drive while intoxicated or who engage in other dangerous activity after they are evicted; therefore, absent a legal duty to protect patrons after a reasonable eviction, there can be no actionable claim for negligence. 12. INTOXICATING LIQUORS. When a hotel patron sustains injuries due to his intoxication, the proximate cause of those injuries is the consumption of liquor and not the sale.

580

Rodriguez v. Primadonna Company

[125 Nev.

13. APPEAL AND ERROR. The supreme court reviews an attorney fees decision for an abuse of discretion. 14. COSTS. District court did not abuse its discretion in refusing to award attorney fees to hotel as prevailing party in negligence action brought on behalf of 17-year-old minor for injuries sustained after being evicted from hotel, on the basis minors claim was brought or maintained without reasonable grounds; minors action presented a novel issue in state law concerning the potential expansion of common law liability to hotel proprietors for injuries sustained by an intoxicated minor guest after he was evicted from the premises. NRS 18.010(2)(b). 15. INDEMNITY. Hotel had no right to equitable indemnity for attorney fees and costs against mother of minor who sustained injuries in motor vehicle accident after he was evicted from hotel, for allegedly permitting her 17-year-old minor child to ride with an intoxicated driver, where mother had not been found liable for minors injuries, and there existed no nexus or special relationship between the parties that would have allowed the application of implied indemnification. 16. INDEMNITY. Noncontractual or implied indemnity is an equitable remedy that allows a defendant to seek recovery from other potential tortfeasors whose negligence primarily caused the injured partys harm. 17. INDEMNITY. Generally, the remedy of implied indemnity is available after the defendant has extinguished its own liability through settlement or by paying a judgment. 18. INDEMNITY. A claimant seeking equitable indemnity must plead and prove that: (1) it has discharged a legal obligation owed to a third party; (2) the party from whom it seeks liability also was liable to the third party; and (3) as between the claimant and the party from whom it seeks indemnity, the obligation ought to be discharged by the latter. 19. INDEMNITY. Implied indemnification is not a license to assert a cross-claim against any third party in hope of alleviating the burden of costs associated with defending litigation. 20. APPEAL AND ERROR. A district courts correct result will not be disturbed on appeal even though its decision was reached by relying on different grounds.

Before HARDESTY, C.J., PARRAGUIRRE and DOUGLAS, JJ. OPINION By the Court, HARDESTY, C.J.: Fabian Santiago, then 17 years old, and his two adult step-uncles Manuel and Daniel Garibay, were asked to leave a hotel property after an evening of drinking and disorderly behavior. Manuel drove the three from the hotel parking lot. Mistaking a frontage road for the freeway, Manuel rolled the vehicle while driving at approxi-

Oct. 2009]

Rodriguez v. Primadonna Company

581

mately 80 miles per hour. Fabian suffered severe spinal injuries in the accident. His guardian brought suit in district court alleging that the hotel acted negligently when it evicted Fabian and his stepuncles from the property by allowing or directing Fabian to be a passenger in a motorized vehicle driven by an intoxicated driver. In this appeal, we consider whether the district court properly entered summary judgment in favor of the respondent hotel corporations, dismissing appellants negligence claim. Appellants claim was grounded, in part, on allegations that respondents security personnel acted unreasonably when they evicted an intoxicated minor patron, who was injured in a motor vehicle accident. We conclude that the eviction was reasonable as a matter of law. We further conclude that Nevadas rejection of dram-shop liability applies to a claim for damages made by an intoxicated patron that occur after the patron is reasonably evicted. Second, in this appeal, we are asked to review whether the district court properly denied respondents motion for attorney fees and costs, which was grounded on an assertion that appellants negligence action was frivolous. According to respondents, the action was frivolous because it was barred by relevant legal authority. Because appellants claims are based upon a nonfrivolous argument for the extension of the law defining negligent eviction, we conclude that the district court properly denied respondents motion for attorney fees and costs. Finally, we are asked to determine whether a cross-claimant can maintain an implied indemnity claim when the underlying liability action is dismissed through summary judgment without a finding of fault against the proposed indemnitor. Having considered persuasive authority from other jurisdictions, we conclude that a prerequisite to recovery on an implied indemnity claim is a finding that the thirdparty defendant is liable for damages to the plaintiff on the underlying claim. Implied indemnity cannot be used to allow one innocent party to recover its defense costs from another innocent party. Accordingly, the district courts dismissal of the third-party claim was ultimately proper because no right to implied indemnity exists for defense fees and costs when the district court has dismissed the underlying claim but has not determined the fault of the third-party defendant. FACTS On March 6, 2005, Marlene Garibay, her 17-year-old son, Fabian Santiago, and Fabians adult step-uncles, Manuel and Daniel Garibay, checked into respondent/cross-appellant Primadonna Company, LLCs, hotel in Primm, Nevada. Fabian, Manuel, and Daniel spent the evening gambling and drinking alcoholic beverages on the Primadonnas premises. Daniel, who purchased the alcohol from the

582

Rodriguez v. Primadonna Company

[125 Nev.

hotels liquor store, shared it with Manuel and Fabian, who became intoxicated. Fabian, Manuel, and Daniel admit engaging in disruptive behavior on Primadonnas premises. In particular, Fabian, Manuel, and Daniel were involved in at least two altercations with other hotel guests, and otherwise disturbed guests by kicking and knocking on hotel room doors. During one of the altercations, Manuel punched another hotel guest in the face. Primadonnas security personnel intervened and, at the security officers request, Fabian, Manuel, and Daniel agreed to leave the hotel property. Three hotel security officers accompanied Fabian, Manuel, and Daniel to their room to gather their belongings. While waiting outside of the hotel room door while the three men had gathered their belongings, a security officer overheard one of the men tell a woman inside of the room that they had been asked to leave the hotel for fighting. Manuel testified that he told the woman, Marlene Garibay, that the three men were going to sleep in the car in the parking lot. Manuel also testified that Marlene had expressed her concern with his level of intoxication. She then exited the hotel room and spoke with the hotel security officers, telling them that Fabian, Manuel, and Daniel could not leave, and that they would stay in the room and sleep it off. Nevertheless, the hotel security officers escorted the three men to their vehicle, which was located in the hotels parking lot. According to Fabian, the three men were going to leave the hotel premises and sleep it off in the car. Similarly, the appellate record indicates that Manuel, who did not have a valid drivers license, did not intend to drive because he believed his bloodalcohol concentration level was higher than the legal limit. Once at their vehicle, however, Manuel told Daniel that he was sober enough to drive and sat in the drivers seat. After they were seated in the vehicle, hotel security officers approached, knocked on the window, and informed the young men that they had to leave Primadonnas parking lot. Consequently, Manuel drove the vehicle out of the Primadonnas parking lot. Mistaking a frontage road for the freeway entrance, Manuel rolled the vehicle while driving at approximately 80 miles per hour. Fabian was seriously injured in the accident, suffering extreme spinal injuries, leaving him a quadriplegic. PROCEDURAL HISTORY Fabians grandfather and guardian ad litem, appellant/crossrespondent Martin Rodriguez, filed a negligence action against Primadonna in both his individual capacity and on Fabians behalf, seeking damages for Fabians injuries, based on allegations that the

Oct. 2009]

Rodriguez v. Primadonna Company

583

Primadonnas staff acted unreasonably in evicting Fabian from the premises. During the underlying proceedings, Primadonna filed a third-party complaint against Marlene, Fabians mother, for indemnity, alleging that Primadonna was entitled to indemnification and contribution of the fees and costs incurred to defend the action because Marlene knowingly permitted Fabian, her minor child, to ride with an intoxicated driver who did not have a valid drivers license. After the close of discovery, Primadonna filed two summary judgment motions. In its first motion for summary judgment, Primadonna argued that it had a duty and a right to evict disruptive individuals from its premises. Primadonna also contended that even though Fabian was a minor and Manuel was intoxicated, it did not owe a duty to keep Fabian on the premises or to prevent Manuel from driving. Asserting that it did not require Fabian, Manuel, and Daniel to leave by driving their own car, Primadonna maintained that it was not liable for damages related to Fabians injuries. In opposition, Rodriguez argued, among other things, that the Primadonna was obligated to act reasonably when evicting Fabian, Manuel, and Daniel. And because the Primadonna directed or allowed Fabian into a vehicle with an intoxicated driver, Rodriguez argued that whether the hotel complied with this duty was a question of fact for the jury. The district court granted the motion for summary judgment, finding that Primadonna had the right and duty to evict Fabian, Manuel, and Daniel from the hotel premises and that Primadonna used reasonable force in effectuating the eviction. Because the district court entered summary judgment on Rodriguezs negligenteviction claim, it also dismissed as moot Primadonnas counterclaim for indemnity and contribution against Marlene. Therefore, no further claims remained for the district courts adjudication. As the prevailing party, Primadonna filed a motion for attorney fees and costs against Rodriguez, arguing that Rodriguez had brought and maintained a frivolous action. In particular, according to Primadonna, Rodriguez instituted and pursued the underlying action despite the absence of a legal duty owed to Fabian and despite clear law negating dram-shop liability in Nevada. Further, Primadonna pointed out that Rodriguez did not attempt to sue all potentially liable parties, but sued only Primadonna, the deep pocket defendant. Rodriguez opposed the motion, arguing that the action is not frivolous because there are multiple factual bases upon which to ground liability, and Primadonna erroneously classified the claim as one for dram-shop liability. Ultimately, the district court denied the

584

Rodriguez v. Primadonna Company

[125 Nev.

motion for attorney fees and costs, finding that the action was based on negligent eviction and not based on the dram-shop liability bar. The district court also found that no legal authority supported Primadonnas contention that the action was frivolous because Rodriguez chose to sue only Primadonna. Primadonna filed a second motion for summary judgment on its third-party claim for indemnity for its defense fees and costs against Marlene. Primadonna argued that Marlene had an affirmative duty to protect her child from harm and that she breached that duty when she knowingly allowed him to leave the hotel premises with a drunk driver who did not have a valid drivers license. The district court denied Primadonnas motion, finding that any claim for indemnity Primadonna had against Marlene was moot in light of the summary judgment entered in favor of Primadonna on Rodriguezs negligence claims. Rodriguez appeals as an individual and as the guardian ad litem of Fabian Santiago, challenging the summary judgment dismissing the negligence claims. Primadonna cross-appeals, challenging the district courts denial of its motion for attorney fees and costs against Rodriguez and the dismissal of its claims for indemnity and contribution from Marlene for defense fees and costs. DISCUSSION Standard of review
[Headnotes 1, 2]

We review orders granting summary judgment de novo. Wood v. Safeway, Inc., 121 Nev. 724, 729, 121 P.3d 1026, 1029 (2005). Summary judgment was appropriate if the pleadings and other evidence on file, viewed in a light most favorable to the nonmoving party, demonstrated that no genuine issue of material fact remained in dispute and that the moving party was entitled to judgment as a matter of law. Id. General allegations supported with conclusory statements fail to create issues of fact. Yeager v. Harrahs Club, Inc., 111 Nev. 830, 833, 897 P.2d 1093, 1094-95 (1995).
[Headnotes 3, 4]

This court is reluctant to affirm summary judgment in negligence cases because negligence is ordinarily a question of fact for the jury. Butler v. Bayer, 123 Nev. 450, 461, 168 P.3d 1055, 1063 (2007). However, a defendant is entitled to summary judgment if the defendant is able to show that one of the elements of the plaintiffs prima facie case is clearly lacking as a matter of law. Id. (quoting Scialabba v. Brandise Constr. Co., 112 Nev. 965, 968, 921 P.2d 928, 930 (1996)). Thus, because the question of whether the defendant owes the plaintiff a duty of care is a question of law, if this court determines that no duty exists, it will affirm summary judgment. Id.

Oct. 2009]

Rodriguez v. Primadonna Company

585

Primadonna is not liable for Fabians injuries on a theory of negligent eviction On appeal, Rodriguez argues that, as a hotel proprietor, Primadonna owed Fabian a duty to evict him from the premises in a manner reasonable under the circumstances. Thus, Rodriguez argues that the district court erred in entering summary judgment because a genuine issue of material fact exists as to whether Primadonna evicted Fabian in a manner that was reasonable in light of his intoxication and his step-uncles apparent intent to drive while intoxicated. Primadonna contends that it was entitled to evict Fabian and his step-uncles because of their disruptive behavior and that the method of eviction was reasonable. Therefore, the issue in this appeal is whether Primadonna owed an affirmative duty to ensure Fabians safety after the eviction process concluded.
[Headnotes 5, 6]

We begin by emphasizing that hotel proprietors have the statutory right to evict from the premises anyone who acts in a disorderly manner or who causes a public disturbance in or upon the premises. NRS 651.020.1 In addition, it is well settled in Nevada that commercial liquor vendors, including hotel proprietors, cannot be held liable for damages related to any injuries caused by the intoxicated patron, which are sustained by either the intoxicated patron or a third party. Hamm v. Carson City Nugget, Inc., 85 Nev. 99, 101, 450 P.2d 358, 359 (1969); Snyder v. Viani, 110 Nev. 1339, 1342-43, 885 P.2d 610, 612-13 (1994). This rule applies equally when the intoxicated patron is a minor. Hinegardner v. Marcor Resorts, 108 Nev. 1091, 1096, 844 P.2d 800, 803 (1992). In other words, Nevada subscribes to the rationale underlying the nonliability principlethat individuals, drunk or sober, are responsible for their torts. See id. at 1093, 844 P.2d at 802.
[Headnote 7]

Therefore, based on these principles, we conclude that when a hotel proprietor rightly evicts a disorderly, intoxicated patron, the hotel proprietor is not liable for any torts that an evicted patron commits after he or she is evicted that result in injury.
[Headnote 8]

Nevertheless, we acknowledge that when evicting a person from the premises, a proprietor has a duty to act reasonably under the circumstances. Billingsley v. Stockmens Hotel, 111 Nev. 1033, 1037, 901 P.2d 141, 144 (1995). In Billingsley, this court reversed the district courts grant of summary judgment after we concluded that a genuine issue of material fact existed as to whether the hotels se1 NRS 651.005 expands premises, as used in NRS 651.020, to include parking lots.

586

Rodriguez v. Primadonna Company

[125 Nev.

curity personnel acted reasonably in evicting the plaintiff, who was intoxicated and belligerent. 111 Nev. at 1037, 901 P.2d at 144. In that case, while being led by security personnel backwards by his lapels through the doors, the plaintiff stumbled, fell, and broke his ankle. Id. at 1035-36, 901 P.2d at 143. After the plaintiff stumbled, security personnel placed the patron in a choke hold. Id. at 103738, 901 P.2d at 144-45. The Billingsley court determined that the hotel owed a duty to the plaintiff to act reasonably when evicting a patron from the premises, and genuine issues of material facts existed as to whether the force used by the hotel to evict the patron was reasonable. Id. at 1038, 901 P.2d at 145.
[Headnote 9]

Today, however, we conclude that Billingsley is limited to its facts. Although a hotel proprietor has the duty to effectuate a reasonable eviction, the proprietor does not have the duty to prevent injuries caused by the intoxicated patron that are sustained either by the patron or by third parties after the eviction has been executed. To that end, and in accordance with the principles underlying Nevadas rejection of dram-shop liability, we conclude that so long as a proprietor does not use unreasonable force in evicting a patron, the hotel proprietor is not required to consider a patrons level of intoxication in order to prevent speculative injuries that could occur off the proprietors premises. See Mills v. Continental Parking Corp., 86 Nev. 724, 725-26, 475 P.2d 673, 674 (1970) (applying the policies underlying the rejection of dram-shop liability to conclude that imposing civil liability on a parking garage attendant for failing to prevent an intoxicated driver from leaving the premises would lead to unimaginable consequences). Other jurisdictions that reject dram-shop liability have come to similar conclusions when a proprietor evicts a patron for disruptive behavior and the patron later sustains injuries off the proprietors premises. See McCall v. Villa Pizza, Inc., 636 A.2d 912, 91215 (Del. 1994); DeBolt v. Kragen Auto Supply, Inc., 227 Cal. Rptr. 258, 260-61 (Ct. App. 1986). The Delaware Supreme Court, in McCall, Inc., declined to allow the appellant to circumvent the absence of dram-shop liability by alleging negligence for the proprietors failure to provide transportation to an evicted patron, despite the proprietors knowledge that the patron was highly intoxicated and would attempt to operate a motor vehicle. 636 A.2d at 915. Although the plaintiff alleged that the proprietors negligence was not related to its serving of alcohol, but rather, its removal of him from the premises without providing safe transportation, the McCall court stressed that the proprietor did not have the duty to prevent injury that was sustained off the proprietors premises. Id. at 914. Similarly, a California Court of Appeal affirmed a judgment of dismissal by concluding that a social host did not have a duty to pro-

Oct. 2009]

Rodriguez v. Primadonna Company

587

vide alternative and safer means of transportation to an intoxicated social guest who was ejected from the premises. DeBolt, 227 Cal. Rptr. at 260-61. In DeBolt, after a social host ordered an intoxicated and disorderly guest to leave a party, the guest collided with a motorcyclist, killing the driver. Id. at 258-59. The heirs of the deceased brought a negligence action against the social host, alleging that the host was liable for demanding that the guest leave the premises knowing that the guest was intoxicated and would not be able to safely drive. The DeBolt court reasoned that imposing liability on the host would defeat the clear common law rules immunizing social hosts from liability for the consequences of serving alcohol. Id. at 261. And the court recognized that if it imposed liability, it would open the doors for plaintiffs to draft complaints for injuries and deaths that are ultimately caused by the consumption of alcohol. Id.2 We conclude that the reasoning expressed in DeBolt is persuasive because it is consistent with this courts jurisprudence in Hamm, Snyder, and Hinegardner.
[Headnote 10]

In this case, Primadonna had the statutory right to evict Fabian and the other young men from the premises based on their disorderly conduct. However, because Nevada commercial alcohol vendors are not liable for injuries sustained by intoxicated patrons, Primadonna did not have a duty to ensure safe transportation for the young men, keep Fabian on the premises, or otherwise prevent injuries subsequent to their eviction. When Primadonna security officers asked the three men to leave the premises, the three men agreed, and, in ensuring that the men complied, the security officers did not act forcefully or personally cause injury to the men during the eviction. Although the Primadonna asked the men to leave while the men were sitting in their vehicle, Manuel drove at his own election, and likewise, Fabian chose to drive with Manuel. At the moment the men left the parking lot, the eviction had been effectuated, and the Primadonna had no further duty to ensure Fabians safety. Therefore, although the Primadonna may have known that Fabians step-uncle was intoxicated and could not safely drive, we conclude, as a matter of law, that Primadonna did not have the duty to arrange safer transportation, prevent an intoxicated driver from driving, or prevent Fabian, a passenger, from riding with a drunk driver.
[Headnotes 11, 12]

In so concluding, we note that it would be contrary to existing authority for this court to hold otherwise and require a proprietor to monitor the intoxication level or other factors related to patrons who elect to drive while intoxicated or who engage in other dangerous activity after they are evicted. Therefore, absent a legal duty to pro2 Our reliance on DeBolt here does not constitute an interpretation of NRS 41.1305 and should not be relied upon as such.

588

Rodriguez v. Primadonna Company

[125 Nev.

tect patrons after a reasonable eviction, there can be no actionable claim for negligence.3 Merluzzi v. Larson, 96 Nev. 409, 412-13, 610 P.2d 739, 741-42 (1980), overruled on other grounds by Smith v. Clough, 106 Nev. 568, 570, 796 P.2d 592, 594 (1990). Therefore, we perceive no error in the district courts order granting summary judgment in favor of Primadonna. Primadonna is not entitled to attorney fees from Rodriguez Primadonna argues that the district court abused its discretion by denying its motion for attorney fees and costs against Rodriguez. According to Primadonna, Rodriguezs action was frivolous because he sued only the deep pocket defendant but did not file suit against Fabians mother (Marlene) or Manuel, the intoxicated driver. Primadonna further contends that Rodriguez pursued a frivolous claim in light of clear statutory law permitting the eviction of disruptive patrons and caselaw negating liability for commercial vendors of liquor. We disagree with Primadonna.
[Headnote 13]

This court reviews an attorney fees decision for an abuse of discretion. Baldonado v. Wynn Las Vegas, 124 Nev. 951, 967, 194 P.3d 96, 106 (2008). A district court may award attorney fees to a prevailing party when it finds that the opposing party brought or maintained a claim without reasonable grounds. NRS 18.010(2)(b). For purposes of NRS 18.010(2)(b), a claim is frivolous or groundless if there is no credible evidence to support it. Semenza v. Caughlin Crafted Homes, 111 Nev. 1089, 1095, 901 P.2d 684, 687 (1995); Allianz Ins. Co. v. Gagnon, 109 Nev. 990, 996, 860 P.2d 720, 724 (1993).
[Headnote 14]

Initially, Primadonna cites no authority and we have found none to support its argument that a litigants tactical decision to sue one alleged tortfeasor and not others renders Rodriguezs claim frivolous. Under NRS 18.010(2)(b), we consider whether the claim pursued by the losing party against the prevailing party was based on reasonable grounds. Here, we conclude that Rodriguezs civil action presented a novel issue in Nevada law concerning the potential expansion of common law liability to hotel proprietors for injuries sustained by an intoxicated minor guest after he is evicted from the premises. Therefore,
3 In addition, Primadonnas sale of liquor to Fabian, Manuel, or Daniel does not constitute the proximate cause of Fabians injuries. It is well-settled that when a patron sustains injuries due to his intoxication, the proximate cause of those injuries is the consumption of liquor and not the sale. Hamm v. Carson City Nugget, Inc., 85 Nev. 99, 101, 450 P.2d 358, 359 (1969).

Oct. 2009]

Rodriguez v. Primadonna Company

589

we conclude that the district court properly denied Primadonnas motion for attorney fees. Primadonna is not entitled to indemnification from Marlene because the potential indemnitors liability has not been established
[Headnote 15]

Primadonna also asserts that the district court erred as a matter of law by denying its summary judgment motion in the indemnity and contribution action it filed against Marlene, a third-party defendant. The district court determined that the indemnity action was moot because summary judgment was previously granted on the underlying negligence claim and Primadonna was not required to make a payment for damages. Primadonna contends that it is entitled to indemnification and contribution for defense fees and costs because Marlene knowingly permitted Fabian, her minor child, to ride with an intoxicated driver who did not have a valid drivers license. Thus, according to Primadonna, Marlene is primarily responsible for Fabians injuries and should be required to reimburse Primadonna for attorney fees and costs associated with defending Rodriguezs action. Although Marlene did not file a brief in this cross-appeal, Rodriguez argues that because the district court granted summary judgment to Primadonna, it has no liability for damages and cannot seek indemnification. The question of whether a party for whom summary judgment has been entered may be entitled to indemnification for attorney fees and costs for defending the action is an issue of first impression in Nevada.
[Headnote 16]

Noncontractual or implied indemnity is an equitable remedy that allows a defendant to seek recovery from other potential tortfeasors whose negligence primarily caused the injured partys harm. Doctors Company v. Vincent, 120 Nev. 644, 650, 98 P.3d 681, 686 (2004). At the heart of the doctrine is the premise that the person seeking to assert implied indemnitythe indemniteehas been required to pay damages caused by a third partythe indemnitor. Harvest Capital v. WV Dept. of Energy, 560 S.E.2d 509, 513 (W. Va. 2002). Implied indemnification has been developed by the courts to address the unfairness which results when one party, who has committed no independent wrong, is held liable for the loss of a plaintiff caused by another party. Id. at 512.
[Headnotes 17, 18]

Generally, the remedy is available after the defendant has extinguished its own liability through settlement or by paying a judgment.

590

Rodriguez v. Primadonna Company

[125 Nev.

Doctors Company, 120 Nev. at 651, 98 P.3d at 686. This court has stated that a cause of action for indemnity . . . accrues when payment has been made. Aetna Casualty & Surety v. Aztec Plumbing, 106 Nev. 474, 476, 796 P.2d 227, 229 (1990) (citing Southern Maryland Oil Co. v. Texas Co., 203 F. Supp. 449, 452 (D. Md. 1962)). A claimant seeking equitable indemnity must plead and prove that: (1) it has discharged a legal obligation owed to a third party; (2) the party from whom it seeks liability also was liable to the third party; and (3) as between the claimant and the party from whom it seeks indemnity, the obligation ought to be discharged by the latter. 41 Am. Jur. 2d Indemnity 20 (2005). We previously recognized that there is a split of authority whether a party entitled to indemnity may also recover from the indemnitor reasonable attorney fees and costs incurred in defending the primary tort action. Piedmont Equip. Co. v. Eberhand Mfg., 99 Nev. 523, 526, 665 P.2d 256, 258 (1983). We determined that a party is entitled to recover through indemnification at least some of the attorney fees and court costs incurred in defending an action. Id. at 529, 665 P.2d at 260. However, the right to fees and costs remains limited. Id. We restricted the recovery of attorney fees and costs through indemnification to those fees and expenses attributable to the making of defenses which are not primarily directed toward rebutting charges of active negligence. Id. Additionally, we also required some nexus or relationship between the indemnitee and indemnitor. Id. at 528, 665 P.2d. at 259. We adopted the warning found in Pender v. Skillcraft Industries, Inc., 358 So. 2d 45, 47 (Fla. Dist. Ct. App. 1978), that implied indemnification should not be construed as permission to open a floodgate for cross-claims seeking indemnification where there is no connection between the cross-claimant and the party from whom indemnification is sought. Piedmont Equip. Co., 99 Nev. at 527-28, 665 P.2d at 259 (quoting Pender, 358 So. 2d at 47). Our previous opinions concerning implied indemnification addressed appeals in which a trial had been conducted on the merits and apportioned liability to each party. However, we have not addressed the issue of indemnity when the underlying liability claim is resolved through summary judgment without a finding of fault on behalf of the third-party defendant from whom the claimant seeks indemnity. On this point, the West Virginia Supreme Court has provided persuasive reasoning that comports with our general authority concerning implied indemnity. In particular, the West Virginia Supreme Court, in Harvest Capital, held that a claimant is entitled to indemnity from a third-party defendant for attorney fees and costs only after it is established that the plaintiff in the original action has sustained an injury for which the third-party defendant is responsible. 560 S.E.2d at 514. [T]he fact that the party charged may be in-

Oct. 2009]

Rodriguez v. Primadonna Company

591

nocent of the claimed wrong and can successfully defend against such a suit does not entitle [the party] to pass the burden on to some equally innocent [ ] party. Id. (quoting Bettilyon Const. Co. v. State Road Commission, 437 P.2d 449, 450 (Utah 1968)). Thus, to prevent one innocent party from passing its burden on to an equally innocent party, a prerequisite to the recovery of attorney fees from a potential indemnitor is a finding of liability to the plaintiff by the potential indemnitor on the underlying claim. Harvest Capital, 560 S.E.2d at 514. Therefore, when a district court has disposed of the underlying liability claim, but has not established that the potential indemnitor was at fault, no right to equitable indemnity exists. Id. In this case, the district court entered summary judgment in favor of the defendant, Primadonna, on the underlying negligence claim and subsequently concluded that the indemnity action was rendered moot by the termination of the underlying claim. Although we agree with the ultimate decision of the district court and conclude that the indemnity action should have been dismissed, we do not agree that it was rendered moot simply by granting summary judgment on the underlying negligence claim. Rather, the indemnity claim should have been dismissed because Marlene has not been found liable for the injuries sustained by Fabian. It is an established principle of implied indemnity that the potential indemnitor must be liable for the injuries to the plaintiff. Id.; 41 Am. Jur. 2d Indemnity 20 (2005). We see no compelling reason to transfer the costs of defending the claim from one innocent party to another without an adjudication of liability against the indemnitor. Harvest Capital, 560 S.E.2d at 514.
[Headnote 19]

Furthermore, there exists no nexus or special relationship between the parties that would allow the application of implied indemnification in this case. Piedmont Equip. Co., 99 Nev. at 528, 665 P.2d at 259. Implied indemnification is not a license to assert a cross-claim against any third party in hope of alleviating the burden of costs associated with defending litigation. Id. at 527-28, 665 P.2d at 259. Primadonna failed to demonstrate any nexus or relationship with Marlene, and we see none.
[Headnote 20]

We therefore conclude that the district courts order denying the motion for summary judgment was correct although not because the motion was moot. A district courts correct result will not be disturbed on appeal even though its decision was reached by relying on different grounds. St. James Village, Inc. v. Cunningham, 125 Nev. 211, 221, 210 P.3d 190, 196 (2009); Hotel Riviera, Inc. v. Torres, 97 Nev. 399, 403, 632 P.2d 1155, 1158 (1981). Rather, we conclude that the motion for summary judgment was properly denied in this case because implied indemnification may not be asserted without determined liability of the third party to the injured party and the

592

Wyman v. State

[125 Nev.

showing of a nexus or special relationship between the indemnitee and proposed indemnitor. Therefore, we conclude that the district courts denial of Primadonnas motion for summary judgment was proper. CONCLUSION In accordance with the common law rule that a proprietors sale of alcohol is not the proximate cause of an intoxicated plaintiffs injuries that are sustained after a rightful and reasonable eviction, we conclude that a proprietor does not, as a matter of law, have an affirmative duty to prevent injury to an intoxicated patron subsequent to an eviction. Therefore, we affirm the district courts summary judgment in favor of Primadonna on Rodriguezs negligence claim. Next, because we conclude that Rodriguezs claim was not frivolous, we affirm the district courts decision denying Primadonnas motion to recover attorney fees and costs against Rodriguez. And finally, although we conclude that Primadonnas motion for summary judgment for indemnification against Marlene is not moot, we affirm the district courts dismissal of the motion because implied indemnity is not applicable to this case. PARRAGUIRRE and DOUGLAS, JJ., concur.

CATHERINE WYMAN, APPELLANT, v. THE STATE OF NEV ADA, RESPONDENT.

No. 50218 October 8, 2009 217 P.3d 572

Appeal from a judgment of conviction, pursuant to a jury verdict, of second-degree murder. Second Judicial District Court, Washoe County; Jerome Polaha, Judge. The supreme court, HARDESTY, C.J., held that: (1) pre-indictment delay of 32 years did not violate defendants due process rights, but (2) defendant was entitled to a certificate of materiality to obtain the States primary witnesss out-of-state mental health records, and (3) defendant was prejudiced by trial courts denial of certificate. Reversed and remanded. Dennis E. Widdis, Reno; Martin H. Wiener, Reno, for Appellant. Catherine Cortez Masto, Attorney General, Carson City; Richard A. Gammick, District Attorney, and Joseph R. Plater, Deputy District Attorney, Washoe County, for Respondent.

Oct. 2009]

Wyman v. State

593

1. CRIMINAL LAW. Supreme court will review a district courts denial of a motion to dismiss based on pre-indictment delay for an abuse of discretion and will reverse a district courts denial of a defendants request that the charges against him or her be dismissed based on pre-indictment delay when the district courts decision is arbitrary or capricious or if it exceeds the bounds of law or reason. 2. CONSTITUTIONAL LAW. Due process protects a defendant from lengthy delays between the commission of an offense and the initiation of prosecution. Const. art. 1, 8(5); U.S. CONST. amend. 14. 3. CONSTITUTIONAL LAW. To succeed on a due process challenge to pre-indictment delay, the accused must make two requisite showings: (1) that he or she suffered actual, nonspeculative prejudice from the delay; and (2) that the prosecution intentionally delayed bringing the charges in order to gain a tactical advantage over the accused, or that the prosecution delayed in bad faith. Const. art. 1, 8(5); U.S. CONST. amend. 14. 4. CONSTITUTIONAL LAW; INDICTMENT AND INFORMATION. Pre-indictment delay of 32 years, between time of alleged murder and time defendant was charged, did not violate defendants due process rights, since defendant failed to show that she was prejudiced by the delay or that State intentionally delayed filing the complaint to gain a tactical advantage; even though some witnesses were difficult to locate and important neighbors, family members, and the coroner at time of victims death had since died, defendant failed to specifically allege what any of the potential witnesses would have testified, and it was likely that the State suffered from the delay as well as defendant. Const. art. 1, 8(5); U.S. CONST. amend. 14. 5. CONSTITUTIONAL LAW. When a defendant claiming a due process violation arising from preindictment delay fails to make a specific showing as to what a lost or deceased witness would have said, any argument of prejudice is pure conjecture. Const. art. 1, 8(5); U.S. CONST. amend. 14. 6. CONSTITUTIONAL LAW. Allegations of prejudice arising from pre-indictment delay, made by a defendant claiming that the delay violated due process, must be supported by non-speculative proof. Const. art. 1, 8(5); U.S. CONST. amend. 14. 7. WITNESSES. Under the Sixth Amendment to the United States Constitution, a criminal defendant is entitled to compel the production of witnesses to testify on his or her behalf. U.S. CONST. amend. 6. 8. WITNESSES. Due to jurisdictional limitations, the Legislature enacted the Uniform Act to Secure the Attendance of Witnesses From Without a State in Criminal Proceedings to authorize courts in state to subpoena a citizen of another state for purposes of testifying in a criminal matter. NRS 174.395 et seq. 9. WITNESSES. Under the Uniform Act to Secure the Attendance of Witnesses From Without a State in Criminal Proceedings, in order to be entitled to a certificate to subpoena a citizen of another state for purposes of testifying in a criminal matter, the moving party must demonstrate that the witness is material and that the moving party would be prejudiced absent the courts issuance of the certificate. NRS 174.395 et seq. 10. CRIMINAL LAW. The supreme court reviews a district courts refusal to issue a certificate summoning the attendance of an out-of-state witness for an abuse of discretion. NRS 174.395 et seq.

594

Wyman v. State

[125 Nev.

11. WITNESSES. Uniform Act to Secure the Attendance of Witnesses From Without a State in Criminal Proceedings applies to subpoenas duces tecum that include an ancillary request for the appearance of an out-of-state witness. NRS 174.395 et seq. 12. CRIMINAL LAW. To determine whether a district court abused its discretion by denying a request for a certificate of materiality pursuant to Uniform Act to Secure the Attendance of Witnesses From Without a State in Criminal Proceedings, a twofold inquiry is used: first, the supreme court must determine whether substantial evidence supports the district courts findings that the moving party failed to demonstrate that the evidence is material to the defendants case; second, the supreme court must determine whether substantial evidence supports the district courts findings that the moving party failed to demonstrate that the absence of the evidence prejudiced the defense. NRS 174.395 et seq. 13. WITNESSES. Term material, as used in section of Uniform Act to Secure the Attendance of Witnesses From Without a State in Criminal Proceedings providing that a person may compel the attendance of an out-of-state witness if they are a material witness in a prosecution in state, includes evidence that has some logical connection with the facts of consequence or the issues presented in the case. NRS 174.425(1). 14. STATUTES. When supreme court interprets the plain language of a statute, the court presumes that the Legislature intended to use words in their usual and natural meaning. 15. STATUTES. When the language of a statute is plain and unambiguous, such that it is capable of only one meaning, supreme court should not construe that statute otherwise. 16. WITNESSES. Defendant in murder prosecution was entitled to a certificate of materiality, pursuant to Uniform Act to Secure the Attendance of Witnesses From Without a State in Criminal Proceedings to obtain the States primary witnesss out-of-state mental health records, since records had a logical connection to facts of consequence and issues presented in case and thus were material; witness raised her accusations while in treatment for mental health problems approximately 30 years after alleged murder and intertwined her accusations with her mental health issues and treatment to such an extent that her mental health became logically connected with her accusations. NRS 174.425(1). 17. CRIMINAL LAW. Defendant was prejudiced by trial courts denial of certificate of materiality, pursuant to Uniform Act to Secure the Attendance of Witnesses From Without a State in Criminal Proceedings to obtain the States primary witnesss out-of-state mental health records; witness was only person to name defendant as responsible for death occurring 32 years previously, first made her accusations during psychiatric treatment, recalled other memories during a session with her therapist subsequent to rendering the initial allegations, continued to meet with a therapist once per week and a psychiatrist once per month in order to be a strong witness for State, suffered from major depression, attempted suicide in past, and had a mental breakdown the same year that she made the accusations against defendant. NRS 174.425(1).

Oct. 2009]

Wyman v. State

595

18. CRIMINAL LAW. A district courts exclusion of evidence will be deemed prejudicial if there is a reasonable probability that the evidence would have affected the outcome of the trial.

Before the Court EN BANC. OPINION By the Court, HARDESTY, C.J.: In 2007, a jury convicted appellant Catherine Wyman of seconddegree murder for the 1974 killing of her three-year-old adopted son. In this opinion, we address two of the issues that Wyman presents on appeal. First, we address Wymans challenge to the district courts denial of her motion to dismiss the complaint based on the preindictment delay. After establishing that this court will review a district courts denial of a motion to dismiss based on preindictment delay for an abuse of discretion, we conclude that the district court did not abuse its discretion by refusing to dismiss the complaint because Wyman failed to demonstrate that she was prejudiced by the delay and that the State intentionally delayed filing the complaint to gain a tactical advantage over Wyman. Hence, we conclude that this challenge does not warrant reversal. Second, we consider Wymans challenge to the district courts denial of her request for a certificate of materiality to obtain the outof-state mental health records of the States primary witness, under Nevadas Uniform Act to Secure the Attendance of Witnesses From Without a State in Criminal Proceedings, codified in NRS 174.395 through 174.445. In concluding that Nevadas Uniform Act applies to subpoenas duces tecum for material books and records that include an ancillary request for the appearance of an out-of-state witness, we further conclude that the term material, as used in NRS 174.425(1) (which authorizes a criminal defendant in one jurisdiction to subpoena a material witness from another jurisdiction to testify in a criminal matter), refers to evidence that has some logical connection with the facts of consequence or the issues presented in the case. Turning to the merits of Wymans challenge, we conclude that the district court abused its discretion by denying Wymans request for a certificate of materiality to obtain the States primary witnesss out-of-state mental health records. Because we conclude that this error was not harmless, we reverse Wymans judgment of conviction.1
1 In addition to the specific challenges addressed in this opinion, Wyman also raises separate challenges relating to the admission of her statements to police and the admission of witness testimony regarding prior statements that

596

Wyman v. State

[125 Nev.

FACTS AND PROCEDURAL BACKGROUND In the early evening of August 10, 1974, Wyman brought her three-and-one-half-year-old adopted son, J.W., to St. Marys Hospital in Reno, Nevada. Wyman told doctors that J.W. had fallen out of a lawn chair that morning, striking his head on the sidewalk, and that he complained of abdominal pain and became lethargic thereafter. At the hospital, J.W. was examined by Dr. William Buntain, a pediatric surgeon. The examination revealed that J.W. had multiple bruises throughout his body, including on his forehead, chin, face, chest, legs, back, abdomen, and genitalsall of which were at different healing stages. J.W. also had a head concussion and scratch marks on his neck. Dr. Buntain inserted a catheter in J.W.s neck area in order to rehydrate him, whereupon J.W. ceased breathing and failed to respond to two epinephrine injections. After 20 minutes of trying to resuscitate J.W., doctors terminated their efforts as J.W. was unresponsive. Dr. Donald Olson, a neurosurgeon who also examined J.W., suspected child abuse, noting that he would recommend further photographs for documentation of these multiple bruises and would significantly doubt that this was a minor injury, as suggested by the parents. Also suspicious of child abuse, Dr. Buntain requested that the police be contacted and instructed that the Washoe County coroner perform an autopsy to determine the precise cause of death. The pathologists findings revealed that J.W. had died from a transection of the jejunum with generalized peritonitis, meaning, a part of J.W.s small intestine was completely transected so that the contents of J.W.s small bowel, liver, gallbladder, and stomach had emptied into his abdomen. The coroner who performed the examination in 1974 concluded that J.W.s death was the result of an accidental fall from a lawn chair. However, the Washoe County coroner who served from 1979 to 2006 did not agree with those findings, stating, The mode of injury is inconsistent with the [accidental fall from a lawn chair] finding. Neither Wyman nor anyone in her family was prosecuted for J.W.s death at that time. Over 30 years later, on March 10, 2005, Julie Bader-Dunn, Wymans adult daughter, telephoned the Sparks Police Department (Sparks P.D.) alleging that Wyman had murdered J.W. Dunn reported to police that Wyman severely abused J.W. and that Dunn
Wyman made. Additionally, Wyman challenges the district courts denial of her motion to continue trial and rejection of her proffered flight instruction. Because we reverse Wymans judgment of conviction based on the district courts refusal to issue the certificate of materiality, we do not address Wymans other challenges.

Oct. 2009]

Wyman v. State

597

had witnessed Wyman kicking J.W. in the stomach on the morning of his death. Dunn explained to police that she had originally revealed Wymans killing of J.W. when she commenced weekly treatment with a marriage and family therapist in 1995 to address marital problems. In the course of making her allegations to police, Dunn relayed that she meets with a psychiatrist once a month who prescribes her medication. Dunn also stated that she has attempted to commit suicide several times since 1974; one attempt included her consumption of Drano, a household cleaning product. Dunn further informed police that she had a mental breakdown in 2005 and that she was currently consulting a therapist once per week, in addition to the monthly psychiatrist meetings, in order to deal with all the issues and so that [she is] a strong witness for the State. Throughout her contact with police, Dunn relayed additional information, including a memory that she recalled during a more recent session with her therapist. Dunn gave her therapist permission to speak with detectives, reasoning, [the therapist] has been treating me for the major depression and guilt that I have carried for all these years. One year after Dunn made her initial accusations to police, detectives from Sparks P.D. arrested Wyman. On May 30, 2006, approximately 32 years after J.W.s death, a criminal complaint was filed against Wyman. The following month, Wyman was charged, via indictment, with one count of open murder, and a second count of child abuse for the 1974 death of J.W. The child abuse charge was subsequently dropped. Prior to trial, Wyman filed a motion to dismiss the complaint due to the pre-indictment delay of 32 years. Wyman maintained that because the State failed to indict her in 1974 when J.W. died, and because there is no new forensic evidence in the case, the State did not have a justifiable reason for the delay. The district court denied the motion, concluding that both the State and the defense were prejudiced by the delay. While the court noted that witnesses might have died or moved away after 32 years, the court concluded that Wyman failed to demonstrate that the State lost evidence or intentionally delayed the prosecution in order to gain a tactical advantage. Due to the lack of prejudice suffered by Wyman and the lack of intent to delay by the State, the district court denied Wymans motion. In addition, at various times during the proceedings, Wyman moved the district court for a certificate of materiality, under Nevadas Uniform Act to Secure the Attendance of Witnesses From Without a State in Criminal Proceedings, to obtain evidence that was located in California. Wyman sought the certificate in order to obtain Dunns mental health records that were kept in California, where Dunns marriage and family therapist and psychiatrist were

598

Wyman v. State

[125 Nev.

located. Wyman argued that because Dunn was the States primary witness, the out-of-state evidence was material to her ability to refute Dunns allegations. In making her materiality argument, Wyman emphasized that Dunn was the States only witness who identified Wyman as being responsible for J.W.s death. For her proffers, Wyman directed the district court to the various statements that Dunn made to police concerning her mental health issues and treatment and the fact that Dunns allegations first transpired during sessions with her therapist. As evidenced by Dunns own statements, Wyman argued, Dunn intertwined the allegations with her treatment, therefore rendering the status of Dunns mental health material. And since Wyman was otherwise unable to obtain Dunns mental health information, Wyman argued that she was prejudiced because she was unable to defend against the States allegations. The district court denied the motions, concluding that Wyman failed to demonstrate with sufficient particularity that Dunns out-of-state mental health records would produce any information that would prove to be helpful to her case and that her defense would be prejudiced without them.2 On appeal, Wyman challenges the district courts denial of her motion to dismiss the complaint for pre-indictment delay and the denial of her request for a certificate of materiality to obtain Dunns mental health records from California. DISCUSSION In this opinion, we address two of the issues that Wyman raises on appeal. First, we address Wymans challenge to the district courts denial of her motion to dismiss the complaint based on the preindictment delay. Initially, we conclude that the court will review challenges to pre-indictment delay for an abuse of discretion. We conclude that because Wyman failed to demonstrate with adequate specificity that she was prejudiced by the delay and that the State intentionally delayed filing the complaint to gain a tactical advantage over Wyman, the district court did not abuse its discretion by refusing to dismiss the complaint. Therefore, we conclude that this challenge does not warrant reversal. Second, we consider Wymans challenge to the district courts denial of her request for a certificate of materiality to obtain the outof-state mental health records of the States primary witness, under Nevadas Uniform Act to Secure the Attendance of Witnesses From
2 Wyman also sought a certificate of materiality to obtain Dunns prescription medication records, which the district court initially denied. However, after Dunn testified for the State, the district court reconsidered its previous ruling and granted Wymans request for that certificate, explaining that Dunns testimony was singular and her demeanor warranted further investigation, stating, [The court] saw her testify. There was something going on there. And [the court] will grant it to that extent.

Oct. 2009]

Wyman v. State

599

Without a State in Criminal Proceedings, codified in NRS 174.395 through 174.445. Prior to turning to the merits of Wymans challenge, however, we must determine whether Nevadas Uniform Act, which authorizes a criminal defendant in one jurisdiction to subpoena a material witness from another jurisdiction to testify in a criminal matter, extends to subpoenas duces tecum for material out-of-state books and records. We continue to follow the holding in Atlantic Commercial v. Boyles, 103 Nev. 35, 732 P.2d 1360 (1987), abrogated on other grounds by Executive Mgmt. v. Ticor Title Ins. Co., 118 Nev. 46, 38 P.3d 872 (2002), and conclude that Nevadas Uniform Act applies to subpoenas duces tecum that include an ancillary request for the appearance of an out-of-state witness. Having concluded that Nevadas Uniform Act extends to subpoenas duces tecum that are accompanied by an ancillary request for the appearance of an out-of-state witness, we must next determine the meaning of the term material as used in Nevadas Uniform Act, specifically NRS 174.425(1) (which provides that a person in this State may compel the attendance of an out-of-state witness if they are a material witness in a prosecution pending in a court of record in this State), in relation to out-of-state evidence requested in a subpoena duces tecum. After considering the parties arguments regarding the meaning of the term material for purposes of Nevadas Uniform Act, we determine that the rules of statutory interpretation are the proper mechanisms by which to resolve the issue. As dictated by those rules, we conclude that the term material, as used in Nevadas Uniform Act, has a plain meaning, which includes evidence that has some logical connection with the facts of consequence or the issues presented in the case. Turning to the merits of Wymans challenge to the district courts denial of her request for a certificate of materiality, we determine that substantial evidence does not support the district courts findings. Therefore, we conclude that the district court abused its discretion by denying Wymans request for a certificate of materiality to obtain the States primary witnesss out-of-state mental health records. Because we conclude that this error was not harmless, we reverse Wymans judgment of conviction. We address each of Wymans challenges below in turn. Pre-indictment delay of 32 years Wyman challenges the district courts denial of her motion to dismiss the complaint based on the pre-indictment delay of 32 years. She argues that the delay hindered her ability to defend against the charges because evidence that bore upon the existence of the crime and the identity of possible perpetrators was lost, thus violating her due process rights. We reject Wymans assignment of error.

600

Wyman v. State Standard of review

[125 Nev.

[Headnote 1]

This court has not expressly stated the applicable standard of review when considering a district courts denial of a defendants motion to dismiss a complaint based on pre-indictment delay. Some jurisdictions have treated the issue of pre-indictment delay as a mixed question of law and fact, determining that whether a defendants due process rights are violated is a question of law, but the lower courts factual findings are generally binding on appeal. See, e.g., State v. Knickerbocker, 880 A.2d 419, 424 (N.H. 2005); State v. Williams, 125 P.3d 93, 96 (Or. Ct. App. 2005); State v. Lee, 602 S.E.2d 113, 117 (S.C. Ct. App. 2004). Other jurisdictions, including the United States Court of Appeals for the Ninth Circuit, have adopted an abuse of discretion standard in reviewing pre-indictment delay challenges. See, e.g., U.S. v. Corona-Verbera, 509 F.3d 1105, 1112 (9th Cir. 2007); State v. Gonzales, 156 P.3d 407, 411 (Alaska 2007); People v. Morris, 756 P.2d 843, 866 (Cal. 1988), disapproved on other grounds by In re Sassounian, 887 P.2d 527, 532 n.5 (Cal. 1995); People v. Herndon, 633 N.W.2d 376, 391 (Mich. Ct. App. 2001). After examining the alternative approaches to the issue, we are persuaded that the United States Court of Appeals for the Ninth Circuit and similar jurisdictions employ the better approach primarily because the test for analyzing preindictment delay challenges is factually intense. See Jones v. State, 96 Nev. 240, 242, 607 P.2d 116, 117 (1980). Accordingly, we adopt an abuse of discretion standard of review. Under this standard, we will reverse a district courts denial of a defendants request that the charges against him or her be dismissed based on pre-indictment delay when the district courts decision is arbitrary or capricious or if it exceeds the bounds of law or reason. Crawford v. State, 121 Nev. 744, 748, 121 P.3d 582, 585 (2005) (quoting Jackson v. State, 117 Nev. 116, 120, 17 P.3d 998, 1000 (2001)). Two-prong test for pre-indictment delay challenges
[Headnotes 2, 3]

A challenge by which a defendant seeks to have the complaint dismissed due to pre-indictment delay is rooted in the Due Process Clause of the Fourteenth Amendment, and Article 1, Section 8(5) of the Nevada Constitution. This constitutional guarantee protects a defendant from lengthy delay[s] between the commission of an offense and the initiation of prosecution.3 United States v. Lovasco,
3 Generally, any delay between the commission of an offense and an indictment is limited by statutes of limitations. United States v. Lovasco, 431 U.S. 783, 789 (1977); Jones v. State, 96 Nev. 240, 241, 607 P.2d 116, 117 (1980). However, murder does not have an attendant statute of limitations. Therefore, the Due Process Clause is not all-inclusive of a defendants rights, and courts must apply a two-prong test. Jones, 96 Nev. at 242, 607 P.2d at 117.

Oct. 2009]

Wyman v. State

601

431 U.S. 783, 784 (1977). To succeed on a due process challenge to pre-indictment delay, the accused must make two requisite showings: (1) that he or she suffered actual, nonspeculative prejudice from the delay; and (2) that the prosecution intentionally delayed bringing the charges in order to gain a tactical advantage over the accused, or that the prosecution delayed in bad faith. Id.; U.S. v. DeGeorge, 380 F.3d 1203, 1210-11 (9th Cir. 2004).
[Headnote 4]

With respect to the first required showing, Wyman argues that she suffered prejudice because some witnesses are difficult to locate, and important neighbors, family members, and the coroner in 1974 are now deceased. Wyman argues that these potential witnesses may have been able to testify as to whether they saw or heard any indicia of abuse that occurred at the Wyman home. Wyman does not specifically allege what any of the potential witnesses would have testified. Because Wyman fails to make a particularized showing of actual, nonspeculative prejudice resulting from the delay, we reject Wymans claim of prejudice.
[Headnotes 5, 6]

As the Ninth Circuit has succinctly stated, [W]hen a defendant fails to make a specific showing as to what a [lost or] deceased witness would have said, any argument of prejudice is pure conjecture. U.S. v. Corona-Verbera, 509 F.3d 1105, 1113 (9th Cir. 2007). [A]llegations of prejudice must be supported by non-speculative proof. Id. (quoting U.S. v. Doe, 149 F.3d 945, 949 (9th Cir. 1998)). Because Wyman failed to specifically demonstrate how the unavailability of the lost or deceased witnesses prejudiced her defense, or how testimony from such witnesses would have benefited her defense, we conclude that the district court did not abuse its discretion by denying Wymans motion to dismiss the complaint. See id.; see also State v. Delisle, 648 A.2d 632, 644 (Vt. 1994) (where that court rejected the defendants claim of prejudice as a result of the nearly 14-year pre-indictment delay because, while one witness had died, the defendant failed to demonstrate what the deceased witness would have testified had he been alive). Although our conclusion that Wyman failed to demonstrate actual prejudice makes it unnecessary for us to evaluate the second prong of the test, we further conclude that Wyman failed to meet the second prong of the testthat the State used the delay to gain a tactical advantage or delay the indictment in bad faith. In particular, we conclude that Wyman failed to demonstrate that the delay offend[ed] . . . fundamental conceptions of justice. CoronaVerbera, 509 F.3d at 1112 (internal quotations omitted) (quoting U.S. v. Sherlock, 962 F.2d 1349, 1353 (9th Cir. 1989)). The record is devoid of any indication that the States delay was an intentional device that the State utilized to gain tactical advantage over

602

Wyman v. State

[125 Nev.

Wyman. See United States v. Lovasco, 431 U.S. 783, 795 (1977) (quoting United States v. Marion, 404 U.S. 307, 324 (1971)); see also Jones v. State, 96 Nev. 240, 242, 607 P.2d 116, 117 (1980). As the district court noted, it is likely that the State suffered from the delay as well. For these reasons, we conclude that Wymans preindictment delay challenge lacks merit. Certificate of materiality to obtain Dunns out-of-state mental health records Wyman also challenges the district courts denial of her request for a certificate of materiality to obtain Dunns out-of-state mental health records under Nevadas Uniform Act to Secure the Attendance of Witnesses From Without a State in Criminal Proceedings. After reviewing the record, we conclude that the district court abused its discretion by denying Wymans request. In coming to this conclusion, we address the breadth of Nevadas Uniform Act regarding outof-state evidence, and the standard of materiality that the moving party must demonstrate in requesting the certificate, as required by NRS 174.425(1).4 Nevadas Uniform Act
[Headnotes 7-10]

Under the Sixth Amendment to the United States Constitution, a criminal defendant is entitled to compel the production of witnesses to testify on his or her behalf. Wilson v. State, 121 Nev. 345, 366, 114 P.3d 285, 299 (2005); U.S. Const. amend. VI. Due to jurisdictional limitations, the Legislature enacted Nevadas Uniform Act to Secure the Attendance of Witnesses From Without a State in Criminal Proceedings, codified in NRS 174.395 through 174.445, to authorize Nevada courts to subpoena a citizen of another state for purposes of testifying in a criminal matter. Wilson, 121 Nev. at 366, 114 P.3d at 299. However, there are some restrictions
4 NRS 174.425(1) grants district courts authority to issue a certificate of materiality to obtain evidence from another jurisdiction. It provides: If a person in any state, which by its laws has made provision for commanding persons within its borders to attend and testify in criminal prosecutions, or grand jury investigations commenced or about to commence, in this State, is a material witness in a prosecution pending in a court of record in this State, or in a grand jury investigation which has commenced or is about to commence, a judge of such a court may issue a certificate under the seal of the court stating these facts and specifying the number of days the witness will be required. The certificate may include a recommendation that the witness be taken into immediate custody and delivered to an officer of this State to ensure his attendance in this State. This certificate must be presented to a judge of a court of record in the county in which the witness is found. Id.

Oct. 2009]

Wyman v. State

603

to a partys right to compel the production of an out-of-state witness. Id. These restrictions require the moving party to demonstrate that the witness is material and that the moving party would be prejudiced absent the courts issuance of the certificate. Id. at 368, 114 P.3d at 300; see Bell v. State, 110 Nev. 1210, 1213-15, 885 P.2d 1311, 1314-15 (1994). Hence, this court reviews a district courts refusal to issue a certificate summoning the attendance of an out-ofstate witness for an abuse of discretion. Wilson, 121 Nev. at 366, 114 P.3d at 299. Nevadas Uniform Act and subpoenas duces tecum
[Headnote 11]

While the Uniform Act to Secure the Attendance of Witnesses From Without a State in Criminal Proceedings clearly allows adopting jurisdictions to compel material witness[es] from other jurisdictions to testify in a criminal prosecution or before a grand jury, see, e.g., NRS 174.425(1); see also NRS 174.405(2); NRS 174.415,5 jurisdictions have questioned whether the Uniform Act permits courts to compel the production of books and records via subpoenas duces tecum. Jay M. Zitter, J.D., Annotation, Availability under Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings of Subpoena duces tecum, 7 A.L.R.4th 836 (1981). Although Nevada and several other jurisdictions have included within their acts a statute that instructs courts to interpret and construe the Uniform Act to make uniform the law of the states which enact [it], see NRS 174.445; Fla. Stat. Ann. 942.05 (West 2006); Md. Code Ann., Cts. & Jud. Proc. 9-305 (LexisNexis 2006); Mass. Ann. Laws ch. 233, 13D (LexisNexis 2000); Mich. Comp. Laws Ann. 767.95 (West 2000); N.Y. Crim. Proc. Law 640.10 (McKinney 1995); Wash. Rev. Code Ann. 10.55.110 (West 2002), jurisdictions have reached different conclusions on the issue of whether the Uniform Act extends to subpoenas duces tecum for books and records. The issue arises because the Uniform Act speaks in terms of an out-of-state witness receiving a summons. NRS 174.425(2); NRS 174.435. Summons is defined in NRS 174.405(2) to include a subpoena, order or other notice requiring the appearance of a witness. A minority of courts have read the reference to requiring the appearance of a witness as limiting subpoena to subpoenas for testimony not documents, reasoning that, had the Legislature intended to include subpoenas duces tecum, it would have drafted the
5 NRS 174.405(2) defines summons to include a subpoena, order or other notice requiring the appearance of a witness (emphasis added), and NRS 174.415 and 174.425 specifically deal with the procedures by which a criminal defendant can summon a witness in this state to testify in another state and vice versawithout discussion as to books or records.

604

Wyman v. State

[125 Nev.

statute to include them. In re Grothe, 208 N.E.2d 581, 586 (Ill. App. Ct. 1965) (quoting Ill. Rev. Stat. ch. 38, 156-1, now 725 Ill. Comp. Stat. Ann. 220/1 (West 2008)).6 On the other hand, courts that construe the Uniform Act liberally, which represent the majority view, have concluded that it is reasonable to afford protection to reach documents as well as witnesses, reasoning that the term subpoena can include documents. See, e.g., Application of Grand Jury of State of N.Y., 397 N.E.2d 686, 689 (Mass. App. Ct. 1979) (reasoning that the meaning of the term sub poena . . . certainly ha[s] no relation whatever to process [but that] [c]ustom and tradition have, however, made the words synonymous with process of a certain kind and that it would be irrational to conclude that the term excludes either subpoena duces tecum or subpoena ad testificandum); In re Saperstein, 104 A.2d 842, 846 (N.J. Super. Ct. App. Div. 1954) (In view of . . . the fact that the uniform act was enacted in aid of comity between states to assist the orderly and effectual administration of justice and prosecution of criminal conduct, we conclude that the Legislature . . . was aware of the case law holding the term subpoena to embrace subpoena duces tecum and had it intended to exclude such subpoenas from the act, it would have done so.) This court briefly discussed the issue in Atlantic Commercial v. Boyles, 103 Nev. 35, 732 P.2d 1360 (1987), abrogated on other grounds by Executive Mgmt. v. Ticor Title Ins. Co., 118 Nev. 46, 38 P.3d 872 (2002). The Boyles court addressed whether a foreign court could issue a subpoena duces tecum for a Nevada bank to produce a corporations Nevada bank records without obtaining jurisdiction in Nevada. Id. at 37, 732 P.2d at 1362. This court stated that Nevadas Uniform Act provides a method whereby jurisdiction to serve a subpoena duces tecum issued by a court in a foreign jurisdiction may be properly obtained through a Nevada court. Id. at 39, 732 P.2d at 1363. This court went on to state that although [t]he language of NRS 174.415 [NRS 174.425s counterpart for summoning a witness in this State to appear in another state] specifically provides only for subpoenas requesting witnesses for out-ofstate criminal proceedings, it arguably would apply to a subpoena duces tecum for production of documents. Id. In concluding that the foreign court lacked jurisdiction, this court held that if the foreign court still wanted to obtain the partys bank records that were located in Nevada, it must utilize Nevadas Uniform Act to do so. Id. We reaffirm the holding in Boyles.
6 We recognize that after In re Grothe, 208 N.E.2d 581, was published, the Illinois Legislature amended Illinois Revised Statute chapter 38, section 156-1 to include a parenthetical to its definition of the term summons. The statute now provides that a summons shall include a subpoena (both subpoena ad testificandum and subpoena duces tecum). 725 Ill. Comp. Stat. Ann. 220/1 (West 2008) (emphasis added).

Oct. 2009]

Wyman v. State

605

Remaining in line with the majority of jurisdictions, we reiterate that Nevadas Uniform Act extends to subpoenas duces tecum. Like the appeals court of Massachusetts, we are convinced that the term subpoena, as used in NRS 174.405(2), includes subpoenas duces tecum. While NRS 174.425 sets forth the procedures by which a citizen of Nevada can summon a witness from another jurisdiction to testify in a criminal proceeding, NRS 174.405(2) defines summons as including a subpoena, order or other notice requiring the appearance of a witness. (Emphasis added.) Because the ordinary meaning of subpoena includes both a subpoena ad testificandum and a subpoena duces tecum,7 see Blacks Law Dictionary 1467 (8th ed. 2004), we determine, as indicated in Boyles, that it is reasonable to extend NRS 174.425(1) to requests for material out-ofstate books and records that have an ancillary request for the appearance of a witness. In this case, Wyman seeks the issuance of a subpoena duces tecum for Dunns out-of-state mental health records. At oral argument, Wyman specified that she sought the appearance of a custodian of records attendant to Dunns records. Because Wyman sought out-of-state records via a subpoena duces tecum that had an ancillary request for the appearance of an out-of-state witness, we conclude that Wymans certificate of materiality request fell within the purview of Nevadas Uniform Act. This court examines two elements in determining whether the district court abused its discretion by denying a request for a certificate of materiality
[Headnote 12]

This court has established that the inquiry into whether a district court abused its discretion by denying a request for a certificate of materiality is twofold. See Wilson v. State, 121 Nev. 345, 367-68, 114 P.3d 285, 300 (2005). First, this court must determine whether substantial evidence supports the district courts findings that the moving party failed to demonstrate that the evidence is material to the defendants case. Second, we must determine whether substantial evidence supports the district courts findings that the moving party failed to demonstrate that the absence of the evidence prejudiced the defense. Id. Wyman argues that the district court erroneously concluded that she failed to demonstrate her burden of materiality and prejudice under Nevadas Uniform Act. Wyman maintains that she effectively established that Dunns mental health records were material to her
7 Blacks Law Dictionary defines subpoena as [a] writ commanding a person to appear before a court or other tribunal, subject to a penalty for failing to comply. 1467 (8th ed. 2004). That dictionary continues to define alias subpoena, deposition subpoena, subpoena ad testificandum, and subpoena duces tecum under the general definition of subpoena. Id.

606

Wyman v. State

[125 Nev.

case for various reasons, including: Dunn was the States only witness who named Wyman as the person responsible for J.Ws death, Dunns allegations were cultivated during her mental health treatment, Dunn admitted to being suicidal in the past, and Dunn had a mental breakdown the same year that she related her allegations. Moreover, in light of Dunns questionable mental health stability, Wyman argues that her defense was prejudiced in the absence of Dunns records because she was unable to fully defend herself against the States case. The State maintains that the district court properly denied Wymans request for Dunns mental health records because Wyman supports her materiality claim with only conclusory facts, rather than actual knowledge that Dunns mental health records contain information that would assist Wyman in her defense. The State also notes that the district court did not err in rendering its decision because Dunns mental health records are privileged and Dunn has not waived that privilege. Yet, even if the district court abused its discretion with respect to Wymans materiality showing, the State further argues, Wyman has failed to demonstrate that her defense was prejudiced. Materiality
[Headnote 13]

Although Nevadas Uniform Act authorizes certificates of materiality upon a sufficient showing that the evidence is material, NRS 174.425(1), the Act does not define the term material, and this court has not expressly defined what constitutes a sufficient materiality showing. Instead, this court has generally instructed that the determination of a witnesss materiality lies with the judge after a hearing, State v. Fouquette, 67 Nev. 505, 516, 221 P.2d 404, 410 (1950), and that [a] witness is not material merely because one party designates that witness as such. Bell v. State, 110 Nev. 1210, 1213-14, 885 P.2d 1311, 1314 (1994). Absent controlling precedent, we must determine what evidence is material under NRS 174.425(1). The State proposes that this court adopt a materiality test that balances the defendants right to a fair trial and the witnesss interest in confidentiality with respect to privileged records. The State relies on People v. Stanaway, in which the Michigan Supreme Court held, [W]here a defendant can establish a reasonable probability that the privileged records are likely to contain material information necessary to his defense, the court must conduct an in camera review of the potentially privileged records to determine whether they contain any evidence reasonably necessary, and therefore essential, to the defense. 521 N.W.2d 557, 562 (Mich. 1994). While this argument might prove persuasive in circumstances in which Nevada courts are presented with an out-of-state certificate of materiality for evidence

Oct. 2009]

Wyman v. State

607

located in Nevada, we conclude that the issue of privilege is not part of the materiality consideration because it is not proper for Nevada courts to consider whether out-of-state evidence is privileged. The issue of privilege is a matter properly considered by the jurisdiction in which the evidence is located. See NRS 174.425(1) (providing that upon the district court issuing the certificate of materiality, the certificate must [then] be presented to a judge of a court of record in the county in which the [evidence] is found). Wyman, on the other hand, argues that this court should adopt a materiality test that mirrors the materiality test under Brady v. Maryland, 373 U.S. 83 (1963). In Brady, the United States Supreme Court held, in relevant part, that the government must disclose exculpatory evidence that is material to a defendants guilt or punishment. Id. at 87. This court has examined materiality in the Brady context and has held that there must exist[ ] a reasonable probability that the claimed evidence would have affected the judgment of the trier of fact, and thus the outcome of the trial. Roberts v. State, 110 Nev. 1121, 1132, 881 P.2d 1, 8 (1994), overruled on other grounds by Foster v. State, 116 Nev. 1088, 13 P.3d 61 (2000). Aside from our initial concern that the Brady materiality test is too narrow to apply in these circumstances, we determine that because NRS 174.425(1) specifically employs the term material when discussing what class of evidence is subject to a certificate of materiality, it is more appropriate to examine the term as used by that particular statute. In examining a statutory counterpart to NRS 174.425(1), one Florida Court of Appeals looked to the plain meaning of the term material, as prescribed by dictionary definitions, and held that, for purposes of the Uniform Act, a material witness is [a] witness who can testify about matters having some logical connection with the consequential facts, esp[ecially] if few others, if any, know about these matters. State v. Bastos, 985 So. 2d 37, 41, 43 (Fla. Dist. Ct. App. 2008) (first alteration in original) (quoting Blacks Law Dictionary 1634 (8th ed. 2004)). We are persuaded that Florida took the correct approach to this issue by treating it as one of statutory construction. Thus, we employ the rules of statutory interpretation to resolve the meaning of the term material for evidentiary purposes under Nevadas Uniform Act.
[Headnotes 14, 15]

This court has established that when it is presented with an issue of statutory construction, it should give effect to the statutes plain meaning. State v. Catanio, 120 Nev. 1030, 1033, 102 P.3d 588, 590 (2004). When this court interprets the plain language of a statute, the court presume[s] that the Legislature intended to use words in their usual and natural meaning. McGrath v. State, Dept of Pub. Safety, 123 Nev. 120, 123, 159 P.3d 239, 241 (2007). Thus, when the lan-

608

Wyman v. State

[125 Nev.

guage of a statute is plain and unambiguous, such that it is capable of only one meaning, this court should not construe that statute otherwise. Nevada Power Co. v. Public Serv. Commn, 102 Nev. 1, 4, 711 P.2d 867, 869 (1986). Despite the fact that the Legislature did not define material in Nevadas Uniform Act, we determine that the term, as used in NRS 174.425(1), has a plain meaning. Blacks Law Dictionary defines material, in pertinent part, as, [h]aving some logical connection with the consequential facts <material evidence>. 998 (8th ed. 2004). Likewise, material evidence is defined as [e]vidence having some logical connection with the facts of consequence or the issues. Id. at 598. We are convinced that, in enacting Nevadas Uniform Act, the Legislature intended that the term material be used according to its ordinary meaning, as defined by dictionary definitions. See McGrath, 123 Nev. at 123, 159 P.3d at 241. Therefore, we hold that, for purposes of Nevadas Uniform Act, the term material evidence connotes evidence that is logically connected with the facts of consequence or the issues in the case.
[Headnote 16]

Applying this definition of material evidence in considering the merits of Wymans materiality argument, our review of the record reveals that substantial evidence does not support the district courts findings in this regard. In particular, we observe that Dunn intertwined her accusations with her mental health issues and treatment to such an extent that her mental health became logically connected with her accusations. Due to the circumstances in which Dunn made the accusations, and Wymans proffers, which include Dunns own statements to police, we determine that Wyman effectively demonstrated that Dunns mental health records had some logical connection with the facts of consequence and issues presented in the case. Accordingly, we conclude that substantial evidence does not support the district courts conclusion that Wyman failed to demonstrate the materiality of Dunns mental health records. While we conclude that the district court abused its discretion regarding Wymans demonstrated materiality, our inquiry is not complete, as Wyman was further required to establish that, absent the material evidence, her defense would be prejudiced. Prejudice
[Headnotes 17, 18]

This court has held that even when a district court abused its discretion by finding that the requested evidence was not material, a refusal to authorize the issuance of a certificate may be justified if the defendant fails to show how the absence of the evidence preju-

Oct. 2009]

Wyman v. State

609

diced his or her defense. Wilson v. State, 121 Nev. 345, 368, 114 P.3d 285, 300 (2005). A district courts exclusion of evidence will be deemed prejudicial if there is a reasonable probability that the . . . [evidence] would have affected the outcome of the trial. Bell v. State, 110 Nev. 1210, 1215, 885 P.2d 1311, 1315 (1994). This court has clarified that [a] reasonable probability is a probability sufficient to undermine confidence in the outcome of the case. Id. (quoting State v. Schreuder, 712 P.2d 264, 275 (Utah 1985)). Generally, this court will consider whether the evidence presented against the defendant was overwhelming. Id. Wyman argues that she satisfactorily demonstrated that had she been provided with Dunns mental health records, there is a reasonable probability that the outcome of the case would have been different. In particular, Wyman asserts that she presented the district court with detailed offers of proof, admitted in the form of Dunns own statements to police. In those statements, Dunn told police that: (1) it was during her therapy treatments that she first made her accusations, after 32 years of nondisclosure; (2) Dunn recalled more memories during a session with her therapist subsequent to rendering the initial allegations; (3) Dunn continued to meet with a therapist once per week and a psychiatrist once per month in order to deal with all the issues and so that [she is] a strong witness for the State; (4) she suffers from major depression; (5) Dunn attempted to commit suicide several times since 1974; and (6) she had a mental breakdown in 2005. After reviewing the record, we are convinced that Wyman was prejudiced by the courts decision not to issue the certificate of materiality. The evidence against Wyman was not overwhelming, with the States case depending in large part on Dunns testimony. Although the State presented testimony from other witnesses regarding suspicions of child abuse as being the cause of death, Dunn was the only witness who directly implicated Wyman as being culpable for J.W.s death. Because Dunn was Wymans only direct accuser, her reliability and credibility were central to the case. And Dunn placed her mental health at issue by the very fact that she made the accusations while receiving mental health treatment and emphasizing that the murder was the cause of her mental health instability. As a result, we conclude that Wyman adequately demonstrated that, had she been provided with Dunns mental health records as she requested in seeking the certificate of materiality, there existed a probability that the evidence would have affected the outcome of the trial sufficient to undermine confidence in the outcome of the case. Consequently, we conclude that the district courts finding that Wyman failed to demonstrate that she would be prejudiced without Dunns mental health records is not supported by substantial evidence.

610

Wyman v. State

[125 Nev.

In sum, we conclude that the district court abused its discretion by denying Wymans request for a certificate of materiality to obtain Dunns mental health records from California. Because we conclude that this error was not harmless, we reverse on this ground. CONCLUSION We conclude that the district court did not err by denying Wymans motion to dismiss the complaint due to the preindictment delay of 32 years. In coming to this conclusion, we are persuaded to follow the United States Court of Appeals for the Ninth Circuit and determine that this court will review challenges regarding pre-indictment delay for an abuse of discretion. Because Wyman failed to establish that she was prejudiced by the delay and that the State intentionally delayed filing the complaint in order to gain a tactical advantage over the defense, we conclude that Wymans challenge does not warrant reversal. Turning to Wymans challenge to the district courts denial of her request for a certificate of materiality under Nevadas Uniform Act to Secure the Attendance of Witnesses From Without a State in Criminal Proceedings, we conclude that the district court erred. In rendering this decision, we interpret NRS 174.425(1) to extend to subpoenas duces tecum for books and records that require the appearance of an out-of-state witness. Moreover, we determine that the term material, as used in Nevadas Uniform Act, refers to evidence having some logical connection with the facts of consequence or the issues presented in the case. Pertaining to the merits of Wymans challenge, after examining the record, we determine that substantial evidence does not support the district courts conclusions regarding Wymans proffers and, therefore, conclude that the district court abused its discretion by denying Wymans request for a certificate of materiality to obtain Dunns out-of-state mental health records. Accordingly, we reverse and remand for further proceedings consistent with this opinion. PARRAGUIRRE, DOUGLAS, CHERRY, SAITTA, GIBBONS, and PICKERING, JJ., concur.

Oct. 2009]

Webb v. Clark County School Dist.

611

ERIC WEBB, A MINOR, BY AND THROUGH HIS NATURAL PARENT AND GUARDIAN, SHAWN WEBB, APPELLANT/CROSS RESPONDENT, v. CLARK COUNTY SCHOOL DIS TRICT; AND ROGER PHILLIPS, AN INDIVIDUAL AND AN EMPLOYEE OF CLARK COUNTY SCHOOL DISTRICT, RESPONDENTS/CROSS-APPELLANTS.
No. 51170 October 8, 2009 218 P.3d 1239

Appeal from a short trial judgment in a tort action. Eighth Judicial District Court, Clark County; Troy E. Peyton, Judge.1 Middle school student, who alleged that he was injured when teacher placed his hand on students chest during a disturbance at school, brought action against school district and teacher. The district court awarded student $27,270 in damages. School district and teacher appealed, and student cross-appealed. The supreme court, HARDESTY, C.J., held that: (1) student was not an aggrieved party, and thus, student lacked standing to appeal; (2) Paul D. Coverdell Teacher Protection Act was an affirmative defense, and because school district and teacher failed to assert the Coverdell Act in their answer, they waived the Coverdell Acts protection; (3) substantial evidence supported the district courts finding that teachers contact with student was excessive and unreasonable; and (4) licensed drug and alcohol counselor, who was not a licensed psychologist, engaged in the practice of psychology when he treated student, and because counselors treatment was illegal, student could not recover damages award for counselors services. Affirmed in part and reversed in part. G. Dallas Horton & Associates and David L. Thomas, G. Dallas Horton, and Monte Hall, Las Vegas, for Appellant/Cross-Respondent. C.W. Hoffman Jr., General Counsel, and Kevin A. Fitzgerald, Associate General Counsel, Las Vegas, for Respondents/Cross-Appellants.
1. APPEAL AND ERROR. Student, who was awarded damages in the amount of $27,270 on his negligence claims against teacher and school district, was not an aggrieved party, and thus, student lacked standing to appeal; student was not denied any equitable or legal rights. NRAP 3(a).
1 Because the case underlying this appeal was resolved at the district court level prior to the April 2008 short trial rule amendments, the short trial judgment entered by the judge pro tempore is an appealable order. See ADKT No. 409 (Order Amending the Nevada Short Trial Rules, March 6, 2008) (noting that the amendment would be effective 30 days from the date of the order).

612

Webb v. Clark County School Dist.

[125 Nev.

2. APPEAL AND ERROR. As used in rule providing that any party aggrieved may appeal, the term aggrieved means a substantial grievance, which includes the imposition of some injustice, or illegal obligation or burden, by a court, upon a party, or the denial to him or her of some equitable or legal right. NRAP 3(a). 3. APPEAL AND ERROR. De novo review is appropriate when considering a challenge to a district courts determination that a defense need not be affirmatively pleaded. 4. STATES. Unlike an immunity defense that can be waived if not affirmatively pleaded, if the Legislature has placed a statutory cap on sovereign liability, the award cannot exceed the amount proscribed by the statute, and waiver of the immunity defense by failing to affirmatively plead it will still render the sovereign subject to potential liability up to the statutory limit. 5. PLEADING. Party may nevertheless be liable for failing to timely raise an affirmative defense, even if that defense is a creature of statute. 6. SCHOOLS. The Paul D. Coverdell Teacher Protection Act was an affirmative defense that had to be affirmatively pleaded because the Coverdell Act was a new fact and argument that, if true, would defeat middle school students negligence claim against school district and teacher, seeking damages for injuries student allegedly sustained when teacher placed his hand on students chest during a disturbance at school, and because school district and teacher failed to assert the Coverdell Act in their answer, they waived the Coverdell Acts protection. 20 U.S.C. 6736(a); NRCP 8(c). 7. SCHOOLS. Substantial evidence supported the district courts finding that teachers contact with middle school student, allegedly placing his hand on students chest during a disturbance at school, was excessive and unreasonable, such that school district and teacher were responsible for students physical therapy treatments and family practitioner visit; school district and teacher failed to present any proof to dispute the physical therapy treatments that student received or his visit to the family practitioner, and district and teacher failed to plead the liability protection provisions of the Paul D. Coverdell Teacher Protection Act, and as such, it was waived. 20 U.S.C. 6736(a). 8. APPEAL AND ERROR. Whether damages are legally recoverable is a question of law that supreme court reviews de novo. 9. SCHOOLS. Doctors license for drug and alcohol counseling was not determinative as to whether the psychological services he rendered to student, who was injured by teacher, should be recoverable as damages in middle school students negligence action against teacher as a matter of law. 10. HEALTH. Although statute, which governs psychologists, is inapplicable to drug and alcohol abuse counselors, it does not permit drug and alcohol abuse counselors to practice psychology without a psychology license. NRS 641.029(7). 11. HEALTH. Nothing in statute defining what constitutes the clinical practice of counseling alcohol and drug abusers permits a drug and alcohol abuse counselor to engage in psychological treatment, hold himself or herself out

Oct. 2009]

Webb v. Clark County School Dist.

613

12.

13.

14.

15.

16. 17.

as a psychologist, or accept remuneration for unlicensed psychological services rendered. NRS 641.390(1), (2), 641C.065. HEALTH. If an unlicensed person practices psychology or represents that he or she is a licensed psychologist, or uses any title or description that implies that he or she is a psychologist, he or she is guilty of a gross misdemeanor. NRS 641.440(4), (5). HEALTH. When the Legislature enacted statute to regulate psychologists, it intended to prevent laypeople from engaging in activities constituting the practice of psychology, and the various treatments used by psychologists when providing care to patients with mental illnessand the inherent dangers associated with those treatmentswarrant the gross misdemeanor penalty for the unlicensed representation and/or practice of psychology. NRS 641.440(4), (5). HEALTH. Regardless of whether licensed drug and alcohol counselors treatment of middle school student, who was injured by teacher, was reasonable and in conformity with the psychology profession, counselors actions were in violation of Nevada law if he was practicing psychology, given that counselor was not a licensed psychologist. NRS 641.440(4), (5). HEALTH. Licensed drug and alcohol counselor engaged in the practice of psychology when he treated middle school student, who was injured by teacher, given that counselor conducted electromyography scans (EMGs) on student, which constituted biofeedback, and he diagnosed student with posttraumatic stress disorder, and because counselors treatment was illegal, student could not recover damages award for counselors services. NRS 641.025(6). SCHOOLS. Paul D. Coverdell Teacher Protection Act is an affirmative defense that must be pleaded or it is waived. 20 U.S.C. 6736(a); NRCP 8(c). HEALTH. As a matter of law, a person cannot recover damages for psychological services rendered by a person who is not a licensed psychologist.

Before the Court EN BANC. OPINION By the Court, HARDESTY, C.J.: This appeal arises out of a district courts judgment awarding appellant/cross-respondent Eric Webb, a minor, general and special damages for injuries sustained after Webbs teacher, respondent/cross-appellant Roger Phillips, placed his hand on Webbs chest during a disturbance at school. In this opinion, we address two issues of first impression: (1) whether the Paul D. Coverdell Teacher Protection Act of 2001 is an affirmative defense, and (2) whether expenses for psychological services rendered by an unlicensed person are recoverable as a matter of law.

614

Webb v. Clark County School Dist.

[125 Nev.

First, we consider Webbs contention that the Paul D. Coverdell Teacher Protection Act of 2001 is an affirmative defense that must be pleaded or it is waived. Although we dismiss Webbs crossappeal because he is not an aggrieved party, as required by NRAP 3(A)(a), we nevertheless must consider whether the Coverdell Act is an affirmative defense because respondent/cross-appellant Clark County School District (CCSD) and Phillips argue that the Act affords them immunity, which Webb counters in his combined answering brief on appeal and reply brief on cross-appeal, arguing that CCSD and Phillips waived the Acts protections by failing to raise the defense affirmatively. In examining this issue, we are required to address the appropriate standard for reviewing a district courts decision regarding whether a defense must be affirmatively pleaded. We conclude that de novo review is appropriate. Reviewing the issue de novo, we employ the test set forth in Clark County School District v. Richardson Construction, 123 Nev. 382, 393, 168 P.3d 87, 94 (2007), and conclude that the Coverdell Act is a defense that must be affirmatively pleaded. While we disagree with the district courts conclusion that the Coverdell Act is not a defense that must be affirmatively pleaded, we affirm the district courts judgment pertaining to liability because we conclude that CCSD and Phillips failed to raise the Coverdell Act in their pleadings, thereby waiving the defense, and the district courts conclusion as to liability is supported by substantial evidence. Second, we consider CCSD and Phillips challenge to the district courts damages award for psychological services rendered by David Hopper and for the emotional distress suffered by Webb. We conclude that, as a matter of law, damages for psychological services rendered in Nevada by a person who is not properly licensed in this state are not recoverable. Thus, because Hopper is not a licensed psychologist in Nevada, we reverse the district courts damages award for the psychological services he rendered. FACTS AND PROCEDURAL BACKGROUND On a morning in March 2005, a group of students were awaiting entry at the south entrance of Mannion Middle School, a school that is located in Clark County, Nevada. Webb, an eighth-grade student, was among the group. Phillips, a teacher for CCSD, tried to exit the south doors of Mannion Middle School. As he was exiting, the group of students waiting outside began pushing in an attempt to enter the building. Phillips tried to explain to the group that students were not allowed entry at that time, but some students held onto the door while others placed their feet at the bottom of the door jamb to prevent Phillips from closing it. During his attempt to close the door, Phillips was pushed (from behind) into the edge of the open door. His left shoulder struck it. Phillips stated that when he turned

Oct. 2009]

Webb v. Clark County School Dist.

615

around, he saw Webb holding onto his friends backpack, pushing his friend into Phillips. Apparently observing Phillips turn around, the group became quiet and moved away from Phillips and Webb. Phillips then placed his hand on Webbs chest and stated, Dont do that! Youre going to hurt somebody! Thats dangerous! Its unacceptable! From this point in time, Phillips and Webbs recollection of the events differ. According to Phillips, he then removed Webbs hand from the other students backpack and requested that Webb accompany him to the deans office. Distinguishably, Webb testified that Phillips pushed on his chest, and choked him for what felt like thirty seconds; Phillips then grabbed Webb by the nipple and took him to the Deans office. The following day, Webb visited his family practitioner, who examined Webb and noted tenderness in his neck and upper torso area, but no objective signs of injury. That doctor prescribed Webb Motrin (an over-the-counter pain reliever) and reassurance. Webb then sought treatment from a physical therapist, who treated Webb from March 2005 to July 2005. Additionally, Webb was treated by David Hopper for emotional and psychological treatments. Hopper also treated Webb from March 2005 to July 2005. Hoppers bill totaled $5,700. In September 2005, Webb, through his guardian and parent, filed suit against CCSD and Phillips in district court. The complaint alleged various negligence claims against CCSD and Phillips. CCSD and Phillips filed a joint answer that presented several affirmative defenses; they did not plead the Paul D. Coverdell Teacher Protection Act of 2001. On November 14, 2006, the case went to arbitration where both parties testified. CCSD and Phillips admitted that Phillips had touched Webb, but contested the damages. The arbitrator concluded that Phillips touched Webb hard enough to cause a bump on Webbs head and a neck sprain. The arbitrator rejected Webbs claim that Phillips choked him because [t]here was no objective evidence to support the claim. As a result, the arbitrator found that Phillips was liable for Webbs injuries and that Phillips was not privileged to engage in the contact. The arbitrator awarded Webb past medical expenses for his treatments with the family practitioner and the physical therapist after a finding that their fees were reasonable and the visits were necessary. With respect to Hopper, however, the arbitrator did not grant the award. The arbitrator specifically found that Hopper was not qualified to perform the services he provided to Webb and that his credentials were not adequate to qualify him as a psychologist, regardless of the fact that [Hopper] states that he is practicing behavioral medicine, or acting as a psychophysiologist. Because

616

Webb v. Clark County School Dist.

[125 Nev.

Hoppers testimony and practice are not reliable, the arbitrator determined that Hoppers services were neither necessary nor reasonable. Webb did not receive a future damages award because the testimony presented was made in reliance on Hoppers records and recommendations. Nevertheless, the arbitrator awarded Webb a total of $18,250 for physical and emotional/psychological harm. The arbitrator further awarded Webb costs and interests in the amount of $9,776.98. In December 2006, CCSD and Phillips filed for a trial de novo. On the first day of trial, CCSD and Phillips filed a motion for judgment as a matter of law pursuant to NRCP 52(c). In the points and authorities supporting their motion, CCSD and Phillips alleged that they were immune from negligence liability under the Coverdell Act. In opposition, Webb argued that the Coverdell Act is an affirmative defense that CCSD and Phillips waived because they failed to affirmatively plead it. The district court accepted the pleadings, the documents that CCSD and Phillips submitted on the Coverdell Act issue (in their NRCP 52(c) motion), and the witness testimony from the trial and found in favor of Webb. The court found that the Coverdell Act applied but Phillips conduct was unreasonable and fell outside the Acts protection. Particularly, the court stated: Based upon the totality of the evidence, . . . Mr. Phillips acted reasonably in removing [Webb]s hands from [the friend]s back. The manner in which he next placed his hands on [Webb]s chest exceeded the force which was reasonable and necessary, given that the potentially dangerous situation had passed. These actions fell below the standard of reasonable care. Additionally, the court found that Webb was injured as a result of the occurrence. Therefore, after determining that the treatments were reasonable and necessary, the court awarded Webb $6,570 for past medical expenses for his treatments and $5,700 for his expenses incurred with Hopper. The court further found that Webb sustained physical pain and suffering and emotional distress that warranted an additional $15,000 in general damages. The court rejected any award for future general or special damages as too speculative. In total, the district court awarded Webb $27,270. CCSD and Phillips appealed from the short trial judgment. Thereafter, Webb filed a cross-appeal, challenging the district courts conclusion that the Coverdell Act was not an affirmative defense that CCSD and Phillips had to plead. Pursuant to NRAP 28(h), the caption was modified to reflect that Webb, as plaintiff in the district court, is the appellant/cross-respondent, although Webb filed his no-

Oct. 2009]

Webb v. Clark County School Dist.

617

tice of appeal after CCSD and Phillips, since Webb was the plaintiff in district court.2 DISCUSSION On appeal, we address two issues. First, we consider whether the Paul D. Coverdell Teacher Protection Act of 2001 is a defense that must be affirmatively pleaded. Second, we consider whether expenses for psychological services rendered in Nevada by a person who is not a licensed psychologist are recoverable as a matter of law. The Coverdell Act as an affirmative defense Webbs standing to appeal On appeal, Webb challenges the district courts conclusion that the Coverdell Act is not a defense that CCSD and Phillips needed to affirmatively plead. Webb argues that authorities that have interpreted FRCP 8, which is NRCP 8s federal counterpart, have required statutes similar to the Coverdell Act to be affirmatively pleaded. In response, CCSD and Phillips initially argue that Webbs appeal must be dismissed because he is not an aggrieved party. Alternatively, CCSD and Phillips argue that the Coverdell Act is a statutory defense that cannot be waived.
[Headnotes 1, 2]

Addressing CCSD and Phillips initial argument that Webb lacks standing to appeal, we agree and dismiss Webbs appeal because he is not an [a]ggrieved [p]arty entitled to an appeal under NRAP 3(A)(a), which provides that [a]ny party aggrieved may appeal. This court has established that a party is aggrieved if either a personal right or right of property is adversely and substantially affected by a district courts ruling. Las Vegas Police Prot. Assn v. Dist. Ct., 122 Nev. 230, 239-40, 130 P.3d 182, 189 (2006) (citations omitted) (quoting Valley Bank of Nevada v. Ginsburg, 110 Nev. 440, 446, 874 P.2d 729, 734 (1994)). In addition, the term aggrieved means a substantial grievance, Esmeralda County v. Wildes, 36 Nev. 526, 535, 137 P. 400, 402 (1913), which includes [t]he imposition of some injustice, or illegal obligation or burden, by a court, upon a party, or the denial to him of some equitable or legal right. Las Vegas Police Prot. Assn, 122 Nev. at 240, 130 P.2d at 189 (alteration in original) (quoting Esmeralda County, 36 Nev. at 535, 137 P. at 402).
2 The version of NRAP 28(h) in effect at the time this appeal was filed provided, [i]n cases involving a cross-appeal, the plaintiff in the court below shall be deemed the appellant for all purposes, unless the parties otherwise agree or the court otherwise orders.

618

Webb v. Clark County School Dist.

[125 Nev.

Because the district court awarded Webb damages in the amount of $27,270, we conclude that Webb was not denied any equitable or legal rights, and we dismiss his appeal as a result. However, while we dismiss Webbs appeal because he is not an aggrieved party, we must nevertheless consider whether the Coverdell Act is an affirmative defense because CCSD and Phillips argue on appeal that the Act affords them immunity, and Webb responds in his answering/reply brief that CCSD and Phillips cannot avail themselves of the Acts protections because they waived it. Standard of review
[Headnote 3]

This court has not expressly stated the applicable standard of review when considering a district courts determination as to whether a defense is an affirmative defense under NRCP 8(c) that must be pleaded. Because we have previously indicated that the rules of statutory interpretation apply to Nevadas Rules of Civil Procedure, see Moseley v. Dist. Ct., 124 Nev. 654, 662 & n.20, 188 P.3d 1136, 1142 & n.20 (2008) (concluding that the interplay and interpretation of NRCP 25 and NRCP 6 are issues of law that we review de novo (citing to State ex rel. PSC v. District Court, 94 Nev. 42, 44, 574 P.2d 272, 273 (1978))), we conclude that de novo review is appropriate when considering a challenge to a district courts determination that a defense need not be affirmatively pleaded. Accordingly, our review of whether the Coverdell Act is an affirmative defense that must be pleaded is plenary. See id. The Coverdell Act Congress enacted the Paul D. Coverdell Teacher Protection Act of 2001 as part of the No Child Left Behind Act. See 20 U.S.C. 6731 (2006). The Coverdell Act immunizes teachers, principals, and other school professionals from liability when they take reasonable actions to maintain order, discipline, and an appropriate educational environment. Id. 6732, 6736. The Coverdell Act applies to both public and private schools in states that receive funds under Chapter 70 of the education title. Id. 6734. Moreover, section 6735(a) of the Coverdell Act provides that the Act preempts any inconsistent state law, but that it does not preempt any state law that provides additional teacher liability protection. The liability protection provisions of the Coverdell Act are found in section 6736, which reads, in pertinent part: [N]o teacher in a school shall be liable for harm caused by an act or omission of the teacher on behalf of the school if (1) the teacher was acting within the scope of the teachers employment or responsibilities to a school or governmental entity;

Oct. 2009]

Webb v. Clark County School Dist.

619

(2) the actions of the teacher were carried out in conformity with Federal, State, and local laws (including rules and regulations) in furtherance of efforts to control, discipline, expel, or suspend a student or maintain order or control in the classroom or school; [and] .... (4) the harm was not caused by willful or criminal misconduct, gross negligence, reckless misconduct, or a conscious, flagrant indifference to the rights or safety of the individual harmed by the teacher. 20 U.S.C. 6736(a) (2006). The Coverdell Act also protects teachers from punitive damage awards, subject to the limitations in section 6736(a). Id. 6736(c). Failure to timely raise immunity under the Coverdell Act as an affirmative defense NRCP 8(c) provides a list of certain defenses that a party must affirmatively plead. In addition to NRCP 8(c)s enumerated defenses that must be pleaded is a catchall provision that includes any other matter constituting an avoidance or affirmative defense. Because NRCP 8(c) does not speak directly to whether a federal law granting immunity from liability qualifies as an affirmative defense, the question then becomes whether the Act falls within NRCP 8(c)s catchall provision. See NRCP 8(c). This court recently instructed lower courts and litigants on what defenses must be affirmatively pleaded under NRCP 8(c)s catchall provision, stating, Allegations must be pleaded as affirmative defenses if they raise new facts and arguments that, if true, will defeat the plaintiffs . . . claim, even if all allegations in the complaint are true. Clark Cty. Sch. Dist. v. Richardson Constr., 123 Nev. 382, 393, 168 P.3d 87, 94 (2007) (alteration in original) (internal quotations omitted) (quoting Saks v. Franklin Covey Co., 316 F.3d 337, 350 (2d Cir. 2003) (holding that ERISAs preemption of state contract claims in a benefits-due action is an affirmative defense subject to waiver)). Although CCSD and Phillips argue that Richardson Construction stands for the proposition that statutory defenses are not true defenses under NRCP 8(c) and thus are not waived if not affirmatively plead[ed], we conclude that case does not warrant such a broad interpretation.
[Headnotes 4, 5]

In Richardson Construction, this court held that a school district could not waive a statutory damages cap on tort damages recovered from a political subdivision of the state; thus, the school districts failure to affirmatively plead it had no effect. 123 Nev. at 389-90,

620

Webb v. Clark County School Dist.

[125 Nev.

168 P.3d at 92. Contrary to CCSD and Phillips claim, Richardson Construction stands for the proposition that when Nevada and its political subdivisions are afforded protection from suit under the doctrine of sovereign immunity, and the Legislature waives immunity but limits the amount of liability, then the limitation cannot be waived, even if the defending party fails to raise it. See id. Thus, unlike an immunity defense that can be waived if not affirmatively pleaded, if the Legislature has placed a statutory cap on sovereign liability, the award cannot exceed the amount proscribed by the statute. See id. Waiver of the immunity defense by failing to affirmatively plead it will still render the sovereign subject to potential liability up to the statutory limit. See id. Therefore, we conclude that, under Richardson Construction, a party may nevertheless be liable for failing to timely raise an affirmative defense even if that defense is a creature of statute.
[Headnote 6]

Turning to the merits of Webbs argument, upon applying the affirmative defense test set forth in Richardson Construction, we conclude that the Coverdell Act is an affirmative defense because the Coverdell Act, in this case, is a new fact and argument that, if true, would defeat Webbs claim. See Richardson Construction, 123 Nev. at 393, 168 P.3d at 94. We determine that after the pleading process was complete, CCSD and Phillips raised a new argument: the Coverdell Act applied to protect Phillips from Webbs simple negligence claim. We determine that if the Coverdell Act would indeed protect Phillips from liability for unreasonably and unnecessarily placing his hand on Webbs chest, the Act would effectively defeat Webbs negligence claim. Hence, we conclude that the Coverdell Act is an affirmative defense. And because CCSD and Phillips failed to assert the Coverdell Act in their answer, we conclude that CCSD and Phillips waived the Coverdell Acts protection.
[Headnote 7]

While the district court concluded that the Coverdell Act was not an affirmative defense and therefore allowed CCSD and Phillips to argue its protections, the district court nonetheless concluded that CCSD and Phillips were liable because the amount of force that Phillips used in touching Webbs chest was excessive and unreasonable. Although the district court was incorrect in concluding that the Coverdell Act was not an affirmative defense, we nevertheless affirm the district courts conclusion as to CCSD and Phillips liability and damages award for Webbs physical therapy treatments and family practitioner visit. Our affirmance on these points is based on our conclusions that substantial evidence supports the district courts finding that Phillips contact with Webb was excessive and unreasonable and that CCSD and Phillips failed to present any medical ev-

Oct. 2009]

Webb v. Clark County School Dist.

621

idence to dispute the physical therapy treatments that Webb received or his visit to the family practitioner. See Hotel Riviera, Inc. v. Torres, 97 Nev. 399, 403, 632 P.2d 1155, 1158 (1981) (holding that [i]f a decision below is correct, it will not be disturbed on appeal even though the lower court relied upon wrong reasons). Psychological services rendered by an unlicensed person CCSD and Phillips challenge the district courts decision to award Webb damages, including treatment fees and emotional distress damages, based on Hoppers psychological treatments, diagnosis, and reports. CCSD and Phillips argue that charges for unlawfully rendered psychology treatments and damages based on unlicensed persons opinions and records should not be recoverable as a matter of law. In opposition, Webb responds that the status of Hoppers license is inapplicable because Dr. Hopper is a licensed drug and alcohol counselor and N.R.S. 641.029 [the statute making the unlicensed practice of psychology a gross misdemeanor] specifically states that the provisions of this chapter do not apply to: . . . 7. A person who is licensed as a clinical alcohol and drug abuse counselor.
[Headnote 8]

Whether damages are legally recoverable is a question of law that this court reviews de novo. See Vredenburg v. Sedgwick CMS, 124 Nev. 553, 557, 188 P.3d 1084, 1088 (2008) (stating that pure questions of law are reviewed de novo).
[Headnotes 9, 10]

Addressing Webbs argument that the status of Hoppers license is inapplicable because Dr. Hopper is a licensed drug and alcohol counselor, we conclude that Hoppers license for drug and alcohol counseling is not determinative as to whether the psychological services he rendered should be recoverable as a matter of law. Although Webb is correct in arguing that NRS Chapter 641, which governs psychologists, is inapplicable to drug and alcohol abuse counselors, see NRS 641.029(7), NRS 641.029s limitation does not permit drug and alcohol abuse counselors to practice psychology without a psychology license.
[Headnotes 11, 12]

NRS 641C.065 defines what constitutes the [c]linical practice of counseling alcohol and drug abusers and expressly states that the term does not include [t]he diagnosis or treatment of a psychotic disorder; or . . . [t]he use of a psychological or psychometric assessment test to determine intelligence, personality, aptitude and interests. NRS 641C.065(2)(a)-(b). Nothing in NRS Chapter 641C permits a drug and alcohol abuse counselor to engage in psychological treatment, hold himself or herself out as a psychologist, or

622

Webb v. Clark County School Dist.

[125 Nev.

accept remuneration for unlicensed psychological services rendered. NRS 641.390(1)-(2). If an unlicensed person practices psychology or represents that he or she is a licensed psychologist, or uses any title or description that implies that he or she is a psychologist, he or she is guilty of a gross misdemeanor. NRS 641.440(4)-(5). Based on the plain reading of these statutes, we reject Webbs argument.3 Although this court has not previously determined whether unlicensed professional fees are recoverable as a matter of law, we are persuaded by the Court of Appeals of Arizonas treatment of analogous issues. In Sanfilippo v. State Farm Mutual Automobile Insurance Co., 535 P.2d 38, 40 (Ariz. Ct. App. 1975), abrogated by statute as stated in State Farm Mut. Auto. Ins. Co. v. Arizona Bd. of Chiropractic Examiners, 931 P.2d 426 (Ariz. Ct. App. 1996),4 the Court of Appeals of Arizona considered whether physical therapy treatments provided by unlicensed assistants violated statutes prohibiting the unlicensed practice of physical therapy and whether an insurance company was obligated to pay fees for services rendered by unlicensed individuals. Id. at 39-40. After discussing Arizonas statutes prohibiting and penalizing the unlicensed practice of physical therapy and the associated penalties, the Sanfilippo court explained that it was the Legislatures specific intent to set out the qualifications and licensing requirements for physical therapists. Id. at 42. Thus, the court determined that it was in the public interest to license this activity. Id. And, the court concluded that in light of the dangers associated with the practice of physical therapy (including severe burns, tissue damage, and bone damage), making it illegal for unlicensed people to practice physical therapy furthered the sound public policy of protecting the public. Id. at 42-43. In so holding, the court concluded that insurance companies were not obli3 Webb also claims that even if Hoppers treatment was illegal because he was unlicensed, Webb should be able to recover for that treatment under the theory of unjust enrichment because Webb is still obligated to pay Hopper for the services that Hopper provided and that Webb would be unjustly enriched otherwise. Aside from the fact that this case does not concern a claim made by Hopper against Webb for recovery of fees, we conclude that Webbs argument is meritless. See NRS 641.390(2) (prohibiting any person from offering his services and accepting remuneration for psychological services rendered without a psychology license); Loomis v. Lange Financial Corp., 109 Nev. 1121, 1128, 865 P.2d 1161, 1165 (1993) (concluding that contracts made in contravention of the law do not create a right of action (quoting Vincent v. Santa Cruz, 98 Nev. 338, 341, 647 P.2d 379, 381 (1982))). 4 While the status of Arizona law has changed since the case of Sanfilippo, 535 P.2d 38, was decided and, in particular, [p]hysical therapy assistants are no longer licensed, as explained in State Farm Mut. Auto. Ins. Co. v. Arizona Bd. of Chiropractic Examiners, 931 P.2d at 426-27, the rationale employed in Sanfilippo is only undercut as applied to the particular facts of that case. Distinguishably, Nevada has not changed its statutes regarding the practice of psychology, and therefore, we are persuaded by the rationale employed by the Sanfilippo court.

Oct. 2009]

Webb v. Clark County School Dist.

623

gated to pay for unlawfully rendered services. Id. at 40; see also Loomis, 109 Nev. at 1127, 865 P.2d at 1164 (barring a real estate companys action to recover a commission on the sale of a piece of property because of the companys willful evasion of Nevadas real-estate licensing scheme).
[Headnote 13]

We are persuaded that the Sanfilippo court reached the correct result on this issue, and that this result is supported by Nevada law and furthers Nevadas public policy. Like the Sanfilippo court, we are convinced that when the Legislature enacted NRS Chapter 641 to regulate psychologists, it intended to prevent laypeople from engaging in activities constituting the practice of psychology. The various treatments used by psychologists when providing care to patients with mental illnessand the inherent dangers associated with those treatmentswarrant the gross misdemeanor penalty for the unlicensed representation and/or practice of psychology. Moreover, public policy is furthered by the Legislatures mandate of licensing in the medical field. The licensing requirement, as the Sanfilippo court indicated, also permits the State, through examining boards, to establish qualifications, including education and practical training, for those persons who practice the various medical services, such as psychology. 535 P.2d at 43. Common sense dictates that if the person performing the services lacks the requisite education and training, then it is virtually impossible to determine whether his or her judgment in rendering services is reasonable and whether the services are necessary or even warranted. Therefore, we conclude that it would be contrary to Nevada law and public policy to permit parties to recover for psychological services rendered by unlicensed individuals.
[Headnote 14]

In this case, Webb does not dispute that Hopper is not a licensed psychologist. As the record reflects, Hopper stated in his deposition that he is not licensed as a psychologist in Nevada. To support the award, Webb instead relies on his own medical experts testimony that Hoppers treatments were reasonable and consistent with the standards of the profession. However, we determine that regardless of whether Hoppers treatment was reasonable and in conformity with the psychology profession, Hoppers actions were in violation of Nevada law if he was indeed practicing psychology. NRS 641.025 defines the [p]ractice of psychology as the observation, description, evaluation, interpretation or modification of human behavior by the application of psychological principles, methods or procedures to prevent or eliminate problematic, unhealthy or undesired behavior and to enhance personal relationships and behavioral and mental health. The term also encompasses several areas of specialization. See NRS 641.025(1)-(10).

624
[Headnote 15]

Webb v. Clark County School Dist.

[125 Nev.

In this case, Hopper testified that he conducted electromyography scans (EMGs) on Webb, which Hopper conceded constituted biofeedback (a specialized area pursuant to NRS 641.025(6)), and that he diagnosed Webb with post-traumatic stress disorder. Hopper examined and evaluated Webb over a four-month period, giving him approximately 26 treatments that totaled $5,700. In light of this evidence, we determine that Hopper engaged in the practice of psychology when he treated Webb. As a result, we reverse the district courts damage award for Hoppers services because Hoppers treatment was illegal and not recoverable as a matter of law. Accordingly, we reverse on this issue. CONCLUSION
[Headnote 16]

We conclude that the Coverdell Act is an affirmative defense that must be pleaded or it is waived. In rendering this conclusion, we establish that the appropriate standard in reviewing a district courts decision regarding whether a defense must be affirmatively pleaded is de novo. After applying the test set forth in Richardson Construction, 123 Nev. at 393, 168 P.3d at 94, we affirm the district courts judgment with respect to liability because CCSD and Phillips failed to plead the Coverdell Act and the district courts decision regarding liability is supported by substantial evidence.
[Headnote 17]

However, with respect to the district courts award of damages for services rendered by Hopper, we reverse. We conclude that, as a matter of law, a person cannot recover damages for psychological services rendered by a person who is not a licensed psychologist. Because Hopper is not a licensed psychologist, the district court erred by awarding damages for services rendered by Hopper. Accordingly, we affirm in part and reverse in part the judgment of the district court. PARRAGUIRRE, DOUGLAS, CHERRY, SAITTA, GIBBONS, and PICKERING, JJ., concur.

Oct. 2009]

Citizens for Cold Springs v. City of Reno

625

CITIZENS FOR COLD SPRINGS, JOAN LISCOM AND RAYMOND LISCOM, APPELLANTS, v. CITY OF RENO; LIFESTYLE HOMES TND LLC; WOODLAND VILLAGE HOMES; WOODLAND VILLAGE NORTH LLC; H & N PROPERTIES LLC; JOSEPHINE SWEENEY TRUST; WALLACH IX LLC; DENNIS CHARLEY; JOE E. GARD NER FAMILY TRUST; CHRISTINE TERELAK; ZYG MUNT TERELAK; CAROLINE KURNIK; FRANK KURNIK; MIKE MULLEN; AND IRENE MULLEN, RESPONDENTS.
No. 45906 October 15, 2009 218 P.3d 847

Appeal from a district court order dismissing a complaint for declaratory and injunctive relief in an annexation dispute. Second Judicial District Court, Washoe County; Steven P. Elliott, Judge. Adjacent neighbors of land voluntarily annexed by city filed action against city and owners of annexed land for declaratory and injunctive relief along with a petition for writ of mandamus seeking review and reversal of the annexation. The district court granted citys and annexed landowners motions for failure to state a claim. Neighbors appealed. The supreme court, SAITTA, J., held that: (1) neighbors had standing to challenge annexation; and (2) neighbors sufficiently claimed an adverse effect to meet the standing requirement to challenge annexation. Reversed and remanded. John L. Marshall, Reno, for Appellants. John J. Kadlic, City Attorney, and Marilyn D. Craig, Deputy City Attorney, Reno, for Respondent City of Reno. Gunderson Law Firm and Mark H. Gunderson and Elaine S. Guenaga, Reno, for Respondents Lifestyle Homes TND, Woodland Village Homes, Woodland Village North, H & N Properties, Josephine Sweeney Trust, Wallach IX, Dennis Charley, Joe E. Gardner Family Trust, Christine Terelak, Zygmunt Terelak, Caroline Kurnik, Frank Kurnik, Mike Mullen, and Irene Mullen.
1. APPEAL AND ERROR. Standard of review for dismissal for failure to state a claim is rigorous, as supreme court construes the pleading liberally, drawing every inference in favor of the nonmoving party; all factual allegations of the complaint must be accepted as true. 2. APPEAL AND ERROR. Supreme court reviews questions of law and statutory construction de novo.

626

Citizens for Cold Springs v. City of Reno

[125 Nev.

3. MUNICIPAL CORPORATIONS. Adjacent neighbors to voluntarily annexed land were any person and, thus, had standing to challenge annexation, although annexation did not include their property; statute that allowed any person or city to request stay of annexation proceeding or annulment of annexation conferred right to seek judicial review to any person claiming to be adversely affected. NRS 268.668. 4. MUNICIPAL CORPORATIONS. Determination of whether a party has standing to challenge voluntary land annexation is a twofold inquiry: (1) whether statute allowing any person or city to request stay of annexation proceeding or annulment of annexation confers standing on person or city seeking it, and (2) whether person or city was adversely affected by annexation. NRS 268.668. 5. MUNICIPAL CORPORATIONS. Statute allowing any person or city to request stay of annexation proceeding or annulment of annexation expressly included statute allowing city to annex contiguous territory, and, thus, first statute was appropriate mechanism to challenge voluntary annexation. NRS 268.668, 268.670. 6. ACTION. Supreme court first looks at the language of a standing statute itself to determine if it confers statutory rights that are broader than constitutional standing would allow. 7. MUNICIPAL CORPORATIONS. Statute allowing any person or city to request stay of annexation proceeding or annulment of annexation confers rights that are broader than those conferred by constitutional standing because it states that any person or city claiming to be adversely affected by an annexation decision may challenge it. NRS 268.668. 8. MUNICIPAL CORPORATIONS. Adjacent neighbors of voluntarily annexed land sufficiently claimed an adverse effect to meet the standing requirement of statute that allowed any person or city adversely affected to request stay of annexation proceeding or annulment of annexation, although annexation did not include their property; purpose of statute was to allow citizens a means of challenging land annexation, and adverse effect could be a reasonably ascertainable future harm. NRS 268.668. 9. MUNICIPAL CORPORATIONS. Statute allowing any person or city adversely affected by annexation to request stay of annexation proceeding or annulment of annexation is ambiguous as to what constitutes adverse effect. NRS 268.668. 10. STATUTES. To clarify a statutes ambiguity, supreme court looks at the context and spirit in which it was enacted to effect a construction that best represents the legislative intent in enacting the statute. 11. STATUTES. Statutes within a statutory scheme are read harmoniously with one another to avoid an unreasonable or absurd result. 12. MUNICIPAL CORPORATIONS. Statute allowing any person or city adversely affected by annexation to request stay of annexation proceeding or annulment of annexation is promulgated for public benefit and should be liberally construed and broadly interpreted. NRS 268.668. 13. MUNICIPAL CORPORATIONS. Statute allowing any person or city adversely affected by annexation to request stay of annexation proceeding or annulment of annexation requires

Oct. 2009]

Citizens for Cold Springs v. City of Reno

627

14.

15.

16. 17.

18.

19.

that the claim of adverse effect be adequately pleaded for a citizen to have standing to make such a challenge. NRS 268.668. MUNICIPAL CORPORATIONS. Statute allowing any person or city adversely affected by land annexation to request stay of annexation proceeding or annulment of annexation contemplates both current and reasonably ascertainable future adverse effects; statutes primary purpose was providing citizens with a way to challenge an annexation. NRS 268.668. MUNICIPAL CORPORATIONS. Statute allowing any person or city adversely affected by land annexation to request stay of annexation proceeding or annulment of annexation does not limit the time frame of claiming an adverse effect, and thus, adverse effect is not strictly limited to current harm; otherwise, citizens would have to wait for an annexation to be completed before bringing an action, which was expressly counter to statutory language that action could be brought at any stage of annexation proceeding. NRS 268.668. MUNICIPAL CORPORATIONS. Citizens may challenge land-annexation decisions, so long as the claim of adverse effect is adequately pleaded. NRS 268.668. MUNICIPAL CORPORATIONS. Statute allowing any person or city adversely affected by land annexation to request stay of annexation proceeding or annulment of annexation contemplates current and reasonably ascertainable future adverse effects, the nature of which is a factual determination for the district court. NRS 268.668. MUNICIPAL CORPORATIONS. In addressing the merits of challenge to voluntary annexation, the district court must determine whether there has been an abuse of discretion by the governing body involved in the annexation. NRS 268.668. MUNICIPAL CORPORATIONS. Although only a claim of adverse effect is necessary for standing purposes in an action challenging voluntary annexation, a successful challenge will require an actual showing of adverse effect; party challenging annexation must establish that he or she has, or reasonably will, suffer an adverse effect based on the annexation decision. NRS 268.668.

Before the Court EN BANC.1 OPINION By the Court, SAITTA, J.: In this appeal, we examine whether citizens have standing to challenge a land annexation if they do not own the property subject to annexation. Consistent with our prior holdings granting citizens the right to challenge land-use decisions and the language of NRS 268.668, we conclude that citizens may challenge an annexation even if the annexation does not include their property. In this, we expand our ruling in Hantges v. City of Henderson, 121 Nev. 319, 113 P.3d 848 (2005), to grant citizens standing to challenge land annexations.
1 THE HONORABLE KRISTINA PICKERING, Justice, did not participate in the decision of this matter.

628

Citizens for Cold Springs v. City of Reno

[125 Nev.

Our extension of Hantges is rooted in the plain language of NRS 268.668, which confers the right to seek judicial review to any person claiming to be adversely affected by an annexation.2 We further use this opportunity to clarify the meaning of adverse effect in the context of NRS 268.668. FACTUAL AND PROCEDURAL BACKGROUND Respondents, owners of the subject land (collectively, Lifestyle), initiated a voluntary annexation by requesting that the other respondent in this appeal, the City of Reno (the City), annex approximately 7,000 acres of land in the Cold Springs Valley and adjacent areas. On March 9, 2005, the City held a hearing regarding the annexation. Some property owners and residents of Cold Springs (collectively, Cold Springs), an area that borders the subject land, were at the hearing to oppose the annexation. The city council voted to approve the annexation petition on a 4-3 vote, thereby formally adopting Ordinance 5667 and annexing approximately 7,000 acres of undeveloped land lying primarily in Cold Springs Valley. On April 1, 2005, Cold Springs filed a complaint for declaratory and injunctive relief along with a petition for writ of mandamus, seeking review of, and reversal of, the annexation. Cold Springs challenged the annexation, claiming it would have an adverse effect on its rural community. The City and Lifestyle moved to dismiss Cold Springs case for failure to state a claim. The district court granted the Citys and Lifestyles motions, finding that all of Cold Springs claims were speculative. The district court determined that Cold Springs lacked standing to sue because it had not shown that it had personally, substantially, and adversely been affected by the annexation. It further noted that [e]very allegation made in the Complaint is based on some possible future damage that might occur on some future date and not a substantial and adverse damage that currently and particularly affects [Cold Springs] differently than the general public. This appeal followed.
2 We note that our decision in Phillips v. City of Reno, 92 Nev. 563, 554 P.2d 740 (1976), may appear to be at odds with our holding here. However, the language of Nevadas voluntary annexation statute, NRS 268.670, which we quoted in Phillips, has since been amended. Indeed, NRS 268.670 was amended to strike the language in the statute [n]otwithstanding the provisions of NRS 268.610 to 268.668, 1977 Nev. Stat., ch. 373, 5, at 676, precisely the language this court relied on to conclude that the citizens in that case did not have standing to challenge an annexation decision. Id. at 565, 554 P.2d at 742. We further note that the facts of Phillips are distinguishable from the facts of the present case. In Phillips, we noted that none of the appellants owned property within the annexed area or bordering it, id. at 565, 554 P.2d at 741, whereas here, all the appellants either own land or reside in an area bordering the subject land.

Oct. 2009]

Citizens for Cold Springs v. City of Reno DISCUSSION

629

[Headnotes 1, 2]

The standard of review for dismissal for failure to state a claim is rigorous, as this court construes the pleading liberally, drawing every inference in favor of the nonmoving party. Buzz Stew, LLC v. City of N. Las Vegas, 124 Nev. 224, 227-28, 181 P.3d 670, 672 (2008); Simpson v. Mars Inc., 113 Nev. 188, 190, 929 P.2d 966, 967 (1997). All factual allegations of the complaint must be accepted as true. Simpson, 113 Nev. at 190, 929 P.2d at 967. We review questions of law and statutory construction de novo. Buzz Stew, 124 Nev. at 228, 181 P.3d at 672; Leven v. Frey, 123 Nev. 399, 402, 168 P.3d 712, 714 (2007).
[Headnote 3]

Cold Springs argues that it has standing to challenge the annexation pursuant to NRS 268.668 and Hantges. We agree. Our holding in this matter is concerned exclusively with citizen standing as to annexation decisions. The district court granted the Citys motion to dismiss based on its determination that Cold Springs lacked standing. In reaching its decision, the district court found that Cold Springs complaint contained merely speculative allegations. Because it found that Cold Springs had no standing, the district court did not reach any other issues raised by Cold Springs in its complaint or issues raised by the City in its motion to dismiss. Accordingly, we similarly limit our holding to the issue of whether Cold Springs had standing to challenge the annexation at issue.
[Headnote 4]

The determination of whether a party has standing in this context is a twofold inquiry. The threshold question is: Whom does NRS 268.668 confer standing upon to challenge a voluntary annexation? And, second, what does it mean to be adversely affected pursuant to NRS 268.668? We address each question in turn. Standing pursuant to NRS 268.668
[Headnote 5]

By its plain language, NRS 268.668 confers standing upon any person . . . claiming to be adversely affected by an annexation.3 (Emphases added.) To determine who is implicated by
3 Respondents argue that NRS 268.668 does not apply to the present case because the annexation at issue was a voluntary annexation under NRS 268.670. This argument lacks merit. NRS 268.668 contains the following language: If the court finds that any of the steps required by NRS 268.610 to 268.670, inclusive, have not been duly taken . . . the court shall make such temporary or final order in the premises as the ends of justice may require. By its own terms,

630

Citizens for Cold Springs v. City of Reno

[125 Nev.

NRS 268.668s any person language, we turn to this courts jurisprudence regarding the fundamental standing principles for judicial review and the evolution of those principles as they pertain to land-use decisions and annexations. This court has a long history of requiring an actual justiciable controversy as a predicate to judicial relief. Stockmeier v. State, Dept of Corrections, 122 Nev. 385, 393, 135 P.3d 220, 225 (2006) (quoting Doe v. Bryan, 102 Nev. 523, 525, 728 P.2d 443, 444 (1986)), abrogated on other grounds by Buzz Stew, LLC v. City of N. Las Vegas, 124 Nev. 224, 228 n.6, 181 P.3d 670, 672 n.6 (2008). In instances where we have found that the Legislature has provided citizens with certain statutory rights, we have examined the language of the statute itself to determine whether the plaintiff had standing to sue. Id. at 393, 135 P.3d at 226. We have determined that [t]o do otherwise would be to bar the people of Nevada from seeking recourse in state courts whenever the Legislature has provided statutory rights that are broader than constitutional standing would allow. Id. at 393-94, 135 P.3d at 226. We had occasion to apply the principle of statutory standing in Hantges v. City of Henderson, 121 Nev. 319, 322-23, 113 P.3d 848, 850 (2005). In Hantges, this court determined whether citizens who were not property owners of the subject land had standing to challenge an agencys findings on a redevelopment plan. Id. at 322, 113 P.3d at 850. The statute at issue, NRS 279.609, provided for actions questioning the validity of an agencys findings or determinations regarding redevelopment plans. Id. We concluded that while the statute did not expressly state who could contest redevelopment plans, it served a protective purpose and, therefore, conferred standing to citizens to challenge agency decisions with regard to redevelopment plans. Id. at 322-23, 113 P.3d at 850. In so doing, we noted that the decision was consistent with our prior rulings that citizens have standing to challenge land-use decisions. Id. at 323, 113 P.3d at 850 (citing City of Reno v. Goldwater, 92 Nev. 698, 700, 558 P.2d 532, 533 (1976) (observing that the standing of taxpayers and residents living in close proximity to subject land was beyond question)).
[Headnote 6]

Although decided in the context of redevelopment plans, our decision in Hantges is instructive with regard to whether NRS 268.668 confers standing upon citizens to challenge annexation decisions. In the tradition of our long-standing jurisprudence, we first look at the
NRS 268.668 expressly includes NRS 268.670, which is the statute governing voluntary annexations. Accordingly, we determine that NRS 268.668 is the appropriate mechanism to challenge a voluntary annexation.

Oct. 2009]

Citizens for Cold Springs v. City of Reno

631

language of the statute itself to determine if it confers statutory rights that are broader than constitutional standing would allow.
[Headnote 7]

NRS 268.668 confers rights that are broader than those conferred by constitutional standing because it states that any person or city claiming to be adversely affected by an annexation decision can challenge it. We determine that Cold Springs, a group of landowners and residents who live in close proximity to the subject land, falls within NRS 268.668s any person language. In making this determination, we extend our holding in Hantges, which granted citizens who were not property owners standing to challenge redevelopment plans. Here, we hold that citizens who are not property owners of the subject land may challenge land-annexation decisions pursuant to NRS 268.668. However, whereas in Hantges the standing issue was resolved once we decided who could challenge the validity of an agencys findings as to a redevelopment plan, here there is a second step that must be resolved because of NRS 268.668s language. We determine that the statutes claiming to be adversely affected language adds a required showing in order for a party to have standing to challenge a land annexation. What is meant by NRS 268.668s adverse-effect language
[Headnotes 8, 9]

In determining what constitutes a claim of adverse effect, we first look at the plain language of NRS 268.668. The statute offers no definition or guidance. Accordingly, we conclude that NRS 268.668 is ambiguous as to what constitutes adverse effect. Therefore, we turn to principles of statutory construction to determine its meaning.
[Headnotes 10, 11]

To clarify a statutes ambiguity, we look at the context and spirit in which it was enacted to effect a construction that best represents the legislative intent in enacting the statute. Boucher v. Shaw, 124 Nev. 1164, 1167, 196 P.3d 959, 961 (2008). Our goal is to read statutes within a statutory scheme harmoniously with one another to avoid an unreasonable or absurd result. Allstate Insurance Co. v. Fackett, 125 Nev. 132, 138, 206 P.3d 572, 576 (2009).
[Headnotes 12-14]

The primary purpose of NRS 268.668 is to allow citizens a means of challenging a land annexation. As such, it is a statute promulgated for . . . public benefit [and] . . . should be liberally construed and broadly interpreted. Dewey v. Redevelopment Agency of Reno, 119 Nev. 87, 94, 64 P.3d 1070, 1075 (2003) (quoting 85-19 Op.

632

Citizens for Cold Springs v. City of Reno

[125 Nev.

Atty Gen. 90, 93 (1985)). In construing NRS 268.668, we determine that the statute requires that the claim of adverse effect be adequately pleaded for a citizen to have standing to challenge a land annexation. Further, we conclude that the language of NRS 268.668 contemplates both current and reasonably ascertainable future adverse effects.
[Headnote 15]

Our holding that an adverse effect can be a reasonably ascertainable future harm is reflective of the statutes primary purpose of providing citizens with a way to challenge an annexation. To hold otherwise would result in an unreasonable result by requiring citizens to wait for an annexation to be completed before bringing an action and that is expressly counter to NRS 268.668s opening language: At any stage of an annexation or detachment proceeding, or within 90 days from the date of its completion . . . . (Emphasis added.) The statute does not limit the time frame of claiming an adverse effect, and as such, we hold that the adverse effect should not be strictly limited to current harm. We note similar holdings in other jurisdictions. See Construction Ind. Assn, Sonoma Co. v. City of Petaluma, 522 F.2d 897, 903 (9th Cir. 1975) (holding that two landowners challenging a housing and zoning plan have standing to sue on their own behalf because they had already suffered or are threatened with a direct injury); Cowan v. Board of Comrs of Fremont County, 148 P.3d 1247, 1255 (Idaho 2006) (holding that adjoining landowner had standing to challenge a proposed subdivision because when one alleges that his property might be adversely affected by a land-use decision, the nature of the harm, be it real or potential, is sufficient for standing purposes); Benton County v. Friends of Benton County, 653 P.2d 1249, 1257 (Or. 1982) (affirming a land-use agencys decision granting standing to a landowner and explaining that the inquiry as to adverse effect and the likelihood of injury is a factual determination, while noting that in that specific instance, the likelihood of damage was remote but was not too remote for consideration); Jenkins v. Swan, 675 P.2d 1145, 1150 (Utah 1983) (holding that an allegation of adverse effect requires some causal relationship alleged between the injury to the plaintiff, the governmental actions and the relief requested). After reviewing the complaint in the present case, it is clear that Cold Springs sufficiently claimed an adverse effect to meet the standing requirement under NRS 268.668. Therefore, we conclude that Cold Springs has standing to challenge the land annexation at issue in this case, even if it did not own property subject to the annexation, because NRS 268.668 confers standing upon any citizen to make such a challenge and because Cold Springs adequately claimed an adverse effect in its complaint.

Oct. 2009]

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633

[Headnotes 16, 17]

In reaching our decision, we extend our holding in Hantges and hold that citizens may challenge land-annexation decisions, so long as the claim of adverse effect is adequately pleaded. We determine that Nevadas long-standing history of recognizing statutory rights that are broader than those afforded to citizens by constitutional standing supports this decision. Our holding today adds upon this courts jurisprudence of granting standing to citizens to challenge land-use, redevelopment, and now, annexation decisions. We further hold that NRS 268.668 contemplates current and reasonably ascertainable future adverse effects, the nature of which is a factual determination for the district court.
[Headnote 18]

We reiterate that our holding today only addresses the issue of standing under NRS 268.668. While we hold that Cold Springs has standing to bring its challenge to the annexation, we do not determine whether Cold Springs challenge has merit or will be successful. We remand this matter to the district court for it to make this determination. In addressing the merits of the challenge, the district court must determine whether there has been an abuse of discretion by the governing body involved in the land annexation. The last sentence of NRS 268.668 gives the district court clear direction: If the court finds that any of the steps required by NRS 268.610 to 268.670, inclusive, have not been duly taken or that any officer or body has abused its discretion in taking any action, the court shall make such temporary or final order in the premises as the ends of justice may require.
[Headnote 19]

In determining whether there was an abuse of discretion in the annexation decision, the district court shall take into account whether Cold Springs actually establishes the adverse effect it claims in its complaint. Although only a claim of adverse effect is necessary for standing purposes, a successful challenge will require an actual showing of adverse effect, as defined above. Thus, Cold Springs must establish that they have, or reasonably will, suffer an adverse effect based on the annexation decision. This is a factual determination that the district court must make as part of its evaluation of the merits of Cold Springs challenge under NRS 268.668. We conclude that such a requirement is intended as part of the statutorily mandated showing of an abuse of discretion. Such an interpretation of the statute is necessary in order to avoid an absurd result, Allstate Insurance Co. v. Fackett, 125 Nev. 132, 138, 206 P.3d 572, 576 (2009), because it would be unreasonable to require a claim of adverse effect for standing purposes without requiring the party to ac-

634

Mendoza-Lobos v. State

[125 Nev.

tually establish what it claims. Thus, in order to establish an abuse of discretion, it is necessary to demonstrate an adverse effect; if the party does not suffer an adverse effect, it could not establish an abuse of discretion in the decision as it applies to the party. CONCLUSION We conclude that the district court erred when it granted the Citys and Lifestyles motions to dismiss. We hold that Cold Springs has standing to challenge the land-annexation decision and thereby extend our holding in Hantges to such matters. We do not reach the issue of whether Cold Springs can sufficiently make a proper showing of adverse effect or an abuse of discretion in the annexation decision to establish a successful challenge under NRS 268.668. We leave that for the district courts determination on remand. Accordingly, we reverse the district court order granting the motions to dismiss and remand this matter to the district court for proceedings consistent with this opinion. HARDESTY, C.J., PARRAGUIRRE, DOUGLAS, CHERRY, and GIBBONS, JJ., concur.

DOUGLAS MENDOZA-LOBOS, APPELLANT, v. THE STATE OF NEV ADA, RESPONDENT.

No. 52110 October 29, 2009 218 P.3d 501

Appeal from a judgment of conviction, pursuant to a jury verdict, of one count each of burglary, robbery with the use of a deadly weapon, sexual assault with the use of a deadly weapon, attempted sexual assault with the use of a deadly weapon, assault with a deadly weapon, and battery with a deadly weapon. Second Judicial District Court, Washoe County; Steven P. Elliott, Judge. The supreme court, HARDESTY, C.J., held that: (1) amended deadly weapon enhancement statute violated separation-of-powers doctrine, (2) enhancement statute served a laudable legislative goal with respect to the length of enhancement sentences and facilitated appellate review, (3) enhancement statute required district court to make findings on the record as to each factor listed therein as applied to each crime individually before imposing a sentence enhancement for the use of a deadly weapon, (4) defendants failure to object to district courts failure to make findings on the record as to each factor listed within enhancement statute rendered the error subject to plain-error review, and (5) district courts failure to make

Oct. 2009]

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635

findings on the record as to each factor listed within enhancement statute was not plain error. Affirmed. DOUGLAS, J., with whom PARRAGUIRRE and PICKERING, JJ., agreed, dissented in part. Jeremy T. Bosler, Public Defender, and John Reese Petty, Chief Deputy Public Defender, Washoe County, for Appellant. Catherine Cortez Masto, Attorney General, Carson City; Richard A. Gammick, District Attorney, and Terrence P. McCarthy, Deputy District Attorney, Washoe County, for Respondent.
1. CONSTITUTIONAL LAW; SENTENCING AND PUNISHMENT. Amended deadly weapon enhancement statute violated separation-ofpowers doctrine to the extent that it required courts to state on the record that the enumerated factors had been considered and to make specific findings in that respect, thereby dictating the manner in which a sentence was to be pronounced. Const. art. 3, 1; NRS 193.165(1). 2. SENTENCING AND PUNISHMENT. Amended deadly weapon enhancement statute, though found to be in violation of the separation-of-powers doctrine to the extent that it required courts to state on the record that the enumerated factors had been considered and to make specific findings in that respect, thereby dictating the manner in which a sentence was to be pronounced, represented a sentencing mandate with which supreme court chose to comply, as it served a laudable legislative goal with respect to the length of enhancement sentences and facilitated appellate review. Const. art. 3, 1; NRS 193.165(1). 3. SENTENCING AND PUNISHMENT. Amended deadly weapon enhancement statute required district court to make findings on the record, as to each factor listed therein as applied to each crime individually, before imposing a sentence enhancement for the use of a deadly weapon, in prosecution for burglary, robbery with the use of a deadly weapon, sexual assault with the use of a deadly weapon, attempted sexual assault with the use of a deadly weapon, assault with a deadly weapon, and battery with a deadly weapon. NRS 193.165(1). 4. CONSTITUTIONAL LAW. With regard to a sentence for a criminal offense, while it is the function of the Legislature to set criminal penalties, it is the function of the judiciary to decide what penalty, within the range set by the Legislature, if any, to impose on an individual defendant. 5. CONSTITUTIONAL LAW. Just as it is within the Legislatures power to completely remove any judicial discretion to determine a criminal penalty by creating mandatory sentencing schemes, it is also within the Legislatures power to limit judicial discretion by mandating factors to be considered by the courts when imposing a sentence. 6. CONSTITUTIONAL LAW. The Legislature is without authority to dictate the manner in which a sentence is pronounced, since power to impose a sentence is a basic constitutional function of the judicial branch over which supreme court has inherent authority. Const. art. 3, 1.

636

Mendoza-Lobos v. State

[125 Nev.

7. CRIMINAL LAW. The interpretation of a statute presents a question of law and is subject to de novo review. 8. STATUTES. Supreme court will attribute the plain meaning to a statute that is not ambiguous; if a statute is ambiguous, however, the Legislatures intent is controlling, and court interprets the statutes language in accordance with reason and public policy. 9. STATUTES. A statute is ambiguous when its language lends itself to two or more reasonable interpretations. 10. STATUTES. Pursuant to the rule of lenity, criminal statutes are interpreted liberally and any ambiguities or inconsistencies are construed in favor of the defendant. 11. CRIMINAL LAW. Defendants failure to object to district courts failure to make findings on the record as to each factor listed within amended deadly weapon enhancement statute rendered the error subject to plain-error review on appeal, in prosecution for burglary, robbery with the use of a deadly weapon, sexual assault with the use of a deadly weapon, attempted sexual assault with the use of a deadly weapon, assault with a deadly weapon, and battery with a deadly weapon. NRS 193.165(1). 12. CRIMINAL LAW. District courts failure to make findings on the record as to each factor listed within amended deadly weapon enhancement statute was not plain error, in prosecution for burglary, robbery with the use of a deadly weapon, sexual assault with the use of a deadly weapon, attempted sexual assault with the use of a deadly weapon, assault with a deadly weapon, and battery with a deadly weapon, where nothing in the record indicated that the district courts failure to make certain findings on the record had any bearing on the district courts sentencing decision. NRS 193.165(1). 13. CRIMINAL LAW. Under plain-error analysis, an error that is plain from the record requires reversal if a defendant demonstrates that the error affected his or her substantial rights, by causing actual prejudice or a miscarriage of justice.

Before the Court EN BANC. OPINION By the Court, HARDESTY, C.J.: In this appeal, we address two issues related to recent amendments to the deadly weapon enhancement statute, NRS 193.165(1), that require the district court to consider enumerated factors and state on the record that it has considered the factors in determining the length of the enhancement sentence.1 First, we con1 The same amendments were made to statutes providing enhancements for: felonies committed on the property of a school (NRS 193.161(1)); felonies committed by adults with the assistance of a child (NRS 193.162(2)); the use of a

Oct. 2009]

Mendoza-Lobos v. State

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sider whether these amendments to NRS 193.165(1) violate the separation-of-powers doctrine. Although we conclude that the amended statute violates the separation-of-powers doctrine to the extent that it requires the courts to state on the record that the enumerated factors have been considered and to make specific findings in that respect, we nonetheless elect to abide by the mandate contained therein because it serves a laudable legislative goal with respect to the length of enhancement sentences and facilitates appellate review. Second, we consider whether NRS 193.165(1) requires the district court to make findings on the record before imposing a sentence enhancement for the use of a deadly weapon. We conclude that it does and that findings must be made for each enhancement. Applying our holding to the instant case, we conclude that the district courts failure to make the required findings for two of appellant Douglas Mendoza-Lobos enhancements does not amount to plain error warranting reversal of his conviction and sentence.2 Therefore, we affirm the judgment of conviction. RELEVANT FACTS AND PROCEDURAL HISTORY Mendoza-Lobos was convicted, pursuant to a jury verdict, of burglary, robbery with the use of a deadly weapon, sexual assault with the use of a deadly weapon, attempted sexual assault with the use of a deadly weapon, assault with a deadly weapon, and battery with a deadly weapon. At sentencing, the district court heard argument from defense counsel and the State, and listened to the victims impact statement and Mendoza-Lobos statement in allocution. Before pronouncing sentence, the State reminded the district court that, pursuant to NRS 193.165, it was required to make finding[s] on the record regarding the sentences imposed for deadly weapon enhancements. The district court then made the following statement: Well, there are several of these charges that involve the use of a deadly weapon. And it looks like we have No. II, No. III and No. IV all on additional terms for the use of a deadly weapon. The statute NRS 193.167 [sic] talks about the enhancement for the use of a deadly weapon and calls on the
handgun containing metal-penetrating bullets in the commission of a crime (NRS 193.163(1)); felonies committed in violation of a protective order (NRS 193.166(2)); crimes committed against persons over age 60 or vulnerable persons (NRS 193.167(3)); commission of a crime because of certain characteristics of a victim (NRS 193.1675(1)); felonies committed to promote activities of a criminal gang (NRS 193.168(1)); and felonies committed with the intent to commit, cause, aid, further, or conceal an act of terrorism (NRS 193.1685(1)). 2007 Nev. Stat., ch. 525, 10-18, at 3186-93. 2 Mendoza-Lobos also contends that the district court abused its discretion at sentencing by ordering each sentence to run consecutively. After careful consideration, we conclude that this contention lacks merit. See NRS 176.035(1).

638

Mendoza-Lobos v. State

[125 Nev.

court to consider the following information which are: the facts and circumstances of the crime or criminal violation, also the criminal history of the person, the impact of the crime or criminal violation on a victim, also any mitigating factors presented by the person and any other relevant information. And certainly when you look at the facts and circumstances of the crime or criminal violations, you know, this is a sexual assault at gunpoint, you know, a very, very serious crime. Hardly any crime could be worse than this one. In addition, when you look at the impact of the crime on the victim and, you know, the victim we have here is just [sic] Ms. Quintero, but also the gentleman who arrived there was certainly also a victim and put into great anxiety, Im sure, when the pistol was pointed at him and trigger pulled and he hears the click of the hammer. You know, you might think this is the end. So, you know, when especially I hear Ms. Quintero, you know, talk about her circumstance and how shes been violated and ultimately now she will be forced to move, and something tells me that that would be reasonable for almost anybody in that same circumstance, is that you just couldnt remain in the same place and feeling alone and vulnerable there, at least some other place she could get a fresh start and a much better chance of coming to a more normal mental state in her home. With regard to the criminal history, there is in fact a fairly minimal criminal history here. Its not nonexistent, but its just careless driving and a minor in possession of alcohol. So, you know, in looking at all of these factors, the very serious nature of the crime and mitigation, et cetera, of course there isnt much in mitigation in a way when you look at the evaluation that Steven Ing has prepared, it doesnt portray a mental state for Mr. Mendoza-Lobos thats very favorable at all. Looks like hes somebody who does need extensive, you know, change of mind-set to be prepared to live out in society again and not be a serious threat. So I do find that the proposals for consecutive additional time due to the use of a deadly weapon are well appropriate. Mendoza-Lobos did not object to the sufficiency of the district courts compliance with and findings under NRS 193.165(1). The district court sentenced Mendoza-Lobos to serve various consecutive prison terms totaling 35 years to life. For the enhanced offenses, the district court imposed an enhancement sentence that was equal to the sentence for the underlying offense (48-120 months) with respect to the charges of robbery with the use of a deadly weapon and attempted sexual assault with the use of a deadly weapon and an enhancement sentence at the top end of the

Oct. 2009]

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639

enhancement range (96-240 months) for the sexual assault with the use of a deadly weapon. DISCUSSION On appeal, Mendoza-Lobos contends that the district court failed to comply with NRS 193.165(1) in imposing the sentences for the deadly weapon enhancements because it failed to articulate sufficient findings on the record. However, as a threshold matter, we first elect to address the States claim, raised during oral argument, that the Legislature lacks the power to require the district courts to consider specific factors and to state on the record that they have considered those factors when determining the length of the enhancement sentence. Legislative authority
[Headnotes 1-3]

The State contends that because NRS 193.165(1) compels the district courts to consider certain factors when imposing sentences for deadly weapon enhancements and to state on the record that they have done so, the statute infringes on the power of the judiciary and therefore violates the separation-of-powers doctrine. We agree with the State to the extent that the statute requires the district courts to state on the record that they have considered the enumerated factors, but we elect to abide by the legislative mandate and direct the district courts to comply with the statute. NRS 193.165(1) provides that persons using a deadly weapon in the commission of a crime shall, in addition to the punishment for that crime, be sentenced to a term in prison between 1 and 20 years. In determining the length of the additional penalty, the district court must consider: (a) [t]he facts and circumstances of the crime; (b) [t]he criminal history of the person; (c) [t]he impact of the crime on any victim; (d) [a]ny mitigating factors presented by the person; and (e) [a]ny other relevant information. NRS 193.165(1). The court shall state on the record that it has considered the information described in paragraphs (a) to (e), inclusive, in determining the length of the additional penalty imposed. Id.
[Headnote 4]

Pursuant to the Nevada Constitution, the legislative, executive, and judicial departments are separate and coequal branches of the state government. Blackjack Bonding v. Las Vegas Mun. Ct., 116 Nev. 1213, 1218, 14 P.3d 1275, 1279 (2000). Accordingly, no branch of government may exercise functions appertaining to either of the others. Nev. Const. art. 3, 1. With regard to a sentence for a criminal offense, while it is the function of the Legislature to set criminal penalties, Villanueva v. State, 117 Nev. 664, 668, 27 P.3d 443, 445-46 (2001), it is the function of the judiciary to decide what

640

Mendoza-Lobos v. State

[125 Nev.

penalty, within the range set by the Legislature, if any, to impose on an individual defendant, see Johnson v. State, 118 Nev. 787, 804, 59 P.3d 450, 461 (2002); Sandy v. District Court, 113 Nev. 435, 440, 935 P.2d 1148, 1151 (1997). The United States Constitution contains substantially similar divisions of power between the legislative, executive, and judicial departments of the federal government. See U.S. Const. art. 1, 1; id. art. 2, 1; id. art. 3, 1; Mistretta v. United States, 488 U.S. 361, 380 (1989) ( [E]ach of the three general departments of government [must remain] entirely free from the control or coercive influence, direct or indirect, of either of the others. (second alteration in original) (quoting Humphrys Executor v. U.S., 295 U.S. 602, 629 (1935))). Although it is within the power of the federal judiciary to impose a sentence in a criminal case, Ex Parte United States, 242 U.S. 27, 42 (1916), the United States Supreme Court has stated unequivocally that it is within the federal legislative power to prescribe mandatory sentences that divest the courts of any discretion in imposing a sentence. Chapman v. United States, 500 U.S. 453, 467 (1991) (Congress has the power to define criminal punishments without giving the courts any sentencing discretion.). The Court reasoned that [a] sentencing scheme providing for individualized sentences rests not on constitutional commands, but on public policy enacted into statutes. Id. (quoting Lockett v. Ohio, 438 U.S. 586, 605 (1978) (plurality opinion)).
[Headnote 5]

In the instant case, the factors prescribed by NRS 193.165(1) for the district courts consideration are the result of a public policy determination made by our Legislature. We conclude that, just as it is within the Legislatures power to completely remove any judicial discretion to determine a criminal penalty by creating mandatory sentencing schemes, it is also within the Legislatures power to limit judicial discretion by mandating factors to be considered by the courts when imposing a sentence. Other courts have reached the same conclusion. See U.S. v. Kerr, 686 F. Supp. 1174, 1183 (W.D. Pa. 1988) ([F]rom Congress power to eliminate entirely judicial discretion in sentencing follows the power to limit discretion and assign specific values to sentencing factors.); Carter v. State, 422 N.E.2d 742, 744 (Ind. Ct. App. 1981) (the establishment of a list of factors to be considered when determining sentences does not invade the power of the judiciary); Matchett v. State, 941 S.W.2d 922, 932 (Tex. Crim. App. 1996) (stating that it is within the legislative power to establish guidelines for deciding when a sentence of death is appropriate); cf. Fisher v. State, 690 So. 2d 268, 275-76 (Miss. 1996) (holding that a sentencing statute requiring imposition of a death sentence or life imprisonment did not run afoul of the separation of powers doctrine). But see State v. McCoy, 486 P.2d 247, 251-

Oct. 2009]

Mendoza-Lobos v. State

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52 (Idaho 1971) (holding that courts have an inherent right to suspend a sentence and statute imposing a mandatory sentence, without any right to exercise judicial discretion, is unconstitutional). And, we note that NRS 193.165(1) does not limit the district courts discretion to consider pertinent facts; instead, paragraph (e) allows the district court to consider [a]ny other relevant information. Thus, we conclude that the mandate in NRS 193.165(1) to consider the enumerated factors when determining an appropriate sentence for a deadly weapon enhancement does not run afoul of the separation-of-powers doctrine.3
[Headnote 6]

Conversely, the portion of NRS 193.165(1) which mandates that the district courts state on the record that they have considered the enumerated factors does not implicate the Legislatures authority to determine the appropriate sentence for a crime. Rather, that portion of the statute attempts to dictate the actual content of [the courts] pronouncement of sentence. People v. Davis, 442 N.E.2d 855, 857 (Ill. 1982). The power to impose a sentence is a basic constitutional function of the judicial branch of government over which this court has inherent authority. Nev. Const. art. 3, 1; id. art. 6, 1; see, e.g., Johnson, 118 Nev. at 804, 59 P.3d at 461; Harvey v. Dist. Ct., 117 Nev. 754, 768, 32 P.3d 1263, 1273 (2001) ([T]he court has inherent and constitutional authority to administer the judicial system.). Thus, the Legislature is without authority to dictate the manner in which a sentence is pronounced, and that portion of the statute requiring district courts to state on the record that they have considered the enumerated factors intrudes into the judicial function of pronouncing a sentence. Davis, 442 N.E.2d at 857. Ordinarily, a statute which intrudes on the powers of the judicial branch is construed as directory rather than mandatory. State of Nevada v. American Bankers Ins., 106 Nev. 880, 883, 802 P.2d 1276, 1278 (1990) (When statutory provisions relate to judicial functions, they should be regarded as directory only. (quoting Waite v. Burgess, 69 Nev. 230, 234, 245 P.2d 994, 996 (1952))). However, in this instance, we elect to abide by the legislative mandate contained in NRS 193.165(1) because it serves the laudable goal of ensuring that there is a considered relationship between the circumstances in which the weapon was usedincluding the defendants historyand the length of the enhancement sentence, as opposed to automatically doubling the sentence for the underlying of3 We note that while the Legislatures power to mandate the consideration of certain factors at sentencing does not violate the separation-of-powers doctrine, any mandated factors must still, of course, comport with the other provisions of our constitution. Cf. Glegola v. State, 110 Nev. 344, 348, 871 P.2d 950, 953 (1994) (explaining that the Legislature is empowered to define crimes and set punishments within the limits of the constitution).

642

Mendoza-Lobos v. State

[125 Nev.

fense, and facilitates appellate review of the enhancement. Therefore, we direct the district courts to make findings regarding each factor enumerated in NRS 193.165(1), as further explained below, when imposing a sentence for a deadly weapon enhancement. We note, however, that such acquiescence should not be construed as an acknowledgment of the Legislatures authority to enact legislation that impinges on the judicial branchs authority to dictate how it accomplishes its core functions. See Flynn v. Department of Admin., 576 N.W.2d 245, 255 (Wis. 1998); Judicial Attorneys Assn v. State, 586 N.W.2d 894, 899 (Mich. 1998); Mowrer v. Rusk, 618 P.2d 886, 893-94 (N.M. 1980). Compliance with NRS 193.165(1) Having concluded that the district courts must fulfill the mandates contained in NRS 193.165(1), we next consider whether the district court did so here. Mendoza-Lobos contends that the district court failed to comply with NRS 193.165(1) when imposing his sentences for the deadly weapon enhancements because it failed to make sufficient findings on the record. In so contending, Mendoza-Lobos necessarily argues that NRS 193.165(1) requires the district court to make findings prior to imposing a sentence for a deadly weapon enhancement. We agree.
[Headnotes 7-10]

The interpretation of a statute presents a question of law and is subject to de novo review. Firestone v. State, 120 Nev. 13, 16, 83 P.3d 279, 281 (2004). This court will attribute the plain meaning to a statute that is not ambiguous. Id. If a statute is ambiguous, however, the Legislatures intent is controlling, and we interpret the statutes language in accordance with reason and public policy. Sheriff v. Witzenburg, 122 Nev. 1056, 1061, 145 P.3d 1002, 1005 (2006) (quoting Lader v. Warden, 121 Nev. 682, 687, 120 P.3d 1164, 1167 (2005)). A statute is ambiguous when its language lends itself to two or more reasonable interpretations. State v. Catanio, 120 Nev. 1030, 1033, 102 P.3d 588, 590 (2004). Pursuant to the rule of lenity, criminal statutes are interpreted liberally and any ambiguities or inconsistencies are construed in favor of the defendant. Washington v. State, 117 Nev. 735, 739, 30 P.3d 1134, 1136 (2001). Mendoza-Lobos asserts that NRS 193.165(1) requires the district court to articulate findings, on the record, as to each factor listed therein. The State contends that the district court is not required to make findings, but merely to state that it has considered the factors set forth in the statute. We conclude that the statute is reasonably subject to either interpretation; thus, we look to its legislative history

Oct. 2009]

Mendoza-Lobos v. State

643

to determine its meaning. See Haney v. State, 124 Nev. 408, 412-13, 185 P.3d 350, 353-54 (2008). Prior to its amendment in 2007, NRS 193.165(1) mandated that a defendant convicted of using a deadly weapon in the commission of a crime be sentenced to a term equal and consecutive to the sentence imposed for the underlying crime. 1995 Nev. Stat., ch. 455, 1, at 1431. As amended, the statute still requires that any sentence for a deadly weapon enhancement be consecutive, but it now grants district courts discretion to impose a sentence for a minimum term of not less than 1 year and a maximum term of not more than 20 years in prison, so long as the additional sentence does not exceed the sentence for the underlying crime. NRS 193.165(1), (2). In exercising this discretion, district courts are required to consider five enumerated factors and state on the record that it has considered those factors. NRS 193.165(1). The return to discretionary sentencing was based, in large part, on the need to reduce the prison population. See, e.g., Hearing on A.B. 63 Before the Senate Judiciary Comm., 74th Leg. (Nev., May 10, 2007). However, it appears that legislators were concerned that certain members of the public would feel that discretionary sentencing was arbitrary or unfair. See, e.g., id. Accordingly, during hearings on the proposed amendment, legislators expressed that the purpose of the language requiring district courts to state on the record that they had considered the enumerated factors was to require[ ] sentencing judges to be more communicative regarding their discretion. Hearing on A.B. 63 Before the Senate Judiciary Comm., 74th Leg. (Nev., May 31, 2007). Towards this end, it is evident that the Legislature envisioned that the district court would make findings on the record. For example, Senator Mark Amodei stated: In the context of this bill, when a judge uses discretion, there should be special findings with respect to the context in which the weapon was used. The Senator went on to assert that [w]hen a judge sentences a person for using a weapon . . . there should be findings to ascertain why the person received the sentence in the context of whether a weapon was used. Hearing on A.B. 63 Before the Senate Judiciary Comm., 74th Leg. (Nev., May 10, 2007). Based on this legislative history, we construe NRS 193.165(1) as requiring district courts to articulate factual findings, on the record, regarding each of the factors enumerated therein. Further, we conclude that the plain language of the statute requires the district court to make separate findings for each deadly weapon enhancement. NRS 193.165(1)-(3) refer to the crime, the additional penalty, and the sentence. This language indicates that the requirements of the statute must be applied to each crime individually, i.e., that the district court must consider each factor as it

644

Mendoza-Lobos v. State

[125 Nev.

specifically relates to each enhancement. Moreover, it would be patently unreasonable for a district court to consider the facts and circumstances of only one crime, or the impact on only one of multiple victims, when imposing sentences for multiple counts carrying enhancements.
[Headnotes 11-13]

Having determined that NRS 193.165(1) requires district courts to articulate findings on the record, we must now consider whether the district court articulated sufficient findings in the instant matter. Because Mendoza-Lobos did not object to the sufficiency of the district courts findings during sentencing, we will grant relief only if he demonstrates plain error. NRS 178.602; Grey v. State, 124 Nev. 110, 123, 178 P.3d 154, 163 (2008); see also Puckett v. United States, 556 U.S. 129 (2009) (holding that plain-error review applies to a claim that the government breached a plea agreement when the defendant failed to object in the district court). Under plain-error analysis, an error that is plain from the record requires reversal if a defendant demonstrates that the error affected his or her substantial rights, by causing actual prejudice or a miscarriage of justice. Valdez v. State, 124 Nev. 1172, 1190, 196 P.3d 465, 477 (2008) (quoting Green v. State, 119 Nev. 542, 545, 80 P.3d 93, 95 (2003)). Here, although the district court made some findings, it failed to make any findings regarding the facts and circumstances of the robbery and the attempted sexual assault or the context in which the weapon was used in those two crimes, which would be relevant under NRS 193.165(1)(a) and (e). Thus, the district court failed to articulate findings regarding each of the enumerated factors for each deadly weapon enhancement. However, nothing in the record indicates that the district courts failure to make certain findings on the record had any bearing on the district courts sentencing decision. Accordingly, the district courts omission did not cause any prejudice or a miscarriage of justice and thus does not warrant relief. CONCLUSION For the reasons discussed above, we affirm the judgment of conviction. In so doing, we conclude that the portion of NRS 193.165(1) requiring the district courts to state on the record that they have considered the factors enumerated in that statute violates the separation-of-powers doctrine. Nevertheless, we instruct the district courts to comply with NRS 193.165(1) in its entirety. We also conclude that compliance with NRS 193.165(1) requires the district courts to articulate findings on the record, for each enumerated factor, when imposing a sentence for a deadly weapon enhancement; if the court is imposing a weapon enhancement

Oct. 2009]

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on multiple counts, separate findings must be made for each enhancement. CHERRY, SAITTA, and GIBBONS, JJ., concur. DOUGLAS, J., with whom PARRAGUIRRE and PICKERING, JJ., agree, concurring in part and dissenting in part: I agree with the majority that the portion of NRS 193.165(1) requiring the district courts to consider certain enumerated factors when imposing a sentence for a deadly weapon enhancement does not run afoul of the separation-of-powers doctrine. I also agree with the result reached. However, I disagree with my colleagues conclusion that NRS 193.165(1) is ambiguous. The majority concludes that the language of NRS 193.165(1) is ambiguous and thus looks to its legislative history to determine its meaning. In my view, the plain language of the statute is clear and we need not examine legislative intent. A statute is only ambiguous when its language lends itself to two or more reasonable interpretations. State v. Catanio, 120 Nev. 1030, 1033, 102 P.3d 588, 590 (2004). And this court has consistently stated that if the plain language of a statute is not ambiguous, we will not look beyond the statutory language. See Sheriff v. Witzenburg, 122 Nev. 1056, 1061, 145 P.3d 1002, 1005 (2006); Butler v. State, 120 Nev. 879, 893, 102 P.3d 71, 81 (2004); see also Sparks Nugget v. State, Dept of Taxation, 124 Nev. 159, 167 n.31, 179 P.3d 570, 576 n.31 (2008) (noting that where constitutional language is not ambiguous, this court is precluded from considering legislative intent). The portion of NRS 193.165(1) at issue states: The court shall state on the record that it has considered the information described in paragraphs (a) to (e), inclusive, in determining the length of the additional penalty imposed. I would conclude that this language is clear and unambiguous. Unlike other statutes, see, e.g., NRS 34.830(1) (providing that any order finally disposing of a habeas corpus petition must contain specific findings of fact and conclusions of law supporting the decision of the court), the plain language of NRS 193.165(1) requires only that the district court state on the record that it has considered the enumerated factors; the statute makes no mention of findings. Thus, I would conclude that it is not reasonable to interpret NRS 193.165(1) to require the district court to articulate findings. Mendoza-Lobos contends that even if NRS 193.165(1) does not require the district court to articulate findings, this court should nevertheless advise district courts to do so. He argues that without findings, sentences imposed for deadly weapon enhancements are unreviewable in any meaningful manner. In support of this argument,

646

Mendoza-Lobos v. State

[125 Nev.

Mendoza-Lobos relies on this courts recent decision in Knipes v. State, 124 Nev. 927, 192 P.3d 1178 (2008). In that case, this court held that hearings to determine the admissibility of juror questions should be held on the record. Id. at 933, 192 P.3d at 1182. We noted the trend towards requiring the district courts to make factual findings on the record and discussed two interrelated policy concerns: ensuring meaningful appellate review and facilitating the efficient administration of justice. Id. at 932, 192 P.3d at 1181 (internal footnote omitted). See also Rosky v. State, 121 Nev. 184, 191, 111 P.3d 690, 695 (2005) (advising district courts to clearly set forth the factual findings relied upon in resolving suppression motions). While findings may be of great assistance in reviewing many other types of trial court decisions, sentencing determinations are distinguishable from evidentiary and other decisions made by district courts because this court has consistently declined to review sentencing determinations that are within the statutory guidelines, are not based solely on impalpable or highly suspect evidence, and are not so unreasonably disproportionate to the offense as to shock the conscience. Silks v. State, 92 Nev. 91, 94, 545 P.2d 1159, 1161 (1976); Blume v. State, 112 Nev. 472, 475, 915 P.2d 282, 284 (1996) (quoting Culverson v. State, 95 Nev. 433, 435, 596 P.2d 220, 222 (1979)). Thus, in light of the statutes plain language, I would decline Mendoza-Lobos invitation to require district courts to make findings in the absence of a statutory requirement to do so. In the instant case, the district court indicated on the record that it considered each of the factors as they related to each of the deadly weapon enhancements. Before pronouncing Mendoza-Lobos sentence, the district court acknowledged that counts 2, 3, and 4 carried deadly weapon enhancements, read the enumerated factors into the record, and then stated: [I]n looking at all of these factors . . . I do find that the proposals for consecutive additional time due to the use of a deadly weapon are well appropriate. Under these circumstances, I would conclude that the district court fully complied with the requirements of NRS 193.016(1) and did not commit any error with regard to Mendoza-Lobos sentences for the deadly weapon enhancements.

Oct. 2009]

NC-DSH, Inc. v. Garner

647

NC-DSH, INC., A NEVADA CORPORATION DBA V ALLEY HOSPI TAL MEDICAL CENTER, APPELLANT, v. CLARK L. GARNER, INDIVIDUALLY, AS SPECIAL ADMINISTRATOR OF THE ESTATE OF CAROLE L. GARNER, DECEASED, AND AS SPE CIAL ADMINISTRATOR OF THE ESTATE OF BOBBY JOHN GARNER, DECEASED; STEVEN G. GARNER; RHONDA V. SCHWANTES; AND AARON K. GARNER, RESPONDENTS.
No. 49029 October 29, 2009 218 P.3d 853

Appeal from a district court order setting aside a judgment under NRCP 60(b). Eighth Judicial District Court, Clark County; Mark R. Denton, Judge. Plaintiffs filed medical malpractice case against hospital, and, thereafter, stipulated final judgment was entered. Plaintiffs filed motion for relief from judgment. The district court granted motion and vacated judgment for fraud on the court. Hospital appealed. The supreme court, PICKERING, J., held that: (1) conduct of plaintiffs lawyer, in settling plaintiffs case with defendant for $160,000 without plaintiffs knowledge or approval, forging the necessary settlement papers, and disappearing with the money, constituted a fraud upon the court; (2) substantial evidence supported conclusion that plaintiffs attorney accomplished his fraud on the court without the express, implied, or apparent authority of plaintiffs; (3) trial court was justified in vacating judgment based on the fraud upon the court perpetrated by plaintiffs attorney; (4) plaintiffs did not ratify their attorneys fraud upon the court; and (5) doctrine of laches did not apply to bar plaintiffs from obtaining relief from judgment based on their lawyers fraud on the court. Affirmed. Tuverson & McBride and Eric K. Stryker, Las Vegas, for Appellant. Crockett & Myers and J.R. Crockett Jr. and Richard W. Myers, Las Vegas, for Respondents.
1. JUDGMENT. Rule permitting court to relieve a party from a final judgment, order, or proceeding for fraud of an adverse party did not apply to plaintiffs motion for relief from judgment, filed after plaintiffs attorney, without knowledge or approval of plaintiffs, settled their case with defendant for $160,000, forged the necessary settlement papers, and disappeared with the money, as rule, by its terms, applied only to fraud of an adverse party, and neither defendant, nor its lawyer, had any knowledge of or complicity in the fraud. NRCP 60(b)(3).

648

NC-DSH, Inc. v. Garner

[125 Nev.

2. JUDGMENT. Savings clause in rule governing motions for relief from judgment, providing that rule does not limit courts power to entertain independent action to relieve party from judgment for fraud on the court, permits a party seeking to vacate a judgment because of fraud on the court to proceed by motion or to bring an independent action, but the party may not pursue both remedies simultaneously. NRCP 60(b). 3. JUDGMENT. Conduct of plaintiffs lawyer, in settling plaintiffs case with defendant for $160,000 without plaintiffs knowledge or approval, forging the necessary settlement papers, and disappearing with the money, constituted a fraud upon the court, for purposes of savings clause in rule governing motions for relief from judgment, providing that rule does not limit courts power to entertain independent action to relieve party from judgment for fraud on the court; lawyer obtained signature of defendants lawyer on stipulated judgment and presented it to district court judge, who signed and entered it as the final judgment in the case, forever concluding plaintiffs claims, and, in so doing, lawyer acted as an officer of the court and misrepresented a fraudulent settlement to district court judge as genuine. NRCP 60(b). 4. JUDGMENT. For purposes of savings clause in rule governing motions for relief from judgment, providing that rule does not limit courts power to entertain independent action to relieve party from judgment for fraud upon the court, fraud upon the court embraces only that species of fraud which does, or attempts to, subvert the integrity of the court itself, or is a fraud perpetrated by officers of the court so that the judicial machinery cannot perform in the usual manner its impartial task of adjudging cases, and relief should be denied in the absence of such conduct. NRCP 60(b). 5. ATTORNEY AND CLIENT. An attorney is an officer of the court. 6. JUDGMENT. Where a judgment is obtained by fraud perpetrated by an attorney acting as an officer of the court, the judgment may be attacked for fraud on the court. NRCP 60(b). 7. ATTORNEY AND CLIENT. In addition to a lawyers duties to his or her clients, a lawyer also owes a duty of loyalty to the court, as an officer thereof, that demands integrity and honest dealing with the court, and when he or she departs from that standard in the conduct of a case, he or she perpetrates fraud upon the court. 8. ATTORNEY AND CLIENT; JUDGMENT. Substantial evidence supported conclusion that plaintiffs attorney, who settled plaintiffs case against defendant without their knowledge or approval for $160,000, forged the necessary settlement papers, and disappeared with the money, accomplished his fraud on the court without the express, implied, or apparent authority of plaintiffs, for purposes of determining whether plaintiffs were entitled to relief from judgment due to fraud on the court; attorney did not use power of attorney set forth in retainer agreement giving him power to sign releases for and on behalf of the client to carry out his fraud, but forged each of the plaintiffs signatures in original ink on release, even going so far as to steal notary stamp from neighboring office and forging notarys signature on release, and retainer agreement containing power of attorney provided that settlement of claim would not be made without clients consent. NRCP 60(b).

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9. JUDGMENT. Trial court was justified in vacating stipulated final judgment based on the fraud on the court perpetrated by plaintiffs attorney when he settled plaintiffs case against defendant without plaintiffs knowledge or approval for $160,000, forged the necessary settlement papers, and disappeared with the money, conditioned on plaintiffs giving defendant credit for the $160,000 against any eventual recovery they might make; trial court recognized that the parties and the court had been bamboozled by attorney, that parties had been innocent victims, one of whom hired a dishonest agent, and that attorneys fraud was intolerable. NRCP 60(b). 10. JUDGMENT. A party seeking to vacate a final judgment based on fraud upon the court bears a heavy burden. NRCP 60(b). 11. JUDGMENT. It is only after a proper hearing in which fraud upon the court has been established by clear and convincing evidence that relief can be granted on a motion for relief from judgment based on fraud upon the court. NRCP 60(b). 12. ATTORNEY AND CLIENT. Plaintiffs did not ratify their attorneys fraud on the court that occurred when attorney settled plaintiffs case against defendant without plaintiffs knowledge or approval for $160,000, forged the necessary settlement papers, and disappeared with the money, by allegedly attempting to negotiate for a settlement involving new funds of an equal amount after fraud came to light, as they consistently protested that attorneys conduct was fraudulent. 13. JUDGMENT. Doctrine of laches did not apply to bar plaintiffs from obtaining relief from judgment based on their lawyers fraud on the court, despite 18-month delay between entry of judgment and plaintiffs filing of motion for relief from judgment, as plaintiffs attorney, who settled plaintiffs case against defendant without plaintiffs knowledge or approval for $160,000, forged the necessary settlement papers, and disappeared with the money, did not settle case until discovery was well underway, and despite trial courts affording parties opportunity to brief, argue, and present live evidence on motion for relief from judgment, defendant made no argument or showing that specific testimony or evidence had been lost or that it did not learn of attorneys fraud at or about the same time plaintiffs did. NRCP 60(b).

Before the Court EN BANC. OPINION By the Court, PICKERING, J.: Valley Hospital appeals from an order vacating a stipulated final judgment under NRCP 60(b) for fraud on the court. The fraud was committed by Lawrence Davidson, the lawyer who brought this malpractice case for the Garner family, plaintiffs below. Without the knowledge or approval of his clients, Davidson settled their case for $160,000, forged the necessary settlement papers, and disappeared with the money. Because Davidson was the Garners agent, albeit a

650

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[125 Nev.

faithless one, the district court conditioned its order on the Garners giving Valley Hospital credit for the $160,000 against any eventual recovery they might make. Out both its $160,000 and the litigation peace it expected in return, Valley Hospital appeals. Valley Hospital characterizes Davidsons misconduct as intrinsic fraud. It argues that the district court should have ruled the Garners motion untimely, because it was not filed within six months of the stipulated judgment being entered as NRCP 60(b)(3) requires; further, that the Garners should have proceeded by independent action, not motion, to set aside the judgment. The Hospital also maintains that Davidson had actual and apparent authority to settle the Garners claims: Unlike the Garners, who chose Davidson as their lawyer, Valley Hospital and its lawyer had no choice but to deal with Davidson; it is bad policy and unfair, the Hospital argues, to visit the consequences of an opposing partys lawyers fraud on innocent parties like Valley Hospital and its lawyer, who took all reasonable steps to document a valid, enforceable settlement. Finally, the Hospital argues that the district court erred in not finding that the Garners ratified the settlement. We reject Valley Hospitals arguments and affirm. The district court found that Davidson committed fraud upon the court, which is not subject to NRCP 60(b)(3)s six-month limitations period. Murphy v. Murphy, 103 Nev. 185, 186, 734 P.2d 738, 739 (1987). Although true fraud on the court is rare and requires egregious misconduct, Occhiuto v. Occhiuto, 97 Nev. 143, 146 n.2, 625 P.2d 568, 570 n.2 (1981) (quoting United States v. International Telephone & Tel. Corp., 349 F. Supp. 22, 29 (D. Conn. 1972)), the district court did not abuse its discretion in finding such fraud by Davidson here. Nor were its findings that Davidson lacked authority and the Garners did not ratify the settlement clearly erroneous. Finally, while the Hospital argues the Garners motion was untimely because not made within six months of entry of judgment, it did not establish prejudicial delay. DISCUSSION The Garners brought their motion to set aside the stipulated judgment under NRCP 60(b). As amended effective January 1, 2005, NRCP 60(b) largely replicates Fed. R. Civ. P. 60(b), as written before the Federal Rules 2007 revisions.1 Like its federal counterpart, NRCP 60(b) has two separate provisions that address
1 Nevadas version of Rule 60(b) differs from its federal analog in two respects: (1) Nevada shortens the time limit for bringing a motion under subparagraphs (1)-(3) from one year to six months; and (2) Nevada did not adopt the catchall provision in Fed. R. Civ. P. 60(b)(6), which allows any other reason that justifies relief as a basis for a Federal Rule 60(b) motion. The 2005 amendment to NRCP 60(b) added this final sentence from the then-existing version of Fed. R. Civ. P. 60(b): Writs of coram nobis, coram vobis, audita

Oct. 2009]

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fraud. The first is NRCP 60(b)(3), which provides, On motion and upon such terms as are just, the court may relieve a party . . . from a final judgment, order, or proceeding for . . . fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation or other misconduct of an adverse party. The second provision addressing fraud appears in NRCP 60(b)s savings clause. The savings clause says, This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding, or to set aside a judgment for fraud upon the court.2 While a motion under NRCP 60(b)(3) must be made not more than 6 months after the proceeding was taken or the date that written notice of entry of the judgment or order was served, NRCP 60(b) does not specify a time limit for motions seeking relief for fraud upon the court. NRCP 60(b)(3) does not apply
[Headnote 1]

Valley Hospital argues that Davidsons fraud was intrinsic not extrinsic to the stipulated judgment. In its view, this makes the fraud remediable, if at all, only under NRCP 60(b)(3), or by independent action. This argument is flawed, on multiple levels. Labeling the basis for the Garners motion intrinsic rather than extrinsic fraud does not bring it within NRCP 60(b)(3) or make NRCP 60(b)(3)s six-month limitations period apply. Ever since its 1981 amendment to import the parenthetical phrase (whether heretofore denominated intrinsic or extrinsic)from its federal model, NRCP 60(b)(3) has applied to both intrinsic and extrinsic fraud. See Carlson v. Carlson, 108 Nev. 358, 362 n.6, 832 P.2d 380, 383 n.6 (1992); Occhiuto, 97 Nev. at 146 n.2, 625 P.2d at 570 n.2.3 The 1981 amendment to NRCP 60(b)(3) abrogated the older cases like Gilbert v. Warren, 95 Nev. 296, 299,
querela, and bills of review and bills in the nature of a bill of review, are abolished, and the procedure for obtaining any relief from a judgment shall be by motion as prescribed in these rules or by an independent action. See ADKT No. 276 (Order Amending the Nevada Rules of Civil Procedure, July 26, 2004) (making the changes effective on January 1, 2005). A modernized version of this provision is now Fed. R. Civ. P. 60(e). 2 Before its 2007 amendment, Fed. R. Civ. P. 60(b) was identical to the language quoted from NRCP 60(b) in the text. The 2007 revision of the Federal Rules rewords Fed. R. Civ. P. 60(b)(3) slightly and moves the savings clause to new Fed. R. Civ. P. 60(d)(1) (addressing independent actions but not the grounds therefor) and Fed. R. Civ. P. 60(d)(3), which states, This rule does not limit a courts power to . . . set aside a judgment for fraud on the court. The commentary states these revisions are to style only, not substance. 3 Price v. Dunn, 106 Nev. 100, 104, 787 P.2d 785, 787 (1990), which cited pre-1981 cases for the relevance of the distinction between intrinsic and extrinsic fraud, was incorrect in doing so as it failed to reference the 1981 amendments and cases interpreting them. Price otherwise remains good law.

652

NC-DSH, Inc. v. Garner

[125 Nev.

594 P.2d 696, 698 (1979), and Manville v. Manville, 79 Nev. 487, 489-90, 387 P.2d 661, 662 (1963), to the extent they relied on the distinction between intrinsic and extrinsic fraud to decide whether a motion fell under NRCP 60(b)(3) and its six-month deadline. See 11 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure 2868 (2d ed. 1995) (noting that the distinction between extrinsic and intrinsic fraud rests on clouded and confused authorities, its soundness as a matter of policy is very doubtful, and it is extremely difficult to apply). More germane: NRCP 60(b)(3) by its terms only applies to fraud of an adverse party. The district court found that neither Valley Hospital nor its lawyer had any knowledge of or complicity in Davidsons fraud. Davidson victimized them, equally with the Garners. NRCP 60(b)(3) and its six-month limitations period thus do not apply, because the Garners motion was not based on fraud (whether . . . intrinsic or extrinsic), misrepresentation or other misconduct of an adverse party. NRCP 60(b)(3) (emphases added). Other courts, applying like rules to like facts, have so held, and we read our rule no differently. McKinney v. Boyle, 404 F.2d 632, 63334 (9th Cir. 1968) (holding that where the movants lawyer and nonparty wife committed fraud in concluding his case, the motion did not involve fraud of an adverse party, taking it outside Fed. R. Civ. P. 60(b)(3) and its one-year time limit); Flowers v. Rigdon, 655 N.E.2d 235, 236 (Ohio Ct. App. 1995) (holding that, while [f]raud, inter partes, without more, should not be a fraud upon the court, but redress should be left to a motion under [the Ohio counterpart to NRCP] 60(b)(3) or to the independent action, a lawyer who defrauds his clients by stipulating to a bogus judgment concluding their claims commits a fraud upon the court (quotation omitted)); see Latshaw v. Trainer Wortham & Co., Inc., 452 F.3d 1097, 1102 (9th Cir. 2006) (holding that [s]ubsection (b)(3) permits relief only when the fraud was committed by an adverse party ). The Garners were not required to file an independent action
[Headnote 2]

Nor does it make a difference that the Garners proceeded by motion in the underlying case instead of filing an independent action. A party is not bound by the label he puts on his papers. A motion may be treated as an independent action or vice versa as is appropriate. Wright, Miller & Kane, supra, 2868 (footnote omitted). Also, this court has already interpreted NRCP 60(b)s savings clause to permit a party seeking to vacate a judgment because of fraud on the court to proceed by motion or [to] bring an independent action, Murphy v. Murphy, 103 Nev. 185, 186, 734 P.2d

Oct. 2009]

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738, 739 (1987); he or she just may not pursue both remedies simultaneously. Goodyear Tire & Rubber Co. v. H. K. Porter Company, 521 F.2d 699, 700 (6th Cir. 1975), cited with approval in Murphy, 103 Nev. at 186, 734 P.2d at 739. If anything, comity and efficiency make a motion in the court that rendered the judgment the preferred and normal procedure to attack a judgment for fraud on the court. Wright, Miller & Kane supra, 2868 (noting that [d]enial of relief [by motion] in th[e rendering] court will bar an independent equitable action in another court, unless the denial was on a ground that precluded reaching the merits of the motion, or the circumstances have changed (footnotes omitted)). See also United States v. Beggerly, 524 U.S. 38, 47 (1998) (interpreting Fed. R. Civ. P. 60(b) and holding that under the Rule, an independent action should be available only to prevent a grave miscarriage of justice, which is a demanding standard). Lawyer fraud may constitute a fraud upon the court pursuant to NRCP 60(b)s savings clause
[Headnote 3]

The question thus comes down to whether lawyer fraud in connection with a stipulated final judgment can qualify as a fraud upon the court under NRCP 60(b)s savings clause. The district court found that Davidson committed a fraud upon the court when he signed and submitted a stipulated judgment for dismissal with prejudice to the court, which the court then signed and entered, terminating the Garners claims. Fraud upon the court has been recognized for centuries as a basis for setting aside a final judgment, sometimes even years after it was entered. Hazel-Atlas Co. v. Hartford Co., 322 U.S. 238, 245 (1944) (discussing the historic power of equity to set aside fraudulently begotten judgments and canvassing cases and treatises and vacating a judgment entered nine years earlier), overruled on other grounds by Standard Oil Co. of Cal. v. United States, 429 U.S. 17, 18 (1976). It is, of course, true that in most instances society is best served by putting an end to litigation after a case has been tried and judgment entered. Id. at 244. For this reason, a final judgment, once entered, normally is not subject to challenge. However, the policy of repose yields when the court finds after a proper hearing that fraud has been practiced upon it, or the very temple of justice has been defiled. Universal Oil Co. v. Root Rfg. Co., 328 U.S. 575, 580 (1946). [A] case of fraud upon the court [calls] into question the very legitimacy of the judgment. Calderon v. Thompson, 523 U.S. 538, 557 (1998). Put another way, [w]hen a judgment is shown to have been procured by fraud upon the court, no worthwhile interest is served in protecting the judgment. Restatement (Second) of Judgments 70 cmt. b (1982).

654
[Headnote 4]

NC-DSH, Inc. v. Garner

[125 Nev.

The problem lies in defining what constitutes fraud upon the court. Obviously, it cannot mean any conduct of a party or lawyer of which the court disapproves; among other evils, such a formulation would render meaningless the [time] limitation on motions under [Rule] 60(b)(3). Kupferman v. Consolidated Research & Mfg. Corp., 459 F.2d 1072, 1078 (2d Cir. 1972) (Friendly, J.), cited with approval in Occhiuto, 97 Nev. at 146 n.2, 625 P.2d at 570 n.2, and Murphy, 103 Nev. at 186, 734 P.2d at 739. The most widely accepted definition, which we adopt, holds that the concept embrace[s] only that species of fraud which does, or attempts to, subvert the integrity of the court itself, or is a fraud perpetrated by officers of the court so that the judicial machinery cannot perform in the usual manner its impartial task of adjudging cases . . . and relief should be denied in the absence of such conduct. Demjanjuk v. Petrovsky, 10 F.3d 338, 352 (6th Cir. 1994) (citing 7 Moores Federal Practice 60.33 (2d ed. 1978) (now at 12 Moores Federal Practice 60.21[4][a] (3d ed. 2009))); Kupferman, 459 F.2d at 1078 (noting the Second Circuit adopted Moores formulation); In re Intermagnetics America, Inc., 926 F.2d 912, 916 (9th Cir. 1991) (also adopting Moores formulation); see Occhiuto, 97 Nev. at 146 n.2, 625 P.2d at 570 n.2 (citing this section of Moores but without referring to the passage quoted in Demjanjuk).
[Headnotes 5, 6]

An attorney is an officer of the court. Where a judgment is obtained by fraud perpetrated by an attorney acting as an officer of the court, the judgment may be attacked for fraud on the court. In re Tri-Cran, Inc., 98 B.R. 609, 616 (Bankr. D. Mass. 1989). The Supreme Court has long recognized the damage that lawyer dishonesty can inflict on courts and litigants: [W]here an attorney fraudulently or without authority assumes to represent a party and connives at his defeat; or where the attorney regularly employed corruptly sells out his clients interest to the other side,these, and similar cases which show that there has never been a real contest in the trial or hearing of the case, are reasons for which a new suit may be sustained to set aside and annul the former judgment or decree, and open the case for a new and a fair hearing. United States v. Throckmorton, 98 U.S. 61, 66 (1878). See Savage v. Salzmann, 88 Nev. 193, 195, 495 P.2d 367, 368 (1972) (citing Throckmorton and noting that fraud on the court involves situations

Oct. 2009]

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where, as a result of the fraud, a party is kept away from the court by . . . such conduct as prevents a real trial upon the issues involved).
[Headnote 7]

In addition to his duties to his clients, a lawyer also owes a duty of loyalty to the court, as an officer thereof, [that] demands integrity and honest dealing with the court. And when he departs from that standard in the conduct of a case he perpetrates fraud upon the court. Demjanjuk, 10 F.3d at 352 (citing 7 Moores Federal Practice, supra, 60.33 (now at 12 Moores Federal Practice, 60.21[4][a])); see Restatement (Second) of Judgments 70(1)(a) (stating the general rule that a judgment in a contested action may be avoided if the judgment . . . [r]esulted from corruption of . . . the attorney for the party against whom the judgment was rendered). Although not present in all fraud on the court cases, attorney involvement in the fraud is a signal characteristic of many. Demjanjuk, 10 F.3d at 352 (noting that [c]ases dealing with fraud on the court often turn on whether the improper actions are those of parties alone, or if the attorneys in the case are involved); Eastern Financing Corp. v. JSC Alchevsk Iron, 258 F.R.D. 76, 85 (S.D.N.Y. 2008) (analyzing Hazel-Atlas, Kupferman, and H. K. Porter Co. in these terms). In this case, Davidson obtained Valley Hospitals lawyers signature on the stipulated judgment and presented it to the district judge, who signed and entered it as the final judgment in the case, forever concluding the Garner familys wrongful death claims. In so doing, Davidson acted as an officer of the court and misrepresented a fraudulent settlement to the district court judge as genuine. Other courts, confronted with like facts, have found fraud on the court, egregious enough to justify vacating the judgment and allowing the claims to proceed. Southerland v. Irons, 628 F.2d 978, 980 (6th Cir. 1980), affg, Southerland v. County of Oakland, 77 F.R.D. 727 (E.D. Mich. 1978) (upholding order vacating stipulated judgment for fraud on the court, where the plaintiffs lawyer fraudulently misrepresented the status of his fee and responsibility for liens); Huffman v. Delacruz, 719 So. 2d 385, 385-86 (Fla. Dist. Ct. App. 1998) (upholding order vacating a stipulated dismissal for fraud on the court where the plaintiffs attorney signed the settlement stipulations without his clients permission and forged his clients signature on the settlement check, reprinting the passage from United States v. Throckmorton, 98 U.S. at 65-66, as the basis for its holding); Flowers v. Rigdon, 655 N.E.2d 235, 236 (Ohio Ct. App. 1995) (upholding order vacating a stipulated judgment on the basis the plaintiff automobile accident victims attorney perpetrated a fraud on the court by falsely informing defendants that he had au-

656

NC-DSH, Inc. v. Garner

[125 Nev.

thority to settle, by forging plaintiffs signature on the entry of dismissal, release, and settlement check, and by keeping settlement proceeds for himself); see McKinney v. Boyle, 404 F.2d 632, 634 (9th Cir. 1968) (reversing for evidentiary hearing in case alleging fraud by the plaintiffs attorney in cahoots with the plaintiffs wife to settle his case and keep the money while the plaintiff was in prison; decided under the catchall clause in Fed. R. Civ. P. 60(b)(6) (which Nevada has not adopted, so fraud on the court not expressly addressed)); General Med. P.C. v. Horizon/CMS Health Care Corp., No. 96-72624, 2009 WL 1447346, at *5 (E.D. Mich. May 21, 2009) (vacating a stipulated judgment under new Fed. R. Civ. P. 60(d)(3) for fraud on the court where the failure to disclose material facts resulted in [the] court placing its imprimatur on a consent judgment, the primary purpose of which was to ambush a non-party). The lawyers authority as agent did not extend to Davidsons fraud
[Headnote 8]

We recognize the substantial countervailing argument that a client who hires a lawyer establishes an agency relationship and that, ordinarily, the sins of an agent are visited upon his principal, not the innocent third party with whom the dishonest agent dealt. Rothman v. Fillette, 469 A.2d 543, 545 (Pa. 1983); Flowers v. Rigdon, 655 N.E.2d at 237-38 (Jones, P.J., dissenting). However, courts do not treat the attorney-client relationship as they do other agent-principal relationships . . . when the question is whether a settlement agreed to by the attorney binds the client. Grace M. Giesel, Client Responsibility for Lawyer Conduct: Examining the Agency Nature of the Lawyer-Client Relationship, 86 Neb. L. Rev. 346, 348 (2007). While a lawyer has apparent authority to handle procedural matters for a client, [m]erely retaining a lawyer does not create apparent authority in the lawyer to settle his clients case. Restatement (Third) of the Law Governing Lawyers 27 cmt. d (2000); see id. 22(1). In Passarelli v. J-Mar Development, 102 Nev. 283, 720 P.2d 1221 (1986), we held that a lawyers professional and psychiatric disintegration due to substance abuse justified an order vacating the final judgment against his client after the lawyer failed to appear for trial. If a lawyers addictive disorder can justify vacating a judgment against his neglected client, notwithstanding the imposition on his adversary, a lawyers criminal conduct should permit a claim to relief from judgment by a victimized client as well. Valley Hospital makes much of the fact that the Garners retainer agreement included a paragraph entitled power of attorney that gave Davidson the power to sign releases for and on behalf of the client. This argument is a nonstarter, however, because Davidson

Oct. 2009]

NC-DSH, Inc. v. Garner

657

did not use the power of attorney to carry out his fraud. Davidson forged each of the Garner family members signatures in original ink on the release, even going so far as to steal a notary stamp from a neighboring office and forging the notarys signature on the release. Furthermore, the retainer agreement containing the power of attorney provided, settlement of the claim will not be made without clients consent. Based on these facts and the testimony it heard from the Garner family members, the district court expressly found that Davidson accomplished his fraud without the express, implied, or apparent authority of his clients. This finding is supported by substantial evidence, which we may not disregard. See NRCP 52(a) (providing that [f]indings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses).4 The district court proceeded properly
[Headnotes 9-11]

A party seeking to vacate a final judgment based on fraud upon the court bears a heavy burden. It is only after a proper hearing, Universal Oil Co., 328 U.S. at 580, in which the fraud has been established by clear and convincing evidence, Occhiuto, 97 Nev. at 146 n.2, 625 P.2d at 570 n.2, that relief can be granted. Even then, the motion is addressed to the sound discretion of the trial court. Id. The district judge in this case conducted an evidentiary hearing and entered specific and adequate findings of fact and conclusions of
4 Davidson was disbarred and criminally prosecuted. He victimized other clients in addition to the Garners, including David Siegenthaler and Tonya LaBeaux. Another district court judge granted Mr. Siegenthaler relief from the judgment in that case. In an unpublished order, a panel of this court affirmed the order of yet a third district court judge declining to vacate a settlement Davidson entered, which Valley Hospital cites (despite SCR 123) as a basis for reversal in this case. LaBeaux v. Devia, Docket No. 44795 (Order of Affirmance, July 6, 2006). Although the distinctions are not entirely satisfactory, LaBeaux differs from this case in two important respects: (1) Davidson used the form of power of attorney to sign his name in a representative capacity on LaBeauxs release, which led the district judge in LaBeaux to find apparent authority supported the settlement; and (2) this court reviews a district courts determination in this setting for abuse of discretion, Occhiuto, 97 Nev. at 146 n.2, 625 P.2d at 570 n.2, meaning the question on appeal is not how this court would have ruled as an original matter on the facts presented, but whether the district court abused its discretion in ruling as it did. While this discretion is a legal discretion and cannot justify a legally impermissible result, Cook v. Cook, 112 Nev. 179, 181-82, 912 P.2d 264, 265 (1996), holding that facts permit an order vacating a stipulated judgment does not mandate vacatur. Cf. Shammas v. Shammas, 88 A.2d 204, 210-11 (N.J. 1952) (Brennan, J.).

658

NC-DSH, Inc. v. Garner

[125 Nev.

law. He viewed this as a terrible case . . . one of the worst cases I have seen in my . . . years on the bench. He knew Davidson as a talented lawyer, talented practitioner, talented trial lawyer, who had tr[ied] a jury trial or two here. In his view, everybody wasbamboozled, including the court, by Mr. Davidson. Recognizing the concern with two innocent victims, one of whom hired the dishonest agent, the court fashioned a remedy that credited Valley Hospital with the $160,000 Davidson stole against any eventual recovery by the Garners. But the district court stopped there, declining to penalize the Garners with the loss of the right to adjudicate their claim for their fathers alleged wrongful death by reason of their lawyers fraud: [W]e lawyers, judges, and practitioners alike are very . . . concerned about how our profession is perceived. Were very proud of what we believe is an honorable profession and were very concerned when something like this happens. It hurts us all. It really does. The district judges finding that the court, equally with the Garners, the Hospital, and the Hospitals lawyer, was defrauded by Davidson, and its conclusion that this fraud was intolerable and justified vacating the stipulated judgment the court had signed, were well within its discretionary authority to decide. Ratification and laches
[Headnote 12]

Two additional points bear discussion. First, citing Navrides v. Zurich Insurance Company, 488 P.2d 637, 640 (Cal. 1971), Valley Hospital urges us to find the Garners ratified the fraud by attempting to negotiate for a settlement involving new funds of an equal amount after the fraud came to light, effectively doubling Valley Hospitals outlay but concluding their claims for the $160,000 Davidson disappeared with. While a client can ratify a lawyers unauthorized act, see Restatement (Third) of the Law Governing Lawyers 26(3), the district court found the facts did not support ratification here. Unlike the defrauded client in Navrides, who sued to enforce the unauthorized settlement, Navrides, 488 P.2d at 640, the Garners consistently protested it as fraudulent. The district courts finding of no ratification was not clearly erroneous.
[Headnote 13]

Second, and of greater concern, the Garners learned of Davidsons misconduct from the State Bar of Nevada within weeks of the court entering the stipulation and order of dismissal, yet they waited almost 18 months before filing their NRCP 60(b) motion. During

Oct. 2009]

NC-DSH, Inc. v. Garner

659

this time, they cooperated with the federal government in its criminal prosecution of Davidson and with the State Bar in its disbarment proceeding against him, and submitted a claim to the Nevada State Bars Client Security Fund, for which they received $6,834.56. Federal authority holds that [t]here is no time limit on setting aside a judgment on th[e basis of fraud on the court], nor can laches bar consideration of the matter. 11 Wright, Miller & Kane supra, 2870 (footnotes omitted). Other authority suggests due diligence is required, at least in discovering the underlying facts. Restatement (Second) of Judgments 70(2)(a) (1982). See also Matter of Harrison Living Trust, 121 Nev. 217, 112 P.3d 1058 (2005) (applying equitable estoppel and due diligence principles to bar a motion to vacate a motion to set aside a void judgment under NRCP 60(b)(4)); Manville v. Manville, 79 Nev. 487, 387 P.2d 661 (1963) (declining to address laches but holding that an independent suit to vacate a divorce decree was barred by the statute of limitations where the plaintiff waited more than six years to sue her exhusband, alleging fraud upon the court in presenting the plaintiffs identical twin sister to testify in the underlying divorce). Our Nevada cases have held that a party who seeks relief from a judgment based on fraud upon the court is not subject to NRCP 60(b)s sixmonth limitation period and that there is no time limitation. Price v. Dunn, 106 Nev. 100, 104, 787 P.2d 785, 787 (1990) (allowing motion even though 19 months had passed between entry of judgment and application to vacate); see Murphy, 103 Nev. at 185-86, 734 P.2d at 739 (allowing application [n]early a year after judgment was entered); Savage v. Salzmann, 88 Nev. 193, 495 P.2d 367 (1972) (remanding order dismissing independent action to vacate judgment filed 16 months after judgment was entered). This case does not require us to decide how far concern for the integrity of the court in a case involving fraud on the court will take a party who delays seeking relief. Davidson did not settle this case until discovery was well underway, and the record on appeal shows that, despite the district courts affording the parties the opportunity to brief, argue, and present live evidence on the Garners NRCP 60(b) motion, Valley Hospital made no argument or showing that specific testimony or evidence had been lost or that it did not learn of Davidsons fraud at or about the same time the Garners did. While Valley Hospital did argue that the Garners were subject to the six-month limitation applicable to NRCP 60(b)(3) motions, it did not assert laches or establish prejudice. Indeed, among the arguments it tendered to the district court was that until Davidsons criminal proceedings ran their course, it was premature for the court to proceed with the Garners NRCP 60(b) motion, because restitution

660

Ogawa v. Ogawa

[125 Nev.

might be ordered at Davidsons sentencing. Under these circumstances, the district court did not err in failing to deny the Garners relief based on the 18 months that elapsed between entry of the judgment and the NRCP 60(b) motion. Accordingly, we affirm the order of the district court. HARDESTY, C.J., PARRAGUIRRE, DOUGLAS, CHERRY, SAITTA, and GIBBONS, JJ., concur.

SHINICHI OGAWA, APPELLANT, v. YOKO OGAWA, RESPONDENT.

No. 48571 November 12, 2009 221 P.3d 699

Appeal from a district court amended default divorce decree determining custody of the parties three minor children and dividing community property. Eighth Judicial District Court, Family Court Division, Clark County; Cheryl B. Moss, Judge. The supreme court held that: (1) Nevada district court had homestate jurisdiction under Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA); (2) although the Hague Convention did not provide a basis for district court to order the childrens return to the United States, the district court had authority to enter custody orders since it had jurisdiction over the custody dispute under UCCJEA; and (3) because husband made an appearance and answered the complaint, evidencing his intent to defend against the divorce action, default judgment was inappropriate. Reversed and remanded with instructions. McFarling Law Group and Emily M. McFarling Benson, Las Vegas, for Appellant. Xavier Gonzales, Las Vegas, for Respondent. Robert Cerceo, Reno; Katherine L. Provost, Las Vegas; and Marshal S. Willick, Las Vegas, for Amicus Curiae State Bar of Nevada, Family Law Section.
1. CHILD CUSTODY. Although the children had been absent from Nevada for eight months when wife filed her custody action, the children had left Nevada for a temporary three-month vacation in Japan, and, under Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), temporary absences did not

Nov. 2009]

Ogawa v. Ogawa

661

2. 3. 4.

5.

6.

7.

8. 9.

10.

interrupt the six-month pre-complaint residency period necessary to establish home state jurisdiction; thus, taking into account the temporary absence, the action was timely filed under the UCCJEA, and, as such, Nevada district court had home-state jurisdiction. NRS 125A.085, 125A.305. APPEAL AND ERROR. Subject matter jurisdiction is a question of law subject to de novo review. APPEAL AND ERROR. District courts factual findings are given deference and will be upheld if not clearly erroneous and if supported by substantial evidence. CHILD CUSTODY. Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) limits to one court, usually the home state court, the authority to make custody determinations, even though more than one jurisdiction might have personal jurisdiction over the parties and a legitimate interest in the parentchild relationship at issue, and thus, the UCCJEA elevates the home state to principal importance in custody determinations. NRS 125A.305. CHILD CUSTODY. Under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), home state is defined as the state in which a child lived with a parent for at least six consecutive months, including any temporary absence from the state, immediately before the child custody proceeding commenced, and thus, the definition of home state permits a period of temporary absence during the six-month time frame necessary to establish home-state residency. NRS 125A.085. CHILD CUSTODY. Under Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), if Nevada either is the childs home state on the date when the child custody proceedings commence, or was the childs home state within six months before the proceedings commenced and the child is absent from Nevada but a parent continues to live in Nevada, Nevada courts have jurisdictional priority to make initial child custody determinations. NRS 125A.305(1)(a). CHILD CUSTODY. Since the children were removed to Japan, a nonsignatory country, the Hague Convention did not apply, and, although the Hague Convention did not provide a basis for the Nevada district court to order the childrens return to the United States, the Nevada district court had authority to enter custody orders, since it had jurisdiction over the custody dispute under Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), as it was the childrens home state. 42 U.S.C. 11601 et seq.; NRS 125A.305. CHILD CUSTODY. The Hague Conventions network of international child abduction laws can operate only between two signatory states. 42 U.S.C. 11601 et seq. DIVORCE. Because husband made an appearance and answered the complaint, evidencing his intent to defend against the divorce action, default was inappropriate, and thus, district court erred by entering a default judgment against husband. NRCP 55. APPEAL AND ERROR. Whether a default judgment may be entered against a defendant who has answered and appeared through counsel at district court proceedings presents a legal question subject to de novo review. NRCP 55.

662

Ogawa v. Ogawa

[125 Nev.

Before HARDESTY, C.J., PARRAGUIRRE, DOUGLAS, CHERRY, SAITTA, GIBBONS and PICKERING, JJ. OPINION Per Curiam: This appeal involves an international child custody dispute and divorce action between appellant, who resides in Japan with the parties three children, and respondent, who lives in Henderson, Nevada. The first of three issues in this appeal is whether the district court had home-state jurisdiction to make child custody determinations under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), codified at NRS Chapter 125A, when respondent did not file her divorce complaint and motion regarding child custody until eight months after the children left the State of Nevada. The second issue concerns whether the district court properly found that Nevada was the childrens state of habitual residence and granted respondents motion for the immediate return of the children, when Japan is not a signatory to the Hague Convention on the Civil Aspects of International Child Abductiona treaty aimed at ensuring the prompt return of children who have been wrongfully removed from their state of habitual residence to a signatory country. The final issue in this appeal pertains to the divorce decree and whether the district court properly entered the decree by default, awarding respondent all of the community property, spousal and child support, and attorney fees and costs, even though appellant filed an answer to the divorce complaint and a countercomplaint for divorce, and he made an appearance through counsel at the divorce hearing. Addressing the first issue, the district court properly determined that it had jurisdiction to make custody decisions because Nevada is the childrens home state under the UCCJEA. Although the children had been absent from the state for eight months when respondent filed her custody action, the testimony and evidence supported that the children left Nevada for a temporary three-month vacation, and under the UCCJEA, temporary absences do not interrupt the six-month pre-complaint residency period necessary to establish home state jurisdiction. Thus, taking into account the temporary absence, the action was filed timely under the UCCJEA, and the Nevada district court had home-state jurisdiction in this matter. As for appellants challenge to the order directing the childrens return to the United States, the district court properly entered the order to the extent that it relied on its authority to enter custody orders under the UCCJEA. Although the order is unenforceable under the Hague Convention, as implemented in the United States by the International Child Abduction Remedies Act (ICARA), 42 U.S.C.

Nov. 2009]

Ogawa v. Ogawa

663

11601-11611 (1988), since Japan has not signed the Hague Convention, the district court nevertheless properly entered the order in the context of the custody proceeding. While the Hague Convention does not apply here, the parties remained free to pursue other remedies and the Conventions nonapplicability did not limit the district courts authority to order the childrens return. Accordingly, although the district court erred to the extent that it relied on the Hague Convention, it otherwise properly exercised its jurisdiction over the custody matter in granting respondents motion seeking the childrens immediate return. Finally, regarding the default divorce decree, because appellant made an appearance and answered the complaint, evidencing his intent to defend against the action, default was inappropriate. The district court therefore erred by entering a default judgment against appellant, awarding respondent all of the community property and child and spousal support in amounts not supported by the evidence, and awarding respondent sole legal and physical custody of the children and attorney fees and costs, without considering the merits of the case. PROCEDURAL HISTORY AND FACTS Appellant Shinichi Ogawa and respondent Yoko Ogawa were married in Japan in 1997 and, beginning a series of transpacific moves, entered the U.S. shortly thereafter. Between 1998 and 2002, the parties had three children, all born in Japan, and purchased a home in Henderson, Nevada; Yoko became a lawful permanent resident of the U.S. After several moves back and forth between the U.S. and Japan, the parties resided in Japan with the children. Thereafter, in January 2003, Yoko, the three children, and Shinichis parents traveled to the U.S. Shinichi, who had opened a card dealers school in Japan, remained in that country, and apparently at that time, the parties intended that Yoko and the children would return to Japan at some future date. But in May 2003, Yoko decided that it would be better for her and the children to remain in the United States, and that fall, the older children were enrolled in and began attending school in Henderson. The children returned to Japan in June 2004. The circumstances surrounding that return are disputed by the parties. According to Yoko, the children returned to Japan at that time with Shinichis mother for a summer vacation only.1 Yoko maintained that it was not until August 2004, when the children were supposed to return from vacation, when Shinichi informed her that the children would not be returning to the U.S. According to Shinichi, however, the entire family, including Yoko, was preparing to reside in Japan permanently, and the children thus returned to Japan with Yokos consent. At any rate, the children have
1

Neither party specified what day in June 2004 the children left for Japan.

664

Ogawa v. Ogawa

[125 Nev.

remained in Japan with Shinichi since June 2004. In the meantime, Shinichi, with his father, purchased a home in Japan. District court proceedings Yokos divorce complaint and motion for return of the children Approximately eight months after the parties children left for Japan, on February 3, 2005, Yoko filed in the Nevada district court a complaint for divorce, along with an emergency motion for the immediate return to the United States of internationally abducted minor children. In her motion, Yoko acknowledged that Japan is not a signatory to the Hague Convention but suggested that the treaty could guide the district court in deciding the child custody issues. The district court apparently held a hearing on the motion on March 5, 2005. In the resultant order, the court noted that only Yokos attorney was present at the hearing and that Shinichi had yet to be served with any court documents. Nevertheless, the court determined that it had subject matter jurisdiction over the custody issue, since Nevada was the childrens habitual residence, and entered an ex parte order on March 29, 2005, awarding temporary sole custody of the children to Yoko and ordering Shinichi to surrender physical custody of the children to Yoko, effective upon service of the order. Proof of service of the complaint, summons, motion, and order was not filed until January 10, 2006. Shortly thereafter, Shinichi, through U.S. counsel, filed motions to reconsider and vacate the March 29 order, to quash all issues related to the children, and for attorney fees and costs, arguing that the district court lacked subject matter jurisdiction over any custody issues. In February 2006, Yoko filed a motion for an order to show cause why Shinichi should not be held in contempt for failure to comply with the district courts March 29 order directing him to return the children to the U.S. At a hearing on the motions, at which Shinichi appeared through counsel only, the court entered an order reaffirming its March 29 order and confirming that it had jurisdiction over the custody matter under the UCCJEA.2 The court found that Shinichi had wrongfully withheld the children in Japan without Yokos permission between August 30, 2004, when they were supposed to return from summer vacation, and February 3, 2005, when Yoko filed the emergency motion for custody and return of the children. Therefore, the court determined that that time did not affect the childrens Nevada residency. The courts order directed Shinichi to file his answer to the complaint, and it continued the contempt portion of the hearing until May 31, 2006, ordering Shinichi to appear and show cause why he
2 Shinichi thereafter appealed from that order, but this court dismissed the appeal, as temporary custody orders are not appealable. See Ogawa v. Ogawa, Docket No. 48108 (Order Dismissing Appeal, January 11, 2007).

Nov. 2009]

Ogawa v. Ogawa

665

should not be held in contempt for failing to return the children.3 Shinichi filed an answer and countercomplaint for divorce on May 16, 2006. Although Shinichi did not personally appear at the May 31 contempt hearing, his attorney was present. The court allowed Shinichi until July 5, 2006, to return the children to Yoko in the U.S. The parties later stipulated that Shinichi would have until July 24, 2006, to return the children. On July 6, 2006, however, Shinichi filed a motion requesting, among other things, temporary custody of the children.4 In his motion, he stated that he had urged Yoko to return to Japan with the children. Shinichi also pointed out that when Yokos emergency motion for the return of the children was heard and decided, he had not been served with any court documents. He asserted that it was in the childrens best interests that he be awarded sole physical custody. The children were not returned, and Yoko later opposed Shinichis motion for temporary custody, arguing that Shinichi had violated the court order and stipulation by failing to return the children by July 24. After a hearing, at which Shinichi did not personally appear but at which his attorney was present, the court entered an order on October 6, 2006, finding Shinichi in contempt for not returning the children and directing him to do so immediately. The court also denied Shinichis motion for temporary custody and awarded Yoko attorney fees. Shinichi did not return the children to the U.S. Divorce hearing The divorce hearing took place on September 20, 2006, and again, Shinichi did not personally appear. The court addressed Shinichis motion to continue the hearing, which apparently was filed that same day and was based on his objection to the discovery commissioners recommendation that Shinichi not be allowed to conduct discovery for failing to comply with NRCP 26(a) and with the district courts earlier orders to return the children. The district court denied the continuance, finding the motion untimely and the discovery sanction proper, since, contrary to NRCP 26(a), the joint case conference report was not filed until after the request for discovery was propounded and Shinichi had acted with unclean
3 Although the courts order directed Shinichi to appear at the contempt hearing, it did not specify that he was required to appear personally or whether his attorney could appear on his behalf. An earlier order setting the contempt hearing specifically directed that Shinichi may appear personally or by way of attorney and that his failure to so appear would be deemed a waiver of his right to a contempt hearing. 4 Attached as an exhibit to Shinichis motion was an April 10, 2006, Preliminary Pleading, which appears to be a translated version of an answer to a divorce complaint filed in the family court in Fukuoka, Japan. The exhibit lists Yoko as the plaintiff and Shinichi as the defendant.

666

Ogawa v. Ogawa

[125 Nev.

hands in failing to comply with the courts orders to return the children. In addressing the divorce matter, the court stated that it would enter a default judgment against Shinichi based on his nonappearance and that the matter would proceed for a prove-up hearing. In that regard, Yoko testified that she had lived in the Henderson marital residence since it was purchased in 2000, and she stated that she was fit to be awarded sole legal and physical custody of the children. When asked whether Shinichi was able to provide support, Yoko testified, I believe he can, but Im not so sure, explaining that she was asking for $798 per month in child support because he worked for a time during the marriage. Yokos attorney stated that, upon information and belief, $798 per month was 29 percent of Shinichis income. Yoko requested $1,000 per month as permanent spousal support and full interest in the marital residence. The court stated that whatever was requested in the complaint would be mirrored in the decree. When Yokos attorney explained that the complaint contemplated an equitable division of property, the court stated that Yoko could ask for anything, and the court would not dispute it. Shinichis attorney argued that the community property should be divided equally, as the law presumes equal contributions. According to Yoko, she was requesting all of the community property because she did not think that Shinichi would pay any support or abide by the courts orders. Yoko also testified that she signed a quitclaim deed, relinquishing title in the marital house to Shinichi, but that she did not realize what she was signing at the time. She therefore asked the court to set aside the quitclaim deed. Yoko then testified that she had incurred $15,000 in attorney fees and $11,000 in costs litigating the divorce matter. The court indicated at the hearing that it would require a memorandum before it awarded attorney fees or costs.5 As reflected in its subsequent written order, the court explained that the spousal support award would be retroactive to the time when Yoko filed her complaint and that child support arrears would apply from the time of separation in June 2004. As for personal property, the court confirmed that Yoko would be awarded all of it, with the parties being responsible for debts in their own names. Finally, the court stated that it would award Yoko a community interest in the house that Shinichi supposedly purchased with his father in Japan. The court then allowed Shinichis attorney limited crossexamination of Yoko, explaining that because Shinichi was defaulted, the attorney would not be allowed to go into the merits of
5 Although not included in the appendix, from the district court docket entries, it appears that memoranda of costs and attorney fees were filed in the district court on November 3, 2006.

Nov. 2009]

Ogawa v. Ogawa

667

the case. Nearly every time Shinichis attorney attempted to ask Yoko a question, however, the court interrupted, stating that the questions were unnecessary. When Shinichis attorney asked Yoko from what sources the support requests were derived, Yoko responded that the requests were based upon Shinichis income in 2000, when he worked at a Las Vegas casino. The district court subsequently entered a default divorce decree on November 22, 2006, explaining that Shinichi was defaulted based on his non-appearance. The court awarded Yoko spousal and child support (including arrearages), the marital home, all of the household furnishings and personal property in her possession, a car, one half of Shinichis 25-percent interest in the house in Japan, and attorney fees and costs. The decree also awarded Yoko sole legal and physical custody of the children, with Shinichi to have no contact with the minor children. Shinichi timely appealed. DISCUSSION On appeal, Shinichi raises three issues: whether the district court properly (1) exercised subject matter jurisdiction over the child custody issue, (2) relied on the Hague Convention and ordered the childrens return to the United States, and (3) entered a default divorce decree against him.6 The district court properly determined that Nevada is the childrens home state
[Headnote 1]

Shinichi argues that because the children did not reside in Nevada at any time during the six months before Yoko filed her complaint, the Nevada family court lacked jurisdiction to enter any custody orders. In response, Yoko asserts that, although she filed her complaint eight months after the children left Nevada, their absence from Nevada was intended to be a temporary vacation, which was wrongfully extended by Shinichi, and thus, that time should not count in determining home state jurisdiction.
[Headnotes 2, 3]

Subject matter jurisdiction is a question of law subject to de novo review. See Gosserand v. Gosserand, 230 S.W.3d 628, 631 (Mo. Ct. App. 2007) (explaining that whether a trial court has subject matter jurisdiction in an interstate child custody dispute is a question of law, reviewed de novo); Harshberger v. Harshberger, 724 N.W.2d 148, 154 (N.D. 2006) (recognizing that when the jurisdictional facts are
6 The Family Law Section of the Nevada State Bar has filed an amicus curiae brief addressing the first two issues and generally agreeing with Shinichis position.

668

Ogawa v. Ogawa

[125 Nev.

not in dispute, the question of subject matter jurisdiction is a question of law, subject to an appellate courts de novo review); cf. Baker v. Dist. Ct., 116 Nev. 527, 531, 999 P.2d 1020, 1023 (2000) (pointing out that, when the facts are not disputed, this court reviews de novo a district courts determination that personal jurisdiction can be properly exercised). The district courts factual findings, however, are given deference and will be upheld if not clearly erroneous and if supported by substantial evidence. International Fid. Ins. v. State of Nevada, 122 Nev. 39, 42, 126 P.3d 1133, 1134-35 (2006).
[Headnote 4]

Subject matter jurisdiction over child custody issues is governed by the UCCJEA. NRS 125A.305. The UCCJEAs objectives are to prevent jurisdictional conflicts and relitigation of child custody issues and to deter child abduction. UCCJEA 101 (1997), cmt., 9 U.L.A. 657 (1999) (explaining the UCCJEAs purposes); see also, e.g., Ruffier v. Ruffier, 190 S.W.3d 884, 889 (Tex. App. 2006); see generally NRS Chapter 125A. The UCCJEA addresses those objectives by limiting to one courtusually the home state courtthe authority to make custody determinations, even though more than one jurisdiction might have personal jurisdiction over the parties and a legitimate interest in the parent-child relationship at issue. See Hart v. Kozik, 242 S.W.3d 102, 106-07 (Tex. App. 2007). The UCCJEA thus elevates the home state to principal importance in custody determinations. See NRS 125A.305.
[Headnotes 5, 6]

Home state is defined as the state in which a child lived with a parent for at least six consecutive months, including any temporary absence from the state, immediately before the child custody proceeding commenced. NRS 125A.085. Thus, the definition permits a period of temporary absence during the six-month time frame necessary to establish home-state residency. Felty v. Felty, 882 N.Y.S.2d 504, 508 (App. Div. 2009). If Nevada either is the childs home state on the date when the child custody proceedings commence, or was the childs home state within six months before the proceedings commenced and the child is absent from Nevada but a parent continues to live in Nevada, Nevada courts have jurisdictional priority to make initial child custody determinations. NRS 125A.305(1)(a). The UCCJEA treats foreign countries as sister U.S. states. NRS 125A.225. In this case, testimony and other evidence in the record substantially supports the district courts finding that when the children left for Japan in June 2004, their absence was intended to be a temporary three-month vacation. Thus, under the UCCJEA, the childrens absence from June through August did not interrupt the six-month

Nov. 2009]

Ogawa v. Ogawa

669

pre-complaint residency requirement, Felty, 882 N.Y.S.2d at 509, and Nevada was their home state.7 As Nevada was the childrens home state within six months of filing the action, and Yoko continued to live in Nevada after the children left and when the action was commenced, Yoko filed her custody action within the time frame allowed under the UCCJEA, and the district court properly exercised home-state jurisdiction. Although the Hague Convention does not provide a basis for the district court to order the childrens return to the U.S., the district court had authority to enter custody orders, since it had jurisdiction over the custody dispute under the UCCJEA
[Headnote 7]

Shinichi argues that the Hague Convention does not apply in this matter, since Japan is not a Hague Convention signatory, and since, regardless, no findings were made to support the district courts conclusion that Nevada is the childrens state of habitual residence. The Hague Convention on the Civil Aspects of International Child Abduction is an international treaty, the purpose of which is to promote the prompt return of children who have been wrongfully removed from their state of habitual residence. 42 U.S.C. 1160111611 (1988). In this case, the district court entered an order directing the childrens immediate return to the United States based on its finding that Nevada is the childrens place of habitual residence, suggesting that it applied the Hague Convention and its implementing legislation, the International Child Abduction Remedies Act (ICARA), 42 U.S.C. 11601-11611 (1988). But since the children were removed to Japan, a nonsignatory country, the Hague Convention does not apply, and Yoko thus has no remedy under the Convention. The district court, however, properly granted Yokos motion seeking the childrens return to the U.S., since the Conventions nonapplicability did not limit the courts authority to order the childrens return, and the court had jurisdiction to enter such orders in the context of the custody matter.
[Headnote 8]

The Hague Conventions scope and reach is limited. The Department of State, the designated Central Authority of the United States under the Convention, see 42 U.S.C. 11606(a), Exec. Order No. 12648, 53 Fed. Reg. 30,637 (Aug. 15, 1988), has promulgated regulations setting forth the procedures to be followed in situations involving a child abducted from the United States, specifically stating
7 In light of this conclusion, we need not address Yokos argument that the time for filing the child custody action should be equitably tolled by Shinichis allegedly unjustified conduct in retaining the children in Japan.

670

Ogawa v. Ogawa

[125 Nev.

that the regulations apply only when the Department of State receives an application requesting access to a child or return of a child abducted from the United States and taken to another country party to the Convention. 22 C.F.R. 94.7 (2009). Thus, the Hague Conventions network of international child abduction laws can operate only between two signatory states. U.S. v. Amer, 110 F.3d 873, 881 (2d Cir. 1997) (explaining that the Hague Convention principles are applicable only to those countries that have signed the Convention and thereby agreed to abide by its terms); Taveras v. Taveras, 397 F. Supp. 2d 908, 912 (S.D. Ohio 2005) (acknowledging that there is no remedy under the Hague Convention when a nonsignatory country is involved and that hard-line view applies because only those countries that are signatories have an obligation to reciprocate by affording litigants the same remedies in their courts); Mezo v. Elmergawi, 855 F. Supp. 59, 63 (E.D.N.Y. 1994) (same); Matter of Mohsen, 715 F. Supp. 1063, 1065 (D. Wyo. 1989) (same); see also Smita Aiyar, International Child Abductions Involving Non-Hague Convention States: The Need for a Uniform Approach, 21 Emory Intl L. Rev. 277, 294-97 (2007) (discussing remedies beyond the Hague Convention and noting that nonsignatory nations generally ignore signatory nations requests for the childrens return and instead apply their own laws to determine custody issues). In interpreting ICARA, United States courts have held that a parent cannot use ICARA as a separate avenue for relief when a nonsignatory country is involved, as explained in Mezo v. Elmergawi, 855 F. Supp. 59. In that case, the court held that, [i]f a child is taken from a signatory country and is retained in a nonsignatory country, it appears that there is no remedy under either [ICARA] or the Hague Convention. Id. at 63. See also, e.g., de Silva v. Pitts, 481 F.3d 1279, 1284 (10th Cir. 2007). Although the Hague Convention is not applicable here, the district court had authority to order the childrens return in the context of the custody proceeding, since it had jurisdiction to decide such matters under the UCCJEA. NRS 125A.305. Thus, the court properly exercised its discretion in granting Yokos motion for the childrens immediate return,8 even though Hague Convention enforcement
8 The original order directing the childrens return was entered ex parte, before Shinichi was served with Yokos motion and the divorce complaint and summons. After service was completed, however, Shinichi moved for reconsideration, to vacate the order, and to quash any custody issues. In his motions, Shinichi argued that the district court lacked subject matter jurisdiction under the UCCJEA to make any custody determinations; he did not challenge the order on due process grounds or address the merits of Yokos motion. After a hearing on the motions, at which Shinichi appeared through counsel but did not present any evidence to controvert Yokos assertion that the children were wrongfully retained in Japan, the district court determined that it had jurisdiction over the custody matter and reaffirmed the order directing the childrens return to the U.S.

Nov. 2009]

Ogawa v. Ogawa

671

remedies do not apply.9 See Mezo, 855 F. Supp. at 62-64; Mohsen, 715 F. Supp. at 1065. Default divorce decree
[Headnote 9]

Shinichi argues that, because he filed an answer and other pleadings and a pretrial memorandum, and since he appeared through his attorney, the district courts default divorce decree was improper. He further argues that the court should not have declared him defaulted for not appearing at the divorce hearing without a written application for a default judgment by Yoko, and without providing Shinichi three days written notice, as required under the default judgment rule, NRCP 55(b)(2). He asserts that given his answer and countercomplaint, the divorce should have been decided on its merits, and he assigns error to the decree, which divided community property and awarded support and attorney fees based merely on Yokos requests. Yoko responds that Shinichis failure to appear at the divorce hearing is an adequate basis for a default judgment. She points out that his pleadings are not evidence and argues that the district court, in dividing property and deciding support and attorney fees issues, properly granted her the relief that she requested. According to Yoko, it was enough for the court to allow Shinichi to participate through his attorneys limited cross-examination of Yoko at trial.
[Headnote 10]

The general procedure governing defaults is set forth under NRCP 55(a), which provides, When a party against whom a judgment for
In denying Shinichis motion for reconsideration and to quash, the court noted that Shinichi, at that point, had an opportunity to respond, and that if he had evidence to support retaining the children in Japan, he could file another motion. He later filed a motion for temporary custody, and, after a hearing at which Shinichi was represented by counsel, the district court denied the motion. Since, on appeal, Shinichi does not challenge the order directing the childrens return based on a lack of due process, and since he was given an opportunity to be heard, we do not further address whether the original order was properly entered before Shinichi was served with any court documents. We conclude that substantial evidence supports the courts order. 9 To help fill the enforcement gap left by the Hague Convention and ICARA, Congress enacted the International Parental Kidnapping Crime Act (IPKCA), 18 U.S.C. 1204(a)-(d) (2006), under which the United States Attorneys office can pursue criminal penalties against a parent who removes a child from the United States, or attempts to do so, or retains a child (who has been in the United States) outside the United States with intent to obstruct the lawful exercise of parental rights. 18 U.S.C. 1204(a); see Amer, 110 F.3d at 877-79, 882 (upholding an Egyptian fathers IPKCA conviction, noting that the Egyptian mother, who resided in the U.S., was unable to use civil remedies under the Hague Convention to effect the return of the children, since Egypt is not a signatory to the Hague Convention, and concluding that the IPKCA successfully fulfilled the enforcement-gap-closing function for which it was in part enacted).

672

Ogawa v. Ogawa

[125 Nev.

affirmative relief is sought has failed to plead or otherwise defend as provided by these rules and that fact is made to appear by affidavit or otherwise, the clerk shall enter the partys default. Then, a default judgment may be entered in accordance with NRCP 55(b), the relevant subsection of which requires three days notice to the defaulted person if he has appeared in the action. NRCP 55(b)(2). Whether, under NRCP 55, a default judgment may be entered against a defendant who has answered and appeared through counsel at district court proceedings presents a legal question subject to de novo review. Moseley v. Dist. Ct., 124 Nev. 654, 662, 188 P.3d 1136, 1142 (2008) (acknowledging that this court applies a de novo standard of review to issues concerning a rules construction); Settelmeyer & Sons v. Smith & Harmer, 124 Nev. 1206, 1215, 197 P.3d 1051, 1057 (2008) (pointing out that when the issue raised on appeal involves a purely legal question, that issue is reviewed de novo). Here, although Shinichi relies in part on NRCP 55(b)(2)s notice requirement in asserting that the district court erred, that provision is irrelevant because NRCP 55 does not apply, since Shinichi answered the complaint and appeared at the divorce hearing through counsel. Thus, the district court erred in entering the default against him. See In Interest of M.M., 708 So. 2d 990, 992 (Fla. Dist. Ct. App. 1998) (providing that a trial courts decision to enter a default judgment against parties for failing to appear at a hearing was improper because the parties appear[ed] through their counsel); Owen v. Healy, 896 A.2d 965, 967-68 (Me. 2006) (pointing out that the fact that a person is a party to a civil action does not in itself impose a legal obligation upon that person to be present at trial, and thus, when a party does not personally appear at trial, but his or her attorney does appear, a default against that party is not appropriate); Rocky Produce, Inc. v. Frontera, 449 N.W.2d 916, 917 (Mich. Ct. App. 1989) (reversing a default judgment entered based on a civil defendants failure to personally appear at trial and holding that, absent a subpoena or order from the court to appear, a defendant in a civil case is not required to appear in person for a scheduled trial); In re Brandon A., 769 A.2d 586, 589 (R.I. 2001) (defining an appearance as [a] coming into court as party to a suit, either in person or by attorney (quoting Nisenzon v. Sadowski, 689 A.2d 1037, 1048 (R.I. 1997))); LeBlanc v. LeBlanc, 778 S.W.2d 865, 865 (Tex. 1989) (concluding that if a party is represented at trial by counsel, there is no default judgment even if the party does not personally appear); cf. State v. Sargent, 122 Nev. 210, 216, 128 P.3d 1052, 1056 (2006) (explaining, in the context of a criminal case proceeding in the justice court, that when the defendant files a waiver of his personal appearance and his counsel appears at the preliminary hearing on the date and time required, the

Nov. 2009]

Ogawa v. Ogawa

673

defendants lack of personal appearance does not constitute a failure to appear); Fritz Hansen A/S v. Dist. Ct., 116 Nev. 650, 653, 6 P.3d 982, 983 (2000) (indicating that a party may make an appearance either in person or through his or her attorney). Although Shinichi did not appear personally at the hearing, and as the district court properly denied as untimely his request for a continuance, a hearing on the merits was required, which did not occur here. At the hearing, the district court repeatedly stated that it was required to award Yoko all of the community property and any support that she requested, even though Yoko did not specifically plead for such relief in her complaint, and the court essentially foreclosed any meaningful cross-examination as to the support issues and whether an inequitable property award was justified. See NRS 125.150(1)(b) (directing that the district court [s]hall, to the extent practicable, make an equal disposition of the community property, except that it may dispose of the community property unequally, in such proportions as it deems just, upon finding a compelling reason to do so, provided it sets forth in writing its reasons for the unequal distribution). Instead, Yoko was awarded sole legal and physical custody of the children, with no visitation for Shinichi, all of the property, spousal and child support, and attorney fees and costs, despite a lack of evidence to support such requests and reasons to justify departing from the relief requested in the complaint. Accordingly, we reverse the district courts default judgment and remand this matter to the district court for a decision on the merits.10 CONCLUSION Under the provision of the UCCJEA governing subject matter jurisdiction, NRS 125A.305(1)(a), Nevada is the childrens home state. Since the home state is given subject matter jurisdiction priority in custody matters, the Nevada district court had authority to render custody decisions. Thus, the district court properly determined that Nevada had subject matter jurisdiction to enter child custody orders in this matter. With regard to the district courts order finding Nevada the childrens place of habitual residence and ordering their immediate return to the U.S., the Hague Convention is not applicable in this
10 In his brief, Shinichi asks that the matter be assigned to another department on remand, but he cites to neither the record nor any legal authority to support his request for remand to a different department. Thus, since he has not shown that assignment to a different department is necessary for the interest of justice, see Wiese v. Granata, 110 Nev. 1410, 1413 n.2, 887 P.2d 744, 746 n.2 (1994), or that the assigned department cannot fairly deal with the matters involved, see Wickliffe v. Sunrise Hospital, 104 Nev. 777, 783, 766 P.2d 1322, 1326-27 (1988), his request is denied.

674

Lueck v. Teuton

[125 Nev.

case, since Japan has not signed the Hague Convention treaty, and its provisions therefore cannot be used to enforce the return of the children. The district court nevertheless properly entered the order in the context of the custody proceeding and its authority to decide custody matters under the UCCJEA. As for the default divorce decree, because Shinichi filed responsive pleadings and appeared through his attorney, the district court erred by entering a default judgment against him. Since the district court did not decide the matter on its merits, we reverse the district courts decree to the extent that it awarded Yoko sole legal and physical custody of the children, with no visitation for Shinichi, all of the property, spousal and child support, and attorney fees and costs, and we remand this matter to the district court for further proceedings. On remand, the district court must hold a hearing on the merits and render its decision based on the evidence, taking into account statutory guidelines concerning custody, support, property distribution, and attorney fees and costs awards.

ROBERT W. LUECK, MOVANT, v. ROBERT W. TEUTON, RESPONDENT.

No. 53596

IN

THE

MATTER OF THE COMMISSION OF THE HONORABLE ROBERT W. TEUTON, DISTRICT JUDGE.

No. 54238 219 P.3d 895

November 12, 2009

Motion for leave to file, on behalf of the State of Nevada, a petition for a writ of quo warranto removing respondent from office (No. 53596), and question regarding the commission of the Honorable Robert W. Teuton, Judge, Eighth Judicial District Court, Family Court Division (No. 54238). State citizen filed motion for leave to file, on behalf of state, a petition for writ of quo warranto removing temporarily appointed district judge from office, based on allegations that the temporary appointment had expired. The supreme court, CHERRY, J., held that: (1) state citizen lacked statutory standing to bring a quo warranto action on behalf of state; and (2) next general election, for purposes of state constitutional provision under which, if a district judges office is vacated before the offices term expires, the Governor may appoint an individual to temporarily fill the office until the first Monday of January following the next general election, means the general election most immediately following the appoint-

Nov. 2009]

Lueck v. Teuton

675

ment, as opposed to meaning the next election in which the vacancy may be filled in strict compliance with all election deadlines. Motion denied (No. 53596); mandamus issued (No. 54238). GIBBONS, J., dissented in part. Robert W. Lueck, Esq., and Robert W. Lueck, Las Vegas, for Movant. Catherine Cortez Masto, Attorney General, and C. Wayne Howle, Solicitor General, Carson City, for Governor Jim Gibbons and the Honorable Robert W. Teuton. Abrams Law Firm, LLC, and Jennifer V. Abrams, Las Vegas, for Amicus Curiae State Bar of Nevada, Family Law Section.
1. QUO WARRANTO. Quo warranto generally is available to challenge an individuals right to hold public office and to oust the individual from the office if the individuals claim to it is invalid or has been forfeited. 2. QUO WARRANTO. State citizen lacked statutory standing to bring, on behalf of state, a quo warranto action for removal of temporarily appointed district judge from office, based on allegations that the temporary appointment had expired; citizen did not claim to be entitled to district judges office, citizens request for Attorney General to institute a civil action in the nature of quo warranto against judge had been declined, and citizen merely had a general interest in seeing the states laws upheld. NRS 35.040, 35.050. 3. QUO WARRANTO. Statutory provisions addressing who may institute a quo warranto action to oust an individual from public office do not permit a person with only a general interest in quo warranto relief to pursue such a remedy, absent participation from the attorney general and leave of the court. NRS 35.040, 35.050. 4. JUDGES. Next general election, for purposes of state constitutional provision under which, if a district judges office is vacated before the offices term expires, the Governor may appoint an individual to temporarily fill the office until the first Monday of January following the next general election, means the general election most immediately following the appointment, regardless of the elections proximity to the appointment, as opposed to meaning the next election in which the vacancy may be filled in strict compliance with all election deadlines. Const. art. 6, 20(2). 5. CONSTITUTIONAL LAW. Constitutional language is given its plain meaning, unless the language is ambiguous. 6. CONSTITUTIONAL LAW. Constitutional language is ambiguous if it is susceptible to two or more reasonable but inconsistent interpretations. 7. CONSTITUTIONAL LAW. If the language of a constitutional provision is ambiguous, the court may look to the provisions history, public policy, and reason to determine what those who enacted it intended.

676

Lueck v. Teuton

[125 Nev.

8. CONSTITUTIONAL LAW. Whatever meaning ultimately is attributed to the language of a constitutional provision may not violate the spirit of that provision. 9. JUDGES. Temporary appointment, to fill a vacancy in the office of district judge, expired on the first Monday of the January following the first general election after the appointment, even though the office was not included in the ballot for that general election and a successor therefore was not elected at that general election. Const. art. 6, 20(2); NRS 3.080. 10. JUDGES. Official acts of temporarily appointed district judge, occurring after the temporary appointment had expired on the first Monday of the January following the first general election after the appointment, but before issuance of writ of mandamus directing the Governor to declare the judges office vacant, remained valid, under de facto officer principles. Const. art. 6, 20(2).

Before the Court EN BANC. OPINION By the Court, CHERRY, J.: Under the Nevada Constitution, when a district judges office is vacated before the offices term expires, the Governor may appoint an individual to temporarily fill the office until the first Monday of January following the next general election. Nev. Const. art. 6, 20(1) and (2). In July 2008, a district judge vacated the office, and a temporary appointment later was made, several weeks before the November general election. The judges office, however, was not included on the 2008 ballot. Instead, the appointed judge was commissioned to serve until the office could be filled by virtue of the 2010 general election, giving rise to the question of concern to this court: whether the commissions extension beyond the first Monday in January following the 2008 general election is valid. That question initially was brought to this courts attention when movant, a private Nevada citizen, sought leave to file a petition on behalf of the State of Nevada for a writ of quo warranto removing the judge from office. As we conclude that movant lacks standing, however, we consider the merits of the judges commission under our supervisory responsibilities over the judicial branch. The legitimacy of the extended commission depends on the meaning of next general election, as used in the Nevada Constitution provision noted above. Thus, in resolving this issue, we address whether next general election means the election most immediately following the appointment or, as has been asserted, the next general election in which the vacancy may be filled in strict compliance with all election deadlines. In view of the apparent intent behind the Nevada Constitutions next general election language to

Nov. 2009]

Lueck v. Teuton

677

allow Nevada citizens to elect a new district judge as soon as possible after an office becomes vacant and to correspondingly limit the Governors appointment powers, we conclude that judicial vacancy appointments expire on the first Monday in January after the first general election following that appointment, without exception. Here, then, with regard to the temporary appointment at issue, the appointment expired on the first Monday in January after the November 2008 general election. FACTS AND PROCEDURAL HISTORY In July 2008, a district judge serving the Family Court Division of the Eighth Judicial District Court resigned, resulting in a vacancy approximately two and one-half years before that offices term was set to expire. The vacancy was filled by temporary appointment in August 2008, when Governor Jim Gibbons appointed Judge Robert W. Teuton to the office, beginning August 22, 2008. Judge Teutons written commission designates the first Monday in January 2011 as its expiration date. Although a general election was held in November 2008, the district judge office was not included on the ballot. Thus, Judge Teuton has continued to serve in the office since 2008. Under Article 6, Section 20(2) of the Nevada Constitution, when the Governor fills a vacant district judge office, the offices term expires on the first Monday of January following the next general election. Arguing that, here, next general election meant the 2008 general election, rendering Judge Teutons commission invalid beyond January 5, 2009, a private Nevada citizen, movant Robert W. Lueck, moved this court for leave to seek a writ of quo warranto to remove Judge Teuton from office, after the attorney general denied Luecks written requests that she institute such quo warranto proceedings. Judge Teuton opposed the motion, primarily contesting Luecks standing to file a petition for a writ of quo warranto, as Lueck has only a private citizen interest in obtaining the requested relief. Lueck replied to Judge Teutons opposition, as permitted. After reviewing those initial filings, we directed Lueck and Judge Teuton to file supplements further addressing the standing issue. Concerned with Luecks standing and cognizant that the question posed by his motion raised concerns of statewide importance regarding the validity of Judge Teutons continued service as a district judge, and based on this courts responsibility to oversee the judiciary, we concluded that further inquiry was warranted. See Nev. Const. art. 6, 19; Halverson v. Hardcastle, 123 Nev. 245, 261-62, 266, 163 P.3d 428, 440, 443 (2007) (noting that courts have inherent power to . . . preserve the integrity of the judicial process and that this court possesses supervisory authority and duties over the proper administration of justice); Goldman v. Bryan, 104 Nev.

678

Lueck v. Teuton

[125 Nev.

644, 654, 764 P.2d 1296, 1302 (1988) (stating that under its general power of superintendence, this court may exercise its administrative authority to conduct an inquiry and take such action as deemed necessary, short of removal of a judge from office), abrogated on other grounds by Halverson, 123 Nev. 245, 163 P.3d 428; see also NRS 34.160 (recognizing that this court may issue a writ of mandamus to require a public officer to perform an act legally required by his or her office); cf. Nev. Const. art. 6, 4 (providing that this court has the power to issue writs of mandamus). Accordingly, this court entered an order directing the Governor and Judge Teuton to show cause why Judge Teutons commission and service in office beyond January 5, 2009, should not be declared invalid under Section 20(2), and why this court should not issue a writ of mandamus directing the Governor to declare Judge Teutons office vacant. See NRS 3.080(1) (stating that [t]he Governor shall declare vacant the office of district judge). We also invited the Family Law Section of the State Bar of Nevada to file an amicus curiae brief addressing the validity of Judge Teutons commission and service in office beyond January 5, 2009. Governor Gibbons, Judge Teuton, and the Family Law Section have timely responded to our order, arguing that interpreting Section 20(2) as mandating the offices placement on the 2008 general election ballot would be unworkable under Nevadas election laws, and therefore, that Judge Teuton should hold office until after the next election in 2010. DISCUSSION Currently before this court, then, are two subjects. First, does Lueck have standing to pursue quo warranto proceedings and, if so, should leave to file the petition be granted? Second, what is the meaning of Section 20(2) and what is the provisions effect on the validity of Judge Teutons continuing service in office? Luecks motion
[Headnote 1]

Quo warranto generally is available to challenge an individuals right to hold office and to oust the individual from the office if the individuals claim to it is invalid or has been forfeited. See Secretary of State v. Nevada State Legislature, 120 Nev. 456, 93 P.3d 746 (2004). This court is vested with original power to issue writs of . . . quo warranto by the Nevada Constitution Article 6, Section 4. Quo warranto proceedings typically are governed by NRS Chapter 35, which provides for civil actions against persons who unlawfully hold a public office, NRS 35.010(1); see State Et Al. v. City of Reno, 70 Nev. 167, 262 P.2d 953 (1953), unless that chapter fails to provide adequate relief. See Halverson, 123 Nev. at 257 n.8, 163 P.3d at 437 n.8 (stating that, while NRS Chapter 35 creates an al-

Nov. 2009]

Lueck v. Teuton

679

ternative remedy, it does not impact this courts original power [under Nevada Constitution Article 6, Section 4] to consider writ petitions seeking quo warranto relief); State v. Sadler, 25 Nev. 131, 58 P. 284 (1899) (recognizing that, under the circumstances asserted therein, the statutes preceding NRS Chapter 35 failed to provide adequate relief in the event that the attorney general refused to institute quo warranto proceedings and, in light of this courts original constitutional jurisdiction over writs of quo warranto, allowing a private individual claiming title to the office to pursue such relief on behalf of the state).
[Headnotes 2, 3]

The Legislature has not authorized quo warranto petitions by private citizens with only a general interest in seeing this states laws upheld. Under NRS Chapter 35, only persons claiming to be entitled to a public office, NRS 35.050, or otherwise through the attorney general and on the leave of the court, NRS 35.040, may commence a quo warranto action against the alleged unlawful officeholder or usurper. See Harvey v. Dist. Ct., 117 Nev. 754, 75960, 32 P.3d 1263, 1267 (2001). Thus, the NRS Chapter 35 provisions that address who may institute a quo warranto action to oust an individual from office do not permit a person with only a general interest in quo warranto relief to pursue such a remedy, absent participation from the attorney general and leave of the court. Here, the attorney general declined to institute a civil action in the nature of quo warranto against Judge Teuton, and Lueck does not claim to be entitled to Judge Teutons office. Lueck therefore does not fit within either provision of NRS Chapter 35 that addresses who may institute a quo warranto action to oust an individual from office, and consequently, he does not have standing to institute such an action under that chapter. And Lueck has not demonstrated that he has an interest in obtaining quo warranto relief sufficient to except him from NRS Chapter 35s provisions. See, e.g., State v. City of Sarasota, 109 So. 473, 478 (Fla. 1926); Toncray v. Budge, 95 P. 26, 3233 (Idaho 1908); People v. Tighe, 135 N.E.2d 811 (Ill. App. Ct. 1956); State v. Winneshiek Co-Op. Burial Assn, 15 N.W.2d 367, 371-72 (Iowa 1944) (Bliss, J., dissenting) (relying in part on the Statute of Anne, 9 Ann., c. 20 (1710) (Eng.)); King v. Kahne, 87 S.W. 807 (Ky. 1905); State ex rel. Wasson v. Taylor, 38 N.E. 24 (Ohio 1893); Bolus v. Murphy, 823 A.2d 1075, 1079 (Pa. Commw. Ct. 2003); State v. Ryan, 125 P. 666 (Utah 1912). Accordingly, Luecks motion must be denied. Section 20(2)s meaning
[Headnote 4]

Although Lueck lacks standing to raise it, the issue of Judge Teutons continuing service in office still deserves our attention. That

680

Lueck v. Teuton

[125 Nev.

issue, which we directed Judge Teuton, Governor Gibbons, and the Family Law Section to address, concerns the meaning of the term next general election, as it is used in the Nevada Constitution Article 6, Section 20(2). That is, does that term necessarily refer to the general election closest after the appointment, or does it mean, as Governor Gibbons, Judge Teuton, and the Family Law Section assert, the first general election at which the vacancy may be filled in strict compliance with Nevada election procedures? In answering that question, we first note principles that guide this courts constitutional language analysis. We then apply those rules to ascertain Section 20(2)s meaning, specifically analyzing the history of the term next general election in the constitution and caselaw. Finally, after discerning the meaning of next general election in light of that analysis, we apply that meaning to the facts of this case. The term next general election in Section 20(2) is ambiguous
[Headnotes 5-8]

As noted, the provision at issue here, Nevada Constitution Article 6, Section 20(2), provides that [t]he term of office of any justice or judge [appointed by the Governor to fill a Supreme Court or district judge vacancy] expires on the first Monday of January following the next general election. To determine Section 20(2)s meaning, we turn first to its language. In so doing, we give Section 20(2)s language its plain meaning, unless the language is ambiguous. Secretary of State v. Burk, 124 Nev. 579, 590, 188 P.3d 1112, 1119-20 (2008). If Section 20(2)s language is ambiguous, meaning that it is susceptible to two or more reasonable but inconsistent interpretations, id. at 590, 188 P.3d at 1120 (quoting Gallagher v. City of Las Vegas, 114 Nev. 595, 599, 959 P.2d 519, 521 (1998)), we may look to Section 20(2)s history, public policy, and reason to determine what those who enacted it intended. See id.; Nevada Mining Assn v. Erdoes, 117 Nev. 531, 538, 26 P.3d 753, 757 (2001). Whatever meaning ultimately is attributed to Section 20(2) may not violate the spirit of that provision. Burk, 124 Nev. at 590-91, 188 P.3d at 1120. Section 20(2)s next general election language can be read as referring to either the general election closest in time after the appointment, regardless of the elections proximity to the appointment, or the next general election at which Nevadas election deadlines can be fully carried out, meaning that the appointment could actually extend beyond the general election immediately following the appointment, as the Governor, Judge Teuton, and the Family Law Section suggest. Since both interpretations are reasonable but inconsistent, Section 20(2)s next general election language is ambiguous. Accordingly, we turn next to that provisions history to de-

Nov. 2009]

Lueck v. Teuton

681

termine what those who enacted it intended. See id. at 590, 188 P.3d at 1120; Nevada Mining Assn, 117 Nev. at 538, 26 P.3d at 757. Section 20(2)s next general election language was intended to preserve Nevadas long-standing policy to fill judicial vacancies at the next ensuing general election Originally, next general election was intended to safeguard Nevadans right to elect state offices Section 20(2)s next general election language originated at the debates and proceedings of Nevadas 1864 constitutional convention. See Debates & Proceedings of the Nevada State Constitutional Convention of 1864, at 702 (Andrew J. Marsh off. rep., 1866). At that time, the Constitutions drafters considered adding to the article governing the executive department the following provision for filling vacancies: When any office shall, from any cause, become vacant, and no mode is provided by the Constitution and laws for filling such vacancy, the Governor shall have power to fill such vacancy by granting a commission, which shall expire at the next election and qualification of the person entitled to such office. Id. After that language was presented, one of the delegates questioned whether the provisions language allowed the Governor to appoint an individual to fill a judicial vacancy for the remainder of the offices term, although the intent was to expire the appointments term at the closest election. Id. at 702-03. The delegate posed a situation in which a vacancy arose in a supreme court justice office three or four years before the offices term expired, and stated the following: It is not intended, I apprehend, that the Governor shall, in such a case, fill [the office] for the rest of the term; and yet I do not see why he may not do it under that section, to which another participant responded, It says the commission shall expire at the general election and qualification of the person elected. Id. at 702. The delegate replied: Then the office would have to be filled by election, and I do not see but the man elected would hold the office for the next six years. In that manner the whole system might become deranged. The vacancy should only be supplied, by appointment, until the election, and then a judge should be elected merely for the unexpired term of the incumbent who has vacated the office. Id. at 702-03. Then, the delegate proposed language to ensure that appointments to fill vacancies in judicial offices lasted only until the most

682

Lueck v. Teuton

[125 Nev.

immediate general election following the appointment. Id. at 703. The delegates proposed language provided this: In case the office of any Justice of the Supreme Court, or District Judge, shall become vacant before the expiration of the regular term for which he was elected, the vacancy may be filled by appointment by the Governor, until it shall be supplied at the next general election, when it shall be filled by election, for the residue of the unexpired term. Id. (Emphasis added.) The debate surrounding the delegates proposed provision makes clear that the suggested language was intended to preserve the peoples constitutional right to elect their own officers, see Nev. Const. art. 6, 5; State v. Arrington, 18 Nev. 412, 417, 4 P. 735, 739 (1884) (recognizing that the framers of the constitution intended to [carefully] guard what, in free governments, has always been considered an inestimable privilegethe right of the people to select their own officers), by precluding the Governor from appointing an individual to fill a judicial vacancy beyond the time when Nevadans could themselves fill the vacancy by election. Debates & Proceedings of the Nevada State Constitutional Convention of 1864, at 702-03. The delegates of the 1864 constitutional convention clearly favored the proposed provision, as they not only agreed to include it in the constitution, but also determined it should be considered for application to all state officers. Id. Because the addition of all state officers broadened its application, rather than placing the provision within the article pertaining to the executive or judicial department, the delegates included the provision among other miscellaneous provisions of a different article. Id. More specifically, the provision was set forth under Article 17, Section 22. Decisional law initially focused on the context of next general election language Since Article 17, Section 22s enactment, the meaning of next general election in that provision and others have been interpreted several times by this court. For example, in 1924, in a case concerning vacancies in county clerk and treasurer offices, Ex Rel. Bridges v. Jepsen, 48 Nev. 64, 70, 227 P. 588, 590 (1924) (citing State of Nevada v. Collins, 2 Nev. 351 (1866)), this court determined that next general election in a statute pertaining to vacancies in certain county offices referred to the general election when the office at issue normally would be filled. One year later, in Ex. Rel. Penrose v. Greathouse, 48 Nev. 419, 422, 233 P. 527, 528 (1925), however, this court noted that next general election, as it is used in Article 17, Section 22, meant that an office vacancy should be filled by election as soon practicable after the vacancy occurs,

Nov. 2009]

Lueck v. Teuton

683

without consideration of when the office normally would be filled by election. This court clarified the distinction between Bridges and Penrose in a 1940 case, Grant and McNamee v. Payne, 60 Nev. 250, 256, 107 P.2d 307, 310 (1940). Specifically, this court pointed out that Article 17, Section 22, addressed in Penrose, declares what is meant by general election, by stating that at the next general election the vacancy shall be filled by election for the residue of the unexpired term. Id. at 255, 107 P.2d 309. But, the court noted, in the provision in Bridges, [n]o such declared intention appears[, t]he term general election stands alone and thus refers to an election for the purpose of selecting officers who are by law authorized to be elected at that time. Id. Decisional law ultimately reaffirmed that the intent behind next general election is the interpretative foundation for the phrase Then, in Brown v. Georgetta, 70 Nev. 500, 275 P.2d 376 (1954), this court, noting Grant and McNamees analysis, emphasized that the intent behind utilizing next general election language, not solely the language itself, stands as the interpretive foundation. Specifically, Brown concerned a vacancy in the office of United States Senator, which the governor filled by appointment pursuant to a statute that provided for an appointee to serve until the next general election, and until his successor shall be elected and qualified. Id. at 501-02, 275 P.2d at 376-77 (quoting 1929 NCL 2593). At issue in Brown, then, was whether until the next general election caused the governors appointees term to extend to the entire unexpired term of office or . . . only until the ensuing biennial election. Id. at 501, 275 P.2d at 376-77. While noting that similar language, without more, previously had been interpreted as meaning the next general election at which the office would normally be filled, the court recognized that in all of the prior cases, the language itself was not so much at issue as intent. Id. at 503-04, 275 P.2d at 377-78. With intent in mind, the court analyzed the United States Constitutional provision pursuant to which Nevadas statute for filling such vacancies was enacted. Id. at 503-04, 275 P.2d at 377. In particular, the United States Constitution provided that the legislature of any State, may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct. Id. at 504, 275 P.2d at 378 (quoting U.S. Const. amend. XVII). This court determined that the clear intent of that language was that vacancies in United States Senate offices shall be filled by election of the people . . . subject only to temporary executive appointment. Id. at 505, 275 P.2d at 378. Further, the court noted, because

684

Lueck v. Teuton

[125 Nev.

Nevadas statute must have been enacted with such policy in mind, that statute, including its next general election language, must be read with the same intent. Id. Thus, the term next general election, the court concluded, must be construed to mean the ensuing biennial election. Id. at 506, 275 P.2d at 379. Thus, in that case, this court ordered the election for a new senator to proceed, even though, by that point, absentee ballots omitting the office already had been issued. Id. at 506-07, 275 P.2d at 379. After this courts analyses of next general election language, Article 17, Section 22, was amended in 1976, when Nevada adopted Article 6, Section 20s judicial selection process for filling vacancies that arise in judicial offices. Hearing on A.J.R. 14 Before the Senate Judiciary Comm., 57th Leg. (Nev., April 14, 1973). Specifically, in creating provisions for a judicial selection process, the drafters removed judicial officers from the provisions of Article 17, Section 22, instead addressing judicial vacancies within the context of the judicial selection process, in Article 6, Section 20(2). Id. In so doing, Section 20(2)s drafters preserved some of the key language that the delegates had added at the constitutional debates and proceedings to ensure that the Governor could not fill a vacancy beyond the closest election following the appointment. Id. Indeed, although an early draft of the judicial selection process provisions provided that the individual appointed would serve the remainder of the unexpired term, that provision was amended to ensure that the individual appointed through the judicial selection process would not serve beyond the next general election. Id.
[Headnote 9]

In light of the constitutional framers original intent to safeguard the peoples election prerogative, preserved by the most recent amendments, Section 20(2) must be read so as to effectuate the election policy of this stategubernatorial appointments of judges last only until the January after the next general election, meaning the general election most immediately following the appointment.1 Under that provision, the appointment of a constitutional judicial officer can last no longer than the first Monday in January following the first general election to take place after the appointment.2
1 In the 2002 general election, Nevada voters rejected a proposal to amend Section 20(2) so that an appointed judges term expired after the first general election held at least 12 months after the appointment, when a judge had to be elected to serve the remainder of the term. NRS 47.130(2). 2 The Governor, Judge Teuton, and the Family Law Section point to NRS 3.080, which provides that an appointed judges term of office does not expire until after the next general election . . . at which . . . a district judge shall be chosen for the balance of the unexpired term. Because next general election in NRS 3.080 refers to an election at which a successor is elected, they assert, next general election in Section 20(2) likewise refers to such an election, and because no successor has been elected here, Judge Teutons commission remains valid.

Nov. 2009]

Lueck v. Teuton

685

Under Section 20(2), Judge Teutons term expired in January 2009

[Headnote 10]

As noted, the first Monday in January following the November 2008 general election was January 5, 2009. Accordingly, Judge Teutons term ended on January 5, 2009. Even though the statutory deadline for altering the general election ballot was not until August 19, 2008, NRS 293.165(4), after the office became vacant, no candidates name appeared on the general election ballot. As no individual was elected to fill the office in 2008, the office became vacant as of January 5, 2009, when Judge Teutons term expired.3 CONCLUSION First, in the absence of the attorney generals participation and leave of court, NRS Chapter 35 does not authorize an individual with only a general interest in the outcome, such as Lueck, to pursue quo warranto proceedings on behalf of the state to remove a person from public office. Therefore, because the attorney general declined to pursue such an action on Luecks request and he has no special interest in obtaining quo warranto relief sufficient to justify excepting him from NRS Chapter 35s provisions, we deny Luecks motion for leave to institute quo warranto proceedings. The clerk of this court shall return, unfiled, Luecks proposed petition for a writ of quo warranto. Second, under Nevada Constitution Article 6, Section 20(2), an individual appointed to fill a vacancy in a district court judge office serves until the first Monday of January following the next general election. According to the history of that provision, the term next general election means the general election that most immediately follows the appointment. Such a construction supports Nevadas long-standing policy in favor of filling vacancies in judicial office through election, subject only to the Governors power to temporarily appoint an individual to fill a vacancy until the next ensuing general election.
But to the extent that the provisions conflict, Section 20(2) supersedes NRS 3.080. Wren v. Dixon, 40 Nev. 170, 187, 161 P. 722, 726 (1916) (recognizing that [s]tatutes may be nullified, in so far as their future operation is concerned, by a [C]onstitution as well as by statute). Moreover, the failure to elect a successor cannot serve to extend Judge Teutons temporary appointment, which under Section 20(2) must end on January 5, 2009. See generally Hawkins v. Cook, 40 A. 781, 782 (N.J. 1898) (providing that when an individual is appointed to fill a vacancy until the next annual election, the fact [t]hat no successor was legally appointed to succeed him did not operate to continue him in office), disapproved on other grounds by Haack v. Ranieri, 200 A.2d 522, 525 (N.J. Super. Ct. Law Div. 1964). 3 Although Judge Teuton did not validly serve after January 5, 2009, his official acts between that time and the writs issuance remain valid, under de facto officer principles. See Walcott v. Wells, 21 Nev. 47, 57-58, 24 P. 367, 370-71 (1890).

686

Lueck v. Teuton

[125 Nev.

Under Section 20(2), then, Judge Teutons appointment expired on January 5, 2009the first Monday of January after the 2008 general election. Accordingly, Judge Teutons commission and service in office after that date is invalid. In light of this courts duty to administrate Nevadas judicial system and ensure the integrity of the judicial process, we conclude that a writ of mandamus directing the Governor to declare Judge Teutons office vacant under NRS 3.080(1) is warranted. We thus direct the clerk of this court to issue a writ of mandamus to Governor Jim Gibbons directing him to declare Judge Robert W. Teutons office vacant. HARDESTY, C.J., PARRAGUIRRE, PICKERING, JJ., concur. DOUGLAS, SAITTA, and

GIBBONS, J., concurring in part and dissenting in part: I concur with the majority that movant Robert W. Lueck lacks standing to pursue quo warranto in this matter. Likewise, I agree that the constitutional appointment-term issue raised by Lueck nonetheless warrants this courts immediate attention. From the majoritys analysis thereof, however, I must dissent. In reaching its conclusion that Article 6, Section 20(2) of the Nevada Constitution mandates the expiration of an appointed judges term after the general election most immediately following the appointment, the majority accurately describes the history of that ambiguous provision. But nowhere in that extensive history championing the peoples right to select constitutional officers exists any indication that the provision should be construed outside the context of this states election laws, so as to result not in the installation of a newly elected judge, but rather in another potentially months-long judicial selection and appointment process. The provision must be read reasonably. See Secretary of State v. Burk, 124 Nev. 579, 590, 188 P.3d 1112, 1120 (2008); State v. Wells, 8 Nev. 105, 109 (1872). As the majority points out, historically, Nevada has adhered to a strong policy of electing its judges and other constitutional officers. See Nev. Const. art. 6, 5; State v. Arrington, 18 Nev. 412, 417, 4 P. 735, 739 (1884). In that regard, the constitution has always called for vacancies to be filled by election as soon as practicable, while appointments, solely temporary in nature, ensure the smooth running of government until such election can be had. Ex. Rel. Penrose v. Greathouse, 48 Nev. 419, 422, 233 P. 527, 528 (1925). To further that goal, in carrying out its constitutional duty to accommodate elections, see Nev. Const. art. 4, 27; NRS 293.127(1)(c), the Legislature has provided for the nomination and election of candidates for an office declared vacant after the normal filing deadlines have passed. See NRS 293.165; Penrose, 48 Nev. at 423, 233 P. at

Nov. 2009]

Lueck v. Teuton

687

529. For instance, nonpartisan candidates, such as those for district judge office, must file a nominating petition by the fourth Tuesday in June. NRS 293.165(2). And in each of the cases discussed by the majority, the candidates had complied with the applicable nominating statute. Thus, in the 1925 case, Ex. Rel. Penrose v. Greathouse, 48 Nev. at 421-23, 233 P. at 528-29, this court ordered onto the general election ballot the name of a candidate who had complied with statutory laws regarding the election of officers to fill vacancies created midterm, and in the 1954 case, Brown v. Georgetta, 70 Nev. 500, 507-08, 275 P.2d 376, 379 (1954), this court decided similarly regarding a midterm vacancy governed by a different, but like, provision. Neither of those cases dealt with the situation here, in which compliance with the election laws was not possible.1 The majority decision necessarily ignores that fact, suggesting that the constitutional appointment term limit, as they comprehend it, applied regardless of the result. But the practical consequences of the majoritys conclusion means that, when a vacancy occurs after the second Tuesday in June, the office must again be declared vacant, as was done here, or the election deadlines must be viewed as optional. Neither result is acceptable. Vacancies are disfavored and election deadlines should not be arbitrarily disturbed The law abhors a vacancy in public office. State v. Triplett, 17 N.E.2d 729, 731 (Ohio 1938); see also State v. Lutz, 147 So. 429, 432 (Ala. 1933); Johnson v. Collins, 464 P.2d 647, 651 (Ariz. Ct. App. 1970); State Ex Rel. Warder v. Gainer, 167 S.E.2d 290, 296 (W. Va. 1969); cf. Ex. Rel. Penrose v. Greathouse, 48 Nev. 419, 422, 233 P. 527, 528 (1925) (recognizing Nevadas legislative policy to fill the vacancy for the office of district judge by election as soon as practicable after the vacancy occurs); State v. Wells, 8 Nev. 105, 109 (1872) (noting that a district attorney appointed to fill a va1 Indeed, in Brown, 70 Nev. at 507-08, 275 P.2d at 379-80, relied on by the majority here, this court affirmed the importance of complying with election laws when filling late-arising vacancies at the general election: Under our statutes providing for late nominations under certain conditions it is inevitable that circumstances will arise whereunder ballots containing the names of late nominees will not reach absent voters living in distant parts of the world. If the names of the nominees are otherwise lawfully placed upon the ballots personally voted at the polls, it could not reasonably be contended that the election for the particular office should be declared void. .... [I]n fixing the time before election in which nominations may be made where a vacancy occurs . . . the legislature must be presumed to have chosen these periods as reasonable ones to accomplish the purposes sought.

688

Lueck v. Teuton

[125 Nev.

cancy properly served until the qualification of a successor . . . because the presence of such an officer is necessary to the proper conduct of public business). Thus, courts must strongly presume against any intent to draft a constitutional provision creating a condition in which a public office is left wholly vacant for any length of time. See Warder, 167 S.E.2d at 296; cf. Wells, 8 Nev. at 109. Mandating a second vacancy, caused by the expiration of an appointed judges term, does nothing to further the policy of avoiding vacancies, and even if no gap between appointments occurs, valuable resources will have been spent in securing the second appointment. Moreover, calling for a second vacancy does nothing to limit the executive branchs appointment powers, as evidently was the concern held by the drafters; at best, it could merely shift those powers to a new governor. The alternative consequence, ignoring the statutory election deadlines, is no better. [A]n election is not an inherent right in the people and cannot be held in the absence of legislation clearly authorizing the same. Grant and McNamee v. Payne, 60 Nev. 250, 256, 107 P.2d 307, 310 (1940) (citing Sawyer v. Haydon, 1 Nev. 75, 7879 (1865)); see also Ex Rel. Bridges v. Jepsen, 48 Nev. 64, 70, 227 P. 588, 590 (1924) (recognizing that [a]n election can be held only by virtue of some constitutional provision or legal enactment . . . authorizing that particular election); Penrose, 48 Nev. at 424, 233 P. at 529 (recognizing that an election cannot be held in the absence of regulating laws and urging the Legislature to enact election laws so as to permit a vacancy in a nonpartisan office occurring shortly prior to a general election to be filled, no matter how or when such vacancy occurs). Therefore, Nevada election law establishing deadlines for declaring candidacy for vacancies that arise after the deadline for filing a declaration of candidacy, NRS 293.165, is not simply a dispensable inconvenience.2 As the majority does not take issue with the deadline established therein, it must be presumed reasonable, see Brown, supra note 1, and thus should not be ignored. To do so is to invite a host of issues for the executive and judicial branches to resolve, likely under exigent circumstances, shortly before an election.
2 The primary election for the office in question was held on August 12, 2008. Judge Teuton was not appointed until August 22, 2008. The general election was November 4, 2008. NRS 293.165(4) provides, in part, that [n]o change may be made on the ballot for the general election after 5 p.m. on the first Tuesday after the primary election of the year in which the general election is held. Therefore, the deadline for the general election ballot change was Tuesday, August 19, 2008, at 5 p.m., or three days before Judge Teuton was appointed by the Governor. The first primary and general elections for which petitions for candidacy may be filed will not take place until 2010.

Nov. 2009]

Lueck v. Teuton

689

An appointment should end when the vacancy may validly be filled by election To recognize the election mandate is to recognize the inseparable obligation to allow a meaningful opportunity to vote. See, e.g., State v. Marshall, 633 P.2d 227, 235 n.24 (Alaska 1981) (recognizing that [p]rovisions of statutes governing the conduct of elections which have the purpose of securing a complete and enlightened vote or preventing fraud, where failure to comply is capable of influencing the outcome of the election, are mandatory (quoting C. Dallas Sands and Norman J. Singer, 2B Sutherland Statutory Construction 57:21 (4th ed. 1973))); Meyer v. Putnam, 526 P.2d 139, 140 (Colo. 1974) (recognizing Colorados constitutional requirement that its legislature pass laws to secure the purity of elections). Thus, in Nevada, the expiration of an appointed district judges term of office has never been understood apart from correspondingly filling the office through the general election in compliance with Nevadas election laws. Indeed, until todays decision, in Nevada, the term next general election has always referred to the first general election when the vacancy may be filled by valid election. In fact, NRS 3.080, a statute substantially unchanged from its earliest codifications in 1866, see 1866 Nev. Stat., ch. 108, 38 and 48, at 238-39, ties the expiration of appointed judges terms to simultaneously filling the office through the general election. Like the original Article 17, Section 22 of the Nevada Constitution, that statute provides that an appointed judges term of office does not expire until after the next general election . . . at which . . . a district judge shall be chosen for the balance of the unexpired term. The majority dismisses this language as merely inconsistent with and, thus, superseded by, Nevadas Constitution. But principles of constitutional interpretation insist that the contemporaneous construction by the legislature of a constitutional provision is a safe guide to its proper interpretation and creates a strong presumption that the interpretation was proper. Halverson v. Secretary of State, 124 Nev. 484, 488-89, 186 P.3d 893, 897 (2008) (quoting State ex rel. Udall v. Colonial Penn, 812 P.2d 777, 783 (N.M. 1991)). Thus, as the Legislature drafted the earliest codifications of NRS 3.080 contemporaneous with and pursuant to its understanding of Article 17, Section 22, it is strongly presumed that the term of office of an individual appointed to fill a vacancy does not expire until the office is filled through the next available general election. As the majority points out, that original intent did not change with the 1976 amendments to the constitution, and thus, the intent is carried through to our current constitution. In like circumstances, the Iowa Supreme Court, in State v. Claussen, 250 N.W. 195, 200 (Iowa 1933), concluded that giving

690

Lueck v. Teuton

[125 Nev.

effect to a constitutional election mandate meant filling vacancies in compliance with election laws enacted in pursuance of that mandate. Similar to Nevada law, the clause at issue in Claussen provided the following: [A]ll persons appointed to fill vacancies in office, shall hold until the next general election, and until their successors are elected and qualified. 250 N.W. at 197 (internal quotations omitted). In Claussen, the Iowa Supreme Court addressed whether a state office filled by appointment within 30 days of a general election can then be filled at that election, when compliance with Iowas election laws was impossible. Id. After recognizing the importance of election laws in giving effect to constitutional election mandate, the majority determined that [t]he [term] next general election means the next general election at which, in pursuance of law, a vacancy may legally be filled. . . . [T]his does not necessarily mean the next general election, but the election at which the vacancy can be legally filled. Id. at 200 (citing Ex Rel. Bridges v. Jepsen, 48 Nev. 64, 227 P. 588 (1924)). The same analysis is warranted here, as we have recognized. See, e.g., Bridges, 48 Nev. at 69, 227 P. at 590 (stating that election to office be by the people, when it can conveniently be done, and that appointments to fill vacancies made to meet the requirements of public business, shall be effective only until the people may elect); Ex. Rel. Penrose v. Greathouse, 48 Nev. 419, 422, 233 P. 527, 528 (1925) (recognizing the legislative policy to fill the vacancy for the office of district judge by election as soon as practicable after the vacancy occurs (citing to former NRS 3.080, which provided that the Governor shall fill [a vacancy in a district judge office] by granting a commission, which shall expire at the next general election . . . at which election such officers shall be chosen for the balance of the unexpired term)). Because the majority overlooks the full import of Nevada law regarding vacancies and renders a decision contrary to the election priorities of this state, I respectfully dissent from that portion of the majoritys decision concluding that vacancy appointments necessarily terminate after the general election most immediately following the appointment.

Nov. 2009]

Glover v. Dist. Ct.

691

SHAWN LYNN GLOVER, JR., PETITIONER, v. THE EIGHTH JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, IN AND FOR THE COUNTY OF CLARK, AND THE HONORABLE DAVID WALL, DISTRICT JUDGE, RESPONDENTS, AND THE STATE OF NEV ADA, REAL PARTY IN INTEREST.
No. 51941 November 12, 2009 220 P.3d 684

Original petition for a writ of prohibition or mandamus to bar retrial on double jeopardy grounds. The supreme court, PICKERING, J., held that: (1) videotaped statement that defendant made to police the day that the victim was shot was inadmissible hearsay when offered by defendant as a prior consistent statement; (2) negative-inference argument made by defense counsel during closing argument, that the State did not introduce videotaped statement because the statement would absolutely devastate the States case, was improper; (3) trial courts determination that manifest necessity required a mistrial following defense counsels misconduct was entitled to great deference; and (4) trial court did not abuse its discretion by finding that manifest necessity required a mistrial, and thus a retrial would not violate double jeopardy. Petition denied. [Rehearing denied February 17, 2010] HARDESTY, C.J., with whom SAITTA, J., agreed, dissented in part. CHERRY, J., dissented. Philip J. Kohn, Public Defender, and Danny A. Silverstein, Deputy Public Defender, Clark County, for Petitioner. Catherine Cortez Masto, Attorney General, Carson City; David J. Roger, District Attorney, and Steven S. Owens, Chief Deputy District Attorney, Clark County, for Real Party in Interest.
1. PROHIBITION. A writ of prohibition will issue to interdict retrial in violation of a defendants constitutional right not to be put in jeopardy twice for the same offense. Const. art. 1, 8; U.S. CONST. amend. 5. 2. DOUBLE JEOPARDY. Jeopardy attaches when a jury is sworn, but the constitutional guarantee against double jeopardy does not mean that every time a defendant is put to trial before a competent tribunal he is entitled to go free if the trial fails to end in a final judgment. Const. art. 1, 8; U.S. CONST. amend. 5.

692

Glover v. Dist. Ct.

[125 Nev.

3. DOUBLE JEOPARDY. A criminal trial may be discontinued before verdict and a defendant retried without violating double jeopardy if, in the exercise of a sound discretion and taking all the circumstances into consideration, the trial court determines that the ends of public justice make mistrial a manifest necessity. Const. art. 1, 8; U.S. CONST. amend. 5. 4. CRIMINAL LAW. In criminal trials, the public as well as the accused have interests that should be safeguarded and protected. 5. CRIMINAL LAW. The publics interest in criminal trials lies in seeing that verdicts in criminal causes are the result of honest deliberation by individuals who are of a mind free from bias and prejudice. 6. DOUBLE JEOPARDY. A deadlocked jury is the classic example of the manifest necessity for mistrial before final verdict that will permit retrial without offense to a defendants double jeopardy rights. Const. art. 1, 8; U.S. CONST. amend. 5. 7. DOUBLE JEOPARDY. Improper advocacy that places prejudicial and inadmissible evidence before the jury can create an unacceptable risk of biased jury deliberations and require mistrial as a matter of manifest necessity, without violating double jeopardy. Const. art. 1, 8; U.S. CONST. amend. 5. 8. CRIMINAL LAW. For a defense lawyer to make statements to the jury that are not and cannot be supported by proof is, if it relates to significant elements of the case, professional misconduct and fundamentally unfair. 9. CRIMINAL LAW. A defense counsel making statements to the jury that are not and cannot be supported by proof unquestionably tends to frustrate the public interest in having a just judgment reached by an impartial tribunal and creates a risk, not present in the individual juror bias situation, that the entire panel may be tainted. 10. CRIMINAL LAW. A trial court has an array of measures available to deal with improper argument by counsel, including, in an appropriate case, the power to declare a mistrial. 11. CRIMINAL LAW. A trial judge may instruct the jury to disregard improper comment by counsel, and in extreme cases, he or she may discipline counsel, or even remove counsel from the trial; however, those actions will not necessarily remove the risk of bias that may be created by improper argument, and, unless unscrupulous defense counsel are to be allowed an unfair advantage, the trial judge must have the power to declare a mistrial in appropriate cases. 12. CRIMINAL LAW. A judicial determination of manifest necessity for a mistrial, such that double jeopardy is not violated, is reviewed for abuse of discretion, but the level of deference varies according to the circumstances in each case. Const. art. 1, 8; U.S. CONST. amend. 5. 13. CRIMINAL LAW. Great deference is due a trial judges decision to declare a mistrial based on his or her assessment of the prejudicial impact of improper argument on the jury, when determining whether double jeopardy has been violated. Const. art. 1, 8; U.S. CONST. amend. 5.

Nov. 2009]

Glover v. Dist. Ct.

693

14. CRIMINAL LAW. Great deference is due a trial judges decision to declare a mistrial based on the judges assessment of the prejudicial impact of improper argument, when determining whether a retrial would violate double jeopardy, as the judge has seen and heard the jurors during their voir dire examination, the judge is the judge most familiar with the evidence and the background of the case on trial, the judge has listened to the tone of the argument as it was delivered and has observed the apparent reaction of the jurors, and, in short, the judge is far more conversant with the factors relevant to the mistrial determination than any reviewing court can possibly be. Const. art. 1, 8; U.S. CONST. amend. 5. 15. DOUBLE JEOPARDY. A trial judge, when granting a mistrial based on improper argument, must exercise a sound discretion and cannot act irrationally or irresponsibly in granting a mistrial over the objection of the defense, for purposes of determining whether a retrial would violate double jeopardy; however, along the spectrum of trial problems which may warrant a mistrial and which vary in their amenability to appellate scrutiny, improper advocacy concerning inadmissible evidence falls in an area where the trial judges determination of potential juror bias and the need for a mistrial is entitled to special respect. Const. art. 1, 8; U.S. CONST. amend. 5. 16. CRIMINAL LAW. The supreme court reviews a district courts evidentiary rulings and its rulings respecting the latitude allowed counsel in closing argument for abuse of discretion. 17. WITNESSES. Voluntary videotaped unsworn statement that defendant made to police the day that the victim was shot was inadmissible hearsay when offered by defendant during murder trial, where the State did not offer the statement into evidence, the State did not impeach defendant with a prior inconsistent statement, and the State did not accuse defendant of recent fabrication or improper influence or motive. NRS 51.035(2)(b). 18. WITNESSES. A party who takes the stand and testifies in support of his cause cannot bolster his in-court testimony with consistent but self-serving prior outof-court statements, even if parts of the prior out-of-court statement are statements against penal interest. NRS 51.035(2)(b). 19. WITNESSES. Prior consistent statements are not necessarily admissible, as selfexculpatory statements are exactly the ones which people are most likely to make even when they are false, and mere proximity to other, selfinculpatory, statements does not increase the plausibility of the selfexculpatory statements. NRS 51.035(2)(b). 20. CRIMINAL LAW. Because of the States burden of proving guilt beyond a reasonable doubt, defense attorneys must be permitted to argue all reasonable inferences from the facts in the record; this includes the negative inferences that may arise when a party fails to call an important witness at trial, or fails to produce relevant documents or other evidence, and it is shown that the party has some special ability to produce such witness or other evidence. 21. CRIMINAL LAW. Counsel may not premise arguments on evidence which has not been admitted. 22. CRIMINAL LAW. The prohibition against arguing facts not in evidence applies to the prosecution and the defense alike; it is improper for either the prosecutor

694

Glover v. Dist. Ct.

[125 Nev.

23.

24.

25.

26.

27.

28.

29.

30.

or defense counsel to make statements as to facts not proven or to put his or her personal knowledge and belief on the scales. CRIMINAL LAW. Negative-inference argument made by defense counsel during closing argument, that the State did not introduce voluntary videotaped unsworn statement that defendant made to police the day that the victim was shot because the statement would absolutely devastate the States case, was improper, in trial of defendant for murder in which defendant claimed selfdefense, as defense counsel was arguing facts not in evidence; defense counsel was putting his personal knowledge and belief on the scales; States objection to defendants attempt to admit the videotaped statement, that the prior out-of-court statement was inadmissible to bolster defendants incourt testimony, was a proper hearsay objection; and it was improper for defense counsel to argue a negative inference based on a proper hearsay objection. CRIMINAL LAW. While a defendant is entitled to argue to the jury that the governments failure to present a particular type of strong evidence against him or her weakens its case, he or she is not entitled to use the lack of such evidence as a springboard for arguing facts not in evidence, as the latter form of negative-inference argument violates the fundamental rules against going outside the record to make statements as to facts not proven and putting the personal knowledge and belief of the defense attorney on the scales, which is also improper. WITNESSES. The hearsay rules declare prior out-of-court statements are generally untrustworthy and inadmissible when offered to bolster a declarants own incourt testimony. CRIMINAL LAW. Because prosecutors cannot comment on a defendants failure to testify or shift the burden of proof to the defense, the prosecution has less latitude in arguing negative inferences than the defense. DOUBLE JEOPARDY. Where a criminal trial ends in acquittal or conviction, the constitutional guarantee against double jeopardy automatically bars retrial, unless the conviction is later reversed. Const. art. 1, 8; U.S. CONST. amend. 5. DOUBLE JEOPARDY. When a criminal proceeding is terminated without finally resolving the merits of the charges against the accused, retrial is not automatically barred by double jeopardy. Const. art. 1, 8; U.S. CONST. amend. 5. DOUBLE JEOPARDY. If a case ends after jeopardy attaches but before the jury reaches a verdict, a defendant may be tried again for the same crime without violating double jeopardy in two circumstances: (1) if he or she consents to the mistrial, or (2) if the district court determines that the mistrial was required by manifest necessity. Const. art. 1, 8; U.S. CONST. amend. 5. DOUBLE JEOPARDY. Where the prosecutor is responsible for the circumstances which necessitated declaration of a mistrial, or guilty of inexcusable negligence, strictest scrutiny applies when determining whether double jeopardy bars a retrial, because the Double Jeopardy Clause protects a defendant against governmental actions intended to provoke mistrial requests or bad faith conduct that threatens the harassment of an accused. Const. art. 1, 8; U.S. CONST. amend. 5.

Nov. 2009]

Glover v. Dist. Ct.

695

31. CRIMINAL LAW. Where the defense caused the mistrial and the judges mistrial determination is based on his or her own observations and personal assessment that a fair trial would be impossible because of jury bias, the reviewing court will give special respect to the trial judges determination of manifest necessity based on jury bias, when determining whether double jeopardy bars a retrial. Const. art. 1, 8; U.S. CONST. amend. 5. 32. DOUBLE JEOPARDY. There is no mechanical rule by which to calculate manifest necessity for a mistrial, when determining whether double jeopardy bars a retrial. Const. art. 1, 8; U.S. CONST. amend. 5. 33. CRIMINAL LAW. A reviewing courts goal, when determining whether double jeopardy bars a retrial after a trial court declared a mistrial, is to ensure that the trial judge exercised sound discretion in declaring a mistrial. Const. art. 1, 8; U.S. CONST. amend. 5. 34. DOUBLE JEOPARDY. Sound discretion exists, for purposes of determining whether manifest necessity existed for a mistrial and thus double jeopardy does not bar a retrial, where the trial judge acts responsibly and deliberately rather than irrationally or irresponsibly. Const. art. 1, 8; U.S. CONST. amend. 5. 35. CRIMINAL LAW. Trial courts determination that manifest necessity required a mistrial deserved the highest level of deference, for purposes of determining whether double jeopardy barred retrial of defendant for murder after mistrial was declared when defense counsel argued that State did not introduce voluntary videotaped statement defendant made to police on the day victim was shot because it would have absolutely devastated the States case, where the prosecution gave the defense advance warning it objected to the statement being used; the State did not seek a mistrial, despite the defenses repeated violations of the courts order excluding defendants statement, until the court called a recess during the closing argument and called for argument on mistrial; and the trial court based its mistrial decision on its determination that the jurys impartiality had been unacceptably compromised. Const. art. 1, 8; U.S. CONST. amend. 5. 36. DOUBLE JEOPARDY. Trial court did not abuse its discretion by finding that manifest necessity required a mistrial in trial of defendant for murder in which defendant claimed self-defense, after defense counsel argued in closing arguments that State did not introduce videotaped statement defendant made to police the day victim was shot because it would have devastated the States case, and thus double jeopardy did not bar defendants retrial, as statement was inadmissible as a prior consistent statement, trial court sustained States objection to defense counsels reference to the statement in opening statements, defense counsel repeatedly referred to statement during the trial though court had ruled it was inadmissible, defense counsel persisted in arguing that the statement was devastating after the trial court instructed him to stop, trial court solicited the opinions of both parties before declaring a mistrial, and curative instruction proposed by defense counsel was unworkable. Const. art. 1, 8; U.S. CONST. amend. 5. 37. CRIMINAL LAW; DOUBLE JEOPARDY. The fact that the defendant or his or her counsel engaged in the misconduct that caused a mistrial does not necessarily trump the defendants double jeopardy rights; however, it diminishes them considerably by in-

696

Glover v. Dist. Ct.

[125 Nev.

creasing the level of deference accorded the district courts mistrial determination. Const. art. 1, 8; U.S. CONST. amend. 5. 38. ATTORNEY AND CLIENT; CONTEMPT; CRIMINAL LAW. The remedies of discipline and contempt to control the conduct of trial attorneys may be invoked any time a lawyer engages in misconduct in front of the court, but they do not cure the problem of a jury that has been unfairly biased by exposure to improper argument.

Before the Court EN BANC. OPINION By the Court, PICKERING, J.: This petition for a writ of prohibition asks us to decide whether the district court violated petitioner Shawn Glovers double jeopardy rights when it granted a mistrial and ordered him to stand trial a second time on murder and lesser related charges. The district court determined that defense counsel had irretrievably biased the jury by putting before them facts not in evidence, making mistrial a manifest necessity. The controversy arose out of a voluntary statement Glover gave the police. The State told the defense that it did not intend to use Glovers statement at trial. The district court ruled that, when offered by the defense, the statement was inadmissible hearsay. Despite this ruling, defense counsel repeatedly put the statement before the jury, first in his opening statement, when he displayed excerpts of Glovers police statement on PowerPoint; then during crossexamination of the detective who interrogated Glover, whom defense counsel asked to show the jury an envelope, neither marked nor admitted in evidence, and confirm that it contained a videotape of Glovers interrogation; and again in closing argument. Although the States objections were sustained, the jury could not help but get the point that the defense thought Glovers excluded statement was crucial and unfairly forbidden them. Matters came to a head in closing argument when, despite earlier orders in limine, the defense exhorted the members of the jury to ask themselves why the State would not let them see or hear what Glover said to the police. The court rebuked defense counsel and directed him to discontinue this line of argument. He continued with it anyway, even after the court ordered him to stop, telling the jurors that the State kept Glovers police statement from them because it is devastating to their case, absolutely devastating. It was at this point that the court called a recess, asked for input on the options available, including possible curative instructions, and ultimately, declared a mistrial.

Nov. 2009]

Glover v. Dist. Ct.

697

We uphold the district courts orders excluding Glovers statement and prohibiting argument about its content. Significantly, the defense admits that Glovers out-of-court statement was hearsay. While the State could have offered the statement as the admission of a party opponent, no legitimate negative inference arose from the States decision not to offer this otherwise inadmissible evidence. The States failure to use the statement just meant the State had invoked the hearsay rule, which deems a defendants exculpatory out-of-court statements self-serving and thus inadmissible. We also reject Glovers double jeopardy challenge. Arizona v. Washington, 434 U.S. 497, 514 (1978), frames the question before us, which is not whether other reasonable judges might have assessed the risk of juror bias differently and proceeded with the trial, but whether the judge who presided over this trial abused his discretion in making the determination he did. Id. at 511. Here, as in Washington, the defense brought the mistrial order upon itself by arguing facts not in evidence and violating the courts orders in limine, and now seeks to benefit from the mistrial order its rule violations produced. The district judge saw firsthand the impact the defenses improper argument had on the jurors. It related directly to the key contested issue of self-defense. The number of times the excluded evidence was put before the jurors and the drama that played out before them over its exclusion led the district court to conclude that the risk of jury bias and the publics interest in having an impartial jury decide this case outweighed Glovers right to have the case conclude before the jury first sworn to hear it. On this record, we cannot say that the district judge did not exercise sound discretionthat is to say, that he acted irrationally or irresponsiblyin declaring that mistrial was a manifest necessity. Id. at 514. Accordingly, we deny the petition and dissolve our temporary stay of Glovers retrial. FACTS The core issue in this case was self-defense. Six eyewitnesses saw Glover shoot Derek Moore in broad daylight in Glovers front yard. By all accounts Moore started the fight. Uninvited, Moore drove his SUV onto Glovers property, got out, and threatened Glovers younger brother, Byron, whom Moore accused of having burglarized Moores girlfriends house. By the time Glover shot him, though, Moore and the two people who accompanied him to the Glovers house had gotten back into the SUV. Also undermining self-defense, Glover had time to go into his house and back outside to Moores vehicle (whether to get the gun he used to shoot Moore or to yell for his mother to call the police is disputed) before he shot Moore at near point-blank range.

698

Glover v. Dist. Ct.

[125 Nev.

Moore and his companions drove to a neighboring grocery store parking lot. His companions called 911 but Moores gunshot wound was mortal, and he died before emergency services arrived. Police took gunshot residue samples from Moore. Because they did not find a gun in Moores SUV or on his person, they did not run gunshot residue tests on the samples. Police were also dispatched to the Glover home. Glover and Byron had fled to their grandmothers house. Later that day, Glovers mother called and asked the police to come back. Glover had returned home from his grandmothers by then. He surrendered himself and his gun to the police. The police took Glover into custody and transported him to the station, where Glover gave the police the voluntary videotaped statement that underlies this writ proceeding. PROCEEDINGS IN THE TRIAL COURT At trial, Glover admitted killing Moore but asserted self-defense made the homicide justifiable. Before the defense gave its opening statement, the parties reviewed outside the presence of the jury the PowerPoint slides the defense planned to use in its opening statement. The prosecution warned that it did not plan to introduce Glovers statement to the police into evidence and that it objected on hearsay grounds to the defense using the statement. Nonetheless, during its opening statement, the defense put up a PowerPoint screen that showed the jury transcribed quotes from Glovers police statement. The court sustained the prosecutions objections to the defenses displaying this inadmissible evidence.1
1

The trial transcript includes the following: [DEFENSE COUNSEL]: When he [Glover] arrived at his grandmas house, he was crying, and he says, Grandma, what do I do, and he tells his grandma precisely what happened, and his grandma says you need to call the police, and he does just that. He turns himself in that night. He didnt contact defense counsel. He didnt talk to anyone that could give him legal advice. But rather he goes in and sits down with the police now, and the police read him his Miranda rights and say tell me what happened. And he gives a police statement, and these are some of the quotes he says in the statement to the police that very night. He said, quote, a dude and some other big dude, really big [PROSECUTOR]: Judge, I object. Can we approach? THE COURT: Sure. (Thereupon a brief discussion was held at the bench.) [DEFENSE COUNSEL]: And you will learn that ultimately my client spoke to the police, and he talked about his fears that night. He talked about precisely what he saw happen. He talked about the confrontation. [PROSECUTOR]: Judge, I apologize for the objection, but Im going to make the same objection. THE COURT: The objection is sustained.

Nov. 2009]

Glover v. Dist. Ct.

699

Glovers police statement came up next in connection with Jesus Prietos testimony. Prieto was the detective who responded to the 911 call and later took Glovers statement. Reviewing the following days witnesses outside the jurys presence, the State said it doubted it would call Prieto and that, if it did, it did not plan to ask him about Glovers statement. When the defense said it would call Prieto if the State didnt, the court confirmed its earlier ruling that, if offered by Glover, his police statement was inadmissible hearsay. After hearing argument, the court clarified that the defense could establish through Prieto (or Glover) that Glover turned himself in and argue that this supported self-defense. However, the court reiterated you still cant go into the statement. Defense counsel affirmed that he agreed he could not get into the contents of [Glovers] statement, even indirectly. The State ended up calling Detective Prieto but on matters other than Glovers station house interview. The court granted the defenses request to exceed the scope of direct examination. At several points in Prietos cross-examination, the prosecution renewed its objection as to hearsay as to anything that occurred in the interview room and added a relevancy objection. Although these objections were sustained, defense counsel asked Prieto to identify for the jury a sealed envelope as containing a videotape of Glovers statement. The envelope was neither opened nor marked as an exhibit, and neither side moved to admit the statement or the videotape then or at any other time during trial.2 Glover testified in his own defense, giving the jury a detailed account of his encounter with Moore. He related how scared he was for himself and his family, the death threats he heard Moore make, the Uzi he saw tattooed on Moores hand, Moores menacing statements that he was burnered and would wet the place down, and his belief, based on those statements, that Moore had a gun and was about to shoot when he shot Moore. Glover also testified that he panicked and went to his grandmothers after the shooting, returning home only after he spoke to his mother on the phone. Although Glover testified that he turned himself in to the police, he was neither asked nor said anything about the statement he gave them at the station. Trial took just three days. The defenses closing argument drew repeated objections and sidebars on matters unrelated to this writ proceeding. Things erupted when the defense told the jury it should consider why the State had not shared Glovers police statement with them:
2 Glovers statement to the police was not offered or admitted in evidence in audiotape or transcript form either and is not part of the record before this court.

700

Glover v. Dist. Ct.

[125 Nev.

[DEFENSE COUNSEL]: I want you to think about something in this case. Shawn Glover gave a statement to the police. He sat down with Detective Prieto and gave a statement. It was recorded on video. You saw the videotape in the envelope. Detective Prieto brought it in. It was right here in this courtroom. The Government didnt play it for you. Think about that. Why? Theyve got a statement from the suspect in a murder case hours after the shooting. They didnt play it for you. Why? That video would have shown you not just what Shawn said [PROSECUTOR]: Judge, objection. He is talking about evidence thats not in evidence. THE COURT: Sustained. [DEFENSE COUNSEL]: Well, Your Honor, I just want to say that the video would have shown THE COURT: I sustained the objection. Move on, please. (Emphases added.) Defying the courts order to move on, defense counsel continued to argue the excluded evidence: DEFENSE COUNSEL: The Government didnt show you that video. Why? You think if the video of Shawn Glover hours after the shooting captured what he looked like? Do you think if that helped the Governments case even a little bit that you would have seen it? Why didnt they play that video for you? Because it is devastating to their case, absolutely devastating. (Emphasis added.) At this point, the court excused the jury and called for argument on mistrial. The prosecution argued that the court should grant a mistrial because defense counsel had violated the courts orders in limine and gone out-of-bounds to assert personal knowledge of facts not in evidence on the key, contested issue of self-defense. In the States view, it is fundamentally unfair and bias-producing to hold one side to the rules of evidence and trial conduct and not the other. The defense countered that the objected-to statements were a legitimate request for the jury to draw a negative or adverse inference from the States failure to introduce evidence only it could introduce. The court allowed both members of the defense team to argue separately. Accepting arguendo that the lawyer who presented the closing argument had crossed the line, his co-counsel advocated a proposed curative instruction that would have told the jury not to consider Glovers videotaped statement because it was not admitted in evidence (true) and defense counsel had not seen it and did not know what it said (false). Of note, nobody suggested, not even the defense, that the prejudice could be cured by the standard instruction

Nov. 2009]

Glover v. Dist. Ct.

701

already given at the outset of the trial and included in the proposed final jury instructions to the effect that what the lawyers say is not evidence. The court heard counsel out to the point were [all] just repeating ourselves. After a recess to review the applicable law, the court delivered its findings. It found that the defense had gone beyond arguing inference to argue facts not in evidence which from time [im]memorial has been a prohibition in either opening or closing, and had attacked the credibility of the particular individuals trying the case for the state. The court noted that its rulings had been clear, and clearly disobeyed, even after an express order to stop and move on to something else. The court then focused on the draft curative instruction and explained that, in its view, the instruction was not honest or believable: I cannot in good conscience instruct the jury . . . to make such a fantastic leap of logic that you dont know whats on [the videotape] when youve already(A) its your own clients statement, and (B) you told them its devastating, absolutely devastating. Most troubling of all, whatever limiting instruction it might fashion, the district court found that the jury could not be expected to disregard defense counsels statements to them about the videotape, especially since you paraded it[3] in front of them the other daynot to mention that he did so presumably with the jurys full attention, openly defying a direct court order from the judge to move on. Acknowledging the controlling constitutional standard, the court concluded, I dont feel that in my discretion I have much choice but to determine that the ends of justice and manifest necessity dictate the declaration of a mistrial . . . I cannot resolve the issue any other way. Thereafter, Glover moved to dismiss the charges against him based on double jeopardy. The motion was denied, and this petition for a writ of prohibition followed. This court stayed Glovers retrial pending decision on his petition. DISCUSSION
[Headnotes 1-3]

A writ of prohibition will issue to interdict retrial in violation of a defendants constitutional right not to be put in jeopardy twice for the same offense. Hylton v. District Court, 103 Nev. 418, 421, 743 P.2d 622, 624 (1987) (citing U.S. Const. amend. V; Nev. Const. art. 1, 8). Jeopardy attaches when a jury is sworn, but the constitutional guarantee against double jeopardy does not mean that
3 Whether it refers to the PowerPoint display of the question and answer between Prieto and Glover or to the envelope containing the videotape Prieto halfway identified is unclear.

702

Glover v. Dist. Ct.

[125 Nev.

every time a defendant is put to trial before a competent tribunal he is entitled to go free if the trial fails to end in a final judgment. Wade v. Hunter, 336 U.S. 684, 688 (1949). On the contrary, since 1824 it has been settled law that a criminal trial may be discontinued before verdict and a defendant retried without violating double jeopardy if, in the exercise [of] a sound discretion and taking all the circumstances into consideration, the trial court determines that the ends of public justice make mistrial a manifest necessity. United States v. Perez, 22 U.S. 579, 580 (1824); accord Ex Parte Maxwell, 11 Nev. 428, 435, 436 (1876) (expressing the rule in terms of sound legal discretion and an overruling necessity).
[Headnotes 4-7]

In criminal trials, the public as well as the accused have interests that should be safeguarded and protected. Merritt v. District Court, 67 Nev. 604, 607, 222 P.2d 410, 411 (1950). The publics interest lies in seeing that [v]erdicts in [criminal] causes [are] the result of honest deliberation by individuals who are of a mind free from bias and prejudice. Id. A deadlocked jury is the classic example of the manifest necessity for mistrial before final verdict that will permit retrial without offense to a defendants double jeopardy rights. Logan v. United States, 144 U.S. 263 (1892), abrogated on other grounds by Witherspoon v. Illinois, 391 U.S. 510 (1968). Though less common, improper advocacy that places prejudicial and inadmissible evidence before the jury can create an unacceptable risk of biased jury deliberations and also require mistrial as a matter of manifest necessity. Arizona v. Washington, 434 U.S. 497, 514, 516 (1978); Hylton, 103 Nev. at 426, 743 P.2d at 628.
[Headnotes 8-11]

For a defense lawyer to make statements to the jury that are not and cannot be supported by proof is, if it relates to significant elements of the case, professional misconduct . . . and fundamentally unfair. Washington, 434 U.S. at 513 n.32 (quoting United States v. Dinitz, 424 U.S. 600, 612 (1976) (Burger, C.J., concurring)). Such misconduct unquestionably tends to frustrate the public interest in having a just judgment reached by an impartial tribunal[ ] [and] create[s] a risk, . . . not present in the individual juror bias situation that the entire panel may be tainted. Id. at 512. The trial court has an array of measures available to deal with improper argument by counsel. This includes, in an appropriate case, the power to declare a mistrial: The trial judge, of course, may instruct the jury to disregard the improper comment. In extreme cases, he may discipline coun-

Nov. 2009]

Glover v. Dist. Ct.

703

sel, or even remove him from the trial . . . . Those actions, however, will not necessarily remove the risk of bias that may be created by improper argument. Unless unscrupulous defense counsel are to be allowed an unfair advantage, the trial judge must have the power to declare a mistrial in appropriate cases. Id. at 512-13; see Hylton, 103 Nev. at 426, 743 P.2d at 628 (noting that it is important to consider the need to hold litigants on both sides to standards of responsible professional conduct in the clash of an adversary criminal process and that [i]f the act of a defendant aborts a trial, he or she should not be allowed to erect a constitutional shelter based on double jeopardy by frustrating the trial).
[Headnotes 12-15]

A judicial determination of manifest necessity is reviewed for abuse of discretion, but the level of deference varies according to the circumstances in each case. United States v. Chapman, 524 F.3d 1073, 1082 (9th Cir. 2008). [G]reat deference is due a trial judges decision to declare a mistrial based on his assessment of the prejudicial impact of improper argument on the jury. Washington, 434 U.S. at 514. There are compelling institutional considerations for this deference. The trial judge has seen and heard the jurors during their voir dire examination. He is the judge most familiar with the evidence and the background of the case on trial. He has listened to the tone of the argument as it was delivered and has observed the apparent reaction of the jurors. In short, he is far more conversant with the factors relevant to the [mistrial] determination than any reviewing court can possibly be. Id. at 513-14 (quotation omitted). The trial judge must exercise a sound discretion and cannot act irrationally or irresponsibly in granting a mistrial over the objection of the defense. Id. at 514. But along the spectrum of trial problems which may warrant a mistrial and which vary in their amenability to appellate scrutiny, improper advocacy concerning inadmissible evidence falls in an area where the trial judges determination of potential juror bias and the need for a mistrial is entitled to special respect. Id. at 510. The argument was improper
[Headnote 16]

Applying these standards here, the first question we must decide is whether the district court correctly ruled defense counsels argument out-of-bounds. If the district courts evidentiary rulings were wrong, the mistrial determination changes dramatically. See Benson

704

Glover v. Dist. Ct.

[125 Nev.

v. State, 111 Nev. 692, 695, 895 P.2d 1323, 1326 (1995) (noting that the argument by defense counsel that led the district court to declare a mistrial and hold counsel in contempt was later deemed unobjectionable by this court, making it necessary to determine whether the defendant consented to the mistrial; without the defendants consent, double jeopardy barred retrial). We review a district courts evidentiary rulings, Harkins v. State, 122 Nev. 974, 980, 143 P.3d 706, 709 (2006), and its rulings respecting the latitude allowed counsel in closing argument, Herring v. New York, 422 U.S. 853, 862 (1975), for abuse of discretion. Glovers statement was hearsay
[Headnote 17]

The State did not offer Glovers unsworn, out-of-court statement to the police into evidence as it could have under NRS 51.035(3). When offered by Glover, the statement was inadmissible hearsay unless some other basis for its admission was adduced, but none was. Implicit in Glovers negative-inference argument was that the jury should accept his unadmitted out-of-court statement as a species of prior consistent statementthat the jurors should infer that the State did not show them the tape because Glovers statement to the police supported his trial testimony that he acted in self-defense. However, the State didnt impeach Glover with a prior inconsistent statement or accuse him of recent fabrication or improper influence or motive, NRS 51.035(2)(b), which is required for a prior consistent statement to come in. This left Glovers police statement inadmissible.
[Headnotes 18, 19]

Nevadas evidence code, like the Federal Rules of Evidence, does not accord . . . weighty, nonhearsay status to all prior consistent statements. Tome v. United States, 513 U.S. 150, 157 (1995) (construing Fed. R. Evid. 801(d)(1)(B), a cognate to NRS 51.035(2)(b)). A party who takes the stand and testifies in support of his cause cannot bolster his in-court testimony with consistent but self-serving prior out-of-court statements. United States v. Bao, 189 F.3d 860, 864-65 (9th Cir. 1999). This is so even though parts of his prior outof-court statement are statements against penal interest. Id.; see United States v. Ortega, 203 F.3d 675, 682 (9th Cir. 2000) (stating [t]he fact that a person is making a broadly self-inculpatory confession does not make more credible the confessions non-selfinculpatory parts [which are hearsay] (quotation omitted) (alterations in original)); United States v. Chard, 115 F.3d 631, 634-35 (8th Cir. 1997). As the Supreme Court stated in Williamson v. United States, 512 U.S. 594, 600 (1994), [s]elf-exculpatory state-

Nov. 2009]

Glover v. Dist. Ct.

705

ments are exactly the ones which people are most likely to make even when they are false; and mere proximity to other, selfinculpatory, statements does not increase the plausibility of the selfexculpatory statements. Negative inference and facts not in evidence
[Headnotes 20-22]

Even though inadmissible if offered by him, Glover maintains he was entitled to argue a negative or adverse inference from the States failure to offer his out-of-court statement into evidence. Because of the States burden of proving guilt beyond a reasonable doubt, defense attorneys must be permitted to argue all reasonable inferences from the facts in the record[; t]his includes the negative inferences that may arise when a party fails to call an important witness at trial, or fails to produce relevant documents or other evidence, and it is shown that the party has some special ability to produce such witness or other evidence. United States v. Hoffman, 964 F.2d 21, 24 (D.C. Cir. 1992). Also fundamental, however, is the legal and ethical rule that counsel may not premise arguments on evidence which has not been admitted. Johnson v. United States, 347 F.2d 803, 805 (D.C. Cir. 1965). The prohibition against arguing facts not in evidence applies to the prosecution and the defense alike. [I]t is improper for either the prosecutor or defense counsel to ma[ke] statements as to facts not proven or to put his or her personal knowledge and belief . . . on the scales. Hoffman, 964 F.2d at 24 (quoting United States v. Latimer, 511 F.2d 498, 503 (10th Cir. 1975) (second alteration in original)).
[Headnote 23]

In closing argument, Glover argued without objection that the jury should draw a negative inference from the States failure to conduct gunshot residue tests on samples taken from Moores hands and clothes to determine whether Moore had a gun and/or the range at which he was shot. In Glovers view, his negativeinference argument about the States failure to admit his videotaped police statement is no different from his gunshot-residue argument. But Glover is wrong, for two reasons.
[Headnote 24]

First, in drawing the jurys attention to the lack of gunshot residue test results, defense counsel confined his argument to asking the jury to consider whether a gunshot residue test would have been helpful, such that the absence of such test results amounted to reasonable doubt. He did not argue, as he did with respect to Glovers videotaped out-of-court statement, that the test results existed but had been suppressed and that they supported Glover. It is one thing to

706

Glover v. Dist. Ct.

[125 Nev.

argue fair inferences from the record and quite another to argue the existence of facts not in the record. Hoffman, 964 F.2d at 25 (emphasis in original). While a defendant is entitled to argue to the jury that the governments failure to present a particular type of strong evidence against here.g., fingerprints [or gunshot residue test results]weakens its case . . . [she is not entitled] to use the lack of [such] fingerprint [or other] evidence as a springboard for arguing facts not in evidence. United States v. Thompson, 37 F.3d 450, 454 (9th Cir. 1994) (quoting Hoffman, 964 F.2d at 26). The latter form of negative-inference argument violates the fundamental rules against going outside the record [to make] statements as to facts not proven and put[ting] the personal knowledge and belief of the prosecuting [or defense] attorney on the scales, which is also clearly improper. Latimer, 511 F.2d at 503.
[Headnote 25]

Second, the inference Glover asked the jury to draw from the States failure to introduce his police statement into evidence was illegitimate. The hearsay rules declare prior out-of-court statements untrustworthy and inadmissible when offered to bolster a declarants own in-court testimony, absent exceptions concededly not applicable here. See United States v. Check, 582 F.2d 668, 677 n.27 (2d Cir. 1978) (noting the well-recognized principle that, generally speaking, a witnesss prior consistent statements are inadmissible because [i]f [the witnesss testimony in court] is an improbable or untrustworthy story, it is not made more probable or more trustworthy by any number of repetitions of it (quoting 4 J. Wigmore, Evidence 1124, at 255 (Chadbourn rev. 1972) (alterations in original))). Just as a party may not argue a negative inference based on a claim of privilege, NRS 49.395, it is improper to argue a negative inference based on a proper hearsay objection. Cf. Grosjean v. Imperial Palace, 125 Nev. 349, 357, 212 P.3d 1068, 1074 (2009) (noting in its recitation of trial counsels misconduct that an objection is not evidence upon which [a lawyer] could comment). Johnson v. United States, 347 F.2d 803 (D.C. Cir. 1965), and Reichert v. United States, 359 F.2d 278 (D.C. Cir. 1966), illustrate the point. Both were Jencks Act cases, 18 U.S.C. 3500, in which the government made a show in front of the jury of handing over to the defense written witness statements after they testified. The jury thus learned of the statements existence and could also see that, while the defense had the statements, it did not use them for impeachment or as evidence. In closing, the government argued that the jury should infer from the defenses failure to use them that the statements corroborated the governments witnesses, confirming the weakness of the defenses case. This was deemed improper, requiring reversal and retrial:

Nov. 2009]

Glover v. Dist. Ct.

707

It is a well known rule of evidence, applicable in criminal and civil cases alike, that prior consistent statements may not be used to support ones own unimpeached witness. . . . No one would seriously argue that the Government could formally introduce Jencks Act statements in support of its own unimpeached witness. Yet the comments of the prosecuting attorney in this case accomplish virtually the same result in the minds of the jurors. Based as they are on inadmissible evidence, such comments are not permissible. Johnson, 347 F.2d at 805-06 (footnotes omitted). The defenses closing argument in this case was equally improper. If Glovers videotaped statement to the police had probative value other than the inadmissible hearsay it contained, the defense did not identify or argue it. Nonetheless, defense counsel argued affirmatively to the jury that the videotaped statement would have shown what Glover said and that its contents were devastating . . . absolutely devastating to the States case. Vigorous, even zealous argument is one thing . . . [b]ut the clear intimation of the argument was that [counsel] knew personally that the statements were damaging and tended to corroborate [his] witness[ ]. Reichert, 359 F.2d at 281-82. As in Reichert and Johnson, there was no evidence to such effect, indeed the statements themselves had not been received, and the jury was thus invited to accept counsel as an unsworn witness attesting to what was on the videotape. Reichert, 359 F.2d at 282.4
[Headnote 26]

The rules prohibiting a lawyer from going beyond legitimate negative-inference argument to improperly address facts not in evi4 Other courts have similarly disallowed negative-inference argument that crosses over into arguing facts not in evidence. Jean-Marie v. State, 993 So. 2d 1160 (Fla. Dist. Ct. App. 2008) (upholding trial courts refusal to allow argument by defense that the prosecutions failure to call as a witness the detective who investigated the crime and took a statement from defendant permitted an inference that the detectives testimony would have favored the defendant, where there was no explanation of how the testimony of the detective, who did not witness the crime, could have elucidated any relevant issue); State v. Lankford, 565 S.W.2d 737 (Mo. Ct. App. 1978). With the advent of modern discovery and the abrogation of the rule prohibiting impeachment of a witness the party calls, the legitimacy of negative-inference argument has diminished. See 2 McCormick on Evidence 264 (6th ed. 2006). To avoid problems with putting inadmissible evidence before the jury, some courts commend counsel, before making such an argument, to make an offer of proof so that the trial court can limit the scope of final argument to prevent comment on facts that are not properly in evidence, to prevent the jury from considering matters in the realm of speculation and to prevent the jury from being influenced by improper matter that might prejudice its deliberations. State v. McArthur, 899 A.2d 691, 702 (Conn. App. Ct. 2006) (citations and quotations omitted).

708

Glover v. Dist. Ct.

[125 Nev.

dence or matters of counsels personal opinion are not confined to the prosecution in criminal cases, as the dissent suggests. Because prosecutors cannot comment on a defendants failure to testify or shift the burden of proof to the defense, the prosecution has less latitude in arguing negative inferences than the defense. Cf. Whitney v. State, 112 Nev. 499, 502, 915 P.2d 881, 883 (1996). Nonetheless, in laying down rules of trial conduct to govern counsel in closing argument, the American Bar Association Standing Committee on Standards for Criminal Justice quite properly hold[s] all advocates to essentially the same standards. United States v. Young, 470 U.S. 1, 9-10 (1985) (citing the comment to ABA Standards for Criminal Justice, Standard 4-7.8 (renumbered 4-7.7 in 1993), that [i]t should be accepted that both prosecutor and defense counsel are subject to the same general limitations in the scope of their argument). Defense counsel is no more entitled than the prosecutor to assert as fact that which has not been introduced in evidence. The rules of evidence cannot be subverted by putting to the jury, in argument or opening statements, matters not in the record. ABA Standards for Criminal Justice, Standard 4-7.7 cmt. (3d ed. 1993). There are often circumstances in which defense counsel may be entitled to argue to the jury that they should draw an inference adverse to the prosecution as the result of its failure to bring forth some particular item of evidence or to call as a witness someone who has a special relation to the facts of the case. But it is ordinarily a form of misrepresentation, and therefore improper, for counsel to argue such an inference when counsel knows that the evidence was not presented because it had been excluded by the court or is inadmissible. Id. (emphasis added). Equally with the prosecution, Defense counsel should not intentionally refer to or argue on the basis of facts outside the record. ABA Standards for Criminal Justice, Standard 4-7.8 (1993); doing so can involve the risk of serious prejudice, with a mistrial as a possible remedy. Id. at cmt. That risk was realized here. Manifest necessity and the ends of justice Upholding the district courts determination that defense counsel improperly argued facts not in evidence does not resolve this case. We still must determine whether, given the improper argument, retrying Glover will violate Glovers right under the Double Jeopardy Clauses of the United States and Nevada Constitutions, which mandate that no person shall be subject . . . to be twice put in jeopardy for the same offense. U.S. Const. amend. V; Nev. Const. art. 1, 8.

Nov. 2009]
[Headnotes 27-29]

Glover v. Dist. Ct.

709

Where a criminal trial ends in acquittal or conviction, the constitutional guarantee against double jeopardy automatically bar[s retrial] (unless, of course, the conviction is later reversed). Carter v. State, 102 Nev. 164, 168, 717 P.2d 1111, 1113 (1986). [W]hen a criminal proceeding is terminated without finally resolving the merits of the charges against the accused, by contrast, retrial is not automatically barred. Arizona v. Washington, 434 U.S. 497, 505 (1978). If a case ends after jeopardy attaches but before the jury reaches a verdict, a defendant may be tried again for the same crime . . . in two circumstances: (1) if he consents to the [mistrial]; or (2) if the district court determines that the [mistrial] was required by manifest necessity. United States v. Chapman, 524 F.3d 1073, 1081 (9th Cir. 2008) (internal quotation omitted). Given that this case did not end in a judgment of acquittal or conviction and that Glover objected to the mistrial, only the latter, manifest necessity exception is implicated here.
[Headnotes 30, 31]

While our cases recite that we review a district courts manifest necessity mistrial determination for an abuse of discretion, Beck v. District Court, 113 Nev. 624, 627, 939 P.2d 1059, 1060 (1997); see Rudin v. State, 120 Nev. 121, 143, 86 P.3d 572, 586 (2004), the level of deference varies according to the circumstances in each case. Chapman, 524 F.3d at 1082. Where the prosecutor is responsible for the circumstances which necessitated declaration of a mistrial, Beck, 113 Nev. at 627, 939 P.2d at 1060 (quoting Hylton, 103 Nev. at 423, 743 P.2d at 625), or guilty of inexcusable negligence, Hylton, 103 Nev. at 426, 743 P.2d at 627, strictest scrutiny applies, because the Double Jeopardy Clause . . . protect[s] a defendant against governmental actions intended to provoke mistrial requests . . . [or] bad faith conduct . . . [that] threatens the [h]arassment of an accused. Washington, 434 U.S. at 508 (quotations omitted) (last alteration in original). At the other end of the spectrum are cases where the defense caused the mistrial and the judges [mistrial] determination is based on his or her own observations and personal assessment that a fair trial would be impossible because of jury bias. Chapman, 524 F.3d at 1082. In such cases, the reviewing court will give special respect to [the trial] judges determination of manifest necessity . . . based on jury bias. Id. (quoting Washington, 434 U.S. at 510).
[Headnotes 32-34]

There is no mechanical rule by which to calculate manifest necessity. See United States v. Jorn, 400 U.S. 470, 480 (1971) (noting that a mechanical rule prohibiting retrial whenever circum-

710

Glover v. Dist. Ct.

[125 Nev.

stances compel the discharge of a jury without the defendants consent would be too high a price to pay for the added assurance of personal security and freedom from governmental harassment which such a mechanical rule would provide). A reviewing courts goal is to ensure that the trial judge exercised sound discretion in declaring a mistrial. Washington, 434 U.S. at 514. Sound discretion exists where the trial judge acts responsibly and deliberately rather than irrationally or irresponsibly. Klein v. Leis, 548 F.3d 425, 431 (6th Cir. 2008) (quoting Washington, 434 U.S. at 514, 516). Because appellate review is designed to weed out irrational or irresponsible behavior by the trial judge, other reviewing courts have focus[ed] on the procedures employed by the judge in reaching his determination, in addition to considering which side caused the mistrial and whether the determination involved juror prejudice. Chapman, 524 F.3d at 1082 (quotations omitted). Among the procedural factors considered are whether the district court (1) heard the opinions of the parties about the propriety of the mistrial, (2) considered the alternatives to a mistrial and chose the alternative least harmful to a defendants rights, (3) acted deliberately instead of abruptly [and/or (4)] based [the mistrial] on evidence presented in the record. Id. (quotations omitted). See also 5 J. Israel, N. King & W. LaFave, Criminal Procedure 25.2(c) (2d ed. 1999), cited and discussed in People v. Edwards, 902 N.E.2d 1230, 1238 (Ill. App. Ct. 2009) (discussing these and a number of other factors that can weigh in the manifest necessity determination). Manifest necessity in cases involving improper defense argument and jury bias
[Headnote 35]

First among the factors to consider in the manifest necessity calculus is the source of the difficulty that led to the mistriali.e., whether the difficulty was the product of the actions of the prosecutor, defense counsel or trial judge, or were events over which the participants lacked control. 5 J. Israel, N. King & W. LaFave, supra, 25.2(c), at 654. Here, the defense, not the prosecution, caused the mistrial. The prosecution gave the defense advance warning it objected to Glovers statement being used, and the State did not seek a mistrial, despite the defenses repeated violations of the courts order excluding Glovers statement, until the court called a recess during the closing argument and called for argument on mistrial. Further, the district court based its mistrial decision on its determination that the jurys impartiality had been unacceptably compromised. The district courts manifest necessity determination thus deserves the highest level of deference. See Chapman, 524 F.3d at 1082.

Nov. 2009]

Glover v. Dist. Ct.

711

The lead Supreme Court case addressing manifest necessity for a mistrial produced by defense counsels improper argument is Arizona v. Washington.5 In Washington, defense counsel gave an opening statement in which he told the jury the defendant was being retried because the state had suppressed and hidden evidence at the first trial. 434 U.S. at 499. The Arizona state trial court judge determined this statement could not be proven by admissible evidence, that it carried the risk of impermissibly tainting the jury, and declared a mistrial on these bases. Id. at 510-11. The Ninth Circuit held this violated Washingtons constitutional guarantee against double jeopardy. State of Arizona v. Washington, 546 F.2d 829 (1976). The Supreme Court disagreed. It held that the extent of the possible [juror] bias cannot be measured, that some trial judges might have proceeded with the trial after giving the jury appropriate cautionary instructions, and, thus, that [i]n a strict, literal sense, the mistrial was not necessary. Washington, 434 U.S. at 511. Nevertheless, the overriding interest in the evenhanded administration of justice requires that we accord the highest degree of respect to the trial judges evaluation of the likelihood that the impartiality of one or more jurors may have been affected by the improper comment. Id. Neither party has a right to have his case decided by a jury which may be tainted by bias. Id. at 516. Where the trial judge determines that improper advocacy by the defense has created an unacceptable risk of tainting the jury, the publics interest in fair trials designed to end in just judgments must prevail over the defendants valued right to have his trial concluded before the first jury impaneled. Id. (quotation omitted).
[Headnote 36]

Glover argues that the defenses transgressions in this case are minor compared to those in Washington. Perhaps. It is also reasonable to view the conduct in the two cases as functionally similar, since both involve accusations that the prosecution, in effect, hid evidence. Indeed, in terms of the risk of juror bias, this case is more serious given the number of times defense counsel put the inadmissible evidence before the jury, and given the fact the improper argument went to a core contested issue in the case (selfdefense), in addition to discrediting the prosecutions tactics and strategy.
5 In applying the manifest necessity standard, this court has not differentiated between the state and federal constitutional protection against double jeopardy, and the parties do not suggest a basis for doing so in this case. In Carter, 102 Nev. at 169, 717 P.2d 1114, we applied and followed the manifest necessity standards set down in Washington, 434 U.S. at 507, including, specifically, its recognition that manifest necessity does not mean absolute necessity but, rather, a high degree of necessity.

712

Glover v. Dist. Ct.

[125 Nev.

In this case, as in Washington, the defense first introduced the improper evidence in opening statement. Unlike Washington, no mistrial was declared or even sought at that point. Crediting the defenses good faith, the State simply objected to the argument and the PowerPoint slide and its objections were sustained. However, after this exchange and after the court again ruled Glovers statement inadmissible, defense counsel returned to the statement during Prietos cross-examination, when he held the unmarked envelope up for Prieto to identify as containing a videotape of the excluded interview. These displays apparently had a visible effect on the jury, because the court made specific note of counsel having paraded it around in front of them in dismissing the likelihood that a curative instruction could dispel the prejudice. Finally, in closing argument, defense counsel argued the inadmissible evidence directly as devastating, and persisted in doing so after the district court instructed him to stop. In Washington, by contrast, only one improper comment was made in opening, before the district court deemed it improper, and the defense did not openly defy the court in continuing to argue the point.6
[Headnote 37]

As Washington recognizes, the fact that the defendant or his counsel engaged in the misconduct that caused the mistrial does not necessarily trump the defendants double jeopardy rights. However, it diminishes them considerably by increasing the level of deference accorded the district courts mistrial determination. See 4 J. Cook, Constitutional Rights of the Accused 29:18 (3d ed. 2009) (stating as a general rule that, [w]hen a mistrial is necessitated by the behavior of the accused, retrial will not be barred by the protection against double jeopardy [and that t]he same is true when the mistrial is occasioned by the actions of defense counsel). To hold otherwise would give unscrupulous defense counsel . . . an unfair advantage. Washington, 434 U.S. at 513. [W]hen defense counsel employs tactics which would be reversible error if used by a prosecutor the result may be an unreviewable acquittal. United States v. Young, 470 U.S. 1, 9 n.6 (1985). To add to this incentive a rule readily allowing a double jeopardy challenge to bar retrial when a
6 The dissent notes that the district court rejected the States cumulativemisconduct argument as a basis for mistrial. But the district courts statement about not entertaining a cumulative error argument went to other unrelated comments the defense made in closing, to which objections had been separately sustained. The district court did not thereby suggest that it viewed the defenses improper use of Glovers out-of-court statement as isolated or minor. On the contrary, the fact the defense kept returning to the unadmitted videotaped statement figured in the district courts conclusion that the jury could not be expected to disregard the defenses comments about it.

Nov. 2009]

Glover v. Dist. Ct.

713

district court grants a mistrial based on a defense attorneys intentional defiance of an order in limine is thus inappropriate. Washington, 434 U.S. at 513 (noting that [t]he adoption of a stringent standard of appellate review in this area [of improper argument by defense counsel] . . . would seriously impede the trial judge in the proper performance of his duty, in order to protect the integrity of the trial, to take prompt and affirmative action to stop . . . professional misconduct (quoting United States v. Dinitz, 424 U.S. 600, 612 (1976) (last alteration in original)). Unless the district judge acted irrationally or irresponsibly in granting the mistrial, therefore, Glovers double jeopardy challenge fails. Washington, 434 U.S. at 514. Other courts, confronted with double jeopardy challenges to defense-produced mistrials, have similarly recognized that [t]he trial court has a duty to ensure that all parties have a fair trial and has the authority to grant a mistrial where injustice is caused to either party in a criminal case and is especially empowered to avoid the absurdity of a defendant benefitting from the prejudicial error he created. Pleas v. State, 495 S.E.2d 4, 6 (Ga. 1998); see Banks v. State, 495 S.E.2d 877, 881 (Ga. Ct. App. 1998) (upholding mistrial based on defense counsel introducing evidence prohibited by the rape shield statute in violation of the courts pretrial order); Porter v. Ferguson, 324 S.E.2d 397, 401 (W. Va. 1984) (denying a defendants writ of prohibition against retrial where the trial court granted a mistrial based on defense counsel twice violating an in limine order by asking a key prosecution witness if she had been arrested); People v. Burtron, 877 N.E.2d 87, 89, 94-95 (Ill. App. Ct. 2007) (upholding trial courts grant of a mistrial based on its assessment of the prejudice to the State as a result of defense counsels argument that the defendant would be willing to take a polygraph; noting that the district court was not obligated to tolerate what he found was intentional misconduct by defense counsel); Pavey v. State, 764 N.E.2d 692, 701 (Ind. Ct. App. 2002) (upholding grant of mistrial based on defense counsels improper characterization of States plea agreement with a key prosecution witness to the jury; noting that where the defendants counsels conduct was purposeful, the defendant is hard-pressed to claim that he has been subjected to double jeopardy in new proceedings brought about by his intentional misconduct in the original proceedings (citation omitted)); State v. Levison, 510 N.W.2d 495, 499 (Neb. Ct. App. 1993) (upholding the trial courts grant of a mistrial based on defense counsels reference during opening to the state having previously dismissed the charges against the defendant). See also Hylton, 103 Nev. at 426, 743 P.2d

714

Glover v. Dist. Ct.

[125 Nev.

at 628 (noting that [a]n important factor to be considered in assessing a double jeopardy clause challenge based on improper argument is the need to hold litigants on both sides to standards of responsible professional conduct in the clash of an adversary criminal process). No procedural indications of abuse of discretion Views of the counsel for the parties Turning to the procedures the district court followed in declaring a mistrial, the record shows no factors suggesting an abuse of discretion. The district court solicited the opinions of the parties before declaring a mistrial, allowing both members of the defense team and the prosecution to be fully heard. Its solicitude extended not just to the mistrial determination but to the evidentiary rulings that preceded it. Alternatives to mistrial The record further demonstrates that the district court understood and considered alternative remedies to mistrial. Glover suggested two: (1) reopening the trial to show the jury the videotape; and (2) instructing the jury that the defense had not seen the tape and did not know what Glover, their client, had said to the police. The former was unworkable. The trial had been conducted on the basis that the tape was not in evidence. The hearsay rule excluded it as untrustworthy; reopening the evidence to play the tape would have given it more impact than it would have had if it had been played during trialand rewarded violation of the district courts evidentiary rulings. It also would have impacted the prosecutions strategy, since the States case had been presented and argued on the assumption the tape was not coming into evidence. The curative instruction the defense proposed was also unworkable. Telling the jury to disregard the tape and that the defense team did not know what was on it or what their client had said to the police would have required the district court to make an obvious misrepresentation to the jury. Further, as the district court found, such an instruction would have cast defense counsel in a poor light. If the jury believed the instruction, it would have cost the defense counsels credibility, given his direct representations before the recess that the tapes contents were devastating . . . absolutely devastating to the States case. It also would have cast defense counsel as incompetent in terms of his knowledge of his clients case. If the jury did not believe the instruction, it cast the court in a dishonest light. The concurring and dissenting opinions fault the district court for not explaining on the record why a simple instruction to the jury to disregard defense counsels improper argument would not have

Nov. 2009]

Glover v. Dist. Ct.

715

cured the prejudice. At the beginning of the case the jury had been told that the lawyers arguments are not evidence, and a similar instruction was included in the final settled set of instructions as instruction number 33. Notably, the defense tied its proposed curative instruction to instruction number 33 but did not argue that instruction 33, standing alone, was adequate to cure the prejudice. On this record, it appears the collective judgment of those involvedthe prosecution, the defense, and the trial judgewas that a simple instruction to disregard the improper argument would not be effective. This conclusion seems fair, given the PowerPoint and videotape displays of the Glover statement, the number of times the issue came up, and the drama that surrounded its exclusion. While it would be helpful for the district court to make an express finding why an instruction to disregard defense counsels comments would not have sufficed, the courts findings that the more complete curative instruction the defense offered was unworkable and that I dont feel I have much choice . . . and cannot resolve the issue any other way adequately explain its ruling. See Washington, 434 U.S. at 517 (distinguishing between findings that are desirable and those that are constitutionally mandated). These determinations are not ones this court is in a position to second-guess, given the district courts superior vantage point on the content, timing, and manner of delivery of the improper argument and the impact it had on the jury.
[Headnote 38]

Other remedies have been suggested as generally available to a district court to control the conduct of the trial attorneys, including discipline, contempt, and the invited response doctrine. These first two remedies, as Washington makes clear, may be invoked any time a lawyer engages in misconduct in front of the court, but they do not cure the problem of a jury that has been unfairly biased by exposure to improper argument. 434 U.S. at 512-13. And while the invited response or invited reply rule, by which the defense counsel argues improperly, provoking the prosecutor to respond in kind, and the trial judge takes no corrective action has received grudging acceptance, United States v. Young, 470 U.S. 1, 11 (1985), this doctrine carries its own costs and is not an alternative a district judge should be second-guessed for failing to endorse. Dee R. Nidiry, Restraining Adversarial Excess in Closing Argument, 96 Colum. L. Rev. 1299, 1319-24 (1996). Deliberateness Finally, the record belies Glovers claim that the district court acted precipitously in declaring a mistrial. The district court dealt with the improper argument in a measured manner, beginning with the defenses introduction in its opening statement of the PowerPoint

716

Glover v. Dist. Ct.

[125 Nev.

slide displaying evidence the defense knew was inadmissible and continuing thereafter. Not until the defense had violated the courts orders in limine and disobeyed a direct order to move on to another subject did the court broach mistrial. It treated counsel courteously in front of the jury and heard them out fully after excusing the jury, allowing counsel to make a record of their justification for the argument and the proposed alternatives to mistrial. The court identified and applied the appropriate constitutional standards. No procedural abuse occurred here that supports Glovers argument that an abuse of discretion occurred. CONCLUSION The defense violated the district judges orders excluding evidence and crossed the line that separates legitimate negative inference argument from impermissible statements about facts not in evidence and personal opinion. The resulting potential for juror bias created a manifest necessity for mistrial. Double jeopardy does not bar retrial in such a case. Accordingly, we deny the writ petition and vacate our prior order staying further proceedings in the district court. PARRAGUIRRE, DOUGLAS, and GIBBONS, JJ., concur. HARDESTY, C.J., with whom SAITTA, J., agrees, concurring in part and dissenting in part: I concur with the majority with respect to the impropriety of defense counsels closing argument. However, for two reasons, I dissent from the majoritys conclusion that the circumstances at trial created a manifest necessity for a mistrial. First, the district court failed to make the type of findings that would entitle its ruling to the special respect granted by the majority. Second, the district court failed to consider a standard instruction to disregard the improper argument, an instruction that this court has repeatedly held cures the type of error that occurred in this case. Deference The United States Supreme Court explained in Arizona v. Washington, 434 U.S. 497 (1978), that in the context of a mistrial granted over a defendants objection, the level of deference to the district courts ruling will depend on the case. The strictest scrutiny is applied where the prosecutor requests a mistrial in order to buttress weaknesses in his evidence. Id. at 507. On the other end of the spectrum, greater deference is granted where the trial judge believes that the jury is unable to reach a verdict. Id. at 509. Likewise, a trial judges decision to declare a mistrial based on his assessment of the prejudicial impact of improper argument is entitled to great deference. Id. at 514. In other words, when a district courts mistrial determination is based on his or her own observations and personal

Nov. 2009]

Glover v. Dist. Ct.

717

assessment that a fair trial would be impossible, that view must be given special deference. U.S. v. Chapman, 524 F.3d 1073, 1082 (9th Cir. 2008). This is mainly because the trial judge is far more conversant with the factors relevant to the determination than any reviewing court can possibly be. Washington, 434 U.S. at 514 (internal quotations omitted). The majority concludes that the district courts ruling in this case is entitled to special deference. I disagree. This court has repeatedly advised that in order for a district courts ruling to receive deference on appeal, the district court must make its findings explicit on the record. See, e.g., Knipes v. State, 124 Nev. 927, 931-32, 192 P.3d 1178, 1181 (2008); State v. Ruscetta, 123 Nev. 299, 304, 163 P.3d 451, 455 (2007); State v. Rincon, 122 Nev. 1170, 1176-77, 147 P.3d 233, 237-38 (2006). It is equally well established that this courts review does not extend beyond the record. Jacobs v. State, 91 Nev. 155, 158, 532 P.2d 1034, 1036 (1975); Anderson v. State, 81 Nev. 477, 482, 406 P.2d 532, 534 (1965). Noticeably absent from the record in this case is any statement by the district court that its ruling was based on its own observations or personal assessment that a fair trial would be impossible. The district court pronounced its ruling based on its determinations that (1) the case was close, (2) defense counsels argument was improper, and (3) the curative instruction proposed by the defensethat the jury was not to infer that defense counsel had seen the videotapewas inadequate because it required the jury to make a fantastic leap of logic. At no point did the district court state that its ruling was based on its observations of the demeanor or reactions of the jurors, the atmosphere or feeling in the courtroom, or any other fact that was not otherwise apparent from the cold record. The majority infers that defense counsels actions must have had a visible effect on the jury. The district court, however, made no statements to that effect. At no point did the district court make a finding that the jury visibly reacted to defense counsels conduct. Nor was that point argued by the State. For this court to simply assume that such evidence existed goes beyond special respect and renders this courts review meaningless. It is not the function of this court to simply presume that there was a sufficient factual basis for a district courts ruling; that basis must be stated on the record. Where, as here, it is not, the district courts ruling is not entitled to special deference. Curative instruction In addition to the reasoning set forth above, I dissent because in my view the district court failed to consider the most reasonable solution: instructing the jury to disregard defense counsels improper argument.

718

Glover v. Dist. Ct.

[125 Nev.

A mistrial is not dictated by manifest necessity where the district court failed to consider or apply a less drastic alternative. See Johnson v. Karnes, 198 F.3d 589, 596 (6th Cir. 1999) (We further find it significant that the trial court judge failed to consider less drastic alternatives, but instead immediately decided that a mistrial was appropriate.); Harpster v. State of Ohio, 128 F.3d 322, 330 (6th Cir. 1997) (concluding that there is no manifest necessity for a mistrial where curative instruction would have protected against juror bias); Brady v. Samaha, 667 F.2d 224, 230 (1st Cir. 1981) (concluding that the trial judge erred in failing to consider any alternatives to a mistrial, such as severance or curative instructions); Dunkerley v. Hogan, 579 F.2d 141, 147-48 (2d Cir. 1978) (concluding that while the trial judge did not act impetuously, the fact that there was at least one alternative to the mistrial meant that it was not dictated by manifest necessity); Jones v. Com., 400 N.E.2d 242, 251 (Mass. 1980) (Appellate deference will be accorded the trial judges discretionary determination that manifest necessity exists only if the record reflects that the trial judge gave reasoned consideration to the various available alternatives . . . before declaring a mistrial.); State v. Bertrand, 587 A.2d 1219, 1226 (N.H. 1991) (directing the lower courts to exhaust alternatives before declaring a mistrial). During argument on the motion for mistrial, defense counsel proposed a curative instruction stating that you are to infer that no one has seen the videotape or that defense counsel has no personal knowledge of the videotape. The district court declined the instruction, stating: I do not think that limiting instruction cures the issue. I cannot in good conscience instruct the jury that no one knows whats on it when it is in fact a statement of your client. I cant ask them to make such a fantastic leap of logic that you dont know whats on it when youve already(A) its your own clients statement and (B) you told them its devastating, absolutely devastating. The district court may have had good reason to reject this particular instruction. Unfortunately, however, the district court never considered the possibility of fashioning another instruction, or of simply instructing the jury to disregard defense counsels comment. In addressing this issue, the majority concludes that [o]n this record, it appears the collective judgment of those involvedthe prosecution, the defense, and the trial judgewas that a simple instruction to disregard the improper argument would not be effective. But there is nothing in the record to support that conclusion.1 And therein lies
1 The majority confuses the standard instruction that counsels arguments are not evidence with the curative instruction to disregard improper argument. These instructions serve very different purposes: while the former admonishes the jury not to give evidentiary weight to counsels argument, the latter ad-

Nov. 2009]

Glover v. Dist. Ct.

719

the problem: the absence of any finding by the trial judge forces the majority to arrive at a conclusion based on pure speculation. This court has stated countless times that we presume that juries will follow jury instructions. See, e.g., Summers v. State, 122 Nev. 1326, 1333, 148 P.3d 778, 783 (2006); Allred v. State, 120 Nev. 410, 415, 92 P.3d 1246, 1250 (2004), limited on other grounds by Knipes v. State, 124 Nev. 927, 935, 192 P.3d 1178, 1183-84 (2008); Leonard v. State, 117 Nev. 53, 66, 17 P.3d 397, 405 (2001) (citing Weeks v. Angelone, 528 U.S. 225 (2000)). Furthermore, our caselaw is replete with instances where we have relied on this very principle and declined to find that improper statements by the prosecution constituted reversible error because the district court instructed the jury to disregard them. See, e.g., Valdez v. State, 124 Nev. 1172, 1192, 196 P.3d 465, 478 (2008) (Although the comment was improper, we conclude that there was no prejudice because the district court sustained [the defendants] objection and instructed the jury to disregard the comment.); Pantano v. State, 122 Nev. 782, 793, 138 P.3d 477, 484 (2006) (improper statements by prosecutor were harmless beyond a reasonable doubt because the district court sustained the defenses objection and instructed the jury to disregard the statements, which supplied [the defendant] with an adequate remedy); Greene v. State, 113 Nev. 157, 170, 931 P.2d 54, 62 (1997) (although prosecutors statement was patently improper, there was no prejudice because district court sustained the objection and admonished the jury), overruled on other grounds by Byford v. State, 116 Nev. 215, 235, 994 P.2d 700, 713 (2000); Silva v. State, 113 Nev. 1365, 1375, 951 P.2d 591, 597 (1997) ( [E]ven when the objectional inferences might have been found prejudicial, it has been held that instructions to the jury to disregard them sufficiently cured the error. (quoting Namet v. United States, 373 U.S. 179, 187 (1963))). See also Miller v. State, 121 Nev. 92, 99, 110 P.3d 53, 58 (2005) ([I]nstruct[ing] the jury to disregard improper statements, thus remed[ies] any potential for prejudice.); Butler v. State, 120 Nev. 879, 907, 102 P.3d 71, 90 (2004) (GIBBONS, J., concurring in part and dissenting in part) (same). Here, not only did the district court fail to instruct the jury to disregard defense counsels statement, but it failed to even consider such an instruction. The district courts failure to consider this simple measure leads me to conclude that the district court did not exercise[ ] sound discretion in declaring a mistrial. Washington, 434 U.S. at 514. Furthermore, the fact that there was at least one alternative to a mistrial meant that it was not dictated by manifest nemonishes the jury that an improper argument must be disregarded altogether. The fact that the evidentiary instruction was given in this case does not support the majoritys conclusion that the trial judge and the parties had determined that an instruction to disregard the improper argument would not effectively cure the error.

720

Glover v. Dist. Ct.

[125 Nev.

cessity. Dunkerley, 579 F.2d at 148. [I]t would be an unreasonable application of the law, as established by Supreme Court precedent, to conclude that manifest necessity existed for a mistrial in this case . . . [because] a simple corrective instruction would have sufficiently protected against juror bias. Harpster, 128 F.3d at 330. By holding that there was a manifest necessity for a mistrial in this case, the majority essentially holds that instructions to disregard effectively cure improper argument by the prosecution, but fail to do so when the error is made by the defense. I cannot accept that reasoning. For these two reasonsthe district court did not make the type of findings that would entitle its ruling to special deference and it failed to consider a simple curative instruction to disregardI cannot conclude, as the majority does, that the district courts decision to grant a mistrial was dictated by manifest necessity. Therefore, I would grant the petition. CHERRY, J., dissenting: I respectfully dissent because I disagree with the majoritys conclusions that defense counsel acted improperly and that there was a manifest necessity for a mistrial. I therefore would grant the petition. The negative inference The majority concludes, without citation to authority, that it is improper to argue a negative inference from the assertion of a proper hearsay objection. To the contrary, it is my view that this case presents the exact situation for which the negative inference is intended. A videotaped interview of a defendant shortly after a shooting is the type of evidence that one normally expects to be presented at a criminal trial. In addition to the States burden of proving the defendants guilt beyond a reasonable doubt, see, e.g., Cordova v. State, 116 Nev. 664, 666, 6 P.3d 481, 483 (2000), the State has a duty to ensure that justice is done, not just to obtain a conviction. See Campbell v. United States, 365 U.S. 85, 96 (1961); Berger v. United States, 295 U.S. 78, 88 (1935). Accordingly, the Ninth Circuit Court of Appeals has explained that a defendant is entitled to argue to the jury that the governments failure to present a particular type of strong evidence . . . weakens its case. U.S. v. Thompson, 37 F.3d 450, 454 (9th Cir. 1994). And historically, the propriety of such an inference in general is not doubted. 2 John Henry Wigmore, Wigmore on Evidence 192 (Chadbourn ed. 1970). Here, it is clear from opening statements that the defense expected the State to present the videotape to the jury. Indeed, the record reflects that both the defense and the prosecution expected a redacted version of Glovers statement to be presented. It was not until the morning of trial that the defense was informed otherwise. Because of

Nov. 2009]

Glover v. Dist. Ct.

721

the evidentiary rules, the defense was unable to admit the videotape. However, the State could have offered it as the admission of a party opponent. See NRS 51.035(3)(a). Therefore, the evidence was peculiarly within [the] power [of the State] to produce. Graves v. United States, 150 U.S. 118, 121 (1893); see also State v. Smith, 706 P.2d 1052, 1057-58 (Utah 1985) (quoting Chicago Col. of Ost. Med. v. George A. Fuller Co., 719 F.2d 1335, 1353 (7th Cir. 1983)). When the State failed to produce the videotape, it naturally created a presumption that the evidence was unfavorable. See Graves, 150 U.S. at 121. In this case, the district court recognized that such inferences are proper and permitted negative inferences to be argued based on the States cancellation of a gunshot residue test and apparent unwillingness to examine one of the key witnesses to the shooting. There was no compelling reason for the district court to preclude the same inference with respect to the videotape. The videotape was the type of evidence that would be natural for the State to produce, the State could have presented it, and the State chose not to do so. In my view, the fact that the defense was precluded from introducing the videotape has no bearing on the propriety of the negative inference. Therefore, I must disagree with the majority that defense counsel acted improperly in raising a negative inference based on the States failure to present the videotape. The majoritys reliance on Johnson v. United States, 347 F.2d 803 (D.C. Cir. 1965), and Reichert v. United States, 359 F.2d 278 (D.C. Cir. 1966), is misplaced for at least three reasons. First, in both cases the prosecution referenced the defendants failure to use the applicable evidence for impeachment or other purposes. Clearly, the prosecutors comments in those cases would be impermissible in Nevada because a defendant has no burden in a criminal case. Accordingly, this court has stated that comments on the failure to present evidence are not available to the State because they impermissibly shift the burden of proof to the defense. Browning v. State, 120 Nev. 347, 360, 91 P.3d 39, 49 (2004). For that reason alone, Reichert and Johnson are inapposite. Second, the prosecutors in those two cases went beyond merely inferring that the unadmitted statements would corroborate their witnesses testimony. In Johnson, the prosecutor explicitly stated, They corroborate the testimony of the police officer from the witness stand. Johnson, 347 F.2d at 805. Likewise, in Reichert, the prosecutor stated, Did you see counsel impeach any of the Government witnesses with any of their earlier statements? Now ladies and gentlemen of the jury, we submit to you that the descriptions, the report, the facts in this case are unimpeached. Do you recall counsel impeaching the descriptions of either one of these two robbers?

722

Glover v. Dist. Ct.

[125 Nev.

Reichert, 359 F.2d at 281. While the statement in Reichert was not as direct as that in Johnson, it clearly inferred that the statements corroborated the in-court testimony. Furthermore, the prejudice in Reichert was heightened because the district court instructed the jury that it could consider the prior statements to the police, even though they had not been admitted as evidence. Coleman v. United States, 515 A.2d 439, 451 n.11 (D.C. 1986). Less than two years after Reichert was decided, the court that had decided both Johnson and Reichert distinguished those cases in Gibson v. United States, 403 F.2d 569 (D.C. Cir. 1968). In that case, the prosecutor had referred to a prior unadmitted statement and the defendants failure to use it for impeachment purposes. The court noted that the jury had previously been made aware of the statement and concluded that the error did not rise to the level of that in Johnson and Reichert because [i]n both of those cases there was affirmative argument that the contents of the alleged statement corroborated the testimony of the witness. Gibson, 403 F.2d at 570 n.1. The present case is closer to Gibson than to either Johnson or Reichert. Defense counsel here commented on a prior statement of which the jury was already aware. Furthermore, defense counsel did not state that the videotaped interview would corroborate Glovers in-court testimony. He merely argued that the jury could infer that the State had chosen not to show the videotape because it would hurt the States case. Accordingly, just as in Gibson, to the extent that counsels comments were improper, objection and correction by the District Judge would have been sufficient. Id. Third, neither Johnson nor Reichert involved a mistrial requested by the State. There were no double jeopardy concerns, nor did any court conclude that the prosecutors comments in those cases created a manifest necessity for a mistrial. As will be discussed below, the simple fact that the court in Gibson concluded that a correctional instruction could rectify any prejudice made by reference to the prior out-of-court statement demonstrates that the situation here did not rise to a level justifying a mistrial. The majoritys references to the ABA Standards for Criminal Justice also miss the mark. Clearly, it would be unfair to raise a negative inference against a party for failing to present evidence when that party was precluded from presenting that evidence by the trial court. But that is not the case here. With respect to the State, the evidence was not excluded by the court as inadmissible; the sole reason the evidence was not presented was because the State chose not to present it. Therefore, I conclude that the inference was proper. The majority concludes not only that defense counsels inference in closing argument was improper, but describes defense counsels actions as the culmination of repeated disobedience to district court rulings. In fact, the majority seems to suggest that this repeated misconduct places the facts of this case in the same category as those in

Nov. 2009]

Glover v. Dist. Ct.

723

Arizona v. Washington, 434 U.S. 497 (1978), where defense counsel explicitly told the jury that they were participating in a second trial because the State had previously withheld evidence. Again, I must disagree. The videotaped police interview first became an issue during opening statements when the prosecutor raised a hearsay objection to defense counsels slideshow presentation that included quotations from Glovers recorded interview. The majority states that the prosecution warned defense counsel that it did not plan to introduce Glovers statement at trial. What the majority seems to ignore is the prosecutions concession that defense counsel had done nothing wrong because, the night before trial, counsel had met in chambers to discuss redacting part of the defendants statement. Thus, as late as the eve of trial, both parties had contemplated the admission of Glovers videotaped interview.1 The next time the issue arose was during the testimony of Detective Jesus Prieto. Prior to defense counsels cross-examination of Detective Prieto, defense counsel acknowledged that he could not get into Glovers comments in the interview but asserted that the fact that he showed up, the fact that he turned in the gun, the fact that he sat down with him, those things I believe are all admissible and all highly relevant as to whether or not this was selfdefense. The district court stated, Well, well take it as it comes. Defense counsel followed the courts direction and did not ask Prieto about the substance of any of Glovers statements. No wrongdoing can be imputed to defense counsel for asking Prieto about the circumstances of the interview when the district court had, on the record, stated that it would rule on that issue as it comes. Moreover, evidence showing that a recorded interview took place was not hearsay; clearly, the only evidence precluded by a sustained hearsay objection is the specific out-of-court statements. To the extent that the majority implies that defense counsel violated the district courts evidentiary rulings by making the jury aware that a recorded interview took place, I cannot agree. The videotaped interview was not mentioned again until closing argument, when defense counsel tried to raise a negative inference based on the States failure to present the videotaped interview to the jury.2 Thus, after the first objectionable reference in opening statements (which the State acknowledge was justified), counsel made no ref1 The record reflects that the defense attorney who prepared the PowerPoint presentation and presented Glovers opening statement was not informed until after the States opening that the State would not be presenting the videotaped interview at trial. 2 While the majority concludes that the inference was improper, the record reflects that the improper negative inference was not the basis for mistrial. In their briefs, the parties agree that a negative inference is proper. Rather, the

724

Glover v. Dist. Ct.

[125 Nev.

erence to Glovers statements in the interview. Accordingly, I cannot agree with the majority that the record exhibits repeated violation of the district courts evidentiary rulings. During argument on the States motion for mistrial, the State tried to expand its argument to include other instances of alleged improper behavior. The district court declined to expand the argument, stating, Im not seeing this as any cumulative problem. Im isolating it to what was said here. A few moments later the court stated, I would rather restrict [argument] to this particular comment. The majority asserts that the fact the defense kept returning to the unadmitted statement figured in the district courts conclusion that the jury could not be expected to disregard the defenses comments about it. Based on the district courts comments, I cannot agree. The record reveals that the argument on the motion for mistrial was focused on defense counsels choice of words and the impact of his comment on the minds of the jurors. During the lengthy argument on the merits of the States motion for mistrial and the subsequent decision by the district court, the court did not make a single reference to defense counsel having violated its evidentiary rulings prior to closing argument. When the district court pronounced its oral ruling, there was no mention of the prior objections that the majority describes as cumulating to warrant a mistrial. Rather, the district courts ruling was based entirely on its conclusion that nine words in Glovers closing argument[b]ecause it is devastating to their case, absolutely devastatingwent beyond an inference to argument of facts that were not in evidence. I conclude that defense counsel raised a proper inference in closing argument. Although defense counsel was overzealous in suggesting the answer to his own rhetorical question, he did not describe the contents of the videotape, nor did he state that it conformed with his clients testimony at trial. Rather, defense counsel was raising a proper inference: that the State chose not to present evidence that it would normally produce because that evidence was harmful to the States case. The only error, if any, was in going beyond the inference to suggest that the contents of the videotape itself were devastating to [the States] case. By condemning defense counsels actions here and characterizing them as repeated disobedience to the district courts orders, I fear that the majoritys ruling today will have a chilling effect on defense counsels efforts to provide their clients with the effective representation that is their constitutional right.
issue that was presented in the district court and that is argued here is whether defense counsel had gone beyond the scope of an inference and had told the jury what the videotape included and thus commented on facts that were not in evidence. Accordingly, rather than create a rule limiting a defendants use of negative inferences, I would refrain from deciding that issue and rule solely on the issue raised.

Nov. 2009]

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725

Manifest necessity Because I conclude that defense counsels inference was proper, the only basis for a mistrial was the extent to which defense counsel commented on facts that were not in evidence. However, even if defense counsels actions in that respect were improper, I do not agree that they constituted a manifest necessity for a mistrial for three reasons. First, a negative inference based on the failure to produce evidence is considered a particularly weak form of argument. For this reason, courts have held that it is wiser to hold that if an argument on failure to produce proof is fallacious, the remedy is the answering argument and the jurys good sense. 2 Kenneth S. Broun, et al., McCormick on Evidence 225-26 (6th ed. 2006); see also Wilson v. Merrell Dow Pharmaceuticals, Inc., 893 F.2d 1149, 1152 (10th Cir. 1990); Allen v. U.S., 603 A.2d 1219, 1227 (D.C. 1992). The circumstances here simply did not require the district court to intervene and thus infringe on the defendants valued right to have his trial completed by a particular tribunal. Arizona v. Washington, 434 U.S. 497, 503 (1978) (quoting Wade v. Hunter, 336 U.S. 684, 689 (1949)). In my opinion, the prosecutor did not meet his heavy burden of justifying the mistrial in order to avoid the double jeopardy bar. Hylton v. District Court, 103 Nev. 418, 422, 743 P.2d 622, 625 (1987). Generally, when courts have concluded that defense misconduct warranted a mistrial, it has involved behavior far more egregious than what occurred here. For instance, manifest necessity has been found by courts where: (1) defense counsel repeatedly refused to comply with the trial judges admonitions and then proceeded to argue with the court in the presence of the jury, leading the jury to believe that defense counsel was incompetent or unscrupulous, U.S. v. Hoa Quoc Ta, 221 Fed. Appx 938, 944 (11th Cir. 2007); (2) in violation of the courts order, the defendant published an advertisement in the geographic area from which the jury was drawn asserting his innocence and claiming that he was being persecuted by the State, Reinstein v. Superior Court Dept. of Trial Court, 661 F.2d 255 (1st Cir. 1981); (3) the trial judge believed that the defendant was responsible for arranging the murder of the prosecutions only witness in the middle of trial, United States v. Mastrangelo, 662 F.2d 946 (2d Cir. 1981); (4) the defendant perjured himself on the stand, McKissick v. United States, 379 F.2d 754, 761 (5th Cir. 1967); (5) defense counsel deliberately disregarded the judges instructions and rulings, persisted in improper questioning, and was overheard by jurors stating that he would have the case transferred, resulting in several jurors expressing bias against the defense (one juror stated that she had a 17-year-old that is more compliant than [defense counsel] ), U.S. v. Spears, 89 F. Supp. 2d 891, 893-95

726

Glover v. Dist. Ct.

[125 Nev.

(W.D. Mich. 2000); (6) defense counsel repeatedly violated the courts pretrial order precluding reference to the victims incarceration, asked questions after objections were sustained, made personal comments to the prosecution (including demeaning a female prosecutor), and withheld evidence from the State and then presented it in the defenses case-in-chief, Quinones v. State, 766 So. 2d 1165, 1166-67 (Fla. Dist. Ct. App. 2000); (7) defense counsel engaged in a pattern of inappropriate behavior that included becoming argumentative with potential jurors, becoming combative with the trial judge, asking irrelevant and bizarre questions of witnesses, and deliberately destroy[ing the] trial by doing something that he knew to be inappropriate, People v. Burtron, 877 N.E.2d 87, 88-89, 93-94 (Ill. App. Ct. 2007); (8) the defendant skipped bail and was not present for trial, Brown v. State, 390 N.E.2d 1058, 1064 (Ind. App. 1979); and (9) in violation of a court order, defense counsel contacted multiple witnesses for the State and told them that they should not testify unless they received a grant of immunity, State v. Fosse, 424 N.W.2d 725, 727-30 (Wis. Ct. App. 1988). Second, the district court had multiple alternatives to a mistrial. Both federal and state courts have consistently overturned a trial judges decision to grant a mistrial because the trial judge failed to consider or apply a less drastic alternative. See Johnson v. Karnes, 198 F.3d 589, 596 (6th Cir. 1999) (We further find it significant that the trial court judge failed to consider less drastic alternatives, but instead immediately decided that a mistrial was appropriate.); Harpster v. State of Ohio, 128 F.3d 322, 330 (6th Cir. 1997) (Although the decision of a trial court to declare a mistrial based on potential juror bias is entitled to special respect, it would be an unreasonable application of the law, as established by Supreme Court precedent, to conclude that manifest necessity existed for a mistrial in this case . . . [because] a simple corrective instruction would have sufficiently protected against juror bias.); Brady v. Samaha, 667 F.2d 224, 230 (1st Cir. 1981) (concluding that the trial judge erred in failing to consider any alternatives to a mistrial such as severance or curative instructions (internal punctuation omitted)); Dunkerley v. Hogan, 579 F.2d 141, 147-48 (2d Cir. 1978) (concluding that while the trial judge did not act impetuously, the fact that there was at least one alternative to the mistrial meant that it was not dictated by manifest necessity); Jones v. Com., 400 N.E.2d 242, 251 (Mass. 1980) (concluding that severance was the appropriate remedy and that [a]ppellate deference will be accorded the trial judges discretionary determination that manifest necessity exists only if the record reflects that the trial judge gave reasoned consideration to the various available alternatives . . . before declaring a mistrial); State v. Bertrand, 587 A.2d 1219, 1226 (N.H. 1991) (reversing trial courts decision to grant a mistrial, noting that [t]he alternatives to a mistrial were not discussed, stating that more

Nov. 2009]

Glover v. Dist. Ct.

727

consideration should be given to the alternatives to granting a mistrial than to the consequences of granting one, and directing the lower courts to exhaust alternatives before declaring a mistrial). As the Second Circuit Court of Appeals has aptly stated, the presence of even one reasonable alternative renders a decision to declare a mistrial unwarranted by manifest necessity. Dunkerley, 579 F.2d at 147-48. In the present case, the court had several reasonable alternatives to declaring a mistrial. If the court was concerned that defense counsel had purposefully ignored the courts evidentiary rulings, it might have sent the jury out temporarily and have held the attorney in contempt. State v. Frazier, 555 A.2d 1078, 1086 (Md. Ct. Spec. App. 1989). Another alternative was to allow the State to reopen its case and present the evidence if it wished. Or the court could have given a curative instruction, as requested by defense counsel in this case.3 Curative instructions present a particularly strong alternative to a mistrial given that, as this court has stated numerous times, we presume that a jury will follow jury instructions. Lisle v. State, 113 Nev. 540, 558, 937 P.2d 473, 484 (1997). Here, where the district court had multiple alternatives, the district courts decision to declare the mistrial was simply not dictated by manifest necessity. Third, in this case the record suggests that the State may have sought a mistrial to bolster its case. Not only was the State able to preview the defendants case, but in response to Glovers arguments at trial regarding the States cancellation of the gunpowder residue test, the prosecution requested that testing shortly after the mistrial was granted. And in granting the mistrial, the district court specifically noted that this is a difficult and very close case. As such, the fact that the trial was near completion weighed against granting a mistrial because there was a danger that the mistrial was sought, at least in part, to permit the State the opportunity to improve its case against Glover. As the Supreme Court stated in Washington, the strictest scrutiny is applied in cases where the prosecutor requests a mistrial in order to buttress weaknesses in his evidence. 434 U.S. at 507-08.
3 The majority asserts that an instruction directing the jury not to infer that defense counsel had seen the videotape would be a false instruction. However, the district court did not take time to fully consider a curative instruction and dismissed defense counsels suggestion out of hand. This does not preclude the possibility that a satisfactory instruction could have been fashioned. The district courts frequently instruct juries to simply disregard improper or inadmissible comments. See Valdez v. State, 124 Nev. 1172, 1192, 196 P.3d 465, 478-79 (2008); Pantano v. State, 122 Nev. 782, 793, 138 P.3d 477, 484 (2006); Hardison v. State, 104 Nev. 530, 533, 763 P.2d 52, 54 (1988). More thought should have been given to a curative instruction before the district court found that the only reasonable alternative was to declare a mistrial.

728

Fierle v. Perez

[125 Nev.

In my view, the district courts decision to grant a mistrial after all of the evidence had been presented, based solely on defense counsels inference in closing argument, severely infringed on the defendants valued right to have his trial completed by a particular tribunal. Id. at 503 (quoting Wade v. Hunter, 336 U.S. 684, 689 (1949)). In the words of the First Circuit Court of Appeals, Having carefully reviewed the entire record in this case, [I] conclude that the trial judge failed to engage in a scrupulous exercise of discretion in declaring a mistrial. Brady, 667 F.2d at 229. Conclusion For the reasons stated above, I am unconvinced that there was a manifest necessity for a mistrial or that the ends of justice would have been defeated had the district court permitted the trial to continue. See United States v. Perez, 22 U.S. 579, 580 (1824). Therefore, I would grant the petition.

PATRICIA FIERLE AND DANIEL FIERLE, HUSBAND AND WIFE, APPELLANTS, v. JORGE PEREZ M.D., LTD., A NEVADA PROFESSIONAL CORPORATION, DBA SIERRA NEVADA ON COLOGY CARE; JORGE PEREZ, M.D., PH.D, MRCP, MRCPATH, AN INDIVIDUAL; LINDA LESPERANCE, R.N., APN-C, AN INDIVIDUAL; CHARMAINE CRUET, R.N., APN-C, AN INDIVIDUAL; AND MELISSA MITCHELL, R.N., AN INDIVIDUAL, RESPONDENTS.
No. 49602 November 19, 2009 219 P.3d 906

Appeal from a district court order dismissing a medical tort action and denying a post-judgment motion for NRCP 60(b) relief. First Judicial District Court, Carson City; William A. Maddox, Judge. Cancer patient who sustained severe burns as alleged result of chemotherapy treatment filed medical malpractice claims against physician and his professional medical corporation, as well as professional negligence claims against nurse who administered chemotherapy and supervising nurse practitioners. The district court dismissed complaint for lack of expert affidavit. Patient appealed. The supreme court, CHERRY, J., held that: (1) statute requiring dismissal of a non-res ipsa loquitur medical malpractice claim filed without an expert affidavit applies equally to claims against physicians and professional medical corporations, and also applies to professional negligence claims made against providers of health care, including nurses and nurse practitioners; (2) professional neg-

Nov. 2009]

Fierle v. Perez

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ligence claim against nurse who administered chemotherapy fell within res ipsa loquitur exception to expert affidavit requirement; and (3) medical malpractice and professional negligence claims that are void ab initio because no expert affidavit is attached may not be cured by amendment of complaint, regardless of whether other claims in original complaint survive. Affirmed in part, reversed in part, and remanded. [Rehearing denied January 19, 2010] PICKERING, J., dissented in part. Sullivan Law Offices and Gene M. Kaufmann, J.D. Sullivan, and Milos Terzich, Minden, for Appellants. Lauria, Tokunaga, Gates & Linn, LLP, and Anthony D. Lauria and Robert B. Smith, Sacramento, California, for Respondents Lesperance and Cruet. Lemons, Grundy & Eisenberg and Alice Campos Mercado and Edward J. Lemons, Reno, for Respondents Perez and Mitchell.
1. APPEAL AND ERROR. Being derivative claims, only husbands loss of consortium claims that arose from patients surviving res ipsa loquitur claims would endure on remand following affirmance of order that dismissed patients other medical malpractice and professional negligence claims for failure to attach expert affidavit. NRS 41A.071, 41A.100. 2. HEALTH. Patient failed to demonstrate newly discovered evidence or fraud in moving for relief from judgment that dismissed medical malpractice and professional negligence claims for failure to attach expert affidavit to complaint; documents that physician purportedly withheld and concealed were in fact sent to patient months before the filing of complaint, and there was no clear and convincing evidence that dismissal of complaint resulted from alleged improper persuasion by physician. NRCP 60(b)(2), (3). 3. APPEAL AND ERROR. The supreme court reviews a district courts statutory construction determinations de novo. 4. HEALTH. Statute requiring dismissal of a non-res ipsa loquitur medical malpractice claim if action is filed without expert affidavit applies equally to claims against physicians and professional medical corporations; although statutory definition of medical malpractice refers to a physician and not to a professional medical corporation, other statutes make clear that the personal liability of a physician cannot be altered by the formation of a professional association or entity. NRS 41A.009, 41A.071, 41A.100, 89.020(7), 89.060(1), 89.220(1). 5. STATUTES. When two statutes are clear and unambiguous but conflict with each other when applied to a specific factual situation, an ambiguity is created and court will attempt to reconcile the statutes.

730

Fierle v. Perez

[125 Nev.

6. STATUTES. Court will attempt to read statutory provisions in harmony, provided that this interpretation does not violate legislative intent. 7. STATUTES. When interpreting a statute, court considers the policy and spirit of the law and will seek to avoid an interpretation that leads to an absurd result. 8. HEALTH. Statute requiring attachment of expert affidavits for non-res ipsa loquitur medical malpractice claims applies to professional negligence claims made against providers of health care, including nurses and nurse practitioners. NRS 41A.071, 41A.100. 9. STATUTES. In resolving ambiguity, court looks to the purpose and intent behind the enactment of statutes being interpreted. 10. APPEAL AND ERROR. On appeal, a court can only consider those matters that are contained in the record made by the court below and the necessary inferences that can be drawn therefrom. 11. EVIDENCE. Courts generally may take judicial notice of legislative histories, which are public records. 12. HEALTH. Cancer patients professional negligence claim against nurse, arising from alleged infusion of chemotherapy medications into patients tissue rather than into catheter, fell within res ipsa loquitur exception to statutory requirement of attaching an expert affidavit; patient alleged that nurses negligence caused a complete extravasation of chemotherapy drugs resulting in severe pain, burning, and permanent injury to patients skin, thus satisfying res ipsa exception for an unintended burn caused by heat, radiation, or chemicals in the course of medical care. NRS 41A.071, 41A.100(1)(c). 13. HEALTH. Professional negligence claims asserted against physician and nurse practitioners, based on training and supervision of nurse who allegedly caused subcutaneous burns while administering chemotherapy to cancer patient, did not fall within res ipsa loquitur exception to requirement of attaching an expert affidavit, though professional negligence claim against nurse herself did, as physician and nurse practitioners did not administer the chemotherapy that caused burns. NRS 41A.071, 41A.100(1)(c). 14. HEALTH. Both intentional and negligence-based medical malpractice claims are included in statutory requirement of attaching expert affidavit to non-res ipsa loquitur malpractice claims, as plain language in definition of medical malpractice does not differentiate between negligent and intentional causes of action. NRS 41A.009, 41A.071. 15. HEALTH. To meet the prima facie requirements for a res ipsa loquitur case, under exception to requirement of attaching expert affidavit in medical malpractice action, plaintiff must present facts and evidence that show the existence of one or more of the situations enumerated in statute setting forth the res ipsa exception. NRS 41A.071, 41A.100(1). 16. HEALTH. Medical malpractice and professional negligence claims that are void ab initio because no expert affidavit is attached may not be cured by amendment of complaint, regardless of whether other claims in original complaint survive. NRS 41A.071.

Nov. 2009]

Fierle v. Perez

731

Before the Court EN BANC. OPINION By the Court, CHERRY, J.: Appellants Patricia Fierle and her husband, Daniel Fierle, filed a complaint against Dr. Jorge Perez, members of his staff, and his professional medical corporation. The complaint stemmed from an incident where Patricia suffered severe burns from chemotherapy treatment that Dr. Perezs staff administered. After initially failing to attach an expert affidavit to the complaint, the Fierles then filed a first amended complaint with an attached medical experts affidavit. On respondents motion, the district court dismissed the complaint in full and struck the first amended complaint. The Fierles then filed a motion for relief pursuant to NRCP 52(b), 59(e), and 60(b), which was denied. The Fierles now appeal. This appeal involves mainly issues of first impression regarding the applicability of NRS 41A.071 to professional medical corporations in medical malpractice actions and nurses and nurse practitioners in professional negligence actions; and whether medical malpractice and professional negligence claims made in the complaint that are void ab initio because no expert affidavit is attached may be cured by the amendment of the complaint regardless of whether other claims in the original complaint survive. We conclude that an expert affidavit is required for medical malpractice actions against professional medical corporations and professional negligence actions against nurses and nurse practitioners under NRS 41A.071, and therefore, we conclude that the district court did not err in dismissing the Fierles complaint with regard to such claims. Additionally, we conclude that the district court erred in dismissing the negligent extravasation claim against one member of Dr. Perezs staff because that claim falls under the res ipsa loquitur statutory exception to NRS 41A.071 and, therefore, is not required to be supported by an expert medical affidavit. We further conclude that medical malpractice and professional negligence claims made in a complaint that become void ab initio for lack of the attachment of an expert affidavit may not be cured by the amendment of that complaint, regardless of whether other claims in the original complaint survive. FACTS In July 2005, Patricia was diagnosed with breast cancer. She then underwent a mastectomy. In addition to the mastectomy, a catheter was also surgically placed in Patricias chest wall for the infusion of chemotherapy medications. In this procedure, the catheter is surgi-

732

Fierle v. Perez

[125 Nev.

cally attached to the tissue under the skin, and a second part of the catheter is placed into the subclavian vein. Once surgically inserted, the catheter can be accessed via needle to inject chemotherapy medications into the patients subclavian vein. Patricia then became a patient of Dr. Perez and his employees, registered nurse Melissa Mitchell and nurse practitioners Charmaine Cruet and Linda Lesperance, for the administration of her chemotherapy. The Fierles allege that on Patricias third visit to Dr. Perezs office, Mitchells administration of the chemotherapy medications did not infuse into the catheter but instead infused into her tissue, causing a subcutaneous burn called an extravasation. Patricia alleges that she complained of pain but respondents failed to give her medical attention. A day later, on September 16, 2005, Patricia was referred to a radiologist after a nurse in Dr. Perezs office noted redness and swelling of Patricias chest. An ultrasound revealed that the catheter tip was not in the subclavian vein but had coiled in the tissues. Within two weeks of the alleged extravasation, Patricia sought treatment from another doctor. That doctor in turn referred her to yet another doctor, Dr. Miercort, for further treatment. In Dr. Miercorts January 17, 2007, affidavit attached to appellants amended complaint, Dr. Miercort opined that when he began treating Patricia, he believed that negligent extravasation had occurred. Dr. Miercort referred Patricia to U.C. Davis Medical Center, where Patricia was diagnosed with a severe extravasation of chemotherapy over the right shoulder and subclavian region.
[Headnote 1]

The Fierles filed a complaint in district court on September 14, 2006, alleging, among other claims, medical malpractice stemming from chemotherapy treatment for Patricias breast cancer. In their first claim, the Fierles alleged that Mitchell failed to use due care in the administration of the chemotherapy and that negligence caused Patricia to be burned with epirubicin.1 Additionally, the Fierles alleged that Dr. Perez, Lesperance, and Cruet were negligent in the training and supervision of Mitchell. In their second claim, the Fierles alleged loss of consortium relating to Daniels loss as a result of Patricias injuries.2 In their third and final claim, the Fier1 In the complaint, the Fierles described epirubicin as a vesicant, i.e., a tissue blistering agent. 2 Regarding loss of consortium claims, in Turner v. Mandalay Sports Entmt, we determined that a spouses claim for loss of consortium is derivative, and thus, its success is dependent on the other spouse having a valid cause of action against the defendant. 124 Nev. 213, 222 n.31, 180 P.3d 1172, 1178 n.31 (2008) (citing Gunlock v. New Frontier Hotel, 78 Nev. 182, 185 n.1, 370 P.2d 682, 684 n.1 (1962)). Thus, we conclude that because of the derivative nature of the claims, only the loss of consortium claims that arise from the surviving res ipsa loquitur claims endure on remand.

Nov. 2009]

Fierle v. Perez

733

les alleged Willful Failure to Provide Treatment and Constructive Fraud against Dr. Perez and Jorge Perez M.D., Ltd. Subsequently, upon realizing that an expert affidavit may be required, the Fierles filed an amended complaint with an affidavit from Dr. Miercort attached. Jorge Perez M.D., Ltd., Dr. Perez, and Mitchell (collectively, Perez respondents) moved to dismiss the Fierles complaint. The Perez respondents motion to dismiss relied on the fact that the Fierles failed to file the original complaint with an accompanying expert affidavit, as required under NRS 41A.071. Further, the Perez respondents moved to strike the amended complaint based upon our decision in Washoe Medical Center v. District Court, 122 Nev. 1298, 1300, 148 P.3d 790, 792 (2006) (holding that complaints filed under NRS 41A.071 without an affidavit from a medical expert are void ab initio and must be dismissed). Cruet and Lesperance joined in the motion to dismiss and motion to strike the first amended complaint. The district court granted the motion to dismiss and the motion to strike and found that the Fierles allegations did not fall under NRS 41A.100(1)(c), Nevadas codification of the res ipsa loquitur doctrine, because the allegations are not matters of common knowledge to a layperson, but instead must be established by a medical expert. As such, the district court dismissed the Fierles complaint and struck the amended complaint under NRS 41A.071 because the original complaint was filed without a supporting expert medical affidavit.
[Headnote 2]

Thereafter, the Fierles filed a motion to alter or amend the findings of fact, conclusions of law, and judgment, pursuant to NRCP 52(b) and 59(e), and for relief from judgment, pursuant to NRCP 60(b). The motion purported to reveal newly discovered evidence that Dr. Perez concealed and withheld medical records. In support of this motion, the Fierles attached two affidavits: a second one from Dr. Miercort and one from registered nurse Rhonda Uhart, an employee of the oncologist who took over Patricias treatment following her injury at Dr. Perezs office. Uhart and Dr. Miercort attested that Dr. Perezs office withheld records when requested by their respective offices. The district court denied the motion.3 This appeal follows.
3 We previously issued an order in this case concluding that the portion of the district courts order denying respondents NRCP 60(b) motion is substantively appealable as a special order after judgment. See NRAP 3A(b). The order also concluded that the portion of the district courts order denying respondents motion pursuant to NRCP 52(b) and 59(e) was not appealable because we lack jurisdiction over orders denying such motions. See Uniroyal Goodrich Tire v. Mercer, 111 Nev. 318, 320 n.1, 890 P.2d 785, 787 n.1 (1995), superseded by statute on other grounds as stated in RTTC Communications v. Saratoga Flier,

734

Fierle v. Perez DISCUSSION

[125 Nev.

Standard of review
[Headnote 3]

Here, the district courts dismissal of this case stemmed from its interpretation and application of statutes. This court reviews a district courts statutory construction determinations de novo. Beazer Homes Nevada, Inc. v. Dist. Ct., 120 Nev. 575, 579, 97 P.3d 1132, 1135 (2004); Keife v. Logan, 119 Nev. 372, 374, 75 P.3d 357, 359 (2003). NRS 41A.071 applies to professional medical corporations
[Headnote 4]

We first consider whether NRS 41A.071 applies to professional medical corporations. We conclude that it does. The expert affidavit provision of the medical malpractice statutes, NRS 41A.071, provides: If an action for medical malpractice or dental malpractice is filed in the district court, the district court shall dismiss the action, without prejudice, if the action is filed without an affiavit, supporting the allegations contained in the action, submitted by a medical expert who practices or has practiced in an area that is substantially similar to the type of practice engaged in at the time of the alleged malpractice. NRS 41A.009 defines medical malpractice as the failure of a physician, hospital or employee of a hospital, in rendering services, to use the reasonable care, skill or knowledge ordinarily used under similar circumstances. Appellants argue that under these statutes an affidavit from a medical expert is not required in suits against a professional medical corporation. While we acknowledge that the statutory definition for medical malpractice refers to a physician and not to a professional medical corporation, NRS 89.060 and 89.220 make clear that when dealing
121 Nev. 34, 110 P.3d 24 (2005). Regarding the NRCP 60(b) motion, we conclude that the district court did not abuse its discretion in finding that the Fierles failed to demonstrate newly discovered evidence or fraud to prevail on their motion. See Bianchi v. Bank of America, 124 Nev. 472, 474, 186 P.3d 890, 892 (2008) (stating that this court will not disturb the district courts decision regarding motions brought pursuant to NRCP 60(b) absent an abuse of discretion). The documents the Fierles claimed that Dr. Perez concealed and withheld were, in fact, sent to the Fierles months before the filing of the complaint and, as such, do not meet the standard to be considered newly discovered evidence under NRCP 60(b)(2). Moreover, the Fierles have failed to demonstrate any clear and convincing evidence that Dr. Perez perpetrated fraud under NRCP 60(b)(3). The Fierles contend that Dr. Perez improperly persuaded the district court to dismiss the Fierles complaint. However, the complaint was dismissed solely for failure to attach an expert affidavit.

Nov. 2009]

Fierle v. Perez

735

with a medical malpractice claim against professional entities and professional associations, no statute alters the personal liability of a physician in those claims. NRS 89.060(1) provides that: The provisions of this chapter relating to professional entities do not modify any law applicable to the relationship between a person furnishing professional service and a person receiving such service, including liability arising out of such professional service, but nothing contained in this section renders: 1. A person personally liable in tort for any act in which he has not personally participated. NRS 89.220(1) provides that: The provisions of this chapter relating to professional associations do not modify any law applicable to the relationship between a person furnishing professional service and a person receiving such service, including liability arising out of such professional service, but: 1. A member or employee of a professional association shall not be personally liable in tort for any act in which he has not personally participated. These statutes expound that personal liability cannot be altered by the formation of a professional association or entity. As such, if no statute can be used to limit the liability of a professional entity or association in which the member has personally participated, we are required to conclude that the provisions of NRS Chapter 41A must be read to include professional medical corporations.
[Headnotes 5-7]

When two statutes are clear and unambiguous but conflict with each other when applied to a specific factual situation, an ambiguity is created and we will attempt to reconcile the statutes. Szydel v. Markman, 121 Nev. 453, 457, 117 P.3d 200, 202-03 (2005). In doing so, we will attempt to read the statutory provisions in harmony, provided that this interpretation does not violate legislative intent. City Council of Reno v. Reno Newspapers, 105 Nev. 886, 892, 784 P.2d 974, 978 (1989). Additionally, we consider the policy and spirit of the law and will seek to avoid an interpretation that leads to an absurd result. City Plan Dev. v. State, Labor Commr, 121 Nev. 419, 435, 117 P.3d 182, 192 (2005). As such, NRS Chapters 41A and 89 must be read in harmony. The term professional corporation is not defined in NRS Chapter 41A, rather it is defined in Chapter 89 as a corporation organized under this chapter to render a professional service. NRS 89.020(7). Accordingly, professional medical corporations are subject to NRS 89.060 and 89.220, such that no statute alters the personal liability of a physician in medical malpractice

736

Fierle v. Perez

[125 Nev.

claims. Therefore, we conclude that the expert affidavit requirement applies equally to both physicians and professional medical corporations. Thus, we conclude that medical malpractice claims alleged against a professional medical corporation are subject to the affidavit requirement of NRS 41A.071. As such, we conclude that NRS 41A.071 requires the attachment of expert affidavits for medical malpractice claims against doctors and professional medical corporations for any non-res ipsa loquitur claims brought under NRS Chapter 41A.4 Because the Fierles failed to attach an expert affidavit to their complaint in support of their non-res ipsa loquitur medical malpractice claims against Dr. Perez and Jorge Perez M.D., Ltd., we conclude that the district court did not err in dismissing the Fierles medical malpractice claims related to these respondents. NRS 41A.071 applies to professional negligence claims
[Headnote 8]

We next consider whether NRS 41A.071, which refers to medical malpractice, applies to claims for professional negligence. The Fierles argue that the district court erred in failing to recognize that their complaint made claims against individuals who did not fall under the medical malpractice statutory scheme of NRS Chapter 41A. Specifically, the Fierles contend that only the claims made against Dr. Perez fall under the definition of medical malpractice provided in NRS 41A.009, and that all other claims made were claims of professional negligence. Respondents contend that the plain language of NRS 41A.071 belies the Fierles argument because of the inclusiveness of NRS 41A.071, which respondents point out applies not only to doctors, hospitals, and hospital employees, but also includes actions for dental malpractice. Thus, respondents argue that the statute expansively includes nurses and, as such, the district court properly dismissed the Fierles medical malpractice claims against Cruet and Lesperance because of failure to comply with the affidavit requirements of NRS 41A.071. In 2002, through a special session of the Legislature, NRS Chapter 41A was amended concerning actions for dental or medical malpractice. That legislation added an affidavit requirement in NRS 41A.071 for claims of medical malpractice and revised the res ipsa loquitur exception in NRS 41A.100. In 2004, Nevadas voters approved an initiative petition that added protections for professional negligence for provider[s] of heath care. NRS 41A.015, 41A.017. Professional negligence means a negligent act or omis4 We note that certain res ipsa loquitur claims are exempted from the affidavit requirement, as discussed in depth later in this opinion.

Nov. 2009]

Fierle v. Perez

737

sion to act by a provider of health care and the definition of provider[s] of health care includes licensed nurses and hospitals. NRS 41A.015, 41A.017. However, the initiative petition did not expressly amend the definition of medical malpractice under NRS 41A.071. Since the 2004 amendments, we have not considered whether the affidavit requirement for medical malpractice lawsuits includes claims of professional negligence allegedly committed by any provider of health care. Accordingly, this is an issue of first impression. We conclude that the ambiguity created by the differing acts should be resolved in favor of a requirement for an expert affidavit for claims of professional negligence made against providers of health care.5
[Headnote 9]

We begin by analyzing whether the language of NRS 41A.071 encompasses professional negligence actions. NRS 41A.071 requires the filing of an expert affidavit in actions for medical malpractice or dental malpractice. However, it is not clear if medical malpractice encapsulates professional negligence. Initially, we note that the definition for professional negligence that was added in 2004 (NRS 41A.015) essentially duplicates the definition for medical malpractice contained in NRS 41A.009. As such, it is not clear whether the references to medical malpractice in NRS Chapter 41A encompass the almost identically defined professional negligence. In resolving this ambiguity regarding the definitions of professional negligence and medical malpractice, we look to the purpose and intent behind the enactment of the statutes. See Beazer Homes Nevada, Inc. v. Dist. Ct., 120 Nev. 575, 580, 97 P.3d 1132, 1135 (2004).
[Headnotes 10, 11]

The intent of the 2004 amendments that resulted in the definition of professional negligence was to overlay and expand the same protections that the Legislature attempted to provide for doctors in the state during the special legislative session in 2002. See 2004 General Election Sample Ballot, p. 12.6 In duplicating the definition of med5 While the Fierles alleged medical malpractice in their complaint, some of their claims fall under the NRS 41A.015 definition of professional negligence contained within NRS Chapter 41A, titled Actions for Medical or Dental Malpractice. 6 On appeal, a court can only consider those matters that are contained in the record made by the court below and the necessary inferences that can be drawn therefrom. Toigo v. Toigo, 109 Nev. 350, 350, 849 P.2d 259, 259 (1993) (citing Lindauer v. Allen, 85 Nev. 430, 433, 456 P.2d 851, 853 (1969)). We may take judicial notice of facts generally known or capable of verification from a reliable source, whether we are requested to or not. NRS 47.150(1). Further, we may take judicial notice of facts that are [c]apable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned, so that the fact is not subject to reasonable dispute. See

738

Fierle v. Perez

[125 Nev.

ical malpractice and expanding it to include nurses and other nonhospital employees, it is fair to assume that the people, by enacting the 2004 amendments, wanted to extend the legislative shield that protects doctors from frivolous lawsuits and keeps doctors practicing medicine in this state. It would extend that these same requirements and procedures for filing a medical malpractice claim should be the same as those for filing a professional negligence claim. Further, to say that nurses are exempt from the NRS 41A.071 affidavit requirement would also require that physicians be exempt because claims for medical malpractice and professional negligence against physicians are identical claims, one with an affidavit requirement, and one without. As such, to not make the affidavit requirement universal would thwart the intent and goals of the Legislature, the petitioners, and the citizens of this state because it would lessen the protections that these bodies intended for Nevadas doctors. Such a reading of NRS 41A.071 runs contrary to the purpose and intent behind the enactment of the statutes. As such, we conclude that NRS 41A.071 requires the attachment of expert affidavits for professional negligence claims against providers of health care, including nurses and nurse practitioners, as well as doctors, for any non-res ipsa loquitur claims. Because the Fierles failed to attach an expert affidavit to their complaint in support of their non-res ipsa loquitur professional negligence claims against Jorge Perez M.D., Ltd., Cruet, Lesperance, and Dr. Perez, we conclude that the district court did not err in dismissing the Fierles professional negligence claims against these respondents. Claims based on res ipsa loquitur are not subject to the affidavit requirement
[Headnotes 12-14]

While plaintiffs are required to attach an expert affidavit to complaints alleging medical malpractice and professional negligence, there is one exception for claims based on the res ipsa loquitur doctrine.7 As such, we next consider whether the Fierles medical malNRS 47.130(2)(b). Moreover, courts generally may take judicial notice of legislative histories, which are public records. See Hayes v. Continental Ins. Co., 872 P.2d 668, 673 n.5 (Ariz. 1994); Nekoosa-Edwards Paper Co. v. Public Service Comn, 99 N.W.2d 821, 826 (Wis. 1959). As such, we are taking judicial notice of the petitioners declared intent. 7 NRS 41A.100(1)(c) in relevant part provides that: 1. Liability for personal injury or death is not imposed upon any provider of medical care based on alleged negligence in the performance of that care unless evidence consisting of expert medical testimony . . . is presented to demonstrate the alleged deviation from the accepted standard of care in the specific circumstances of the case and to prove causation of the alleged personal injury or death, except that such evidence is not re-

Nov. 2009]

Fierle v. Perez

739

practice and professional negligence claims survive despite their failure to attach an expert affidavit to their complaint. Primarily, we conclude that the Fierles claim of negligent extravasation based on res ipsa loquitur survives, while those not based on res ipsa loquitur do not survive because there was no expert affidavit.8
[Headnote 15]

In coming to the conclusion that only the res ipsa loquitur claim survives, we are persuaded by Szydel v. Markman, 121 Nev. 453, 117 P.3d 200 (2005). In Szydel, we concluded that the expert affidavit requirement of NRS 41A.071 does not apply when the malpractice action is based solely on the res ipsa loquitur doctrine. Id. at 454, 117 P.3d at 201. Specifically, we reconciled the res ipsa loquitur doctrine, codified in NRS 41A.100, with the expert affidavit requirements of NRS 41A.071 and concluded that an expert affidavit in a res ipsa case under NRS 41A.100(1) is unnecessary. Id. at 459, 117 P.3d at 204. Therefore, medical malpractice claims based solely on the res ipsa loquitur doctrine may go forward in factual situations where negligence can be shown without expert medical testimony.9 Id. at 459-60, 117 P.3d at 204. Finally, we concluded that when a plaintiff files a res ipsa loquitur claim in conjunction with other medical malpractice claims that are not based upon the res ipsa loquitur doctrine, those other claims are still subject to the expert affidavit requirements of NRS 41A.071. Id. at 460, 117 P.3d at 205. We thus find Szydel instructive to the case at bar. We conclude that the professional negligence claim that the Fierles allege against Mitchell in their complaint falls under NRS 41A.100(1). Specifically, the Fierles allege that Mitchells negligence caused a complete extravasation of chemotherapy drugs resulting in severe pain, burning, and permanent injury of Patricias skin, which has resulted in physical injury and damages, including second-degree internal burns [and] permanent scar tissues. Under
quired and a rebuttable presumption that the personal injury or death was caused by negligence arises where evidence is presented that the personal injury or death occurred in any one or more of the following circumstances: .... (c) An unintended burn caused by heat, radiation or chemicals was suffered in the course of medical care. (Emphasis added.) 8 We conclude that both intentional and negligence-based medical malpractice claims are included in the affidavit requirement. The plain language of the definition of medical malpractice does not differentiate between negligent and intentional causes of action and, as such, is not limited to negligence claims as appellants argue. See NRS 41A.009. 9 In order to meet the prima facie requirements for a res ipsa loquitur case, the plaintiff must present facts and evidence that show the existence of one or more of the situations enumerated in NRS 41A.100(1)(a)-(e). Szydel, 121 Nev. at 460, 117 P.3d at 205.

740

Fierle v. Perez

[125 Nev.

NRS 41A.100(1)(c), a res ipsa loquitur exception for a provider of medical care exists when [a]n unintended burn caused by heat, radiation or chemicals was suffered in the course of medical care. The term provider of medical care as used in NRS 41A.100(1)(c) expressly applies to registered nurses. NRS 41A.100(3). Thus, the professional negligence claim alleged against registered nurse Mitchell survives. However, the professional negligence claims alleged against Dr. Perez, Cruet, and Lesperance do not fall under this statute since they did not administer the chemotherapy that caused Patricias burns. Rather, the professional negligence claims against Dr. Perez, Cruet, and Lesperance involve allegations of negligent training and supervision. As such, these claims are not ones that can be intrinsically subsumed under the res ipsa loquitur exception, such that negligence must be established and cannot be inferred. NRS 41A.100(1) does not provide an exception to the expert affidavit requirement under the res ipsa loquitur doctrine in such circumstances. Accordingly, we conclude that the district court erred in dismissing the Fierles medical malpractice claim against Mitchell because this claim falls under one of the res ipsa loquitur exceptions such that the Fierles were not required to file an expert affidavit with their claim. Relation back to the amended complaint
[Headnote 16]

We next consider whether an amended complaint may relate back to a complaint that was filed without the required medical expert affidavit but that contains some claims that do not require a medical affidavit, thereby curing the failure to attach the expert affidavit and thus making the entire complaint valid. We conclude that it cannot. We have held that complaints filed under NRS 41A.071 without an affidavit from a medical expert are void ab initio and must be dismissed. Washoe Med. Ctr. v. Dist. Ct., 122 Nev. 1298, 1300, 148 P.3d 790, 792 (2006). Under this reasoning, we have concluded that such complaints may not be amended because they are void and do not legally exist. Id. This interpretation is consistent with the underlying purpose of . . . [NRS 41A.071], which is to ensure that such actions be brought in good faith based on competent expert opinion. Borger v. Dist. Ct., 120 Nev. 1021, 1029, 102 P.3d 600, 606 (2004). We further conclude here that this rule applies even when only some of the claims violate the NRS 41A.071 affidavit requirement. That is, the claims can be severed, dismissing some while allowing others to proceed. Szydel, 121 Nev. at 460, 117 P.3d at 205. Therefore, we conclude that an amended complaint may not relate back to a complaint that lacked a required medical expert affidavit,

Nov. 2009]

Fierle v. Perez

741

but contained some claims that do not require a medical affidavit, thereby making the entire complaint valid. Specifically, we conclude that medical malpractice and professional negligence claims made in a complaint that become void ab initio for lack of the attachment of an expert affidavit may not be cured by the amendment of that complaint, regardless of whether other claims in the original complaint survive. CONCLUSION We conclude that the district court did not err in dismissing the Fierles complaint with respect to claims made against nurses, nurse practitioners, and Dr. Perezs professional medical corporation because we conclude that an expert affidavit is required for medical malpractice and professional negligence claims against such parties. We further conclude that the district court erred in dismissing the Fierles medical malpractice claims against Mitchell because those claims fall under the res ipsa loquitur statutory exception to NRS 41A.071 and, thus, did not require an expert affidavit to be filed with the complaint. We additionally conclude that an amended complaint cannot cure a complaint that becomes void ab initio for the failure of a party to attach the required medical expert affidavit under NRS 41A.071. Accordingly, we reverse in part and affirm in part the district courts order, and we remand the case for further proceedings consistent with this opinion. HARDESTY, C.J., PARRAGUIRRE, DOUGLAS, SAITTA, and GIBBONS, JJ., concur. PICKERING, J., concurring in part and dissenting in part: The majority concludes that the affidavit requirement in NRS 41A.071 applies to a physicians medical corporation and nurse. While I agree with the result, I respectfully disagree with the reasoning used to reach it. Medical malpractice is a type of professional negligence, such that the professional negligence statutes apply to medical malpractice. However, I submit that the syllogism does not run in reverse, such that the statutes specific to medical malpractice apply to all types of professional negligence. The majoritys contrary holding disregards settled rules of statutory construction and goes further than is needed to decide this appeal, with potentially disruptive consequences. I also question the disposition of the res ipsa loquitur claims. If the Fierles unintended chemical burn claims qualify under Szydel v. Markman, 121 Nev. 453, 117 P.3d 200 (2005), and NRS 41A.100(1)(c), as res ipsa loquitur claims that do not need a supporting expert affidavit under NRS 41A.071, there does not appear to be a sound basis to distinguish between the actor (Nurse Mitchell)

742

Fierle v. Perez

[125 Nev.

and the person with the legal duty to supervise the actor (Dr. Perez) in regard to them. Either we continue to adhere to Szydel, or we dont, but we confuse things by applying the res ipsa loquitur doctrine halfway. NRS 41A.071 applies to this medical malpractice case but not to all professional negligence claims NRS 41A.071 imposes its affidavit requirement only on an action for medical malpractice.1 The phrase medical malpractice is defined in NRS 41A.009 as the failure of a physician, hospital or employee of a hospital, in rendering services, to use the reasonable care, skill or knowledge ordinarily used under similar circumstances. Hospital is not defined in Chapter 41A but physician is, as a person licensed pursuant to chapter 630 or 633 of NRS. NRS 41A.013. In contrast, the provisions respecting professional negligence by provider[s] of health care that were added to Chapter 41A in 2004 include, but cover more than, medical malpractice. Thus, NRS 41A.015 defines professional negligence as a negligent act or omission to act by a provider of health care in the rendering of professional services. Provider of health care includes not just a physician licensed under chapter 630 or 633 of NRS and a hospital and its employees, NRS 41A.017; see NRS 41A.009, but also a dentist, licensed nurse, dispensing optician, optometrist, registered physical therapist, podiatric physician, licensed psychologist, chiropractor, doctor of Oriental medicine, [and a] medical laboratory director or technician. NRS 41A.017. Unlike the affidavit requirement in NRS 41A.071, which only addresses actions for medical malpractice (or dental malpractice), the 2004 amendments to NRS Chapter 41A added multiple provisions that, by their terms, apply to all professional negligence claims against a range of provider[s] of health care, including but not limited to limits on noneconomic damages, NRS 41A.035, abolition of joint and several liability, NRS 41A.045, and special statute of limitations and tolling rules. NRS 41A.097. The majority holds that the affidavit requirement in NRS 41A.071 requires the attachment of expert affidavits for professional negligence claims, as defined in NRS 41A.015, against all provider[s] of health care, as defined in NRS 41A.017. Ante at 738. This holding proceeds from the premise that the 2004 amendments to NRS Chapter 41A created a statutory ambiguity. Id. at 737. Specifically, the majority finds it inconsistent with the intent of the 2004 amendments to Chapter 41A for NRS 41A.071 to only apply to medical malpractice and not to professional negligence by
1 NRS 41A.071 also applies to dental malpractice, but this aspect of the statute is not involved in this case.

Nov. 2009]

Fierle v. Perez

743

providers of health care generally. Id. at 737-38. Thus, under the majoritys interpretation, a plaintiff wishing to sue a dispensing optician, optometrist, [or] registered physical therapist, NRS 41A.017, must obtain the expert affidavit NRS 41A.071 requires in medical malpractice actions.2 It is an elementary rule of construction that effect must be given, if possible, to every word, clause and sentence of a statute . . . so that no part will be inoperative or superfluous, void or insignificant . . . . Norman J. Singer and J.D. Shambie Singer, 2A Sutherland Statutory Construction 46:6, at 230-42 (7th ed. 2007) (internal quotation omitted). While the 2004 amendments to NRS Chapter 41A could have replaced medical malpractice with professional negligence everywhere the former appeared, this change wasnt made; the medical malpractice-specific statutes were left intact. This leaves us to interpret [t]he unchanged sections [of the original statute] and the amendment . . . so they do not conflict. All the provisions of both are given effect and reconciled, if possible. 1A id. 22:35, at 404-05. Applying these rules of statutory construction, I respectfully submit that NRS 41A.071s affidavit requirement should be read as limited to medical malpractice (or dental malpractice) actions rather than expanded judicially to apply to all professional negligence cases. This said, I agree with the majority that the affidavit requirement in NRS 41A.071 applies to the defendant professional corporation, nurse, and nurse practitioner in this case. In her complaint, Ms. Fierle alleges she was burned as a result of the negligent administration of the chemotherapeutic agent epirubicin, injected by a nurse trained and supervised by Dr. Perez. This drug could not have been administered except by or under the supervision of a physician. NRS 630.369(1)(c).3 While the services may not have been personally provided by a physician but rather by a nurse acting
2 Other medical malpractice-specific statutes that were unchanged by the 2004 amendments to NRS Chapter 41A include NRS 41A.061 (time to trial), NRS 41A.081 (mandatory settlement conferences), and NRS 41A.085 (settlement). 3 Entitled [i]njecting patient with certain chemotherapeutic agents, NRS 630.369 was added to the NRS in 2007. This statute provides that [a] person, other than a physician, shall not inject a patient with any chemotherapeutic agent classified as a prescription drug unless: (a) The person is licensed or certified to perform medical services pursuant to this title [54]; (b) The administration of the injection is within the scope of the persons license or certificate; and (c) The person administers the injection under the supervision of a physician. NRS 630.369(1). Although enacted after Ms. Fierles treatment, this statute appears to declare professional standards, not to impose new ones, and thus may be fairly consulted, certainly at the pleading stage.

744

Fierle v. Perez

[125 Nev.

under a physicians supervision, the statute defining medical malpractice, NRS 41A.009, speaks in terms of the failure of a physician, . . . in rendering services, to use . . . reasonable care, skill or knowledge, (emphasis added), focusing on the nature of the services rendered and their relationship to a physician, not the agent or agents who may physically assist the physician in rendering service. Since the injection Ms. Fierle received bears a substantial relationship to the rendition of medical treatment by a licensed physician, Dr. Perez, I would hold that this action qualifies as an action for medical malpractice, to which NRS 41A.071s affidavit requirement applies, even as to his entity and assisting nurse. Other courts, confronted with similar statutes, have so held, and I would follow their lead here, avoiding the expansive statutory interpretation the majority pursues. See Potter v. McLeary, 774 N.W.2d 1 (Mich. 2009) (applying affidavit-of-merit requirement to physicians corporate entity as well as physician); Gunter v. Laboratory Corp. of America, 121 S.W.3d 636, 640 (Tenn. 2003) (noting that the medical malpractice statute may extend to acts of non-physicians such as nurses, when they are involved in the medical treatment of a patient), discussed in Ward v. Glover, 206 S.W.3d 17, 25-27 (Tenn. Ct. App. 2006) (noting that the test for whether the medical malpractice statute applies is whether the allegations describe conduct which constitutes or bears a substantial relationship to the rendition of medical treatment by a medical professional (internal quotation omitted)); cf. Bleiler v. Bodnar, 479 N.E.2d 230, 234 (N.Y. 1985) (noting that nurses provide sophisticated medical care and that, while not every negligent act of a nurse would be medical malpractice, . . . a negligent act or omission by a nurse that constitutes medical treatment or bears a substantial relationship to the rendition of medical treatment by a licensed physician constitutes malpractice). Res ipsa loquitur Negligence by a nurse performing services ultimately under a physicians supervision or control is a classic example of a situation in which both the actor (the nurse) and another with a legal duty to the patient (the physician) can be subject to res ipsa loquitur: A undergoes an operation. B, the surgeon performing the operation, leaves it to C, a nurse, to count the sponges used in the course of it. B is under a legal duty to A to exercise reasonable care to supervise the conduct of C in this task. After the operation a sponge is left in [A]s abdomen. It can be inferred [by application of res ipsa loquitur] that this is due to the negligence of both B and C. Restatement (Second) of Torts 328D cmt. g, illus. 9 (1965). These are almost Szydels facts, and the rule of law they illustrate requires

Nov. 2009]

Fierle v. Perez

745

reversal as to both the doctor and the nurse, if Syzdel applies. Since the injection of the prescription-only chemotherapeutic agent necessarily occurred under the physicians supervision, NRS 630.369, remand as to the nurse requires remand as to both the physician and the nurse under traditional res ipsa doctrine. Compare S. Speiser, 2 Res Ipsa Loquitur 24:6, at 211 (1972) (noting that the presence of multiple defendants in a medical malpractice action does not, of itself, render the doctrine of res ipsa loquitur inapplicable), with Restatement (Second) of Torts 328D cmt. g (noting that [t]he essential question in determining whether the res ipsa doctrine applies against multiple defendants is whether the probable cause is one which the defendant was under a duty to the plaintiff to anticipate or guard against). The dissent in Szydel, 121 Nev. 453, 117 P.3d 200, and a plain reading of NRS 41A.071 and NRS 41A.100, persuade me that NRS 41A.071s affidavit requirement should apply to all medical malpractice actions, without regard to whether one of the res ipsa loquitur exceptions in NRS 41A.100(1) might ultimately apply at trial. However, Szydels interpretation of the relationship between NRS 41A.071 and NRS 41A.100 is on the books, and the Fierles relied on it in this case, making it unfair to change the rules midgame. But even though Szydel dispenses with NRS 41A.071s initial affidavit requirement as to the Fierles allegations of an unintended chemical burn, the decision does not relieve the Fierles of their burden to qualify their burn claims legally and factually under NRS 41A.100(1)(c). Szydel, 121 Nev. at 460 n.32, 117 P.3d at 205 n.32; Restatement (Second) of Torts 328D cmt. g (noting that in multiple defendant res ipsa cases the plaintiff must demonstrate that the defendant is responsible for all reasonably probable causes to which the event can be attributed). Given that the negligence may have been that of the surgeon who inserted Ms. Fierles port, or some other person or agency, that burden may well prove unsustainable and certainly will require expert proof to substantiate. These problems will require resolution on remand and illustrate the difficulties with Szydel that may ultimately require its legislative or judicial limitation.

746

John v. Douglas County School District

[125 Nev.

GREG JOHN, APPELLANT, v. DOUGLAS COUNTY SCHOOL DISTRICT, A POLITICAL SUBDIVISION OF THE STATE OF NEVADA; TOM MORGAN, AN INDIVIDUAL; KATHERINE MILNER, AN INDIVIDUAL; GARY DIEDRICH, AN INDIVID UAL; AND MARTY SWISHER, AN INDIVIDUAL, RESPONDENTS.
No. 48101 November 25, 2009 219 P.3d 1276

Appeal from a district court order granting a special motion to dismiss, under NRS 41.660, Nevadas anti-SLAPP statute, in an employment matter. Ninth Judicial District Court, Douglas County; David R. Gamble, Judge. School district employee brought action against district, alleging that, in disciplining and subsequently firing him, district had discriminated against him in violation of Title VII and the Americans with Disabilities Act (ADA), and alleging a 1983 claim for alleged violation of his First Amendment rights. The district court granted districts special motion to dismiss pursuant to anti-Strategic Lawsuits Against Public Participation (anti-SLAPP) statute. Employee appealed. The supreme court, GIBBONS, J., held that: (1) federal law did not preempt anti-SLAPP statute, and (2) claims were subject to special dismissal under statute. Affirmed. Jeffrey A. Dickerson, Reno, for Appellant. Erickson Thorpe & Swainston, Ltd., and Ann M. Alexander and Rebecca Bruch, Reno, for Respondents.
1. PLEADING. A lawsuit subject to a special motion to dismiss pursuant to the antiStrategic Lawsuits Against Public Participation (anti-SLAPP) statute is characterized as a meritless suit filed primarily to chill the defendants exercise of First Amendment rights. U.S. CONST. amend. 1; NRS 41.660. 2. PLEADING. The hallmark of a lawsuit subject to a special motion to dismiss pursuant to the anti-Strategic Lawsuits Against Public Participation (antiSLAPP) statute is that the lawsuit is filed to obtain a financial advantage over ones adversary by increasing litigation costs until the adversarys case is weakened or abandoned. NRS 41.660. 3. PLEADING; TORTS. The purpose of the anti-Strategic Lawsuits Against Public Participation (anti-SLAPP) statute is similar to the purpose behind the Noerr-Pennington immunity doctrine, under which those who petition all departments of the government for redress are generally immune from liability. U.S. CONST. amend. 1; NRS 41.660. 4. CONSTITUTIONAL LAW. The basis of Noerr-Pennington immunity doctrine is that representative democracy demands that citizens and public officials have the ability to

Nov. 2009]

John v. Douglas County School District

747

5. 6.

7.

8.

9.

10.

11.

12.

openly engage in discussions of public concern; as a result, the private or public petitioning of governmental entities is insufficient to violate federal substantive rights. U.S. CONST. amend. 1. CONSTITUTIONAL LAW. Noerr-Pennington immunity does not apply to sham cases where a person abuses the government process in order to achieve some benefit. PLEADING; TORTS. Anti-Strategic Lawsuits Against Public Participation (anti-SLAPP) statute is not an absolute bar against federal substantive claims; rather, it bars claims from persons who seek to abuse other citizens rights to petition their government, and it allows meritorious claims against citizens who do not petition the government in good faith. U.S. CONST. amend. 1; NRS 41.660. APPEAL AND ERROR. The supreme court reviews de novo a district courts order granting a special motion to dismiss pursuant to the anti-Strategic Lawsuits Against Public Participation (anti-SLAPP) statute. NRS 41.660. PLEADING. Nonmoving party cannot overcome a special motion to dismiss pursuant to the anti-Strategic Lawsuits Against Public Participation (antiSLAPP) statute on the basis of whimsy, speculation, and conjecture; instead, the nonmoving party must provide more than general allegations and conclusions, and must submit specific factual evidence demonstrating the existence of a genuine factual issue. NRS 41.660. PLEADING. When a party moves to dismiss under the anti-Strategic Lawsuits Against Public Participation (anti-SLAPP) statute, it bears the initial burden of production and persuasion; this means the moving party must first make a threshold showing that the lawsuit is based on good faith communications made in furtherance of the right to petition the government. U.S. CONST. amend. 1; NRS 41.650. PLEADING. If a party filing a special motion to dismiss pursuant to the antiStrategic Lawsuits Against Public Participation (anti-SLAPP) statute satisfies the threshold showing that the challenged lawsuit is based on good faith communications made in furtherance of the right to petition the government, then the burden of production shifts to the nonmoving party, who must demonstrate a genuine issue of material fact. U.S. CONST. amend. 1; NRS 41.650. PLEADING. A grant of a special motion to dismiss, pursuant to the anti-Strategic Lawsuits Against Public Participation (anti-SLAPP) statute, operates as an adjudication on the merits. NRS 41.660. PLEADING; STATES. Anti-Strategic Lawsuits Against Public Participation (anti-SLAPP) statute was not a state sovereign immunity statute, and thus anti-SLAPP statute was not preempted by federal law as to school district employees 1983 and other federal claims against school district pursuant to holding of Felder v. Casey, 487 U.S. 131, 139 (1988), preempting state sovereign immunity laws as to government conduct otherwise subject to suit under 1983; unlike sovereign immunity laws, anti-SLAPP statute was not an absolute bar to liability, but permitted cases to proceed to discovery and trial after a nonmoving party made an initial demonstration of merit. 42 U.S.C. 1983; NRS 41.660.

748

John v. Douglas County School District

[125 Nev.

13. STATES. Whether a state statute is neutral and procedural is an important consideration in determining whether federal law preempts the state statute, because a state courts determination that it lacks jurisdiction over a federal claim due to a neutral and procedural statute should only be overturned with great caution. 14. PLEADING; STATES. Anti-Strategic Lawsuits Against Public Participation (anti-SLAPP) statute was neutral and procedural and did not undermine any important, substantive federal interests, and thus statute was not preempted by federal law, so as to preclude its application to allow dismissal of school district employees 1983, Title VII, and Americans with Disabilities Act (ADA) claims against school district; statute provided a pretrial mechanism for filtering frivolous claims, did not create a substantive cause of action or defense, and applied to both state and federal substantive claims raised by either a plaintiffs complaint or a defendants counterclaim. U.S. CONST. art. 6, cl. 2; 42 U.S.C. 1983; 42 U.S.C. 12101 et seq.; 42 U.S.C. 2000e et seq.; NRS 41.660. 15. COURTS. As courts of general jurisdiction, Nevada district courts have the authority to decide federal claims. 16. STATES. The Supremacy Clause charges state courts with a coordinate responsibility to enforce federal law according to their regular modes of procedure. U.S. CONST. art. 6, cl. 2. 17. STATES. Although the Supremacy Clause requires state courts to treat federal substantive law as the law of the land, the clause does not require state courts to apply federal procedural rules; federal law takes the state courts as it finds them. U.S. CONST. art. 6, cl. 2. 18. CIVIL RIGHTS. School district employees general allegations that district, by disciplining and firing him, had discriminated against him on the basis of his Protestant religion were insufficient to support his Title VII claims against district, after district presented evidence that it had not been aware of employees religion at time it took adverse employment action against him. 42 U.S.C. 2000e et seq. 19. CIVIL RIGHTS. School district security employee failed to document his alleged disability of alcoholism or show that he had sought accommodation for alcoholism, as required to support his claim that school district violated Americans with Disabilities Act (ADA) by disciplining him and firing him for, among other things, obtaining confidential student disciplinary records. 42 U.S.C. 12101 et seq. 20. CONSTITUTIONAL LAW; SCHOOLS. School district security employees objection to districts removal of his video surveillance duties was not protected speech under the First Amendment, as required to support employees 1983 claim against district arising from districts taking disciplinary employment action against employee for abusing districts video equipment by taping special education students, sexually narrating the taping, and showing it to others. U.S. CONST. amend. 1; 42 U.S.C. 1983. 21. PLEADING. School district security employees 1983, Title VII, and Americans with Disabilities Act (ADA) claims against school district arose from truth-

Nov. 2009]

John v. Douglas County School District

749

ful communications that were of reasonable concern to district, and thus claims were subject to dismissal pursuant to anti-Strategic Lawsuits Against Public Participation (anti-SLAPP) statute; claims arose from districts firing employee as a result of truthful complaints about employees inappropriate use of video equipment, offensive sexual and racial comments, sexual harassment, and wrongful obtaining of student discipline records. 42 U.S.C. 1983; 42 U.S.C. 12101 et seq.; 42 U.S.C. 2000e et seq.; NRS 41.637, 41.660. 22. APPEAL AND ERROR. Statutory construction is a question of law that the supreme court reviews de novo. 23. STATUTES. When interpreting a statute, supreme court looks to the plain statutory language and gives effect to the Legislatures intent.

Before the Court EN BANC. OPINION By the Court, GIBBONS, J.: This case arises out of an employment discrimination lawsuit. Appellant Greg John was a security officer for the Douglas County School District (DCSD). Other staff members of the school district alleged that John engaged in both unprofessional conduct and sexual harassment. Following the school districts investigation, John was suspended. John appealed the suspension under the collective bargaining agreement between the school district and his union, but the suspension was upheld. Later, John filed an Equal Employment Opportunity Commission (EEOC) complaint against the school district, but the EEOC did not find any violations. After the EEOC dismissed Johns complaint, he filed an employment discrimination lawsuit in Nevada district court against the school district and various officials alleging both federal and state causes of action. Approximately one year later, the school district discovered that John had improperly obtained confidential student records, and he failed to cooperate with the schools investigation into that conduct. After the investigation concluded, the school district fired John because of the information obtained during the records investigation and Johns previous misconduct. Following Johns termination, the school district filed a special motion to dismiss under Nevadas anti-Strategic Lawsuits Against Public Participation (anti-SLAPP) statute. The district court granted the school districts motion, and John now appeals that order. There are two primary issues on appeal. The threshold issue is whether Nevadas anti-SLAPP statute applies to Johns federal causes of action raised in Nevada district court. Johns three federal causes of action include the following: (1) religious discrimination, (2) First Amendment violations, and (3) civil rights violations. We

750

John v. Douglas County School District

[125 Nev.

conclude that Nevadas anti-SLAPP statute does apply to these federal causes of action because it is a neutral and procedural statute that does not undermine any federal interests. Having concluded that Nevadas anti-SLAPP statute applies to Johns federal causes of action, the next issue we consider is whether the district court erred in dismissing Johns lawsuit under the statute. We conclude that the district court properly dismissed Johns lawsuit for two reasons. First, the school district made a threshold showing that the communications by school employees and the DCSD regarding Johns inappropriate behavior at work and the resulting investigations were protected under the anti-SLAPP statute, and this showing shifted the burden of production to John. Second, John failed to allege a genuine issue of material fact regarding the claims he filed based on the communications by school employees and the DCSD about the investigations into his conduct at work. As a result, the district court properly dismissed Johns lawsuit. RELEVANT PROCEDURAL HISTORY AND FACTS I. The DCSDs investigations John began working as a security officer for the DCSD in 1989. In 2003, a fellow security officer resigned due to Johns unprofessional behavior. During his exit interview, the security officer stated that John engaged in various forms of unprofessional conduct, including egregious racial and sexual remarks about students and other staff members. John also videotaped special education students, made sexually explicit narrations regarding the students, and then showed the video to others. In addition, a fellow DCSD employee accused John of sexual harassment. After an investigation into the allegations, John received a letter of discipline from the DCSD, which warned that further unprofessional conduct would result in his termination. At the same time, John received a two-week suspension without pay, mandatory sexual misconduct training, and mandatory anger management counseling. The DCSD also prohibited John from using the video surveillance equipment. John filed a grievance with his union, but the discipline was upheld at all three levels of the unions grievance process. John then filed a claim with the EEOC, but the commission concluded that there was no violation. In 2005, John obtained confidential student disciplinary records, and he failed to cooperate with the school districts subsequent investigation into the matter. As a result, the DCSD suspended John until the conclusion of the investigation. Upon conclusion of the investigation, the DCSD fired John due to the information obtained during the records investigation and Johns previous misconduct.

Nov. 2009]

John v. Douglas County School District

751

II. The federal employment lawsuit in Nevada district court In 2004, prior to his termination but after exhausting the EEOCs administrative process, John filed a lawsuit against the DCSD alleging the following: (1) the DCSD engaged in religious discrimination against John, a Protestant, under Title VII; (2) John has a disability under the Americans with Disabilities Act (ADA), which the school district violated; (3) the DCSD violated Johns right to free speech, under 42 U.S.C. 1983, when it retaliated against him for his protesting the removal of his video surveillance duties; and (4) various DCSD officials made false and defamatory statements about John without privilege or justification. In the lawsuit, John also named private individuals working for the DCSD as defendants because they provided information to the DCSD during its investigations of John. For instance, John named a teachers aid as a defendant because she reported during a DCSD investigation that John had sexually harassed her. John also named the vice principal of Douglas High School as a defendant, alleging that the vice principal discriminated against John based on his Protestant religion by assisting in the DCSDs investigations. Finally, John named a former DCSD security officer as a defendant after the security officer reported to the DCSD during an exit interview that John engaged in various forms of unprofessional conduct, including egregious racial and sexual remarks about students and other staff members. After John filed the lawsuit, the DCSD filed a motion to dismiss, alleging that the collective bargaining agreement between the school district and Johns union barred his claims. The district court dismissed Johns state-based defamation claim but denied the motion with respect to the federal Title VII, ADA, and 1983 claims. After Johns termination, he amended his complaint to include the DCSD officer who fired him, and to include a fifth count: that the DCSD wrongfully terminated him. In response, the DCSD filed a special motion to dismiss under Nevadas anti-SLAPP statute, NRS 41.660. The school district asserted that the school officials actions related to the investigations of John constituted protected conduct under the statute, and the communications between school officials and the DCSD in furtherance of these investigations were privileged and truthful. The district court granted the DCSDs special motion to dismiss, finding that the DCSDs actions were protected activity under the anti-SLAPP statute, and that John failed to provide sufficient evidence to demonstrate a probability of success regarding his claims. Specifically, the district court found that Johns supplemental declaration provided insufficient evidence to set forth a genuine issue of material fact. John now appeals the district courts order granting the DCSDs special motion to dismiss under Nevadas antiSLAPP statute.

752

John v. Douglas County School District

[125 Nev.

DISCUSSION We first explain the purpose of Nevadas anti-SLAPP statute and the standard of review. Afterwards, we analyze and conclude that Nevadas anti-SLAPP statute applies to Johns federal claims, and therefore, the district court properly dismissed his lawsuit. I. Nevadas anti-SLAPP statute
[Headnotes 1, 2]

A SLAPP lawsuit is characterized as a meritless suit filed primarily to chill the defendants exercise of First Amendment rights. Dickens v. Provident Life and Acc. Ins. Co., 11 Cal. Rptr. 3d 877, 882 (Ct. App. 2004) (quoting Wilcox v. Superior Court (Peters), 33 Cal. Rptr. 2d 446, 449 n.2 (Ct. App. 1994), abrogated on other grounds by Equilon Enterprises v. Consumer Cause, Inc., 52 P.3d 685, 694 n.5 (Cal. 2002)). The hallmark of a SLAPP lawsuit is that it is filed to obtain a financial advantage over ones adversary by increasing litigation costs until the adversarys case is weakened or abandoned. U.S. Ex Rel. Newsham v. Lockheed Missiles, 190 F.3d 963, 970 (9th Cir. 1999). For instance, the California Court of Appeal in Dickens affirmed a trial courts grant of an anti-SLAPP motion striking a malicious prosecution count from a complaint. 11 Cal. Rptr. 3d at 877-78. The Dickens case arose when the plaintiff sued an insurance company and an insurance investigator alleging they initiated an improper prosecution of the plaintiff by the federal government for insurance fraud. Id. at 878. When affirming the district courts order, the court reasoned that the defendants communications in preparation for a government investigation were in furtherance of their constitutional rights to free speech, and therefore, they were entitled to the benefits of Californias anti-SLAPP statute. Id. at 883, 885. Nevadas anti-SLAPP statute was enacted in 1993, shortly after California adopted its statute, and both statutes are similar in purpose and language. See NRS 41.660; Cal. Civ. Proc. Code 425.16 (West 2004 & Supp. 2009). NRS 41.660 defines the type of lawsuits subject to anti-SLAPP motions in Nevada. It says that when a plaintiff brings an action against a person based upon a good faith communication in furtherance of the right to petition, the defendant may bring a special motion to dismiss within 60 days of service of the complaint. NRS 41.660(1)-(2). When amending Nevadas anti-SLAPP statute in 1997, the Legislature explained that SLAPP lawsuits abuse the judicial process by chilling, intimidating, and punishing individuals for their involvement in public affairs. 1997 Nev. Stat., ch. 387, preamble, at 1364. The Legislature further reasoned that the number of SLAPP lawsuits in Nevada had increased, and therefore, implementation of an anti-SLAPP statute was essential to protect citizens constitutional rights. Id.

Nov. 2009]
[Headnotes 3-5]

John v. Douglas County School District

753

Further, the purpose of Nevadas anti-SLAPP statute is similar to the purpose behind the Noerr-Pennington immunity doctrine. See Eastern R. Conf. v. Noerr Motors, 365 U.S. 127 (1961); Mine Workers v. Pennington, 381 U.S. 657 (1965). According to this doctrine, those who petition all departments of the government for redress are generally immune from liability. Empress LLC v. City and County, 419 F.3d 1052, 1056 (9th Cir. 2005). The basis of this doctrine is that representative democracy demands that citizens and public officials have the ability to openly engage in discussions of public concern. Manistee Town Center v. City of Glendale, 227 F.3d 1090, 1093 (9th Cir. 2000). As a result, the private or public petitioning of governmental entities is insufficient to violate federal substantive rights. Id. In addition, Noerr-Pennington immunity does not apply to sham cases where a person abuses the government process in order to achieve some benefit. Boulware v. State of Nev., Dept. of Human Res., 960 F.2d 793, 797 (9th Cir. 1992).
[Headnote 6]

Similarly, Nevadas anti-SLAPP statute is predicated on protecting well-meaning citizens who petition [the] government and then find themselves hit with retaliatory suits known as SLAPP[ ] [suits]. Comments by State Senator on S.B. 405 Before the Senate, 67th Leg. (Nev., June 17, 1993). More importantly, the anti-SLAPP statute only protects citizens who petition the government from civil liability arising from good-faith communications to a government agency. NRS 41.637. Thus, Nevadas anti-SLAPP statute is not an absolute bar against federal substantive claims; rather, it bars claims from persons who seek to abuse other citizens rights to petition their government, and it allows meritorious claims against citizens who do not petition the government in good faith. II. Standard of review
[Headnote 7]

Pursuant to NRS 41.660(3)-(4), the district court shall treat the special motion to dismiss as a motion for summary judgment, and its granting the motion is an adjudication upon the merits. This court, therefore, reviews de novo the district courts order granting the anti-SLAPP motion. See Wood v. Safeway, Inc., 121 Nev. 724, 729, 121 P.3d 1026, 1029 (2005) (setting forth that a district courts order granting a summary judgment motion is reviewed de novo).
[Headnote 8]

Since the special motion to dismiss is procedurally treated as a summary judgment, the following standards apply. First, the district court can only grant the special motion to dismiss if there is no genuine issue of material fact and the moving party is entitled to a

754

John v. Douglas County School District

[125 Nev.

judgment as a matter of law. Id. (quoting NRCP 56(c)). Second, the nonmoving party cannot overcome the special motion to dismiss on the gossamer threads of whimsy, speculation and conjecture. Id. at 731, 121 P.3d at 1030 (quoting Pegasus v. Reno Newspapers, Inc., 118 Nev. 706, 713-14, 57 P.3d 82, 87 (2002)) (other internal quotations omitted). Instead, the nonmoving party must provide more than general allegations and conclusions; it must submit specific factual evidence demonstrating the existence of a genuine factual issue. Id. at 731, 121 P.3d at 1030-31 (quoting Pegasus, 118 Nev. at 713, 57 P.3d at 87).
[Headnotes 9-11]

Therefore, when a party moves for a special motion to dismiss under Nevadas anti-SLAPP statute, it bears the initial burden of production and persuasion. This means the moving party must first make a threshold showing that the lawsuit is based on good faith communication[s made] in furtherance of the right to petition the government. NRS 41.650; see Globetrotter Software v. Elan Computer Group, 63 F. Supp. 2d 1127, 1129 (N.D. Cal. 1999) (noting that [a] defendant filing an anti-SLAPP motion must make an initial prima facie showing that the plaintiffs suit arises from an act in furtherance of the defendants rights of petition or free speech). If the moving party satisfies this threshold showing, then the burden of production shifts to the nonmoving party, who must demonstrate a genuine issue of material fact. See Globetrotter, 63 F. Supp. 2d at 1129 (recognizing that under Californias anti-SLAPP statute, the nonmoving party must demonstrate a probability of prevailing on the merits). If the nonmoving party successfully meets its burden, then the case proceeds to discovery and, potentially, trial. Otherwise, the district court must dismiss the action, and that dismissal operates as an adjudication on the merits. NRCP 56(c); NRS 41.660(3)-(4). III. Nevadas anti-SLAPP statute applies to Johns federal claims because it is not a state sovereign-immunity statute nor does it undermine any federal interests John argues that the district court erred in applying Nevadas anti-SLAPP statute to his federal claims because immunity from federal civil rights statutes cannot arise from state sovereignimmunity law. In other words, John argues that federal law preempts the application of Nevadas anti-SLAPP statute to federal claims. We disagree because Nevadas anti-SLAPP statute differs from state sovereign-immunity statutes and does not undermine any federal interests. In this section, we first consider the difference between Nevadas anti-SLAPP statute and state sovereign-immunity statutes. We then consider whether application of Nevadas antiSLAPP statute to Johns federal claims undermines important federal interests.

Nov. 2009]

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755

A. Nevadas anti-SLAPP statute differs significantly from state sovereign-immunity statutes

[Headnote 12]

John relies on Ortega v. Reyna, 114 Nev. 55, 953 P.2d 18 (1998), abrogated by Martinez v. Maruszczak, 123 Nev. 433, 443-44 & n.28, 168 P.3d 720, 727 & n.28 (2007), for the assertion that Nevadas anti-SLAPP statute cannot apply to a federal substantive claim. Citing Ortega, 114 Nev. at 62 & n.5, 953 P.2d at 23 & n.5, he argues by analogy that because state sovereign-immunity laws cannot insulate the state from 42 U.S.C. 1983 claims, likewise Nevadas anti-SLAPP statute cannot insulate the school district from Johns discrimination claims. Johns reliance on Ortega, however, is misplaced. While it is true that state sovereign immunity is not a defense to a 1983 claim, there is a significant difference between state sovereign immunity and Nevadas anti-SLAPP statute. In Felder v. Casey, the United States Supreme Court stated that a state law that immunizes government conduct otherwise subject to suit under 1983 is preempted, even where the federal civil rights litigation takes place in state court, because the application of the state immunity law would thwart the congressional remedy. 487 U.S. 131, 139 (1988). Nevadas anti-SLAPP statute, however, is not an absolute bar to liability. Whereas immunity would bar all claims including meritorious claims, Nevadas anti-SLAPP statute differs as it permits cases to proceed to discovery and trial after a nonmoving party makes an initial demonstration of merit. See Globetrotter, 63 F. Supp. 2d at 1129. In other words, Nevadas anti-SLAPP statute filters unmeritorious claims in an effort to protect citizens from costly retaliatory lawsuits arising from their right to free speech under both the Nevada and Federal Constitutions. See Comments by State Senator on S.B. 405 Before the Senate, 67th Leg. (Nev., June 17, 1993). Thus, like the federal preemption of state sovereign immunity in 1983 cases, Nevadas anti-SLAPP statute seeks to promote and protect a citizens exercise of his or her constitutional rights. As a result, federal preemption under the immunity analysis does not prevent the application of Nevadas anti-SLAPP statute to Johns federal claims. B. The federal interest analysis
[Headnote 13]

We next analyze whether Nevadas anti-SLAPP statute undermines any important federal interests. The first issue in this section is whether Nevadas anti-SLAPP statute is neutral and procedural. This is an important consideration because a state courts determi-

756

John v. Douglas County School District

[125 Nev.

nation that it lacks jurisdiction over a federal claim due to a neutral and procedural statute should only be overturned with great caution. Howlett v. Rose, 496 U.S. 356, 372 (1990). The second issue we consider is whether Nevadas anti-SLAPP statute undermines any important federal interests. For this analysis, we discuss whether there is a genuine issue of material fact regarding any of Johns three federal claims. 1. Nevadas anti-SLAPP statute is neutral and procedural
[Headnote 14]

The DCSD argues that Nevadas anti-SLAPP statute is a neutral and procedural statute that does not obstruct federal substantive law. We agree.
[Headnotes 15, 16]

As courts of general jurisdiction, Nevada district courts have the authority to decide federal claims. Id. at 367. This authority arises from the federal Supremacy Clause, U.S. Const. art. VI, cl. 2., which charges state courts with a coordinate responsibility to enforce [federal] law according to their regular modes of procedure. Howlett, 496 U.S. at 367. In Howlett, the United States Supreme Court recognized three corollaries that arise from this concurrent jurisdiction, and the corollary relevant to this case is the following: When a state court refuses jurisdiction because of a neutral state rule regarding the administration of the courts, [the Supreme Court] must act with utmost caution before deciding that it is obligated to entertain the claim. Id. at 369, 372 (emphasis added).
[Headnote 17]

Although the Supremacy Clause requires state courts to treat federal substantive law as the law of the land, the clause does not require state courts to apply federal procedural rules. See Johnson v. Fankell, 520 U.S. 911, 919 (1997) (discussing state court authority to refuse jurisdiction over a federal claim based on a neutral procedural state court rule). [F]ederal law takes the state courts as it finds them. Id. (quoting Howlett, 496 U.S. at 372) (other internal quotations omitted). Therefore, Nevadas anti-SLAPP statute may apply to Johns federal claims if it is a neutral and procedural statute. When determining whether Nevadas anti-SLAPP statute falls within this category, we consider California caselaw because Californias anti-SLAPP statute is similar in purpose and language to Nevadas anti-SLAPP statute. See NRS 41.660; Cal. Civ. Proc. Code 425.16 (West 2004 & Supp. 2009). In Bradbury v. Superior Court (Spencer), the appellant raised an argument in a California Court of Appeal that was similar to Johns assertion that Nevadas anti-SLAPP statute does not apply to federal substantive claims. 57 Cal. Rptr. 2d 207, 213 (Ct. App. 1996). The

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John v. Douglas County School District

757

Bradbury appellant argued that Californias anti-SLAPP statute does not apply to federal civil rights claims. Id. The court rejected this argument, holding that [w]here the action is founded on a federal statute and brought in state court, state procedure controls unless the federal statute provides otherwise. Id. Thus, the appellate court applied Californias anti-SLAPP statute to the federal civil rights claim because it viewed the statutes provisions as procedural in nature. Id.; see generally Vergos v. McNeal, 53 Cal. Rptr. 3d 647 (Ct. App. 2007) (applying Californias anti-SLAPP statute to a federal civil rights action). Moreover, Californias anti-SLAPP statute allows a defendant to a SLAPP lawsuit to file a special motion to strike the lawsuit within 60 days of service of the complaint or in the courts discretion. Cal. Civ. Proc. Code 425.16(b)(1), (f) (West 2004 & Supp. 2009). Once the defendant proves that the anti-SLAPP statute applies, the burden of production shifts to the plaintiff to show that there is a probability that he or she will prevail on the claim. Id. In making its determination, the court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based. Cal. Civ. Proc. Code 425.16(b)(2). The district courts ruling on the motion is an adjudication on the merits. Cal. Civ. Proc. Code 425.16(i). Similarly, Nevadas anti-SLAPP statute allows the defendant to file a special motion to dismiss within 60 days of service of the complaint. NRS 41.660(1)-(2). The statute requires the district court to treat the special motion to dismiss as a motion for summary judgment, and its granting the motion is an adjudication upon the merits. NRS 41.660(3)-(4). Thus, once the defendant proves that Nevadas anti-SLAPP statute applies to the case, the burden of production shifts to the plaintiff to show that there is a genuine issue of material fact. A comparison of the two statutes illustrates that both statutes create a procedural requirement that the plaintiff must overcome if his claim is to proceed to discovery and trial. Essentially, both statutes treat the procedure as a form of summary judgment wherein both parties are allowed to present their evidence. NRS 41.660(3); Cal. Civ. Proc. Code 425.16(b)(1)-(3) (West 2004 & Supp. 2009). The burden of production is initially on the defendant who must demonstrate the applicability of the statute. See Globetrotter Software v. Elan Computer Group, 63 F. Supp. 2d 1127, 1129 (N.D. Cal. 1999). Once he meets his initial burden, the burden shifts to the plaintiff who must show that his claim has merit. See id. And at all times, the burden of persuasion is on the defendant. See NRS 41.660; Cal. Civ. Proc. Code 425.16(b)(1)-(3). In providing an additional pretrial mechanism for filtering frivolous claims from those claims having arguable merit, these statutes amount to a unique summary judgment motion, a motion that, if

758

John v. Douglas County School District

[125 Nev.

granted, is appealable. See Lee v. GNLV Corp., 116 Nev. 424, 428, 996 P.2d 416, 418 (2000) (concluding the district court order granting summary judgment was an appealable final judgment). Neither statute creates a substantive cause of action or defense. Instead, like rules of civil procedure, the statutes create a procedural mechanism to prevent wasteful and abusive litigation by requiring the plaintiff to make an initial showing of merit. Thus, Nevadas anti-SLAPP statute is procedural in nature. Cf. U.S. Ex Rel. Newsham v. Lockheed Missiles, 190 F.3d 963, 973 (9th Cir. 1999) (applying Californias antiSLAPP statute to pendent state law counterclaims and, while recognizing the state interest in deterring frivolous, retaliatory litigation as substantive to the extent of meriting application in federal court, characterizing the anti-SLAPP statute as a state procedural statute for purposes of its analysis). In addition, the statute is neutral in application. The statute applies to both state and federal substantive claims raised by either a plaintiffs complaint or a defendants counterclaim. Further, the statute only applies in those cases involving [g]ood faith communication in furtherance of the right to petition the government. NRS 41.637. Thus, the statute is neutral and limited in its application. See 17A James Wm. Moore, Moores Federal Practice 124.61 (3d ed. 2009) (stating that [s]tates may apply their own neutral procedural rules to federal claims, unless federal law preempts those rules because application of the state rules would defeat federal substantive rights). Consequently, we agree with the reasoning set forth in Bradbury and conclude that, based on the similarities between Nevadas antiSLAPP statute and Californias comparable statute, Nevadas antiSLAPP statute is a neutral and procedural statute. 2. Nevadas anti-SLAPP statute does not undermine any important, substantive federal interests Although Nevadas anti-SLAPP statute is neutral and procedural, it cannot be applied to federal claims under the Supremacy Clause if it defeats federal rights or frustrates [c]ongressionally-created substantive rights. 17A Moore, supra, 124.62. Here, John alleges three substantive claims, including: (1) religious discrimination, (2) violation of the ADA, and (3) civil rights violations against his free speech. However, he fails to identify how Nevadas anti-SLAPP statute would undermine or frustrate important federal rights. In Lockheed, the Ninth Circuit Court of Appeals recognized that both Californias anti-SLAPP statute and the Federal Rules of Civil Procedure serve similar purposes, namely the expeditious weeding out of meritless claims before trial. 190 F.3d at 972. In addition, the Ninth Circuit recognized that anti-SLAPP statutes protect a citizens right to petition his government without repercussion. Id. at 973. Given these two characteristics of anti-SLAPP statutes, in-

Nov. 2009]

John v. Douglas County School District

759

cluding Nevadas, and Johns failure to identify any undermined or frustrated federal interests, we conclude that Nevadas anti-SLAPP statute does not violate any important, substantive federal interests in this case.
[Headnote 18]

With regard to Johns religious discrimination claim, he alleged that the DCSD engaged in adverse employment actions against him due to his Protestant religion. At the hearing on the special motion to dismiss, the DCSD submitted evidence that it was not aware of Johns religious beliefs. In response, John failed to provide any evidence of religious discrimination other than his own general allegations in his pleadings.
[Headnote 19]

John also alleged that the school district had violated the ADA because his alcoholism constituted a disability under the Act and the school districts adverse employment actions violated the Act. While alcoholism is a disability under the ADA, John failed to provide any documentation supporting his claimed disability or adverse employment treatment. Brown v. Lucky Stores, Inc., 246 F.3d 1182, 1187 (9th Cir. 2001). Instead, the evidence shows that the DCSD terminated John for, among other things, his failure to cooperate with a school investigation after he obtained confidential student disciplinary records. Further, when responding to Johns EEOC complaint, the DCSD stated that it did not know of Johns alcoholism, and he never sought accommodation for any disability.
[Headnote 20]

Finally, John alleged civil rights violations against his freedom of speech. After the DCSD initially investigated Johns behavior, it found, among other things, that he had inappropriately used school surveillance equipment. In addition to a suspension, the DCSD also removed Johns access to video equipment, and John objected. At the hearing, John failed to rebut the DCSD argument that Garcetti v. Ceballos, 547 U.S. 410 (2006), precluded his First Amendment claim because his objections to the removal of his surveillance duties are not protected communications. In Garcetti, the United States Supreme Court held that when a public employee is not speaking as a citizen on a matter of public concern, then the employee has no First Amendment cause of action against the employer for its reaction to the speech. Id. at 418. Further, the Supreme Court held that [a] government entity has broader discretion to restrict speech when it acts in its role as employer, but the restrictions it imposes must be directed at speech that has some potential to affect the entitys operations. Id. Here, John was abusing the school districts video equipmentby taping special education students, sexually narrating the taping, and showing it to

760

John v. Douglas County School District

[125 Nev.

othersin a manner that could open the DCSD to liability. Further, the DCSD asserted that Johns use of the equipment was creating a hostile work environment, adversely affecting the school districts operations. In addition, the Ninth Circuit has also stated that First Amendment protection does not apply to public employees making statements pursuant to their official duties. Marable v. Nitchman, 511 F.3d 924, 929 (9th Cir. 2007). Thus, Johns disagreement with the school district over the removal of his video equipment duties is not protected speech. As a result, we conclude that Johns failure to rebut the DCSDs positions does not mean Nevadas anti-SLAPP statute undermined or frustrated any federal substantive claims. On the contrary, John could have proceeded with his federal substantive claims had he shown a genuine issue of material fact. In other words, Nevadas neutral and procedural anti-SLAPP statute neither undermines nor frustrates Johns federal substantive claims. As a result, Nevada district courts can apply the statute to cases involving similar SLAPP claims. We now discuss whether Nevadas anti-SLAPP statute can be used by private individuals or a government entity to dismiss a complaint when the private individuals or government entity claim that the communications for which they are being sued were truthful, made without knowledge of falsehood, or regard a matter of reasonable concern to the government entity. IV. Nevadas anti-SLAPP statute can be used by private individuals or a government entity to seek dismissal of a SLAPP complaint
[Headnote 21]

John argues that there is a genuine issue of material fact regarding whether the communication between the various school employees and the DCSD were good-faith communications made in furtherance of the right to free speech. Particularly, he argues that his supplemental declaration filed in opposition to the special motion to dismiss establishes that the communications were discriminatory and retaliatory and not made to a government agency. We disagree because Johns supplemental declaration did not set forth a genuine issue of material fact regarding whether the communications were discriminatory or retaliatory, and Nevadas anti-SLAPP statute applies to school districts.
[Headnotes 22, 23]

Statutory construction is a question of law that this court reviews de novo. Richardson Constr. v. Clark Cty. Sch. Dist., 123 Nev. 61, 64, 156 P.3d 21, 23 (2007). When interpreting a statute, this court

Nov. 2009]

John v. Douglas County School District

761

looks to the plain statutory language and gives effect to the Legislatures intent. Id. Looking at the plain language of Nevadas anti-SLAPP statute, there are three classes of petitions protected by the statute. The first two classes include any communication that is truthful or made without knowledge of falsehood and is made for the following reasons: (1) to procure government or electoral action or (2) to address a matter that reasonably concerns the petitioned governmental entity. NRS 41.637(1)-(2). The third protected class includes any written or oral statement that is truthful or made without knowledge of falsehood and directly addresses an issue before a legislative, executive or judicial body, or any other official proceeding authorized by law. NRS 41.637(3). The second class of protected petitions applies to all political subdivisions of Nevada as defined by NRS 41.0305, which includes school districts. NRS 41.637(2). Thus, Nevadas anti-SLAPP statute protects good-faith communications if those communications were truthful or made without knowledge of falsehood and regard a matter of reasonable concern to the school district. Id. Further, employers, like the DCSD, may receive the benefits of Nevadas anti-SLAPP statute based on the reasoning in Raining Data Corp. v. Barrenechea, 97 Cal. Rptr. 3d 196 (Ct. App. 2009). The Raining Data case arose after an employer, Raining Data, brought an action against its former employee for misappropriation of trade secrets. Id. at 198. The former employee responded by filing a cross-complaint against Raining Data alleging claims arising from the employers filing of the complaint and communicating with customers and prospective customers. Id. at 198, 200. After the former employee filed his cross-complaint, Raining Data filed a motion to strike the entire cross-complaint under Californias antiSLAPP statute. Id. at 198. The district court granted Raining Datas motion, and the California Court of Appeal affirmed, reasoning that Raining Data made a threshold showing that the former employees claims arose from a protected activity but the former employee failed to show a probability of success on the merits. Id. at 202-03. We agree with the reasoning set forth in Raining Data and conclude that the DCSD may receive the benefits of Nevadas anti-SLAPP statute if it shows that Johns claims arose from protected activity, and John fails to show a genuine issue of material fact. A. The communications were truthful or made without knowledge of falsehood Here, the DCSD provided the following evidence to support its position that the communications were in furtherance of its right to free speech: (1) exit interview documents, (2) Johns training and counseling documents, (3) Johns letter of discipline, (4) the Douglas

762

John v. Douglas County School District

[125 Nev.

High principals responsive memorandum regarding Johns EEOC complaint, (5) EAP records regarding Johns counseling, (6) the DCSDs response to Johns EEOC complaint, and (7) the EEOCs finding of a lack of information to establish any violations. Further, the school district provided written evidence that it was unaware of Johns religion and his alleged disability. All of these documents are communications to or by the school district in the context of various investigations. Thus, the DCSD provided enough information to shift the burden of production to John. John, however, has not provided any evidence that the communications were untruthful or made with knowledge of falsehood. John submitted a supplemental declaration in opposition to the DCSDs special motion to dismiss. However, the district court determined that this declaration was insufficient to establish a genuine issue of material fact because it merely disagreed in narrative form with the DCSDs credible evidence. We conclude that Johns declaration, although procedurally sufficient, failed to set forth specific facts demonstrating a genuine issue of material fact regarding whether the communications were untruthful or made with knowledge of their falsehood. NRCP 56(e); Wood v. Safeway, Inc., 121 Nev. 724, 731, 121 P.3d 1026, 1030-31 (2005). Moreover, the DCSDs subsequent investigations supported the veracity of the communications. A report from Ms. Ann Silver, an independent third party that held individual training sessions with John, stated that John acknowledged his unprofessional behavior as it applied to his inappropriate use of the video equipment, the offensiveness of his verbal comments, and the sexual harassment allegations. B. The communications were of reasonable concern to the school district John also failed to establish a genuine issue of material fact as it applied to the school districts concern over the matters communicated to it. The matters communicated to the DCSD were of reasonable concern to the district because they addressed the school environment as it applied to staff and students and they impacted the school districts potential legal liability. The DCSDs affidavits, interview documents, and disciplinary documents established that the written and oral statements against John were part of the school districts investigation into his conduct. Since John failed to provide any evidence in his supplemental declaration that the communications were not matters of reasonable concern to the school district, he failed to meet his burden of production. As a result, the district court correctly held that the anti-SLAPP statute applied to the communications, which were good-faith communications in furtherance of the right to free speech as defined by NRS 41.637.

Dec. 2009]

Ouanbengboune v. State

763

CONCLUSION We conclude that Nevadas anti-SLAPP statute does apply to Johns federal causes of action because it is a neutral and procedural statute that does not undermine any federal interests. We further conclude that the district court properly dismissed Johns lawsuit because the school district made a threshold showing that the relevant communications were protected under the anti-SLAPP statute, and John failed to establish a genuine issue of material fact regarding the relevant communications. Thus, we affirm the district courts dismissal of Johns complaint. HARDESTY, C.J., PARRAGUIRRE, DOUGLAS, CHERRY, SAITTA, and PICKERING, JJ., concur.

V ANNASONE OUANBENGBOUNE, AKA V ANNASONE QUAN BENGBOUNE, APPELLANT, v. THE STATE OF NEV ADA, RESPONDENT.
No. 44763 December 3, 2009 220 P.3d 1122

Appeal from a judgment of conviction, pursuant to a jury verdict, of first-degree murder with the use of a deadly weapon and robbery with the use of a deadly weapon. Eighth Judicial District Court, Clark County; Jackie Glass, Judge. The supreme court, HARDESTY, C.J., held that: (1) courtappointed interpreters errors in translating non-English-speaking defendants testimony fundamentally altered context of defendants testimony, (2) court-appointed interpreters errors in translating nonEnglish-speaking defendants testimony did not prejudice defendant, (3) defendant was entitled to afterthought robbery instruction relative to felony-murder charge, (4) defendants failure to object to trial courts failure to administer afterthought robbery instruction rendered the issue subject to review for plain error, and (5) trial courts failure to administer afterthought robbery instruction was not plain error. Affirmed. [Rehearing denied March 9, 2010] [En banc reconsideration denied July 20, 2010] Philip J. Kohn, Public Defender, and Sharon G. Dickinson, Deputy Public Defender, Las Vegas, for Appellant.

764

Ouanbengboune v. State

[125 Nev.

Catherine Cortez Masto, Attorney General, Carson City; David J. Roger, District Attorney, Steven S. Owens, Chief Deputy District Attorney, and Christopher J. Owens, Deputy District Attorney, Clark County, for Respondent.
1. CRIMINAL LAW; WITNESSES. Court-appointed interpreters errors in translating non-English-speaking defendants testimony describing the firing and cocking mechanisms of alleged murder weapon fundamentally altered the context of defendants testimony describing what was necessary for defendant to fire successive shots, which went to premeditation, thus requiring determination of whether such fundamentally altered testimony prejudiced defendant as to necessitate new trial on first-degree murder charge. 2. CRIMINAL LAW. Court-appointed interpreters erroneous translations of non-Englishspeaking defendants testimony, which fundamentally altered defendants description of alleged murder weapons firing mechanism and, specifically, what actions were necessary for defendant to cock and fire weapon, which went to premeditation, did not prejudice defendant, and thus, new trial was not warranted on charge of first-degree murder; even if court-appointed interpreter had correctly translated defendants testimony that he did not recock gun, defendants explanation would have been contradictory and perhaps impossible given expert testimony regarding guns design. 3. CONSTITUTIONAL LAW. Criminal defendants who do not understand the English language have a due process right to an interpreter at all crucial stages of the criminal process. U.S. CONST. amend. 14. 4. CRIMINAL LAW. When the supreme court reviews the translation of testimony of a nonEnglish-speaking witness, it considers whether the translation was adequate and accurate in its entirety. 5. CRIMINAL LAW. While interpreters are not required to perform word-for-word interpretations, errors that fundamentally alter the defendants statements or the context of the statements will render the interpretation inadequate. 6. CRIMINAL LAW. A non-English-speaking defendant who discovers interpreter inaccuracies in the translation of trial testimony may file a post-trial motion to challenge the alleged inaccuracies made by the court-appointed interpreter; if there is a challenge to the interpreters translation of the trial testimony, the challenging party should either move for a new trial, if the translation inaccuracies are discovered within the applicable time frame or, in the alternative, move to modify or correct the trial record on appeal. NRS 176.515; NRAP 10(c). 7. CRIMINAL LAW. Absent a contemporaneous objection at trial, courts are less likely to find that inaccuracies in the translation of trial testimony rendered a defendants trial fundamentally unfair. 8. CRIMINAL LAW. As first of three steps involved on a non-English-speaking defendants motion for new trial based on alleged inaccuracies of translated trial testimony, each party should have its own interpreter review the translated testimony for discrepancies; if discrepancies exist, the party seeking a new trial has the burden of demonstrating the inaccuracy of the translated testimony and that it fundamentally altered the substance of the actual testimony. NRS 176.515.

Dec. 2009]

Ouanbengboune v. State

765

9. CRIMINAL LAW. As second of three steps involved on a non-English-speaking defendants motion for new trial based on alleged inaccuracies of translated trial testimony, the district court should appoint an independent and, if available, certified court interpreter to review the translations; to determine whether the moving party has met its burden of demonstrating the inaccuracy of the translated testimony, the district court must consider the disputed versions of the testimony to determine whether the alleged inaccuracies or omissions fundamentally altered the context of the testimony and whether the inaccuracies prejudiced the defendant such that a new trial is warranted. NRS 176.515. 10. CRIMINAL LAW. As final step involved on a non-English-speaking defendants motion for new trial based on alleged inaccuracies of translated trial testimony, the district court should preserve copies of translations for the record on appeal. NRS 176.515. 11. CRIMINAL LAW. As first of five steps involved when a non-English-speaking defendant discovers translation inaccuracies relative to trial testimony during pendency of appeal from judgment of conviction, the defendant should move to amend or correct the trial record. NRAP 10(c). 12. CRIMINAL LAW. As second of five steps involved when a non-English-speaking defendant discovers translation inaccuracies relative to trial testimony during pendency of appeal from judgment of conviction, each party should have its own interpreter review the translated testimony for discrepancies. 13. CRIMINAL LAW. As third of five steps involved when a non-English-speaking defendant discovers translation inaccuracies relative to trial testimony during pendency of appeal from judgment of conviction, where possible, the parties should determine and stipulate to the translation that is more accurate. 14. CRIMINAL LAW. As fourth of five steps involved when a non-English-speaking defendant discovers translation inaccuracies relative to trial testimony during pendency of appeal from judgment of conviction, in the event that the parties are unable to stipulate to an accurate translation, the district court should appoint an independent and, if available, certified court interpreter to review the translations, make findings and determine which translation accurately reflects the testimony at trial, and certify that translation as part of the record for review. NRAP 10(c). 15. CRIMINAL LAW. As final step involved when a non-English-speaking defendant discovers translation inaccuracies relative to trial testimony during pendency of appeal from judgment of conviction, the district court should preserve copies of prepared translations for the record on appeal. 16. HOMICIDE. Defendant was entitled to afterthought robbery instruction relative to felony-murder charge, where evidence showed that, after pointing the handgun at other patrons and telling them to go inside the lounge, defendant shot victim a second time, and only then took victims car keys and drove her car from the scene. 17. CRIMINAL LAW. Defendants failure to object to trial courts failure to administer afterthought robbery instruction relative to felony-murder charge rendered the issue subject to review for plain error on appeal.

766

Ouanbengboune v. State

[125 Nev.

18. CRIMINAL LAW. Trial courts failure to administer afterthought robbery instruction relative to felony-murder charge did not adversely affect defendants substantial rights and thus was not plain error; overwhelming evidence showed that victims murder was perpetrated by a willful, deliberate, and premeditated killing such that defendant was, beyond reasonable doubt, guilty of first-degree murder. 19. CRIMINAL LAW. The supreme court reviews a district courts decision to issue or not to issue a particular jury instruction for an abuse of discretion. 20. CRIMINAL LAW. The defendant in a criminal proceeding is entitled to have the jury instructed on his theory of the case if it finds support in the evidence. 21. HOMICIDE. The failure to instruct the jury on afterthought robbery relative to felony-murder charge amounts to judicial error. 22. CRIMINAL LAW. Under plain error review, the error must be clear from the record and adversely affect a partys substantial rights. 23. HOMICIDE. Afterthought robbery, when the accused kills a person and only later forms the intent to rob that person, cannot serve as a predicate for felony murder. 24. CRIMINAL LAW. The failure to instruct the jury on afterthought robbery is not prejudicial where there is sufficient evidence of the defendants actions during and immediately after the killing, and where, clearly, beyond a reasonable doubt, the jury would have convicted the defendant of first-degree murder if it had been properly instructed.

Before HARDESTY, C.J., PARRAGUIRRE and DOUGLAS, JJ. OPINION By the Court, HARDESTY, C.J.: In this appeal, we consider two issues. First, we review the circumstances under which inaccurate translations made during trial by a court-appointed interpreter warrant a new trial when such inaccuracies are discovered post-judgment. In doing so, we examine the procedures that should be employed to determine whether postjudgment discovery of inaccuracies made by a court-appointed interpreter fundamentally altered the context of the trial testimony, and whether the inaccuracies prejudiced the defendant such that a new trial is warranted. We therefore adopt procedures similar to the ones we adopted in Baltazar-Monterrosa v. State, 122 Nev. 606, 616-17, 137 P.3d 1137, 1144 (2006), to resolve claims of interpreter errors discovered post-judgment. On appeal, Vannasone Sonny Ouanbengboune (Sonny) hired an independent interpreter to compare a tape-recording of his trial testimony to the transcript of the translated testimony. Based upon that

Dec. 2009]

Ouanbengboune v. State

767

review, Sonny argues that his constitutional rights were violated because he was convicted based upon the court-appointed interpreters improper translation of his testimony. We disagree. After considering the disputed versions of Sonnys testimony, we conclude that although certain inaccuracies did fundamentally alter the context of Sonnys testimony, these inaccuracies did not prejudice Sonny such that a new trial is warranted. Second, we consider whether the district courts failure to instruct the jury on afterthought robbery amounts to reversible error. We conclude that the district court erred when it failed to instruct the jury on afterthought robbery but that error does not rise to the level of plain error as the error did not affect Sonnys substantial rights. We therefore affirm the district courts judgment of conviction. FACTS Sonny emigrated from Laos to the United States in 1980. Between 2001 and 2003, Sonny maintained a romantic relationship with Raynna Bunyou. Their relationship deteriorated, and on August 7, 2003, Sonny took a bus to a lounge in Las Vegas to confront Raynna about alleged lies she had told him. He brought a revolver with him and testified that it was his intent to commit suicide in front of Raynna to prove his love to her. An argument ensued outside the lounge. At some point during the argument, Sonny produced the revolver and shot Raynna in the leg whereupon she fell to the ground near his feet. When patrons inside the lounge came outside to view the scene, Sonny pointed the gun towards the patrons and ordered them to go back inside. Sonny then shot Raynna in the head. He testified at trial that he did not aim the gun at Raynnas head when he fired the second shot. After shooting Raynna the second time, Sonny drove Raynnas car from the scene. Subsequently, Sonny contacted his family members and traveled to Oklahoma City where he was ultimately arrested. Once in custody, Sonny gave a written statement to the FBI and allowed two Las Vegas Metropolitan Police officers to conduct a taperecorded interview. During trial, a court-appointed Laotian interpreter interpreted the proceedings for Sonny and interpreted Sonnys testimony for the jury. Although Sonny did not formally object at trial to specific interpreter errors made during trial, concerns about the adequacy of the translation were brought to the district courts attention during Sonnys testimony, and the interpreter was admonished during trial to properly translate the entire proceedings and everything the parties said. The jury found Sonny guilty of first-degree murder with the use of a deadly weapon and robbery with the use of a deadly weapon. After he was convicted, Sonny hired an independent interpreter to

768

Ouanbengboune v. State

[125 Nev.

compare a tape-recording of his trial testimony to the court transcription. He now appeals from the judgment of conviction. DISCUSSION Inaccuracies made during trial by court-appointed interpreter
[Headnotes 1, 2]

On appeal, Sonny argues that he was convicted after the courtappointed interpreter mistranslated his trial testimony.1 Sonny claims that the inaccuracies in translation materially altered his testimony and his right to a fair trial under the Due Process Clause of the Fourteenth Amendment. We disagree.
[Headnotes 3, 4]

In Nevada, criminal defendants who do not understand the English language have a due process right to an interpreter at all crucial stages of the criminal process. Ton v. State, 110 Nev. 970, 971, 878 P.2d 986, 987 (1994). When we review the translation of testimony, we consider whether the translation was adequate and accurate in its entirety. Baltazar-Monterrosa v. State, 122 Nev. 606, 614, 137 P.3d 1137, 1142 (2006). We have not previously considered under what standard the adequacy of an interpreters performance will be reviewed when translation errors are discovered postjudgment nor have we considered the prejudice that must be shown when fundamental translation errors have been discovered.
[Headnote 5]

In Baltazar-Monterrosa v. State, we declared the standard for judicial review of the admissibility of disputed translated statements made by a defendant to police. 122 Nev. at 616-17, 137 P.3d at 1144. We clarified in Baltazar-Monterrosa that while interpreters are not required to perform word-for-word interpretations, errors that fundamentally alter the defendants statements or the context of the
1 In addition, Sonny argues that (1) the district courts refusal to admit Sonnys written confession to FBI agents was manifest error and a violation of his Fifth Amendment rights; (2) the district court committed manifest error by admitting evidence of prior uncharged bad acts; (3) there was insufficient evidence to support the conviction; (4) he was deprived of due process at the penalty hearing; and (5) cumulative error exists, warranting reversal of Sonnys convictions. We have carefully reviewed each of these contentions and conclude that each of these arguments lacks merit. Furthermore, Sonny argues that the inaccuracies in translation violated his right to effective assistance of counsel. On direct appeal, this court does not address claims of ineffective assistance of counsel. See Archanian v. State, 122 Nev. 1019, 1036, 145 P.3d 1008, 1020-21 (2006) (This court has repeatedly declined to consider ineffective-assistance-of-counsel claims on direct appeal unless the district court has held an evidentiary hearing on the matter or an evidentiary hearing would be needless.)

Dec. 2009]

Ouanbengboune v. State

769

statements will render the interpretation inadequate. Id. at 614-17, 137 P.3d at 1142-44. We adopted a three-step procedure for courts and parties to follow when a defendant objects to the admissibility of translated statements, alleging inaccuracies in the translation. Id. at 609-10, 616-17, 137 P.3d at 1139, 1144.
[Headnotes 6, 7]

Today we adopt similar procedures that will allow a defendant who discovers interpreter inaccuracies in the translation of trial testimony to file a post-trial motion to challenge the alleged inaccuracies made by the court-appointed interpreter. If there is a challenge to the interpreters translation of the trial testimony, the challenging party should either move for a new trial under NRS 176.515 if the translation inaccuracies are discovered within the applicable time frame or, in the alternative, move to modify or correct the trial record on appeal pursuant to NRAP 10(c).2 Motion for new trial
[Headnotes 8-10]

If a motion for new trial is filed under NRS 176.515, the threestep procedure adopted in Baltazar-Monterrosa applies. First, each party should have its own interpreter review the translated testimony for discrepancies. Baltazar-Monterrosa, 122 Nev. at 616, 137 P.3d at 1144. If discrepancies exist, [t]he party seeking [a new trial] has the burden of demonstrating the inaccuracy of the statements and that it fundamentally alters the substance of the [testimony]. Id. (emphases added). Second, the district court should appoint an independent and, if available, certified court interpreter to review the translations. Id. To determine whether the moving party has met its burden, the district court must consider the disputed versions of [the testimony] to determine whether alleged inaccuracies or omissions fundamentally alter the context of the [testimony], id. at 616-17, 137 P.3d at 1144, and whether the inaccuracies prejudiced the defendant such that a new trial is warranted. U.S. v. Gomez, 908 F.2d 809, 811 (11th Cir. 1990) (affirming the defendants conviction despite some resulting prejudice from interpreter error because the evidence against the [defendant] was, in all other respects, overwhelming). Third, the district court should preserve a copy of each
2 We note that if translation errors are discovered during trial, the defendant should not wait to object. Absent a contemporaneous objection at trial, courts are less likely to find that inaccuracies in the translation of trial testimony rendered a defendants trial fundamentally unfair. See U.S. v. Joshi, 896 F.2d 1303, 1310 (11th Cir. 1990); accord U.S. v. Lim, 794 F.2d 469, 471 (9th Cir. 1986). To allow a defendant to remain silent throughout the trial and then, upon being found guilty, to assert a claim of inadequate translation would be an open invitation to abuse. Valladares v. U.S., 871 F.2d 1564, 1566 (11th Cir. 1989).

770

Ouanbengboune v. State

[125 Nev.

translation for the record on appeal. Baltazar-Monterrosa, 122 Nev. at 617, 137 P.3d at 1144. Motion to modify or correct the trial record
[Headnotes 11-15]

When, as in this case, the inaccuracies are discovered during a pending appeal from the judgment of conviction, the challenging party should move to amend or correct the trial record pursuant to NRAP 10(c). In this situation, we adopt a similar but slightly altered procedure patterned after Baltazar-Monterrosa that should be followed in addressing translation inaccuracies under NRAP 10(c). The procedure we adopt also looks to the more detailed language in the analogous Rule 10(e) of the Federal Rules of Appellate Procedure. First, the challenging party should file a motion with the district court to modify or correct the trial record. NRAP 10(c). Second, each party should have its own interpreter review the translated testimony for discrepancies. Baltazar-Monterrosa, 122 Nev. at 616, 137 P.3d at 1144. If discrepancies exist, [t]he party seeking [modification or correction to the record] has the burden of demonstrating the inaccuracy of the statements and that it fundamentally alters the substance of the [testimony]. Id. (emphases added). Third, where possible, the parties should determine and stipulate to the translation that is more accurate. See FRAP 10(e)(2)(a). Fourth, in the event that the parties are unable to stipulate to an accurate translation, the district court should appoint an independent and, if available, certified court interpreter to review the translations, Baltazar-Monterrosa, 122 Nev. at 616, 137 P.3d at 1144, and the district court should make findings and determine which translation accurately reflects the testimony at trial and certify that translation as part of the record for review. See NRAP 10(c); FRAP 10(e)(2)(b). Fifth, the district court should preserve a copy of each translation for the record on appeal. Baltazar-Monterrosa, 122 Nev. at 617, 137 P.3d at 1144. In this case, the district court never reviewed or made any findings to determine whether the re-translation was accurate or fundamentally altered the testimony at trial. However, the State stipulated to accept the re-translation without further evidentiary findings by the district court. Therefore, under the limited circumstances of this case, we accept the re-translation as part of the record. On appeal, Sonny raises several interpretation errors, some of which were identified during trial. During Sonnys testimony, it was noted three separate times that the interpreter was not translating all the proceedings for Sonny or adequately interpreting Sonnys testimony to the jury. Specifically, Sonny contends that the courtappointed interpreter omitted certain words from his trial testimony

Dec. 2009]

Ouanbengboune v. State

771

in some instances and reported summaries rather than verbatim accounts of his testimony in others. It was also noted at trial that the interpreter answered questions that had not been asked, that he answered questions on his own without waiting for Sonny to answer, and that he editorialized when translating Sonnys answers. Although Sonny did not formally object at trial, concerns about the adequacy of the translation were brought to the district courts attention, and the court admonished the interpreter for failing to accurately and properly translate the entirety of Sonnys testimony and the court proceedings. However, Sonny asserts that he discovered the most egregious errors post-judgment, after he hired an independent interpreter to retranslate his trial testimony. Sonnys independent interpreter indicated that the court-appointed interpreter made numerous interpretation errors that, combined with the States impeachment based on the translation errors, called Sonnys veracity into question.3 We conclude that most of the interpretation errors were technical. For example, Sonny argues that a translation error allowed the prosecutor to challenge his credibility with respect to whether he had talked to a friend about Raynna flirting with another man. Sonny testified that he spoke about his relationship with Raynna to certain friends. On cross-examination, the prosecutor asked Sonny whether he had spoken with a particular friend about Raynnas flirting with another man. According to Sonnys independent interpreter, when the trial interpreter translated the question for Sonny, the trial interpreter used the Laotian term for tempting instead of flirting. In response to the question, Sonny adamantly answered that he had never had such a conversation with his friend. And when the prosecutor asked twice more whether Sonny was ever concerned about Raynna flirting with other men, the interpreter did not use the Laotian term for flirting, but instead used the terms signaling get close to and like each other. To contradict Sonnys testimony, the State then called Sonnys friend as a witness, who reluctantly testified that Sonny had spoken to him approximately one month before the shooting about Raynna flirting with another man. Because of the interpreter errors, Sonny argues that his veracity was wrongly called into question. However, because the erroneously interpreted terms were similar and the interpretation of the trial testimony in its entirety was sufficiently accurate and adequate, we conclude that the
3 Sonny cites specific interpretation errors of testimony concerning (1) Sonnys knowledge that Raynna owned two guns, (2) the status of his personal property, (3) the meeting and conversations with Raynna in the days preceding the shooting, (4) Sonnys relationship with Raynna, and (5) Sonnys drug use. We have considered these interpretation errors and conclude that they are technical and do not fundamentally alter the trial testimony.

772

Ouanbengboune v. State

[125 Nev.

interpretation errors were technical and did not fundamentally alter the trial testimony. As another example, Sonny argues that a translation error allowed the prosecutor to dispute his veracity concerning the time at which he met Raynna at the Gold Spike Casino the Monday before the shooting. According to Sonnys independent translator, Sonny said that he met Raynna sometime in the afternoon, but he couldnt remember what time. However, the trial interpreter translated Sonnys testimony by stating that Sonny met with Raynna at the Gold Spike Casino in the afternoon at approximately 4 p.m. The prosecution then rebutted and attempted to contradict Sonnys translated testimony by submitting into evidence records showing that Raynna clocked into work on the Tuesday before the shooting at 7:41 p.m. We conclude that Raynnas actions on Tuesday evening do not contradict Sonnys testimony about the events that occurred on Monday afternoon and, therefore, the interpreters error did not have the effect of impugning his veracity in front of the jury. While most of the errors or categories of error are not prejudicial, we do identify one error that warrants a more thorough discussion, namely, the interpreters translation of Sonnys testimony regarding the firing of the gun and the questions related to that testimony. But under the test we adopt in this opinion, we conclude that although Sonny demonstrated that the inaccuracies in translation fundamentally altered the context of his statements as to this interpretation error, he has not demonstrated prejudice sufficient to warrant a new trial because there was overwhelming evidence of guilt. See U.S. v. Gomez, 908 F.2d 809, 811 (11th Cir. 1990); see also U.S. v. Long, 301 F.3d 1095, 1105 (9th Cir. 2002). During cross-examination, Sonny was questioned extensively concerning his actions after he shot Raynna in the leg, and when he shot Raynna in the head. The State repeatedly asked Sonny whether he remembered cocking the gun a second time, aiming the gun, and pulling the trigger. According to Sonnys independent interpreter, the court-appointed interpreter made a series of mistakes in interpreting the States questions to Sonny and interpreting Sonnys responses. First, the court-appointed interpreter used a colloquial term to refer to the hammer of a gun, a word that neither Sonny nor his independent interpreter appeared to recognize. Second, the State called the gun a single action only gun, and the court-appointed interpreter misinterpreted this as a one-shot-at-a-time gun. Third, the court-appointed interpreter used several different terms to refer to the cocking of the gun, only one of which, according to his independent interpreter, Sonny understood. Finally, the State used the phrase pulled the trigger multiple times when questioning Sonny regarding his knowledge that he was aiming at Raynna when he fired the second shot. According to Sonnys interpreter, the court-

Dec. 2009]

Ouanbengboune v. State

773

appointed interpreter misinterpreted the phrase pulled the trigger as shot. After reviewing the trial transcript, the independent translator claimed that Sonny misunderstood cocking the gun to mean pulling the trigger and that the culmination of the courtappointed interpreters mistakes made it appear as though Sonny acknowledged re-cocking the gun on the second shot when it was his testimony that he did not re-cock the gun. Sonny further argues that the State used his misinterpreted answers to prove he acted with premeditation when he shot and killed Raynna. Under the test we adopt today, Sonny has the burden to demonstrate that the court-appointed interpreters translation was inaccurate and that the discrepancies fundamentally altered the substance of his testimony. Sonnys primary defense throughout the trial was the absence of premeditation. But because Sonny misunderstood the translator and because the translator mistranslated Sonnys testimony, Sonny appeared to have unintentionally admitted re-cocking the gun, which the State used as evidence of Sonnys premeditation. Therefore, we conclude that the court-appointed interpreters errors did fundamentally alter the context of Sonnys testimony. However, we determine that Sonnys characterization of his actions and the court-appointed interpreters inaccuracies in translation of his testimony were not prejudicial and therefore a new trial is not warranted in this case. At trial, a ballistics expert testified regarding the design of the gun Sonny used to shoot Raynna. The expert explained that in order to fire the gun a second time, it must be recocked. Additionally, in his statement to the Las Vegas Metropolitan Police, Sonny admitted that he fired the gun two times, perhaps even three times. Therefore, even if the court-appointed interpreter had correctly translated Sonnys testimony that he did not re-cock the gun, Sonnys explanation would be contradictory and perhaps impossible given the expert testimony regarding the design of the gun. Thus, overwhelming evidence supports the conclusion that Sonny acted with premeditation. Consequently, we conclude the result at trial would have been the same had the translator correctly translated Sonnys testimony. The district courts failure to instruct the jury on afterthought robbery did not affect Sonnys substantial rights
[Headnotes 16-18]

Sonny argues that the district court abused its discretion, in part, by instructing the jury on the felony-murder rule. Specifically, Sonny argues that he objected to the district courts decision at the time it was made because his intent to commit the robbery arose only after the shooting. The State responds that the felony-murder instruction was proper because evidence was adduced to support a conviction on that theory.

774
[Headnotes 19, 20]

Ouanbengboune v. State

[125 Nev.

This court reviews a district courts decision to issue or not to issue a particular jury instruction for an abuse of discretion. Crawford v. State, 121 Nev. 744, 748, 121 P.3d 582, 585 (2005). [T]he defendant in a criminal proceeding is entitled to have the jury instructed on his theory of the case if it finds support in the evidence. Vincent v. State, 97 Nev. 169, 170, 625 P.2d 1172, 1173 (1981). We conclude that the district court did not abuse its discretion by issuing an instruction on the felony-murder rule because the State adduced sufficient evidence to warrant the instruction. However, given the facts of this case, we also consider whether the district court erred by failing to instruct the jury on afterthought robbery. See Emmons v. State, 107 Nev. 53, 61, 807 P.2d 718, 723 (1991) (noting that this court may address plain error or issues of constitutional dimension sua sponte), overruled on other grounds by Harte v. State, 116 Nev. 1054, 1072, 13 P.3d 420, 432 (2000).
[Headnotes 21, 22]

The failure to instruct the jury on afterthought robbery amounts to judicial error. Nay v. State, 123 Nev. 326, 333, 167 P.3d 430, 435 (2007). However, because Sonny failed to object or propose an instruction on afterthought robbery, we will reverse the judgment only upon a showing of plain error. See Anderson v. State, 121 Nev. 511, 516, 118 P.3d 184, 187 (2005). Under plain error review, the error must be clear from the record and adversely affect a partys substantial rights. Id.
[Headnotes 23, 24]

In Nay, we concluded that robbery may not serve as a predicate for felony murder where the evidence shows that the accused killed a person and only later formed the intent to rob that person. 123 Nev. at 333, 167 P.3d at 435. However, we concluded that a fact-finder may infer the intent to commit the enumerated felony based on the defendants actions during and immediately after the killing. Id. Therefore, the failure to instruct the jury on afterthought robbery is not prejudicial where there is sufficient evidence of the defendants actions during and immediately after the killing, and where, clearly, beyond a reasonable doubt[,] . . . the jury would have convicted [the defendant] of first-degree murder if it had been properly instructed. Id. at 333-34, 167 P.3d at 436. In this case, we conclude that the district court erred by failing to instruct the jury on afterthought robbery. However, we conclude that the error did not adversely affect Sonnys substantial rights because the record demonstrates beyond a reasonable doubt that a rational jury would have convicted Sonny of first-degree murder even if it had been properly instructed on afterthought robbery for purposes of felony murder.

Dec. 2009]

Ouanbengboune v. State

775

The State adduced sufficient facts to demonstrate that, on the night of the killing, Sonny went to a lounge in Las Vegas specifically to confront Raynna about alleged lies she had told him. After he arrived at the lounge, and after arguing with Raynna, Sonny shot Raynna in the leg. Then, after pointing the handgun at other patrons and telling them to go inside the lounge, Sonny shot Raynna a second time. It was only after he shot Raynna two times that he took her car keys and drove her car from the scene. Based on these facts, we cannot say that the State presented sufficient evidence for the jury to infer beyond a reasonable doubt that Sonny formed the intent to rob Raynna before or during the commission of the killing. Thus, although the State adduced sufficient evidence to show that Sonny was guilty of robbery with a deadly weapon, see NRS 200.380 and NRS 193.165, it is not possible to conclude that the jury would have convicted Sonny of felony murder had it received an instruction on afterthought robbery pursuant to Nay. However, we conclude that based on the facts adduced by the State, the jury would have nevertheless convicted Sonny of firstdegree murder even if it had been instructed on afterthought robbery. The jury was instructed on alternative theories of first-degree murderfelony murder and willful, deliberate, and premeditated murder. Although we conclude that the State did not introduce sufficient evidence for the jury to conclusively find that Sonny was guilty of first-degree murder committed in the perpetration of a robbery, we determine that the State adduced sufficient evidence for the jury to conclude, beyond a reasonable doubt, that Raynnas murder was perpetrated by a willful, deliberate, and premeditated killing. Sonny went to Raynna to confront her about alleged lies she told him. He purposefully carried a handgun to the confrontation. Sonny shot Raynna in the leg, and then, after time for reflection, during which he told patrons of the lounge who came outside to view the scene to go back inside, shot Raynna a second time in the head. This evidence overwhelmingly demonstrates that the killing was willful, deliberate, and premeditated. See Byford v. State, 116 Nev. 215, 236-37, 994 P.2d 700, 714 (2000) (Deliberation is the process of determining upon a course of action to kill as a result of thought, including weighing the reasons for and against the action and considering the consequences of the action. . . . Premeditation is a design, a determination to kill, distinctly formed in the mind by the time of the killing.) Thus, we conclude that the district courts failure to instruct the jury on afterthought robbery as it applies to felony murder, although erroneous, did not prejudice Sonnys substantial rights and therefore did not amount to plain error. Based on the overwhelming evidence that the killing was willful, deliberate, and premeditated, we affirm Sonnys conviction of first-degree murder. See Cortinas v.

776

Fields v. State

[125 Nev.

State, 124 Nev. 1013, 1029, 195 P.3d 315, 326 (2008), cert. denied, 130 S. Ct. 416 (2009). CONCLUSION Guided by the procedures set forth in Baltazar-Monterrosa, we adopt procedures pursuant to NRS 176.515 and NRAP 10(c) to review the translation of trial testimony in cases where the defendant discovers post-judgment that there were interpreter inaccuracies. These procedures will allow the defendant an opportunity to file a post-trial motion to challenge the inaccuracies made by the courtappointed interpreter. In this case, we conclude that some of the inaccuracies fundamentally altered the context of Sonnys testimony. However, there was overwhelming evidence of guilt for the jury to convict Sonny of robbery and first-degree murder, both with a deadly weapon; therefore, the court-appointed interpreters inaccuracies in the translation of Sonnys trial testimony do not warrant a new trial because the errors were not prejudicial. Further, the failure to instruct the jury on afterthought robbery did not amount to plain error. We conclude that based on the overwhelming evidence of a premeditated, willful, and deliberate killing, a rational jury would have convicted Sonny of first-degree murder despite not being properly instructed on afterthought robbery for purposes of felony murder. Accordingly, we affirm the district courts judgment of conviction. PARRAGUIRRE and DOUGLAS, JJ., concur.

LINDA MARIE FIELDS, APPELLANT, v. THE STATE OF NEV ADA, RESPONDENT.

No. 49417 December 10, 2009 220 P.3d 724

Appeal from a judgment of conviction, pursuant to a jury verdict, of first-degree murder. Fourth Judicial District Court, Elko County; J. Michael Memeo, Judge. The supreme court, CHERRY, J., held that: (1) bad act evidence pertained to a prior uncharged conspiracy that was not similar enough to the alleged first-degree murder to be relevant as proof of a common plan or scheme, (2) probative value of bad act evidence was substantially outweighed by danger of unfair prejudice and jury confusion, and (3) admission of bad act evidence was not harmless error. Reversed and remanded.

Dec. 2009]

Fields v. State

777

Brian D. Green, Elko; Strong & Hanni Law Firm and Brian C. Johnson and William B. Ingram, Salt Lake City, Utah, for Appellant. Catherine Cortez Masto, Attorney General, Carson City; Gary D. Woodbury, District Attorney, Elko County, for Respondent.
1. CRIMINAL LAW. The supreme court defers to the district courts discretion in admitting or excluding evidence of prior bad acts, and the court will not reverse such determinations absent manifest error. 2. CRIMINAL LAW. Before admitting prior bad act evidence, the district court must, outside the presence of the jury, determine whether: (1) the evidence is relevant, (2) the prior bad act is proven by clear and convincing evidence, and (3) the probative value of the evidence is not substantially outweighed by danger of unfair prejudice. NRS 48.045. 3. CRIMINAL LAW. Prior bad act evidence pertained to a prior uncharged conspiracy that was not similar enough to the alleged first-degree murder to be relevant as proof of a common plan or scheme, and thus, evidence was not admissible at trial; theory presented by State, that defendant killed victim for allegedly molesting her grandson, was not at all in line with States theory of relevancy with respect to evidence of the alleged prior conspiracy, that defendant had taken advantage of elderly victims by changing their wills and then hiring an outsider to kill them. NRS 48.045(2). 4. CRIMINAL LAW. Probative value of prior bad act evidence of a prior uncharged conspiracy was substantially outweighed by danger of unfair prejudice and jury confusion in first-degree murder prosecution; States evidence of the alleged prior conspiracy consisted of records from civil action, which was potentially confusing to the jury, in instant criminal prosecution, as the standards and evidence were very different, the alleged prior conspiracy was not sufficiently similar to alleged murder to be admitted under the commonplan-or-scheme exception, and State made repeated references to the prior conspiracy matter in its closing argument. NRS 48.035(1). 5. CRIMINAL LAW. Prior bad act evidence is admissible pursuant to the common-plan-orscheme exception under statute governing prior bad act evidence when both the prior bad act evidence and the crime charged constitute an integral part of an overarching plan explicitly conceived and executed by the 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 which resulted in the commission of that crime. 6. CRIMINAL LAW. Improper admission of bad act evidence of defendants prior alleged conspiracy was not harmless error in first-degree murder prosecution; unfair prejudice caused by admission of the bad act evidence substantially outweighed any probative value of such an admission, and the error in admitting the evidence certainly had a substantial and injurious influence in determining the jurys verdict as the alleged prior bad act was so serious and potentially confusing to the jury. NRS 48.035(1), 48.045(2). 7. CRIMINAL LAW. Harmless error test under Kotteakos v. United States, 328 U.S. 750 (1946), is whether the error had substantial and injurious effect or influence

778

Fields v. State

[125 Nev.

in determining the jurys verdict; accordingly, unless it is clear that the defendant suffered no prejudice as determined by the Kotteakos test, the conviction must be reversed.

Before CHERRY, SAITTA and GIBBONS, JJ. OPINION By the Court, CHERRY, J.: Linda Fields was convicted of one count of first-degree murder. She now appeals her conviction on the basis of the district courts admission of evidence of a prior bad act in the form of a prior uncharged conspiracy. Linda argues that such evidence was inadmissible for two reasons. First, Linda contends that the evidence did not fall within the common-plan-or-scheme exception to the general rule excluding bad act evidence because the crime charged was not similar enough to the prior conspiracy. Second, Linda contends that even if the bad act evidence was relevant as proof of a common plan or scheme, such evidence should not have been admitted because its probative value was substantially outweighed by the danger of unfair prejudice. We conclude that the district court abused its discretion in admitting this bad act evidence because the prior conspiracy was not similar enough to the crimes charged to be relevant as proof of a common plan or scheme. We also conclude that the probative value of the bad act evidence was substantially outweighed by the danger of unfair prejudice. As such, we conclude that a new trial is warranted because the admission of the bad act evidence was not harmless.1 FACTS Relationship between the Fieldses and Palensky Linda and her husband, John Vernon Fields (John), owned the Silver Dollar Bar, a popular bar in Elko, Nevada. Jaromir Palensky was a frequent customer of the Silver Dollar Bar. In April 2002, Palensky went to prison for a felony DUI conviction. Prior to going to prison, Palensky contacted Linda and gave her power of attorney so she could take care of his affairs while he was in prison. During his incarceration, Palensky also instructed Linda to file his taxes, move his trailer so he would not lose it for lack of paying rent, and take out a new life insurance policy with Linda as the beneficiary. More than a year after his conviction, Palensky completed his term of incarceration. Approximately three months before his re1 In view of our holding, we need not address the other issues raised by the parties in this appeal.

Dec. 2009]

Fields v. State

779

lease, the Nevada Division of Parole and Probation contacted Linda to organize Palenskys early release. After meeting with Palenskys parole officer, Linda and John arranged to move Palenskys trailer onto their property. Palensky then worked and lived on the Fieldses ranch until his disappearance in December 2003. The Fieldses alleged that, prior to his disappearance, Palensky made a will that made the Fieldses his heirs. A month after Palenskys disappearance, on January 14, 2004, his body was found floating face down in the Jordan River near Salt Lake City, Utah, by the Salt Lake County Sheriffs Department. Dr. Edward Leis, employed by the Utah State Medical Examiners Office, performed an autopsy of Palenskys body and concluded that Palensky died of a combination of four blows to the back of his head inflicted by a blunt instrument. Dr. Leis testified that he could not be certain how long Palensky was in the water, but he could not deny that the body could have been in the water up to 24 days given the water temperature. Detective Brent Adamson, a detective with the Salt Lake County Sheriffs office, was in charge of identifying Palenskys body and the subsequent investigation into Palenskys murder. Adamson did not receive any leads regarding Palenskys death. The only people to contact Adamson were people Palensky knew many years prior when he lived in Carbon County, Utah. In Palenskys wallet, there was a phone number for the Fieldses, which Adamson called. John answered and told Adamson that Palensky was a former employee who left the ranch a month prior and told Adamson to call Linda for more information. A few days after the phone call, Adamson traveled to Elko and to the Fieldses ranch where he spoke to the Fieldses in person. Linda and John provided Adamson with all of Palenskys documents, including his trailer registration. Linda also provided Adamson with an agreement between her and Palensky in which Linda agreed to pay off five debts for Palensky. John was present when Linda gave this document to Adamson. Adamson and the Fieldses discussed that on December 19, 2003, Palensky was so intoxicated during work that the Fieldses had to send him to his trailer. Later that evening lights were on in Palenskys trailer, but he was not there, and the Fieldses told Adamson that was the last time they saw Palensky. Adamson looked at Palenskys trailer but did not see anything suspicious. Eventually, the Salt Lake County Sheriffs Office abandoned its investigation of the Palensky murder. Kevin McKinney, a detective with the Elko County Sheriffs Department, began investigating Linda after he was contacted by her brother, Mike Walker, and her sister-in-law, Niqua Walker, in September 2006. Mike and his wife, Niqua, moved onto the Fieldses ranch in the summer of 2006. Prior to moving in with Linda, Mike was es-

780

Fields v. State

[125 Nev.

tranged from his sister for many years. In late July 2006, Linda told Niqua that she caught Palensky molesting her grandson in the shed and that she killed Palensky by hitting him in the head with a pipe. Niqua discussed this admission with Mike, and they decided to alert the police. John was not around when Linda allegedly confessed to Niqua that she killed Palensky. Thereafter, Mike and Niqua were evicted from the Fieldses property for alleged drug use. Mike and Niqua contacted McKinney with information that Linda was involved in Palenskys murder. They told McKinney about Lindas confession to Niqua. Niqua told McKinney she did not believe Linda because Linda lies a lot. Thereafter, McKinney inquired into the prior police investigation in Salt Lake City. In October 2006, McKinney and the Elko County Sheriffs Department took over as primary investigators on the Palensky murder, with McKinney as lead investigator. McKinney set up a confrontation between Mike and Linda on November 22, 2006, by putting a body wire on Mike and instructing him to confront the Fieldses about Palenskys murder. As soon as Mike entered the property, John told him to leave, and Mike left. In November 2006, McKinney spoke to John at the sheriffs office regarding the death of Palensky. John told McKinney that he did not know about the death of Palensky but told McKinney that Patricia Grenz, a friend of the Fieldses, now owned the trailer Palensky lived in when he worked on the Fieldses ranch. Grenz bought Palenskys trailer from its original owner after Palenskys disappearance. Thereafter, the police came to Grenz and took the trailer in which Palensky once lived in order to search it. The Fieldses also sold a red Toyota pickup to Grenz sometime before 2004. Previously, Mike and Niqua told McKinney that this pickup was used by the Fieldses to transport Palenskys body. McKinney conducted a search of Palenskys trailer and the red Toyota pickup. Linda was charged with open murder with the use of a deadly weapon and accessory to open murder with the use of a deadly weapon. Linda was convicted by a jury of murder in the first degree in the death of Palensky. Bad act evidenceMobert conspiracy At trial, in an attempt to establish a possible motive linking Linda to Palenskys murder, the State introduced evidence of a prior uncharged conspiracy involving the Fieldses and Roy Mobert. Mobert and the Fieldses were friends who later developed a business partnership when Mobert assigned power of attorney to Linda. Mobert was elderly and in poor health, and Linda sold his property for him and arranged other affairs with the power of attorney. The business relationship soon soured, and the Fieldses filed a civil suit against

Dec. 2009]

Fields v. State

781

Mobert, who filed a counterclaim. Mobert and the Fieldses settled this suit in 2000. Mobert died of natural causes in 2007, when Linda no longer held rights of survivorship or any other potential for pecuniary gain from Mobert. At a hearing on pretrial motions in the instant case, the State put on Gregory Corn as a witness. Corn was Moberts attorney in the civil suit between Mobert and the Fieldses, wherein the Fieldses claimed that Mobert did not follow through on a promissory note to sell the Silver Dollar Bar to them. However, Corn was not Moberts attorney when Linda obtained power of attorney for Mobert. Corn also wrote a will for Mobert, revoking a prior will where Mobert left his entire estate to the Fieldses. The court ruled that the will could be admitted into evidence. At the same pretrial hearing, the State called James Pitts, a detective with the Elko County Sheriffs Department. Pitts worked an investigation involving John, Linda, and Billy Wells a regular police informant after Wells told the police that the Fieldses had solicited him to murder Mobert. In 2001, Pitts rigged Wells with a microphone and instructed him to meet with Linda and John about the possible murder for hire in an attempt to record Linda and John soliciting Wells to murder Mobert. The State sought to admit the recorded conversations under the motive exception to NRS 48.045 because it showed Lindas involvement in a prior murder solicitation. Linda objected to the admission of the tape on the basis of relevancy and prejudicial value. The court ruled that it would admit the tape at trial with a cautionary instruction. Before Corn testified at trial, the district court gave a limiting instruction pursuant to Tavares v. State2 regarding the bad act testimony to be given by Corn and Pitts. At trial, Corn testified that Linda sold Moberts bar in Jarbidge, Nevada, and that she took the proceeds from this sale, as well as proceeds from the sale of a house for Mobert, and opened a checking account in her own name. Linda then used this money to buy a vehicle for her daughter and to make improvements on the Silver Dollar Bar. On behalf of Mobert, Corn prepared a counterclaim against the Fieldses, claiming that Linda defrauded and misused the power of attorney against Mobert. Eventually, the civil suit settled. Also at trial, and after the district court gave the Tavares instruction, Larry Kidd, Jr., a police officer with the City of Elko, testified that Wells told him that Wells had been contracted by the Fieldses to
2 117 Nev. 725, 733, 30 P.3d 1128, 1133 (2001) (stating that the trial court, absent a waiver from the defendant, must give a limiting instruction explaining the purposes for which bad act evidence is admitted immediately prior to its admission and a general instruction at the end of trial reminding the jurors that certain evidence may be used only for limited purposes).

782

Fields v. State

[125 Nev.

kill Mobert in 2001. Kidd helped Pitts set up Wellss audio surveillance to record the meeting between Wells and the Fieldses. Pitts testified at trial that he and Kidd had wired Wells after Wells approached Kidd regarding the Fieldses alleged solicitation to murder Mobert. Pitts also authenticated the recording that was made from Wellss wired conversation with the Fieldses and identified the voices on that recording as belonging to John, Linda, and Wells. Thereafter, excerpts from the conversation were played. Kidd also testified that after the investigation and audio surveillance, no charges were filed against John or Linda. Kidd testified that the audio surveillance failed to provide substantial evidence. Wells was a paid informant for the narcotics task force, but there was no testimony regarding whether Wells was paid for this specific task. By introducing evidence of this uncharged prior conspiracy involving Mobert, the State sought to convey to the jury that with both Palensky and Mobert, the Fieldses, and Linda in particular, planned to take advantage of elderly men by obtaining a power of attorney, using that power of attorney to get money and assets, and then murdering the elderly men for their estates. After deliberating, the jury returned a guilty verdict. The district court sentenced Linda and entered a judgment of conviction. This appeal followed. DISCUSSION Admission of bad act evidence
[Headnote 1]

We defer to the district courts discretion in admitting or excluding evidence of prior bad acts. Braunstein v. State, 118 Nev. 68, 72, 40 P.3d 413, 416 (2002). We will not reverse such determinations absent manifest error. Id.
[Headnote 2]

In analyzing the propriety of admitting evidence of prior bad acts, we have instructed trial courts to follow the parameters of NRS 48.045(2). Id. at 75, 40 P.3d at 418. Under NRS 48.045(2), such evidence is not admissible to prove the character of a person in order to show that he acted in conformity therewith but may be admissible to show proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Before admitting evidence of prior bad acts, the district court must, outside the presence of the jury, determine whether: (1) the evidence is relevant, (2) the prior bad act is proven by clear and convincing evidence, and (3) the danger of unfair prejudice substantially outweighs the evidences probative value. Meek v. State, 112 Nev. 1288, 129293, 930 P.2d 1104, 1107 (1996). Here, we focus on the relevance of

Dec. 2009]

Fields v. State

783

the bad act evidence and whether its probative value is outweighed by unfair prejudice. Relevance and the danger of unfair prejudice
[Headnotes 3-5]

Prior bad act evidence is admissible pursuant to the commonplan-or-scheme exception of NRS 48.045(2) when both the prior bad act evidence and the crime charged constitute an integral part of an overarching plan explicitly conceived and executed by the 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 which resulted in the commission of that crime. Ledbetter v. State, 122 Nev. 252, 260-61, 129 P.3d 671, 677-78 (2006) (quoting Rosky v. State, 121 Nev. 184, 196, 111 P.3d 690, 698 (2005)) (other internal citations and quotation marks omitted). Although the State presented evidence of Lindas financial motive to the jury, the State also chose to present an alternative motivation theory to the jury that Linda killed Palensky for molesting her grandson. At trial, Niqua Walker testified, as a witness for the State, that Linda told her that she killed Palensky after she caught him molesting her grandson. This theory presented by the State is not at all in line with the States theory of relevancy with respect to evidence of the Mobert conspiracythat the Fieldses took advantage of elderly victims by changing their wills and then hiring an outsider to kill them. Therefore, we conclude that the district court abused its discretion in admitting evidence of the prior uncharged bad acts alleged as the Mobert conspiracy. Also, there is a significant distinction between Mobert and Palensky. Mobert was in his late seventies, in poor health, and needed to have his affairs taken care of by another person at the time of the alleged conspiracy, whereas Palensky was in his sixties, in good health, and still had the strength to work on a ranch. The State portrayed to the jury that both of these victims were the sameelderly, frail, and helplesswhen they were allegedly taken advantage of by the Fieldses. We conclude that this portrayal is inaccurate because the victims were not in the same circumstance such that they could be considered similar enough to be part of a preconceived plan as they were not the same age or in the same condition. Mobert died of natural causes in 2007 after there was a civil settlement approved by the court between him and the Fieldsesthere was no ongoing dispute over money at the time of his death. Palensky was murdered, and there was no dispute with the Fieldses over money before his death. The circumstances of the alleged conspiracies are not similar, and the prior conspiracy alleged against Linda

784

Fields v. State

[125 Nev.

involving Mobert is irrelevant because the manner and cause of death of each of the victims are wholly different. We conclude that the district court abused its discretion in admitting evidence of the Mobert conspiracy because the probative value of the evidence was substantially outweighed by the danger of unfair prejudice, and its admission led to serious jury confusion. Evidence of an alleged solicitation to murder Mobert from a police informant is not relevant and goes solely to a showing of bad character. Additionally, since Mobert and Palensky were not similarly situated, the probative value of the evidence of the Mobert conspiracy was substantially lowered, thus increasing the probability of this evidence causing prejudicial harm to Linda. Furthermore, NRS 48.035(1) provides for the exclusion of evidence, even if relevant, if the probative value of that evidence is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or of misleading the jury. Here, we conclude that the district court abused its discretion in the admission of evidence of the Mobert conspiracy because it was more prejudicial than probative and it led to serious jury confusion since the State also argued Lindas motive was based upon the alleged molestation. The State spent considerable time playing excerpts of the recordings of the conversations between Linda, John, and Wells related to the alleged Mobert conspiracy and presenting Corns testimony regarding the civil suit between the Fieldses and Mobert. Explaining every aspect of a civil suit within a criminal prosecution is potentially confusing to the jury because the standards and evidence are very different. The alleged conspiracies were not sufficiently similar for the Mobert conspiracy to be admitted under the commonplan-or-scheme exception. Additionally, the State continually referenced the Mobert conspiracy during its closing argument, while also arguing that Linda murdered Palensky for molesting her grandson. Finally, Linda was not charged with conspiracy to commit murder, significantly increasing the possibility of unfair prejudice and jury confusion with the introduction of the Mobert conspiracy evidence. Although we conclude that the district court abused its discretion in admitting this uncharged prior bad act evidence, a new trial is not warranted unless the error was not harmless. Harmless error
[Headnotes 6, 7]

In reviewing nonconstitutional error, we use the standard set forth in Kotteakos v. United States, 328 U.S. 750 (1946), which is identical to NRS 178.598. Tavares, 117 Nev. at 732, 30 P.3d at 1132. The test under Kotteakos is whether the error had substantial and injurious effect or influence in determining the jurys verdict. Id. (quoting Kotteakos, 328 U.S. at 776). Accordingly, unless it is clear

Dec. 2009]

Fields v. State

785

that the defendant suffered no prejudice as determined by the Kotteakos test, the conviction must be reversed. Id. (citing United States v. Olano, 507 U.S. 725, 741 (1993)). We conclude that the district courts improper admission of the bad act evidence regarding the Mobert conspiracy was not harmless for two reasons. First, we conclude that the unfair prejudice Linda suffered from the admission of the bad act evidence substantially outweighed any probative value of such an admission. Second, we conclude that the error in admitting the evidence certainly had a substantial and injurious influence in determining the jurys verdict because the alleged prior bad act was so serious and potentially confusing to the jury. Therefore, the admission of the evidence regarding the Mobert conspiracyevidence of an alleged prior murder solicitation by Lindasurely had an impact on the jurys verdict because even if the jury could not tie Linda to Palenskys murder, the guilty verdict rendered could have been determined, in part, by the admission of evidence of Lindas alleged solicitation to kill Mobert. CONCLUSION We conclude that the district court abused its discretion in admitting evidence of the Mobert conspiracy pursuant to NRS 48.035 and NRS 48.045. The probative value of this evidence was substantially outweighed by the danger of unfair prejudice. Finally, we conclude that a new trial is warranted because the admission of such evidence was not harmlessthe confusing admission of the tapes and the amount of time spent on discussing the alleged uncharged conspiracy surely had an impact on the verdict. Accordingly, we reverse the judgment of conviction and remand this case to the district court for further proceedings consistent with this opinion. SAITTA and GIBBONS, JJ., concur.

JOHN VERNON FIELDS, APPELLANT, v. THE STATE OF NEV ADA, RESPONDENT.

No. 50497 December 10, 2009 220 P.3d 709

Appeal from a judgment of conviction, pursuant to jury verdict, of one count each of first-degree murder with the use of a deadly weapon and conspiracy to commit murder. Fourth Judicial District Court, Elko County; Andrew J. Puccinelli, Judge. The supreme court, PICKERING, J., held that: (1) prior bad act evidence of defendants past dealings was relevant to establish motive, intent, knowledge, and identity; (2) prior bad act evidence was not

786

Fields v. State

[125 Nev.

unduly prejudicial; (3) defendant did not have a due process right to present hearsay testimony implicating a third person; (4) marital privilege did not apply to recorded telephone conversations between defendant and his incarcerated wife; and (5) failure to instruct jury that specific intent is not merely the intent to do an act was not error. Affirmed. [Rehearing denied February 16, 2010] CHERRY, J., with whom SAITTA, J., agreed, dissented. Frederick B. Lee Jr., Public Defender, and Roger H. Stewart, Deputy Public Defender, Elko County, for Appellant. Catherine Cortez Masto, Attorney General, Carson City; Gary D. Woodbury, District Attorney, and Troy C. Jordan, Deputy District Attorney, Elko County, for Respondent.
1. CRIMINAL LAW. A district courts decision to admit or exclude prior bad act evidence rests within its sound discretion and will not be reversed on appeal absent manifest error. NRS 48.045(2). 2. CRIMINAL LAW. Appellant has the responsibility to provide the materials necessary for supreme courts review. 3. CRIMINAL LAW. To be deemed an admissible bad act, the trial court must determine, 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. 4. CRIMINAL LAW. In assessing unfair prejudice resulting from admission of prior bad act evidence, supreme court reviews the use to which the evidence was actually put, i.e., whether, having been admitted for a permissible limited purpose, the evidence was presented or argued at trial for its forbidden tendency to prove propensity; also key is the nature and quantity of the evidence supporting the defendants conviction beyond the prior act evidence itself. 5. CRIMINAL LAW. Evidence of debts owed by defendant and his wife, and defendants involvement in a proposal to kill a man to whom he owed money and make it look like an accident, was relevant prior bad act evidence, in prosecution for murder and conspiracy to commit murder, to establish a shared monetary motive for defendant and his wife to kill victim in order to collect under victims will and life insurance policy, to establish that defendant was not an innocent or ignorant bystander to his wifes alleged murderous scheme, and to establish identity, as both prior act and charged conduct involved the grifting of older men who gave defendants wife a power of attorney, and both scenarios involved defendants and his wifes speaking to

Dec. 2009]

Fields v. State

787

6.

7.

8.

9.

10.

11.

12.

13.

third parties about arranging a murder and making it look accidental. NRS 48.045(2). CRIMINAL LAW. A defendants knowing participation in prior bad acts with alleged coconspirators may be admitted in a proper case to refute claims that the defendants acts were nothing more than innocent acts of a friend, and not a knowing participation in a conspiracy, and to show that defendant was not an innocent pawn taken by surprise in the conspiracy charged. CRIMINAL LAW. Evidence of prior criminal behavior may only be admitted to prove identity when its prejudicial effect is outweighed by the evidences probative value and when that prior behavior demonstrates characteristics of conduct which are unique and common to both the defendant and the perpetrator whose identity is in question. CRIMINAL LAW. Probative value of evidence of debts owed by defendant and his wife, and defendants involvement in a proposal to kill a man to whom he owed money and make it look like an accident, was not substantially outweighed by danger of unfair prejudice in prosecution for murder and conspiracy to commit murder; prior bad act evidence was relevant to establish monetary motive, intent, knowledge, and identity, and State did not offer or argue the evidence to prove propensity. NRS 48.045(2). WITNESSES. Evidence that defendants wife blamed States witness for an assault she allegedly suffered was not admissible to impeach witness. NRS 50.085(3). CONSTITUTIONAL LAW; CRIMINAL LAW. Murder defendant did not have a due process right to present hearsay testimony implicating his brother-in-law as a person who struck victim, as statement did not bear persuasive assurances of trustworthiness; declarant said she was drunk when the fight she witnessed occurred, witness and declarant both had motive to falsely inculpate brother-in-law, declarants statements were made more than three years after the alleged event, and statements did not inculpate the declarant, but merely placed her at the scene as a witness against a third person. U.S. CONST. amend. 14. CONSTITUTIONAL LAW. Although a criminal defendant has a due process right to introduce into evidence any testimony or documentation which would tend to prove the defendants theory of the case, that right is subject to the rules of evidence. U.S. CONST. amend. 14. PRIVILEGED COMMUNICATIONS AND CONFIDENTIALITY. Marital privilege did not apply to recorded telephone conversations between defendant and his incarcerated wife, where both defendant and his wife were warned that the call was being recorded, thus defeating any expectation of confidentiality. NRS 49.295. HOMICIDE. Failure to instruct jury that specific intent is not merely the intent to do an act was not error in murder and conspiracy prosecution, where other instructions adequately conveyed that defendant could not be found guilty of murder merely because it was a natural and probable consequence of conspiracy, that murder in the first degree must be perpetrated by means of willful, deliberate and premeditated killing, and that willfulness is the intent to kill.

788

Fields v. State

[125 Nev.

Before the Court EN BANC. OPINION By the Court, PICKERING, J.: This is an appeal from a judgment of conviction of first-degree murder with the use of a deadly weapon and conspiracy to commit murder, asserting evidentiary and instructional error and improper argument by the prosecutor. We find no error or abuse of discretion and therefore affirm. FACTS A jury convicted John Vernon Fields (Fields) of murder and conspiracy to commit murder in connection with the death of Jaromir Palensky, whose fully clothed body was found floating in the Jordan River in Utah on January 14, 2004. Forensic evidence showed that Palensky had been dead for days, maybe weeks, and that he did not drown but died as a result of blunt force blows to the back of his head. Palensky did not have a car, current drivers license, or phone. He was last seen alive on December 19, 2003, at the ranch outside Elko leased by Fields and his wife, Linda Walker Fields (Linda). For the six weeks before he disappeared, Palensky had been living in a trailer on the ranch and working for the Fieldses as a ranch hand. Palensky was an alcoholic. In 2002, he was convicted of DUI and sentenced to an 18-month prison term, which he had just finished serving when he moved into the trailer on the Fieldses leased ranch. Linda befriended Palensky before he went to prison, and in late January of 2002, he gave her a general power of attorney. While Palensky was in prison, Linda used the power of attorney to liquidate a number of his assets, including two parcels of land, a savings account, a credit union account, and a pension plan benefit. Linda transferred these assets or their proceeds into joint accounts she held with Fields. Some time after Palenskys body was discovered, a $300,000 life insurance policy naming Linda as Palenskys beneficiary surfaced, as did a handwritten will, naming Linda and Fields as the beneficiaries of Palenskys estate. The will recited that it had been written out for Palensky by a man named Sherman Butts, who died in 2004. Trial testimony established the writing wasnt that of Butts but a forgery by Fields. Fields was tried separately from Linda, who was also charged with, and convicted of, murdering Palensky. In addition to firstdegree murder and its lesser included offenses, Fields was charged with conspiring with Linda to murder Palensky for the purpose of acquiring money either through the payout of a life insurance policy on the victim, the beneficiary being Linda Walker Fields, the spouse

Dec. 2009]

Fields v. State

789

of the Defendant, or by acquiring the assets of the victim through a purported Will naming the Defendant and Linda Walker Fields, his spouse, as the primary beneficiaries. Fields defended the case on the basis that he didnt murder Palensky, someone else didprobably a stranger but perhaps Linda, in concert with the man she later had an affair with, or another friend or associate of hers. Even if Linda arranged Palenskys death, Fields argued, he still should be acquitted: the evidence did not show that he knew about the alleged scheme to murder Palensky; he was not named with Linda on Palenskys life insurance policy; and being married to Linda didnt mean that he conspired with her to kill Palensky. DISCUSSION Prior bad act evidence Fields principally challenges the district courts admission of prior bad act evidence concerning the Fieldses dealings with one Roy Mobert. Specifically, Fields challenges the district courts admission of: (1) testimony from Moberts lawyer, Gregory Corn, and documents Corn authenticated, about the Fieldses debts to Mobert and Moberts foreclosure proceedings against them, which were imminent in December of 2003; and (2) a tape recording that captured Fields, Linda, and Billy Wells discussing a proposal for Wells to kill Mobert and make it look like an accident. The district court conducted a full Petrocelli hearing, Petrocelli v. State, 101 Nev. 46, 692 P.2d 503 (1985), and gave the jury the limiting instructions required by Tavares v. State, 117 Nev. 725, 30 P.3d 1128 (2001), before and after admitting this evidence. The issue thus is not process but, purely, admissibility.
[Headnote 1]

A district courts decision to admit or exclude [prior bad act] evidence under NRS 48.045(2) rests within its sound discretion and will not be reversed on appeal absent manifest error. Ledbetter v. State, 122 Nev. 252, 259, 129 P.3d 671, 676 (2006). Our already deferential review is even more limited than usual in this case. The parties did not include the trial exhibitsincluding the Corn documents and the Wells tapein the record on appeal. And, although the Wells tape was played at trial, it was not transcribed.
[Headnote 2]

As the appellant, Fields had the responsibility to provide the materials necessary for this courts review. Jacobs v. State, 91 Nev. 155, 158, 532 P.2d 1034, 1036 (1975). Under NRAP 30(d), the required appendix should include [c]opies of relevant and necessary exhibits, or [i]f the exhibits are too large or otherwise incapable of being reproduced in the appendix, the parties may file a motion

790

Fields v. State

[125 Nev.

requesting the Supreme Court to direct the district court clerk to transmit the original exhibits. Neither was done here. See Thomas v. State, 120 Nev. 37, 43 & n.4, 83 P.3d 818, 822 & n.4 (2004) (Appellant has the ultimate responsibility to provide this court with portions of the record essential to determination of issues raised in appellants appeal. (quoting NRAP 30(b)(3)). While the Corn testimony and the pretrial and trial transcripts, which include the closing arguments, permit us to review the challenge to the Mobert evidence, not having the trial exhibits or a transcript of the Wells tape limits its scope.
[Headnotes 3, 4]

NRS 48.045(2) prohibits the use of other crimes, wrongs or acts . . . to prove the character of a person in order to show that he acted in conformity therewith. Such evidence may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. NRS 48.045(2). To be deemed an admissible bad act, the trial court must determine, 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. Tinch v. State, 113 Nev. 1170, 1176, 946 P.2d 1061, 1064-65 (1997). In assessing unfair prejudice, this court reviews the use to which the evidence was actually putwhether, having been admitted for a permissible limited purpose, the evidence was presented or argued at trial for its forbidden tendency to prove propensity. See Rosky v. State, 121 Nev. 184, 197-98, 111 P.3d 690, 699 (2005). Also key is the nature and quantity of the evidence supporting the defendants conviction beyond the prior act evidence itself. Ledbetter, 122 Nev. at 262 n.16, 129 P.3d at 678-79 n.16.
[Headnote 5]

The district court correctly found the Mobert evidence relevant to motive, intent, knowledge, and identity. Corn testified that, in November of 2003, the Fieldses had lost a three-year court battle with Mobert. Lying at the heart of the battle was the Fieldses part interest in the Silver Dollar Bar in Elko, on which Mobert held a note secured by a deed of trust. Mobert was elderly and in ill health. Shortly before undergoing a hospital procedure in 2000, Mobert had given Linda a power of attorney and revised his will to include her and Fields as beneficiaries. Linda used the power of attorney to sell a bar Mobert owned in Jarbidge and to transfer the proceeds from that sale and money Mobert held in a brokerage account to accounts she and Fields jointly held. When Mobert recovered, he sued (and revoked his will), and the Fieldses countersued. To settle the suit, the Fieldses returned to Mobert what money of his they had left,

Dec. 2009]

Fields v. State

791

with a note secured by a deed of trust on the Silver Dollar Bar for the rest. The Fieldses defaulted on the note and in 2002, they filed bankruptcy to delay foreclosure. In November of 2003, shortly before Palensky disappeared, Mobert obtained an order lifting the bankruptcy court stay against foreclosure on the Silver Dollar Bar. The taped conversation between the Fieldses and Billy Wells occurred in June of 2001, after the litigation with Mobert began. From the pretrial Petrocelli arguments, it appears the three discussed Wells arranging Moberts death by having his car go over a cliff with Mobert in it. In return, the Fieldses would cancel a debt Wells owed them and pay Wells $1,000. Fields reportedly asks Wells on the tape whether a handshake would seal the agreement. The State argued that this conversation was similar to one Fields and Linda had with Palenskys fellow ranch hand, Ralph Mackley, not long before Palensky disappeared, in which Linda suggested, in Fieldss presence, that Mackley run over Palensky with the front end loader and push his body into the river. An oddly jarring note: In the conversation with Wells and a later one with Mackley, Linda falsely accused Mobert and Palensky, respectively, of being child molesters, for no apparent reason except to devalue their worth as human beings. The Corn testimony was properly admitted to establish that the Fieldses had a shared monetary motive to kill Palensky. The existence of their earlier litigation with Mobert, the debt owed on the Silver Dollar Bar, and the state of the bankruptcy lift-stay proceedings were not contested. In December of 2003, when Palensky disappeared, the Fieldses did not have enough money to pay their ranch hand, Mackley, and could no longer buy hay on credit. The Fieldses stood to lose their interest in the Silver Dollar Bar unless they immediately paid Mobert a significant sum of money. Linda receiving Palenskys $300,000 life insurance benefit, or the two of them inheriting his estate, would help solve their problem with Mobert. It would also eliminate the brewing dispute they faced with Palensky over the asset transfers Linda had made while Palensky was in prison.1 A similar issue came before the court in Felder v. State, 107 Nev. 237, 810 P.2d 755 (1991). Felder, like Fields, appealed his murder conviction on the basis that the State violated the rule against using bad act evidence to prove criminal propensity by introducing evidence of the defendants desperat[e] financial condition to establish motive and identity. Id. at 241, 810 P.2d at 757. The evidence Felder challenged showed he was in financial distress and took
1 Although she denied making the statement at trial, Lindas daughter told her uncle, Mike Walker, that her parents, Linda and Fields, were arguing with Palensky over money the night before he disappeared. The daughters statement to her uncle was admitted as a prior inconsistent statement at trial.

792

Fields v. State

[125 Nev.

money from bank accounts without permission, forged signatures to obtain credit cards, and wrote a large check to his attorney, which bounced, in the eight months preceding the murder. Id. at 240, 810 P.2d at 757. This evidence had multiple implications, some legitimate and others forbidden by NRS 48.045(2). Although it impugned Felders character, the evidence was also relevant to establish that Felder was in financial straits and invented a ransom demand after killing the victim as part of a scheme to obtain $100,000 from a third person. Felder argued that the forgery and unauthorized transfers from other peoples bank accounts should have been excluded as improper bad act evidence under NRS 48.045(2); the State countered that the testimony was needed to demonstrate motive and that the prior acts were closely connected to Felders apparent scheme to obtain ransom money. Felder, 107 Nev. at 240, 810 P.2d at 757.2 The court agreed with the State and held the unauthorized bank account transfers and forgery may indicate desperation and [were] therefore properly admitted to prove motive. Id. at 241, 810 P.2d at 757.
[Headnote 6]

Not only did it tend to establish financial motive, as in Felder, the Mobert evidence also had relevance to knowledge and intent. It tended to show that Fields was not an innocent or ignorant bystander to Lindas alleged murderous scheme, as he claimed. A defendants knowing participation in prior bad acts with alleged coconspirators may be admitted in a proper case to refute claims that the defendants acts were nothing more than innocent acts of a friend [or here, a husband], and not a knowing participation in a conspiracy, and to show that [d]efendant was not an innocent pawn taken by surprise in the conspiracy charged. United States v. Mercado, 573 F.3d 138, 141 (2d Cir. 2009) (Calabresi, J.) (applying Fed. R. Evid. 404(b), the counterpart to NRS 48.045(2), and Fed. R. Evid. 403). See United States v. Tse, 375 F.3d 148, 155-56 (1st Cir. 2004) (canvassing and applying cases holding that, [i]n a conspiracy case, the district court may admit evidence of other bad acts if they tend to suggest a criminal association between the alleged conspirators . . . [and to] rebut a defendants claim that his association with the alleged conspirators was innocent); United States v. Pipola, 83 F.3d 556, 566 (2d Cir. 1996) (noting that, One legitimate purpose for presenting evidence of extrinsic [prior bad] acts is to explain how a criminal relationship developed; this sort of proof [can] furnish[ ] admissible background information in a conspiracy case . . . [and] help the jury understand the basis for the co2 The evidence respecting the bounced check to Felders lawyer was inadmissible hearsay, but its admission did not constitute reversible error because it was cumulative. Felder, 107 Nev. at 242, 810 P.2d at 758.

Dec. 2009]

Fields v. State

793

conspirators relationship of mutual trust); United States v. Cross, 308 F.3d 308, 322 (3d Cir. 2002) (upholding admission of evidence of other bad acts to refute claims that the defendants acted unwittingly and in good faith in connection with the events giving rise to the conspiracy charged); cf. Homick v. State, 108 Nev. 127, 139, 825 P.2d 600, 608 (1992) (upholding admission of testimony about prior bad acts to explain the relationship that led the defendant to give the murder weapon to an associate to use to commit another crime).
[Headnote 7]

Last, the Mobert evidence tended to prove identity, a central disputed issue in this case. [E]vidence of prior criminal behavior may only be admitted to prove identity when its prejudicial effect is outweighed by the evidences probative value and when that prior behavior demonstrates characteristics of conduct which are unique and common to both the defendant and the perpetrator whose identity is in question. Canada v. State, 104 Nev. 288, 292-93, 756 P.2d 552, 554 (1988) (quoting Coty v. State, 97 Nev. 243, 244, 627 P.2d 407, 408 (1981)). The district court did not abuse its discretion when it found the Mobert and Palensky facts sufficiently similar to permit the Mobert evidence to be used to show identity. Both scenarios involved grifting an older man (Palensky was in his sixties, Mobert in his seventies) who, facing loss of control of his life through hospitalization or prison, gave Linda a power of attorney, which she then used to transfer assets into accounts held by her and Fields; when the man recovered his autonomy and protested his missing money and property, Linda and Fields spoke to third parties about arranging the mans death, making it look accidental; she even went so far, in Fieldss presence, as to falsely accuse each man of being a child molester, in conversation with their prospective killers. The fact the Mobert solicitation did not lead to his death, while Palensky ended up murdered, weakens but does not eliminate the probative worth of the Mobert evidence. United States v. Robinson, 177 F.3d 643 (7th Cir. 1999), is analogous. Robinson challenged the admission to prove identity of a conversation he had with his girlfriend months before the bank robbery he was accused of. In it, he asked her to help him rob a different bank and outlined his thoughts on how to accomplish this. According to Robinson, this conversation showed only the daydreams of a frustrated youth and was too dissimilar from the robbery charged to be admitted. 177 F.3d at 647. Writing for the panel, Judge Wood found no error, plain or otherwise in admitting the girlfriends testimony. Id. Whether or not the daydream and the robbery shared a common modus operandi, they were similar enough to show that Robinson had developed a plan for robbing a bank that he believed could be carried out quickly

794

Fields v. State

[125 Nev.

and easily. . . . It also supplies a motive for bank robbery: Robinson thought this was a quick and easy way to solve his financial problems. Id. In sum, the Mobert evidence had probative value on issues besides propensitymotive, intent, knowledge, and identitywhich satisfies the first prong of Tinchs three-part test. Although the dissent argues otherwise, the facts relating to Mobert were sufficiently proved to satisfy Tinchs second prong as well. The Corn testimony, as noted, addressed the fact of the Fieldses dispute with Mobert and Moberts imminent foreclosure of their interest in the Silver Dollar Bar. And as the district court found, the Wells tape is what the tape is. It was properly authenticated. The jury did not have to believe or like Wells. See Wade v. State, 114 Nev. 914, 917-18, 966 P.2d 160, 162-63 (1998) (upholding admission of tape-recorded conversation with an informant for the defendants statements, not the informants). Its significance lay in what Fields and Linda said on the tape. Whether they meant their words seriously was for the jury to decide. The words themselves were not contested.
[Headnote 8]

The close question arises under Tinchs third prong, in the district courts determination that the risk of unfair prejudice did not substantially outweigh the probative value of the evidence. On the record we have, we cannot say that the district court manifestly abused its discretion in deciding this question, especially in view of the fact that the State charged Fields with conspiracy to commit murder. The court gave proper limiting instructions, and the State did not offer or argue the evidence to prove propensity. Presenting the Mobert evidence took less than a half day of the two-week trial in this case. We do not have a transcript of opening statements, but the transcript of closing arguments shows that the State did not put the Mobert evidence to improper use. In closing, the State made minimal mention of the Mobert evidence, addressing it once, briefly, in regard to the Fieldses financial straits and the financial motive their problems with Mobert gave them to kill Palensky, and a second time addressing the conspiracy charge against Fields.3 Finally, we have carefully reviewed the record and find there was sufficient proof, independent of the Mobert evidence, to convict Fields of both murder and conspiracy to commit murder, given the forged will, Fieldss statements to Mike Wilson, Mike Walker, and others about Palenskys death and dump[ing] the body, his taped inculpatory conversations with Linda from the jail, and the Fieldses impending
3 The State did not argue that the Fieldses had a motive to kill Palensky because he allegedly molested Lindas grandson. On the contrary, the State argued that Lindas statements about Palensky being a child molester were trumped up and that Linda had made similar false accusations against Mobert to discredit and devalue both men.

Dec. 2009]

Fields v. State

795

dispute with Palensky over his missing money and property. On this record, we therefore reject Fieldss NRS 48.045(2) challenge to the admission of the Mobert evidence. Excluded testimony Next, Fields challenges the district courts exclusion of testimony from two witnesses, Wilson and Grondona, about statements nontestifying third parties made to them concerning Lindas brother, Mike Walker. We review a district courts determination of whether proffered evidence fits an exception to the hearsay rule for abuse of discretion. See Harkins v. State, 122 Nev. 974, 980, 143 P.3d 706, 709 (2006).
[Headnote 9]

Fields sought to establish through Mike Wilson that Wilson once found Linda crying, covered in blood from a head wound for which she blamed her brother, Mike Walker, not that Mike Walker did it, but it was tied to Mike Walker, to people tied to an act of his. Walker testified at Fieldss trial about a conversation he overheard between Fields and Linda about Palenskys life insurance benefit being paid into court and their fear of what would happen if they find out we dumped the body. Walker was impeached with a prior conviction and other bases for bias against his sister, but he was not asked about the episode sought to be introduced through Wilson. The district court properly excluded Wilsons testimony about Lindas accusations against her brother as improper collateral impeachment of a witness under NRS 50.085(3).
[Headnote 10]

The Claire Grondona testimony was the subject of an offer of proof outside the jurys presence. Grondona testified that she is a former reserve police officer, currently working as a Catholic lay minister and helping rehabilitate drug abusers. In July of 2007, a woman named Leah Rand came to Grondonas home and broke down in tears describing how, in 2003, she had come to Nevada from California with a group of people, including Mike Walker, gotten drunk, and seen Walker hit Jerry . . . the Polack in the head with an object. Rand said she did not report this to the police then or later, because in the summer of 2004, Walker threatened to kill her and her children. Nor did Grondona report her conversation with Rand to anyone until Grondona testified at the Fields trial. Rand was not shown to be unavailable; her statements to Grondona thus did not even arguably qualify for admission as statements against penal interest. NRS 51.345(1)(b). They also did not qualify as excited utterances, given that more than three years elapsed between the event and her telling Grondona about it. See Browne v. State, 113 Nev. 305, 313, 933 P.2d 187, 192 (1997) (noting that the timing of the event precipitating [the declarants] fear . . . is

796

Fields v. State

[125 Nev.

often the determining factor for an excited utterance). The district court did not abuse its discretion in excluding the Grondona/Rand evidence as hearsay. Citing Chia v. Cambra, 360 F.3d 997 (9th Cir. 2004), Fields argues he had a due process right to present Grondonas testimony because, if accepted as true, Rands statements to Grondona exonerated him by implicating Walker. Fields overreads Chia. Relying on Chambers v. Mississippi, 410 U.S. 284 (1973), Chia held that when a hearsay statement bears persuasive assurances of trustworthiness and is critical to the defense, the exclusion of that statement may rise to the level of a due process violation. Id. at 1003. Rands statements to Grondona, unlike the declarants statements in Chia, bore no particular indicia of trustworthiness. To the contrary, according to Grondona, Rand said she was drunk when the fight she witnessed occurred; both Grondona and Rand reportedly had a prior history of bad blood with Walker, giving them motive to falsely inculpate Walker. Unlike the declarant in Chia, whose statements to detectives were recorded and close in time to the event (one was made as the declarant was being prepared for surgery and under fear of impending death), Rands statements to Grondona were made more than three years after the event. Most important of all, the declarants statements in Chia inculpated the declarant while exonerating the defendant, thus contributing to their reliability. The statements at issue here, by contrast, did not inculpate the declarant (Rand) but merely placed her at the scene as a witness against a third person (Walker). With no assurances of trustworthiness, Chia does not apply. Id. at 1008.
[Headnote 11]

Although a criminal defendant has a due process right to introduce into evidence any testimony or documentation which would tend to prove the defendants theory of the case, that right is subject to the rules of evidence. Rose v. State, 123 Nev. 194, 205 n.18, 163 P.3d 408, 416 n.18 (2007) (quoting Vipperman v. State, 96 Nev. 592, 596, 614 P.2d 532, 534 (1980)). Grondonas testimony about what Rand said to her did not carry sufficient assurances of trustworthiness to justify admission despite its hearsay status. Jail telephone conversations
[Headnote 12]

Fields spoke to Linda on the telephone while she was in jail and their conversations were recorded. Although the record on appeal includes neither the tape recordings nor transcripts of the calls played for the jury, the pretrial hearing transcript establishes that both

Dec. 2009]

Fields v. State

797

Linda, as the inmate, and Fields, as the outside caller, would automatically be warned that the call was being recorded. This defeats the expectation of confidentiality required to sustain Fieldss claim of marital privilege under NRS 49.295 for these calls. Foss v. State, 92 Nev. 163, 167-68, 547 P.2d 688, 691 (1976). Jury instruction on intent
[Headnote 13]

Fields next complains that the jury instruction on specific intent was inadequate because the court did not add the following underscored language to its instructions that murder is a specific intent crime and that [s]pecific intent means the intent or active desire to accomplish a precise act or forbidden objective, not merely the intent to do an act. However, in addition to the instructions just quoted, the jury was instructed that, [b]ecause murder is a specific intent crime, the Defendant cannot be found guilty of murder merely because it was a natural and probable consequence of the conspiracy unless he had a specific intent to commit the murder, that [m]urder in the first degree must be perpetrated by means of willful, deliberate and premeditated killing, and that [w]illfulness is the intent to kill. This adequately conveyed the information Fields sought to add to the specific intent instruction. See Powell v. State, 113 Nev. 258, 262-63, 934 P.2d 224, 227 (1997). Comment in closing argument When Linda spoke to Fields on the jail phone, she apparently complained to Fields that she was in jail because of what Fields did. During closing, the State commented on Fieldss silence in the face of these accusations. Fields objected and the court sustained his objection to the extent this could be interpreted as a comment on Fieldss not testifying. The court overruled his objection to the extent Fieldss silence on the accusatory calls with Linda were adoptive admissions. While the States comment should have been more narrowly tailored, this ruling comported with Maginnis v. State, 93 Nev. 173, 561 P.2d 922 (1977), and does not constitute reversible error. CONCLUSION Fields was charged with and convicted of both murder and conspiracy to commit murder. The district court did not abuse its discretion in making the evidentiary rulings it did or commit instructional error. Accordingly, we affirm. HARDESTY, C.J., PARRAGUIRRE, DOUGLAS, and GIBBONS, JJ., concur.

798

Fields v. State

[125 Nev.

CHERRY, J., with whom SAITTA, J., agrees, dissenting: I respectfully dissent from my colleagues in the majority. As a former public defender, special public defender, and a trial judge, I fear that the majoritys reasoning in affirming the murder conviction of appellant emasculates NRS 48.045. I hope that our trial judges in the State of Nevada will continue to follow the general rule that proof of a distinct independent offense is inadmissible during a criminal trial, Nester v. State of Nevada, 75 Nev. 41, 46, 334 P.2d 524, 526 (1959), and only permit the introduction of said prior bad act evidence if the trial court determines 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. Tinch v. State, 113 Nev. 1170, 1176, 946 P.2d 1061, 1064-65 (1997). In the instant matter, John Vernon Fields was convicted of one count of first-degree murder with the use of a deadly weapon and one count of conspiracy to commit murder. He now appeals those convictions primarily on the basis of the district courts admission of evidence of a prior bad act in the form of a prior uncharged conspiracy. Fields argues that such evidence was inadmissible for two reasons. First, Fields contends that the evidence did not fall within the common-plan-or-scheme exception to the general rule excluding bad act evidence because the crime charged was not similar enough to the prior conspiracy. Second, Fields contends that even if the bad act evidence was relevant as proof of a common plan or scheme, such evidence should not have been admitted because its probative value was substantially outweighed by the danger of unfair prejudice. I conclude that the district court abused its discretion in admitting this bad act evidence because the prior conspiracy was not similar enough to the crimes charged to be relevant as proof of a common plan or scheme. I also conclude that the probative value of the bad act evidence was substantially outweighed by the danger of unfair prejudice. As such, I conclude that a new trial is warranted because the admission of the bad act evidence was not harmless. FACTS Relationship between the Fieldses and Palensky In April 2002, Jaromir Palensky went to prison for a felony DUI conviction. Prior to going to prison, Palensky contacted Linda Marie Walker Fields (Linda) and gave her power of attorney so she could take care of his affairs while he was in prison. In addition, Linda took out a new life insurance policy on Palenskys life with Linda as the beneficiary. More than a year after his conviction, Palensky completed his term of incarceration. Approximately three months before his re-

Dec. 2009]

Fields v. State

799

lease, the Nevada Division of Parole and Probation contacted Linda to organize Palenskys early release. After meeting with Palenskys parole officer, Fields and Linda arranged to move Palenskys trailer onto their property. Palensky then worked and lived on the Fieldses ranch until his disappearance in December 2003. The Fieldses alleged that, prior to his disappearance, Palensky made a will that made the Fieldses his heirs. A month after Palenskys disappearance, on January 14, 2004, his body was found floating face down in the Jordan River near Salt Lake City, Utah, by the Salt Lake County Sheriffs Department. Dr. Edward Leis, employed by the Utah State Medical Examiners Office, performed an autopsy of Palenskys body and concluded that Palensky died of a combination of four blows to the back of his head inflicted by a blunt instrument. Dr. Leis testified that he could not be certain how long Palensky was in the water, but he could not deny that the body could have been in the water up to 24 days given the water temperature. Detective Brent Adamson, a detective with the Salt Lake County Sheriffs office, was in charge of identifying Palenskys body and the subsequent investigation into Palenskys murder. Adamson did not receive any leads regarding Palenskys death. The only people to contact Adamson were people Palensky knew many years prior when he lived in Carbon County, Utah. In Palenskys wallet, there was a phone number for the Fieldses, which Adamson called. Fields answered, and told Adamson that Palensky was a former employee who left the ranch a month prior. Fields told Adamson to call Linda for more information. A few days after the phone call, Adamson traveled to Elko and to the Fieldses ranch where he spoke to the Fieldses in person. Fields and Linda provided Adamson with all of Palenskys documents in their possession, including his trailer registration and the business documents between Linda and Palensky. Linda also provided Adamson with an agreement between her and Palensky in which Linda agreed to pay off five debts for Palensky. Fields was present when Linda gave this document to Adamson. Adamson and the Fieldses discussed that on December 19, 2003, Palensky was so intoxicated during work that the Fieldses had to send him to his trailer. Later that evening, lights were on in Palenskys trailer, but he was not there, and the Fieldses told Adamson that was the last time they saw Palensky. Adamson looked at Palenskys trailer but did not see anything suspicious. Kevin McKinney, a detective with the Elko County Sheriffs Department, began investigating Linda after he was contacted by her brother, Mike Walker, and her sister-in-law, Niqua Walker, in September 2006. Mike and his wife, Niqua, moved onto the Fieldses ranch in the summer of 2006. Prior to moving in with Linda, Mike was estranged from his sister for many years. Mike never met Palensky and

800

Fields v. State

[125 Nev.

only heard the Fieldses discuss Palensky oncewhen they were going to Utah to receive money from the life insurance policy taken out by Linda on Palenskys life. Late one night when Mike got out of bed to go to the bathroom, he overheard a conversation between Fields and Linda wherein Fields said, [w]hat if they find out we dumped the body. Linda reacted to Fieldss statement with profanity and told Fields never to talk like that again. Thereafter, Mike and Niqua were evicted from the Fieldses property for alleged drug use. In late July 2006, Linda told Niqua that she caught Palensky molesting her grandson in the shed and that she killed Palensky by hitting him in the head with a pipe. Niqua discussed this admission with Mike, and they decided to alert the police. Fields was not around when Linda allegedly confessed to Niqua that she killed Palensky. Mike and Niqua contacted McKinney with information that Linda was involved in Palenskys murder. They told McKinney about Lindas confession to Niqua, and that Linda stated that she used the insurance money from Palenskys death to pay his molestation victims. Niqua told McKinney she did not believe Linda because Linda lies a lot. Thereafter, McKinney inquired into the prior police investigation in Salt Lake City. In October 2006, McKinney and the Elko County Sheriffs Department took over as primary investigators on the Palensky murder, with McKinney as lead investigator. McKinney set up a confrontation between Mike and Linda on November 22, 2006, by putting a body wire on Mike and instructing him to confront the Fieldses about Palenskys murder. As soon as Mike entered the property, Fields told him to leave, and Mike left. In November 2006, McKinney spoke to Fields at the sheriffs office regarding the death of Palensky. Fields told McKinney that he did not know about the death of Palensky but told McKinney that Patricia Grenz, a friend of the Fieldses, now owned the trailer Palensky lived in when he worked on the Fieldses ranch. Grenz bought Palenskys trailer from its original owner after Palenskys disappearance. Thereafter, the police came to Grenz and took the trailer in which Palensky once lived in order to search it. The Fieldses also sold a red Toyota pickup to Grenz sometime before 2004. Previously, Mike and Niqua told McKinney that this pickup was used by the Fieldses to transport Palenskys body. McKinney conducted a search of Palenskys trailer and the red Toyota pickup. In each search, McKinney found no evidence related to Palenskys death. After Linda was charged with open murder and convicted by a jury of murder in the first degree in the death of Palensky, Fields was separately charged with open murder and convicted of murder in the first degree with use of a deadly weapon and conspiracy to commit murder.

Dec. 2009]

Fields v. State

801

Bad act evidenceMobert conspiracy At trial, in an attempt to establish a possible motive linking Fields to Palenskys murder, the State introduced evidence of a prior uncharged conspiracy involving the Fieldses and Roy Mobert. Mobert and the Fieldses were friends who later developed a business partnership when Mobert assigned power of attorney to Linda. Mobert was elderly and in poor health, and Linda sold his property for him and arranged other affairs with the power of attorney. The business relationship soon soured, and the Fieldses filed a civil suit against Mobert, who filed a counterclaim. Mobert and the Fieldses settled this suit in 2000. Mobert died of natural causes in 2007, when Linda no longer held rights of survivorship or any other potential for pecuniary gain from Mobert. At a hearing on pretrial motions in the instant case, the State put on Gregory Corn as its first witness. Corn was Moberts attorney in the civil suit between Mobert and the Fieldses, wherein the Fieldses claimed that Mobert did not follow through on a promissory note to sell the Silver Dollar to them. However, Corn was not Moberts attorney when Linda obtained power of attorney for Mobert. Corn testified that the Fieldses used Moberts power of attorney substantially after Mobert inherited $95,000 from his mother. Corn also wrote a will for Mobert, revoking a prior will where Mobert left his entire estate to the Fieldses. The court ruled that the will could be admitted into evidence. At the same pretrial hearing, the State called James Pitts, a detective with the Elko County Sheriffs Department. Pitts worked an investigation involving Fields, Linda, and Billy Wells, a regular police informant, after Wells told the police that the Fieldses had solicited him to murder Mobert. In 2001, Pitts rigged Wells with a microphone and instructed him to meet with Fields and Linda about the possible murder for hire in an attempt to record Fields and Linda soliciting Wells to murder Mobert. Consequently, the State sought to admit the recorded conversations under the motive exception to hearsay because it showed Fieldss involvement in a prior murder solicitation. Fields objected to the admission of the tape on the basis of relevancy and prejudicial value. The court ruled that it would admit the tape at trial with a cautionary instruction. Before Corn testified at trial, a limiting instruction pursuant to Tavares v. State1 was given regarding the bad act evidence to be given by Corn and Pitts. At trial, Corn testified that Linda sold Moberts bar in Jarbidge, Nevada, and that she took the proceeds
1 117 Nev. 725, 733, 30 P.3d 1128, 1133 (2001) (stating that the trial court, absent a waiver from the defendant, must give a limiting instruction explaining the purposes for which bad act evidence is admitted immediately prior to its admission and a general instruction at the end of trial reminding the jurors that certain evidence may be used only for limited purposes).

802

Fields v. State

[125 Nev.

from this sale, as well as proceeds from the sale of a house for Mobert, and opened a checking account in her own name. Linda then used this money to buy a vehicle for her daughter and to make improvements on the Silver Dollar. On behalf of Mobert, Corn prepared a counterclaim against the Fieldses, claiming that Linda defrauded Mobert and misused the power of attorney against Mobert. Eventually, the civil suit settled, and Corn testified that Fields returned substantial cash and property to Mobert. Also at trial, and after the district court gave the Tavares instruction, Larry Kidd, Jr., a police officer with the City of Elko, testified that Wells told him that Wells had been contracted by the Fieldses to kill Mobert in 2001. Kidd helped Pitts set up Wellss audio surveillance to record the meeting between Wells and the Fieldses. After the investigation and audio surveillance, no charges were filed against Fields. Kidd testified that the audio surveillance failed to provide substantial evidence and that Wells was playing both ends against the middle, meaning that he was telling the police one thing and telling the Fieldses the opposite to evade suspicion from either side. Thereafter, excerpts from the conversation were played.2 Wells was a paid informant for the narcotics task force, but there was no testimony regarding whether Wells was paid for this specific task. By introducing evidence of this uncharged prior conspiracy involving Mobert, the State sought to convey to the jury that with both Palensky and Mobert, the Fieldses, and John Fields in particular, planned to take advantage of elderly people by obtaining a power of attorney, using that power of attorney to get money and assets, and then murdering the elderly men for their estates. Fields rebutted this testimony by not only pointing out Wellss propensity for untruthfulness but also the lack of physical evidence in the case. Specifically, Fields pointed out the States inability to display a murder weapon or any evidence to suggest he was at the scene of Palenskys murder, as well as the inefficient investigation by the Elko County Sheriffs Department. After deliberating for three days, the jury returned a guilty verdict on all counts. The district court sentenced Fields and entered a judgment of conviction. This appeal followed. DISCUSSION Admission of bad act evidence We defer to the district courts discretion in admitting or excluding evidence of prior bad acts. Braunstein v. State, 118 Nev. 68, 72, 40 P.3d 413, 416 (2002). We will not reverse such determinations absent manifest error. Id.
2 The record did not contain the transcript of the tapes or excerpts of conversations that were played for the jury.

Dec. 2009]

Fields v. State

803

In analyzing the propriety of admitting evidence of prior bad acts, we have instructed trial courts to follow the parameters of NRS 48.045(2). Id. at 75, 40 P.3d at 418. Under NRS 48.045(2), such evidence is not admissible to prove the character of a person in order to show that he acted in conformity therewith but may be admissible to show proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Before admitting evidence of prior bad acts, the district court must, outside the presence of the jury, determine whether: (1) the evidence is relevant, (2) the prior bad act is proven by clear and convincing evidence, and (3) the danger of unfair prejudice substantially outweighs the evidences probative value. Meek v. State, 112 Nev. 1288, 129293, 930 P.2d 1104, 1107 (1996). Here, although I focus on the relevance of the bad act evidence and whether its probative value is outweighed by unfair prejudice, I would hold that the State failed entirely in proving the bad act Mobert conspiracy by clear and convincing evidence. Relevance and the danger of unfair prejudice Prior bad act evidence is admissible pursuant to the commonplan-or-scheme exception of NRS 48.045(2) when both the prior bad act evidence and the crime charged constitute an integral part of an overarching plan explicitly conceived and executed by the 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 which resulted in the commission of that crime. Ledbetter v. State, 122 Nev. 252, 260-61, 129 P.3d 671, 677-78 (2006) (quoting Rosky v. State, 121 Nev. 184, 196, 111 P.3d 690, 698 (2005) (other internal citations and quotations omitted)). I conclude that the evidence of an uncharged prior bad act admitted herethe Mobert conspiracywas irrelevant because it was not part of a common plan or scheme when considered with the crimes charged because the State did not show that the two acts were part of an overarching, preconceived plan. As such, I conclude that the district court abused its discretion in admitting evidence of the prior uncharged bad acts alleged as the Mobert conspiracy for the reasons discussed below. There is a significant distinction between Mobert and Palensky. Mobert was in his late seventies, in poor health, and needed to have his affairs taken care of by another person at the time of the alleged conspiracy, whereas Palensky was in his sixties, in good health, and still had the strength to work on a ranch. The State portrayed to the jury that both of these victims were the sameelderly, frail, and helplesswhen they were allegedly taken advantage of by the Fieldses. I conclude that this portrayal is inaccurate because the victims were not in the same circumstance

804

Fields v. State

[125 Nev.

such that they could be considered similar enough to be part of a preconceived plan, as they were not the same age or in the same condition. Mobert died in 2007 after there was a civil settlement approved by the court between him and the Fieldsesthere was no ongoing dispute over money at the time of his death. Palensky was murdered, and there was no dispute with the Fieldses over money before his death. The circumstances of the alleged conspiracies are not similar, and the prior conspiracy alleged against Fields involving Mobert is irrelevant because the manner and cause of death of each of the victims are wholly different. Mobert died of natural causes. The State failed to demonstrate that any alleged solicited murder of Mobert was relevant to proving a preconceived, overarching plan that resulted in the murder of Palensky. As such, I conclude that the district court abused its discretion by admitting the bad act evidence under the common-plan-or-scheme exception. Even if the State had shown that the Mobert conspiracy was relevant to proving a common plan to conspire to murder Palensky, I conclude that the district court abused its discretion in admitting evidence of the Mobert conspiracy because the probative value of the evidence was substantially outweighed by the danger of unfair prejudice, and its admission led to serious jury confusion. Evidence of an alleged solicitation to murder Mobert from a police informant who even the police suggested was playing both ends against the middle, which belies the polices own trust in the informant, is not relevant and goes solely to a showing of bad character. Furthermore, NRS 48.035(1) provides for the exclusion of evidence, even if relevant, if the probative value of that evidence is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or of misleading the jury. Here, I conclude that the district court abused its discretion in the admission of evidence of the Mobert conspiracy because it was more prejudicial than probative and it led to serious jury confusion. A significant amount of time at trial was spent playing the excerpts of the conversations between Fields, Linda, and Wells related to the alleged Mobert conspiracy, as well as presenting Corns testimony regarding the civil suit between the Fieldses and Mobert. Explaining every aspect of a civil suit within a criminal prosecution is potentially confusing to the jury because the standards and evidence are very different. The alleged conspiracies were not sufficiently similar for the Mobert conspiracy to be admitted under the common-plan-or-scheme exception. Because the Mobert conspiracy is by all accounts a business deal gone wrong, although it was settled out of court, I conclude that the district court erred in allowing evidence of this conspiracy to be admitted in the underlying case because Wells was not a reliable in-

Dec. 2009]

Fields v. State

805

formant, the conspiracy was never charged, and the volume of information and time spent on submitting this conspiracy may have led to jury confusion. Prior bad act evidence confuses jurors The majority bases part of its decision to affirm Fieldss conviction on the fact that presentation of the Mobert conspiracy evidence took less than a half day of a two-week trial. As a criminal defense lawyer for almost three decades, I can attest that any mention of prior bad acts in a criminal trial cannot be analyzed by the time it took to present said evidence. Further, the presentation of this type of evidence can feel like a lifetime to a defense attorney and his or her client! Less than a half day of this type of evidence is certainly unfair. Limiting instructions are fine as well as not using prior bad acts to show propensity. However, this type of evidence in the instant case could only confuse the jury, and any probative value, which I do not believe exists, is outweighed by its prejudicial effect. Although I conclude that the district court abused its discretion in admitting this uncharged prior bad act evidence, a new trial is not warranted unless the error was not harmless. Harmless error In reviewing nonconstitutional error, we use the standard set forth in Kotteakos v. United States, 328 U.S. 750 (1946), which is identical to NRS 178.598. Tavares, 117 Nev. at 732, 30 P.3d at 1132. The test under Kotteakos is whether the error had substantial and injurious effect or influence in determining the jurys verdict. Id. (quoting Kotteakos, 328 U.S. at 776). Accordingly, unless it is clear that the defendant suffered no prejudice as determined by the Kotteakos test, the conviction must be reversed. Id. (citing United States v. Olano, 507 U.S. 725, 741 (1993)). I conclude that the district courts improper admission of the bad act evidence regarding the Mobert conspiracy was not harmless for two reasons. First, I conclude that the unfair prejudice Fields suffered from the admission of the bad act evidence substantially outweighed any probative value of such an admission because there is no direct evidence tying Fields to the murder of Palensky and the circumstantial evidence of guilt is less than overwhelming. Second, I conclude that the error in admitting the evidence certainly had a substantial and injurious influence in determining the jurys verdict because the alleged prior bad act was so serious and potentially confusing to the jury. Consequently, the error was not harmless because the unfair prejudice to Fields that resulted from the district courts error in admitting the bad act evidence substantially outweighed its probative value. Rather, the admission of the evidence regarding the Mobert conspiracyevidence of an alleged prior murder solicitation

806

Fields v. State

[125 Nev.

by Fieldssurely had an impact on the jurys verdict because even if the jury could not tie Fields to Palenskys murder, the guilty verdict rendered could have been determined, in part, by the admission of evidence of Fieldss alleged solicitation to kill Mobert. Stare decisis would cause the evidence of the Mobert conspiracy to be inadmissible The majority has successfully undermined the long line of cases and jurisprudence that has disallowed the use of prior bad acts by prosecutors. In Phillips v. State, 121 Nev. 591, 119 P.3d 711 (2005), receded from on other grounds as stated in Cortinas v. State, 124 Nev. 1013, 1026 n.52, 195 P.3d 315, 324 n.52 (2008), this court held that the probative value of defendants prior convictions was outweighed by their prejudicial effect. Id. at 591, 119 P.3d at 711. In Phillips, admission of prior convictions, which met the burden of beyond a reasonable doubt, not merely clear and convincing evidence, were found to be error albeit harmless. Id. at 601-02, 119 P.3d at 718-19. Justice Rose, in his dissent, not only held the admission of prior bad act testimony to be error, but also that its presentation to the jury was not harmless beyond a reasonable doubt and therefore should have resulted in a reversal of the conviction. Id. at 603-04, 119 P.3d at 719-20 (ROSE, J., concurring in part and dissenting in part). In reversing the first-degree murder conviction in Longoria v. State, 99 Nev. 754, 670 P.2d 939 (1983), this court held that the district court committed reversible error by permitting the prosecutor to cross-examine the defendant about his alleged commission of attempted murder in a prior incident. Id. at 756-57, 670 P.2d at 94041. The rationale of Longoria is applicable in the instant case since, in both cases, the evidence was not overwhelming and the jury may have reached a different conclusion if the error had not occurred. See also Bellon v. State, 121 Nev. 436, 117 P.3d 176 (2005); Walker v. State, 116 Nev. 442, 997 P.2d 803 (2000); Roever v. State, 114 Nev. 867, 963 P.2d 503 (1998); Winiarz v. State, 107 Nev. 812, 820 P.2d 1317 (1991). CONCLUSION I conclude that the district court abused its discretion in admitting evidence of the Mobert conspiracy because the evidence was inadmissible prior bad act evidence that did not fall under the common-plan-or-scheme exception, and thus, was irrelevant. I further conclude that the probative value of the evidence was substantially outweighed by the danger of unfair prejudice. I further conclude the prior bad act was not proven by clear and convincing evidence. I conclude that a new trial is warranted because the admission of such evidence was not harmlessthe confusing admission

Dec. 2009]

Thompson v. State

807

of the tapes and the amount of time spent on discussing the alleged uncharged conspiracy surely had an impact on the verdict. Accordingly, I would reverse the judgment of conviction and remand this case to the district court for a new trial with the evidence of the Mobert conspiracy excluded.

LUQRIS THOMPSON, APPELLANT, v. THE STATE OF NEV ADA, RESPONDENT.

No. 51162 December 10, 2009 221 P.3d 708

Appeal from a judgment of conviction, pursuant to a jury verdict, of conspiracy to commit a crime, burglary, robbery, firstdegree kidnapping, and attempted grand larceny auto. Eighth Judicial District Court, Clark County; Joseph T. Bonaventure, Judge. The supreme court, SAITTA, J., held that: (1) States election to proceed on indictment after its voluntary dismissal of information did not violate statute providing that order for dismissal of action shall bar another prosecution for same offense, (2) photographic lineup was not impermissibly suggestive, (3) victim did not give impermissible expert testimony with respect to how she managed to remember defendants appearance, (4) photographs of victims injuries were relevant and thus admissible, and (5) identity evidence was sufficient to establish that defendant was one of victims attackers. Affirmed. [Rehearing denied February 16, 2010] Ciciliano & Associates, LLC, and G. Luke Ciciliano, Las Vegas, for Appellant. Catherine Cortez Masto, Attorney General, Carson City; David J. Roger, District Attorney, Steven S. Owens, Chief Deputy District Attorney, and Peggy M. Samples, Deputy District Attorney, Clark County, for Respondent.
1. DOUBLE JEOPARDY. States election to proceed on indictment charging conspiracy to commit a crime, burglary, robbery, first-degree kidnapping, and attempted grand larceny auto, after its voluntary dismissal of proceeding under information charging same offenses, did not violate statute providing that order for dismissal of action shall bar another prosecution for same offense; by choosing to pursue the grand jury indictment, State was not bringing another prosecution following dismissal of an action. NRS 178.562(1).

808

Thompson v. State

[125 Nev.

2. CRIMINAL LAW. Issue of whether statute governing dismissal or discharge of an accused upon preliminary examination as bar to another prosecution for the same offense precludes the State from prosecuting an individual under a grand jury indictment is purely a legal question that is reviewed de novo on appeal. NRS 178.562(1). 3. DOUBLE JEOPARDY. Dual proceedings for the same offenses are proper, and the State may elect to proceed on one of two pending proceedings and dismiss the proceeding under which it has elected not to prosecute without running afoul of statute providing that order for dismissal of action shall bar another prosecution for same offense. NRS 178.562(1). 4. CRIMINAL LAW. Photographic lineup was not impermissibly suggestive as to give rise to substantial likelihood of irreparable misidentification, in prosecution for conspiracy, burglary, robbery, first-degree kidnapping, and attempted grand larceny auto; in her voluntary statement to police immediately following attack, victim described taller assailant, later identified as defendant, as an African-American man in his late twenties or early thirties with light brown skin, short hair, and wearing a fitted white T-shirt, and, in photographic lineup containing defendants picture, the men were all African-American, had similarly shaped faces and short hair, and appeared to be same age. 5. CRIMINAL LAW. In reviewing the propriety of a pretrial identification, the supreme court considers (1) whether the procedure is unnecessarily suggestive, and (2) if so, whether, under all the circumstances, the identification is reliable despite an unnecessarily suggestive identification procedure. 6. CRIMINAL LAW. A photographic lineup is suggestive if, given the totality of the circumstances, the procedure was so unduly prejudicial as fatally to taint the defendants conviction. 7. CRIMINAL LAW. A photographic identification must be set aside only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. 8. CRIMINAL LAW. Victim, when testifying as lay witness in describing her attack, did not give impermissible expert testimony with respect to how she managed to remember defendants appearance, but rather explained to the jury how she, as a former student of art, knew special techniques for remembering her assailants appearance, in prosecution for conspiracy, burglary, robbery, firstdegree kidnapping, and attempted grand larceny auto. NRS 50.275. 9. CRIMINAL LAW. The district court has discretion to determine the admissibility of expert testimony, and the supreme court reviews this decision for a clear abuse of discretion. 10. CRIMINAL LAW. The district court is in a better position than the supreme court to determine the helpfulness of proposed expert testimony in light of the material facts in issue. 11. CRIMINAL LAW. Photographs of victims injuries were relevant, and thus admissible, to prove that defendant forced victim into her car, in prosecution for conspiracy, burglary, robbery, first-degree kidnapping, and attempted grand larceny auto. NRS 48.015.

Dec. 2009]

Thompson v. State

809

12. CRIMINAL LAW. The district court enjoys broad discretion in determining whether evidence should be admitted. 13. BURGLARY; CRIMINAL LAW; ROBBERY. Identity evidence was sufficient to establish that defendant was one of victims attackers, thus supporting conviction for conspiracy, burglary, robbery, first-degree kidnapping, and attempted grand larceny auto; victim identified defendant as one of her attackers both in the photographic lineup and at trial, and victims testimony was corroborated by a security guard who testified that he noticed defendant walking around the apartment complex just before the attack.

Before the Court EN BANC. OPINION By the Court, SAITTA, J.: In this appeal, we consider whether the States election to dismiss one of two charging documents and to proceed on the other constitutes another prosecution under NRS 178.562(1). Specifically, we address whether the 1997 amendment to NRS 178.562(1) affects our holding in Turpin v. Sheriff, 87 Nev. 236, 484 P.2d 1083 (1971). We hold that it does not and conclude that neither this issue, nor the other issues that appellant Luqris Thompson raises on appeal, warrants reversal of Thompsons conviction and sentence. Therefore, we affirm the judgment of conviction. FACTS AND PROCEDURAL HISTORY Renee Coppola returned to her apartment one night, parked her car, and retrieved some bags from the back seat. With the back door still open, Coppola turned around with her bags and saw two men standing in front of herone of the men was later identified as Thompson. Thompson grabbed Coppola and pushed her back into the car. Struggling against him, Coppola managed to escape and ran to a post that she clung to as Thompson and the other assailant forcibly pulled her off and pushed her back into the car. Hearing one of the men ask for her keys, Coppola threw the keys and her purse onto the floor of the car. The other assailant tried to start the car as Thompson lay on top of Coppola in the back seat. Coppola continued struggling and managed to exit the car and escape. After escaping, Coppola ran to a neighbors apartment and someone called 911. Coppola spoke to the police and completed a voluntary statement in which she described the attack and her assailants. That night, Coppola used the special training that she had learned as an art student to help her remember Thompsons appearance. Thompson was arrested, and the State charged him by criminal complaint with conspiracy to commit a crime, burglary, robbery,

810

Thompson v. State

[125 Nev.

first-degree kidnapping, and attempted grand larceny auto. A preliminary hearing was held; Thompson was bound over on the charges, and an information was filed in the district court. Shortly thereafter, the State presented the case before a grand jury, which ultimately returned an indictment against Thompson for the same crimes as charged in the pending information. Upon obtaining the grand jury indictment, the State moved to dismiss the information. The district court granted the States motion in a minute order. Thompson then moved to dismiss the indictment. A hearing on the motion was held and, without citing authority, the district court denied the motion.1 Thompson also moved to preclude Coppola from identifying him as her assailant at trial. The district court denied Thompsons motion.2 At trial, Coppola testified that 19 days after the attack, the police showed her three photographic lineups. She identified Thompson from the third lineup. While Coppola testified that she had only been 90 percent certain she had identified the correct man when she viewed the photographic lineup, she was 100 percent sure at the time of trial. Over Thompsons objection, Coppola also testified about the artist techniques that she had used to recall his appearance. Additionally, Coppola testified about the injuries she suffered in the attack, and photographs of her injuries were admitted. Further, security guard Elven Bailey testified that he was on duty at Coppolas apartment complex the night of the attack. Bailey testified that he saw two African-American men, one of whom he identified at trial as Thompson, walking towards the back of the complex just before the attack. The jury found Thompson guilty on all counts, and the district court sentenced him to prison terms of 18 to 48 months for conspiracy to commit a crime, 24 to 84 months for burglary, 48 to 120 months for robbery, 5 to 15 years for first-degree kidnapping, and 12 to 48 months for attempted grand larceny auto, with the conspiracy to commit a crime and first-degree kidnapping sentences to run consecutively and the remaining sentences to run concurrently. This appeal followed. DISCUSSION On appeal, Thompson raises five issues. He asserts that NRS 178.562(1) barred the State from prosecuting him under the grand jury indictment, and therefore, the district court erred in denying his
1 Judge Joseph T. Bonaventure signed Thompsons judgment of conviction; however, Judge Lee A. Gates signed the order denying Thompsons motion to dismiss. 2 Judge Lee A. Gates also signed the order denying Thompsons motion to suppress identification.

Dec. 2009]

Thompson v. State

811

motion to dismiss the indictment. Thompson further contends that the district court abused its discretion in denying his motion to suppress Coppolas pretrial photographic identification. Additionally, he argues that the district court abused its discretion when it allowed Coppola to testify regarding the artist techniques she used to remember his appearance. Thompson also asserts that the district court abused its discretion when it admitted photographs of Coppolas injuries. Lastly, Thompson contends that the State presented insufficient evidence at trial to support the verdict. We address each contention in turn. NRS 178.562
[Headnote 1]

Thompson argues that NRS 178.562(1) precluded the State from proceeding on the grand jury indictment after the information was dismissed. We disagree.
[Headnote 2]

Because the issue of whether NRS 178.562(1) precluded the State from prosecuting Thompson under the grand jury indictment is purely a legal question, we review it de novo. See Camacho v. State, 119 Nev. 395, 399, 75 P.3d 370, 373 (2003). In Nevada, a criminal prosecution may be commenced by criminal complaint, which results in the filing of an information if the defendant is bound over for trial after a preliminary hearing, or by grand jury indictment. NRS 173.015. This court has repeatedly held that there is no jurisdictional defect in dual proceedings against an accused consisting of a grand jury indictment for the same offense which has been previously charged in a pending complaint or information. Sheriff v. Dhadda, 115 Nev. 175, 183, 980 P.2d 1062, 1067 (1999). Further, as a general matter, there is no prejudice to an accused when one of two pending vehicles for prosecution is dismissed, leaving him accused by only one. Turpin v. Sheriff, 87 Nev. 236, 238, 484 P.2d 1083, 1085 (1971). The question presented in Turpin, and again in this case, is whether NRS 178.562(1) precludes the State from prosecuting a defendant when it has elected between two pending forms of prosecution and dismissed the one under which it has elected not to prosecute. NRS 178.562(1) states: [e]xcept as otherwise provided in NRS 174.085,[3] an order for the dismissal of the action, as provided in
3 NRS 174.085 governs, among other things, the effect of a voluntary dismissal and states that [a]fter the arrest or incarceration of the defendant, the prosecuting attorney may voluntarily dismiss an indictment or information without prejudice to the right to bring another indictment or information only upon good cause shown to the court and upon written findings and a court order to that effect. NRS 174.085(7).

812

Thompson v. State

[125 Nev.

NRS 178.554[4] and 178.556,[5] is a bar to another prosecution for the same offense. The exception under NRS 174.085 in NRS 178.562 was added to the statute in 1997. See 1997 Nev. Stat., ch. 504, 2, at 2393. Although NRS 178.562(1) was amended in 1997, after our 1971 decision in Turpin, we conclude that this amendment does not affect our holding in Turpin, which is the only Nevada case expressly discussing NRS 178.562(1). In Turpin, the defendant was first charged by criminal complaint and the State filed an information following the preliminary hearing. 87 Nev. at 237, 484 P.2d at 1084. The State also obtained an indictment from a grand jury. Id. The State elected to proceed solely on the grand jury indictment and moved to dismiss the information, which the district court did. Id. at 237-38, 484 P.2d at 1084. This court held that the states election to proceed on one of two pending and viable forms of prosecution, and its dismissal of the proceeding under which it has elected not to prosecute, is not in violation of the provisions of NRS 178.562(1). Id. at 238, 484 P.2d at 1085. In contrast, this court observed that because the indictment on which the State chose to proceed did not include one of the charges that had been in the information, [t]he dismissal of the information without another pending vehicle for the prosecution [of that charge], runs afoul of the provisions of NRS 178.562(1), and bars further prosecution of the [defendant] on that charge. Id. at 238-39 n.4, 484 P.2d at 1085 n.4. Therefore, the key to Turpin was that the term another prosecution for the same offense in NRS 178.562(1) addressed only subsequent prosecutions for the same offense, and thus the States dismissal of the information while there was another pending vehicle for prosecution of those offenses did not run afoul of NRS 178.562(1). See id. at 238, 484 P.2d at 1085.
[Headnote 3]

The 1997 amendment to NRS 178.562(1) did not affect the another prosecution for the same offense language. See 1997 Nev. Stat., ch. 504, 2, at 2393. Rather, the amendment identified NRS 174.085 as an exception to the bar against another prosecution for the same offense following dismissal of an action where there is no other information or indictment pending for that offense. Therefore, we conclude that our holding in Turpin remains: dual proceedings for the same offenses are proper, and the State may elect to proceed on one of two pending proceedings and dismiss the proceeding under which it has elected not to prosecute without running afoul of NRS 178.562(1). See Turpin, 87 Nev. at 237, 484 P.2d at 1085; Dhadda, 115 Nev. at 183-84, 980 P.2d at 1067. In this case, just as
4 NRS 178.554 allows the State to dismiss a criminal complaint or indictment at any time prior to trial. 5 NRS 178.556 permits a court to dismiss an indictment, information, or criminal complaint for unnecessary delay.

Dec. 2009]

Thompson v. State

813

in Turpin, there were two proceedings pending against Thompson for the same offenses when the State moved to voluntarily dismiss the information. By choosing to pursue the grand jury indictment, the State was not bringing another prosecution following dismissal of an action. Thus, the State did not violate NRS 178.562(1). Further, because the States election to pursue the grand jury indictment did not constitute another prosecution pursuant to NRS 178.562(1), the State did not need to show good cause to proceed on the indictment or obtain written findings and a court order permitting it to do so because NRS 174.085 was not triggered. Therefore, we conclude that the district court acted properly when it denied Thompsons motion to dismiss the indictment. Motion to suppress identification
[Headnote 4]

Thompson argues that Coppolas in-court identification of him was impermissibly tainted by her earlier identification at the photographic lineup. He asserts that the district court abused its discretion when it denied his motion to suppress identification because the photographic lineup procedure was unnecessarily suggestive and because Coppolas identification was unreliable. We conclude that Thompsons arguments fail.
[Headnotes 5-7]

In reviewing the propriety of a pretrial identification, this court considers (1) whether the procedure is unnecessarily suggestive, and (2) if so, whether, under all the circumstances, the identification is reliable despite an unnecessarily suggestive identification procedure. Bias v. State, 105 Nev. 869, 871, 784 P.2d 963, 964 (1989). A photographic lineup is suggestive if, given the totality of the circumstances, the procedure was so unduly prejudicial as [fatally to] taint [the defendants] conviction. . . . [A] photographic identification must be set aside only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. Cunningham v. State, 113 Nev. 897, 904, 944 P.2d 261, 265 (1997) (second alteration in original) (quoting Simmons v. United States, 390 U.S. 377, 383-84 (1968)). We conclude that the photographic lineup was not impermissibly suggestive. In her voluntary statement to the police immediately following the attack, Coppola described the taller assailant, later identified as Thompson, as an African-American man in his late twenties or early thirties with light brown skin, short hair, and wearing a fitted white T-shirt. In the photographic lineup containing Thompsons picture, the men were all African-American, had similarly shaped faces and short hair, appeared to be approximately the same age, and Thompson and one other man were wearing white T-shirts.

814

Thompson v. State

[125 Nev.

The background on Thompsons picture also had the same lighting as the background for the other man wearing a white T-shirt. Because the photographic lineup consisted of individuals who all matched Coppolas general description of her assailant, we conclude that it was not impermissibly suggestive. See Odoms v. State, 102 Nev. 27, 31, 714 P.2d 568, 570 (1986). Thus, the photographic lineup did not make it substantially likely that Coppola would identify the wrong man. See Cunningham, 113 Nev. at 904, 944 P.2d at 265. Because we conclude that the photographic lineup was not impermissibly suggestive, it is unnecessary for us to consider whether Coppolas in-court identification was reliable. See Bias, 105 Nev. at 871, 784 P.2d at 964. Nevertheless, we note that there is no indication that Coppolas in-court identification was unreliable. Therefore, we hold that there was no error in allowing Coppola to identify Thompson in court. Evidentiary issues Thompson raises two arguments concerning the evidence allowed at trial. First, he contends that the district court abused its discretion when it allowed Coppola to testify about the artist techniques she used to remember his appearance. Next, he asserts that the district court abused its discretion when it admitted photographs of Coppolas injuries. We address each in turn and conclude that Thompsons arguments lack merit. Coppolas testimony
[Headnote 8]

Thompson contends that the district court abused its discretion by allowing Coppola to give expert testimony as a lay witness. We conclude that there was no abuse of discretion.
[Headnotes 9, 10]

In Nevada, NRS 50.275 governs the admissibility of expert witness testimony. NRS 50.275 states: If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by special knowledge, skill, experience, training or education may testify to matters within the scope of such knowledge. The district court has discretion to determine the admissibility of expert testimony, and we review this decision for a clear abuse of discretion. Sampson v. State, 121 Nev. 820, 827, 122 P.3d 1255, 1259 (2005). The district court is in a better position than this

Dec. 2009]

Thompson v. State

815

court to determine the helpfulness of proposed testimony in light of the material facts in issue. Krause Inc. v. Little, 117 Nev. 929, 934, 34 P.3d 566, 569 (2001). When the district courts exercise of discretion is not manifestly wrong [pursuant to] NRS 50.275, we will not reverse. Id. Coppola testified that, after she finished speaking with the police the night of the attack, she spent time on her own trying to focus on her assailants appearance. She explained that the training she had received when obtaining her art degree had helped her to remember the proportions of an individuals face. While Coppola testified about this special training, we conclude that it did not constitute expert testimony. Coppola was not testifying about her art knowledge. Rather, she was explaining to the jury how she knew special techniques for remembering her assailants appearance. Therefore, we conclude that the district court did not abuse its discretion in overruling Thompsons objection to Coppolas testimony.6 The photographs
[Headnote 11]

Thompson asserts that the district court abused its discretion when it admitted photographs of Coppolas injuries. We disagree.
[Headnote 12]

Pursuant to NRS 48.025, only relevant evidence is admissible at trial. Relevant evidence is evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. NRS 48.015. The district court enjoys broad discretion in determining whether evidence should be admitted. Prabhu v. Levine, 112 Nev. 1538, 1548, 930 P.2d 103, 110 (1996). Thompson objected to the State admitting photographs of Coppolas injuries on the basis that they were irrelevant because he was not charged with battery. The district court overruled the objection, stating that Thompson was charged with counts that required the State to prove force and fear. The district court did not abuse its discretion. The evidence was relevant to prove that Thompson forced Coppola into her car. See NRS 48.015; Dutton v. State, 94 Nev. 461, 464, 581 P.2d 856, 858 (1978) (noting that [t]he state is entitled to present a full and accurate account of the circumstances of the commission of the crime, and if such an account also implicates the defendant or defendants in the commission of other crimes for which they have not been charged, the evidence is nevertheless ad6 Because we conclude that the district court properly found that Coppola was not testifying as an expert, we need not reach Thompsons argument that he was not given notice of the alleged expert testimony.

816

Thompson v. State

[125 Nev.

missible (internal quotation omitted)), overruled on other grounds by Gray v. State, 100 Nev. 556, 558 n.1, 688 P.2d 313, 314 n.1 (1984). Accordingly, we conclude that the district court did not abuse its discretion when it admitted the photographs of Coppolas injuries.7 Sufficiency of the evidence
[Headnote 13]

Thompson argues that the State presented insufficient evidence at trial to support the verdict. Specifically, Thompson argues that the State failed to show that he was one of Coppolas attackers. We disagree. Insufficiency of the evidence occurs where the prosecution has not produced a minimum threshold of evidence upon which a conviction may be based. Mejia v. State, 122 Nev. 487, 492, 134 P.3d 722, 725 (2006) (quoting State v. Walker, 109 Nev. 683, 685, 857 P.2d 1, 2 (1993)). In reviewing whether there is sufficient evidence to support a jurys verdict, this court determines 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. Id. (quoting Koza v. State, 100 Nev. 245, 250, 681 P.2d 44, 47 (1984) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979))). Where there is substantial evidence supporting the jurys verdict, it will not be overturned on appeal. Hern v. State, 97 Nev. 529, 531, 635 P.2d 278, 279 (1981). Substantial evidence is evidence that a reasonable mind might accept as adequate to support a conclusion. Brust v. State, 108 Nev. 872, 874-75, 839 P.2d 1300, 1301 (1992) (quoting First Interstate Bank v. Jafbros Auto Body, 106 Nev. 54, 56, 787 P.2d 765, 767 (1990) (internal quotation marks omitted), abrogated on other grounds by Countrywide Home Loans v. Thitchener, 124 Nev. 725, 743, 192 P.3d 243, 255 (2008)). Coppola identified Thompson as one of her attackers both in the photographic lineup and at trial. Her testimony was corroborated by
7 From this it follows that it was not an abuse of discretion for the district court to deny Thompsons pretrial motion in limine to exclude the photographs. Thompson also argues on appeal that the district court should have excluded the photographs because their probative value was substantially outweighed by the danger of unfair prejudice. See NRS 48.035(1). Thompson did not object to the photographs on this ground below, and he cannot assert new grounds for objection on appeal. Geer v. State, 92 Nev. 221, 224, 548 P.2d 946, 947 (1976). Thompson also has not demonstrated plain error in this respect. See NRS 178.602 (Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.); Moore v. State, 122 Nev. 27, 36-37, 126 P.3d 508, 514 (2006) (explaining that failure to object generally precludes appellate review unless the defendant demonstrates plain error).

Dec. 2009]

Thompson v. State

817

the security guard, Bailey, who testified that he noticed Thompson walking around the apartment complex just before the attack. Viewing this evidence in the light most favorable to the State, we conclude that any rational juror could find that Thompson was one of Coppolas attackers beyond a reasonable doubt. Furthermore, to the extent that Thompson argues that the State failed to prove the elements of the crimes for which he was charged, we note that we have considered the argument and have determined that the State presented substantial evidence supporting Thompsons convictions. CONCLUSION For the foregoing reasons, we conclude that Thompsons arguments lack merit and we therefore affirm the district courts judgment of conviction. In so doing, we reaffirm that NRS 178.562(1) did not bar the State from electing between two pending vehicles for prosecution of the same offenses by choosing to prosecute Thompson on the grand jury indictment after it voluntarily dismissed the criminal complaint. As held in Turpin v. Sheriff, 87 Nev. 236, 238, 484 P.2d 1083, 1085 (1971), a defendant is not prejudiced by the State choosing to pursue one of two pending proceedings for the same offense. HARDESTY, C.J., PARRAGUIRRE, DOUGLAS, GIBBONS, and PICKERING, JJ., concur. CHERRY, J., concurring: I just want to make it perfectly clear how I view the jurisprudence set forth in Turpin v. Sheriff, 87 Nev. 236, 484 P.2d 1083 (1971), and the amendment identified as NRS 174.085 as an exception to bar another prosecution for the same offense following dismissal of an action where there is no other information or indictment pending for that offense. The big distinction between using Turpin to allow the State to prosecute a defendant when it has elected, between two pending forms of prosecution and not allowing the State to pursue an election between two pending forms of prosecution in accordance with NRS 174.085 is when the dismissal occurs either before the subsequent form of prosecution is obtained or after the subsequent form of prosecution is obtained by the State. If the State files a criminal complaint or information, then dismisses the case, and subsequently indicts the defendant on the same charge or charges, NRS 174.085 comes into play to bar the subsequent prosecution for the same offense or offenses, unless good cause is shown to the court and upon written findings and a court order to that effect. However, if the dismissal occurs when

818

Sanchez v. Wal-Mart Stores

[125 Nev.

both forms of prosecution are still pending NRS 174.085 is not applicable. Finally, I want prosecutors and criminal defense attorneys to know that if a criminal complaint or information is filed and then the defendant is indicted on the same charges and additional charges, Turpin applies if the criminal complaint or information is dismissed and NRS 174.085 would not be applicable nor would dismissal by the court of the indictment be proper.

LEILA-JADE G. SANCHEZ AND TAYLOR N. SANCHEZ, MINORS, BY AND THROUGH JOSETTE SANCHEZ, THEIR GUARDIAN; JOSETTE SANCHEZ, AN INDIVIDUAL; THERESE CRUZ-BLAS AND DELBERT M. BLAS, AS CO-SPECIAL ADMINISTRATORS OF THE ESTATE OF GREGORY SANCHEZ, JR., DECEASED; ROBERT MARTINEZ, AN INDIVIDUAL; AND MICHELLE MARTINEZ, AN INDIVIDUAL, APPELLANTS, v. WAL-MART STORES, INC., A FOREIGN CORPORATION; LONGS DRUG STORES CO., A FOREIGN CORPORATION; WALGREEN CO., A FOREIGN CORPORATION; CVS PHAR MACY, INC., A FOREIGN CORPORATION; RITE-AID, A FOREIGN CORPORATION; ALBERTSONS, INC., DBA SA V-ON PHARMACY, A FOREIGN CORPORATION; AND LAMS PHARACY, INC., A NEVADA CORPORATION, RESPONDENTS.
No. 47851 December 24, 2009 221 P.3d 1276

Appeal from a district court order, certified as final under NRCP 54(b), dismissing appellants complaint against respondents in a wrongful death and personal injury action. Eighth Judicial District Court, Clark County; Douglas W. Herndon, Judge. Widow and minor children of deceased motorist and others filed suit against pharmacies and others, asserting claims for personal injury and wrongful death, arising out of automobile accident that occurred when pharmacy customer struck and killed motorist while driving under the influence of controlled substances. Pharmacies filed motions to dismiss for failure to state a claim upon which relief can be granted. The district court granted motions. Plaintiffs appealed. The supreme court, HARDESTY, C.J., held that: (1) pharmacies actions of dispensing prescription drugs to their customer did not create a legal duty on part of pharmacies in favor of third parties; (2) public policy of statute requiring Board of Pharmacy and Investigation Division of Department of Public Safety to create computerized program to track controlled substance prescriptions filled by pharmacies did not create duty of care on part of pharma-

Dec. 2009]

Sanchez v. Wal-Mart Stores

819

cies to protect third parties; and (3) statutes and regulations concerning prescription drug dispensation and customer recordkeeping maintenance were not intended to protect general public, as necessary to establish negligence per se claim against pharmacies. Affirmed. CHERRY, J., with whom SAITTA, J., agreed, dissented. Marquis & Aurbach and Phillip S. Aurbach and Micah S. Echols, Las Vegas; Patti, Sgro & Lewis and Stephen K. Lewis, Las Vegas; Beckley Singleton, Chtd., and Daniel F. Polsenberg, Las Vegas, for Appellants. Phillips, Spallas & Angstadt, LLC, and John W. Kirk, Las Vegas; Shook, Hardy & Bacon, LLP, and Frank C. Rothrock, Irvine, California, for Respondent Wal-Mart Stores, Inc. Hutchison & Steffen, LLC, and Michael K. Wall and L. Kristopher Rath, Las Vegas, for Respondent Longs Drug Stores. Backus Carranza and Leland Eugene Backus and Edgar Carranza, Las Vegas, for Respondent Walgreen Company. Pyatt Silvestri & Hanlon and Carrie McCrea Hanlon, Las Vegas, for Respondent CVS Pharmacy, Inc. Laxalt & Nomura and Lon A. Burke, Las Vegas; Kelly, Herlihy & Klein LLP and Jonathan Allan Klein, San Francisco, California, for Respondent Rite-Aid Corporation. Thorndal, Armstrong, Delk, Balkenbush & Eisinger and Brian K. Terry and Christopher J. Curtis, Las Vegas, for Respondents Albertsons, Inc., and Lams Pharmacy, Inc.
1. APPEAL AND ERROR. A district court order granting a motion to dismiss for failure to state a claim upon which relief can be granted is subject to rigorous appellate review. NRCP 12(b)(5). 2. APPEAL AND ERROR. Supreme court, in reviewing order of dismissal for failure to state a claim upon which relief can be granted, accepts plaintiffs factual allegations as true, but the allegations must be legally sufficient to constitute the elements of the claim asserted. NRCP 12(b)(5). 3. APPEAL AND ERROR. Supreme court, in reviewing order of dismissal for failure to state a claim upon which relief can be granted, draws every reasonable inference in plaintiffs favor. NRCP 12(b)(5). 4. APPEAL AND ERROR. Whether duty of care was owed by defendant to plaintiff is a question of law that supreme court reviews de novo.

820

Sanchez v. Wal-Mart Stores

[125 Nev.

5. HEALTH; PRODUCTS LIABILITY. Pharmacies actions of dispensing prescription drugs to their customer did not create a legal duty on part of pharmacies to protect victims of automobile accident that occurred when pharmacy customer struck them with her vehicle while driving under the influence of controlled substances, resulting in death of one victim and severe injuries to other victim, victims survivors, or co-administrators of victims estate, as pharmacies had no direct relationship with these unidentifiable members of general public, who were unknown to pharmacies. 6. NEGLIGENCE. To prevail on a negligence claim, plaintiff must establish four elements: (1) the existence of a duty of care, (2) breach of that duty, (3) legal causation, and (4) damages. 7. NEGLIGENCE. With regard to the duty element of a negligence claim, under common law principles, no duty is owed to control the dangerous conduct of another or to warn others of the dangerous conduct. 8. NEGLIGENCE. An exception to the general rule that no duty is owed to control the dangerous conduct of another or to warn others of the dangerous conduct arises, and an affirmative duty to aid others is recognized when (1) a special relationship exists between the parties or between the defendant and the identifiable victim, and (2) the harm created by the defendants conduct is foreseeable. 9. HEALTH; PRODUCTS LIABILITY. Public policy of statute requiring Board of Pharmacy and Investigation Division of Department of Public Safety to create computerized program to track controlled substance prescriptions filled by registered pharmacies did not create duty of care on part of pharmacies to protect victims of automobile accident that occurred when pharmacies customer struck them with her vehicle while driving under the influence of controlled substances, resulting in death of one victim and severe injuries to other victim, victims survivors, or co-administrators of victims estate, as statutes underlying purpose was to computerize a manual tracking system for tracking prescription drug use, i.e., a recordkeeping system, not to create public policy duty for pharmacies to protect third parties. NRS 453.1545(1)(a)(1), (5). 10. HEALTH; PRODUCTS LIABILITY. Statutes and regulations concerning prescription drug dispensation and customer recordkeeping maintenance were not intended to protect general public, or to protect against any injury sustained by victims of automobile accident that occurred when pharmacies customer struck them with her vehicle while driving under the influence of controlled substances, resulting in death of one victim and severe injuries to other victim, victims survivors, or co-administrators of victims estate, as necessary for them to establish negligence per se claim against pharmacies; duty owed under statutes and regulations was to person for whom prescription was written, i.e., the pharmacies customers, if anyone. NRS 453.1545, 453.256, 453.257, 639.2392, 639.2393; NAC 639.685, 639.726, 639.742, 639.745. 11. NEGLIGENCE. A negligence per se claim arises when a duty is created by statute. 12. NEGLIGENCE. A civil statutes violation establishes the duty and breach elements of negligence claim under doctrine of negligence per se when the injured party is in the class of persons whom the statute is intended to protect and the injury is of the type against which the statute is intended to protect.

Dec. 2009]

Sanchez v. Wal-Mart Stores

821

13. APPEAL AND ERROR. Supreme court would not consider arguments raised in appellants supplemental brief that were not raised in their opening or reply briefs, as these arguments exceeded scope of briefing rule. NRAP 31.

Before the Court EN BANC. OPINION By the Court, HARDESTY, C.J.: This appeal raises issues concerning whether a pharmacy owes a duty of care to unidentified third parties who were injured by a pharmacy customer who was driving while under the influence of controlled prescription drugs. In addressing this appeal, we consider two main arguments: (1) whether, under common-law principles, pharmacies have a duty to act to prevent a pharmacy customer from injuring members of the general public; and (2) whether Nevadas pharmacy statutory and regulatory laws allow third parties to maintain a negligence per se claim for alleged violations concerning dispensation of prescription drugs and maintenance of customers records. The underlying matter arose after a pharmacy customer, while driving under the influence of prescription drugs, allegedly caused an automobile accident resulting in one persons death and severe injuries to another. Appellants filed a wrongful death and personal injury complaint against, among others, respondent pharmacies that filled multiple prescriptions for the woman driving the car. The appellants claimed that because the pharmacies had knowledge of the womans prescription-filling activities, the pharmacies owed appellants a duty of care to not fill the womans prescriptions. The pharmacies filed a motion to dismiss the action, which the district court granted after finding that the pharmacies did not owe appellants a statutory duty of care, and thus, that appellants claims failed to state a valid cause of action. We conclude that pharmacies do not owe a duty of care to unidentifiable third parties. Moreover, Nevadas pharmacy statutes and regulations concerning prescription drug dispensation and customer recordkeeping maintenance are not intended to protect the general public from the type of injury sustained in this case, and thus, do not support the appellants negligence per se claim. We therefore affirm. RELEVANT FACTS AND PROCEDURAL HISTORY On June 4, 2004, while driving on U.S. Highway 95 in Las Vegas, Gregory Sanchez, Jr., stopped on the side of the road to fix a flat tire. Appellant Robert Martinez, Sanchezs co-worker, arrived at the scene to assist Sanchez. While Martinez and Sanchez

822

Sanchez v. Wal-Mart Stores

[125 Nev.

were transferring items from Sanchezs vehicle into Martinezs vehicle, they were struck by defendant Patricia Copenings vehicle.1 As a result of the collision, Sanchez died and Martinez was seriously injured. Copening was arrested for driving under the influence of controlled substances. Appellants, Sanchezs minor daughters, his widow, and the personal representatives of his estate, and Martinez and his wife, filed a wrongful death and personal injury complaint against Copening, two medical doctors, and a medical association. Through discovery, appellants learned that in June 2003, the Prescription Controlled Substance Abuse Prevention Task Force sent a letter to the pharmacies that had dispensed to, and physicians who had written prescriptions for, Copening, concerning Copenings prescription-filling activities. The letter informed the pharmacies and physicians that from May 2002 to May 2003, Copening had obtained approximately 4,500 hydrocodone pills at 13 different pharmacies. Based on the Task Force letter, appellants moved the district court and were granted leave to file a second amended complaint to add the following defendants to the action: Wal-Mart Stores, Inc.; Longs Drug Stores Co.; Walgreen Co.; CVS Pharmacy, Inc.; Rite-Aid; Albertsons Inc., d/b/a Sav-on Pharmacy; and Lams Pharmacy, Inc. As to the pharmacies, the second amended complaint alleged that Copening was under the influence of controlled substances when the accident occurred and that the pharmacies had filled Copenings prescriptions after they had received a Task Force letter informing them of her prescription-drug activities. The complaint further asserted that after receiving the Task Force letter, the pharmacies continued providing Copening with the controlled substances that she used before the accident. The complaint did not allege any irregularities on the face of the prescriptions themselves. Nor did the complaint allege that the prescriptions presented by Copening to the pharmacies were filled by the pharmacies in violation of the prescriptions language, were fraudulent or forged, or involved dosages that, individually and if taken as directed, were potentially harmful to Copenings health. The pharmacies answered the complaint and asserted, as an affirmative defense, that appellants second amended complaint failed to state a claim upon which relief could be granted. Thereafter, the pharmacies moved the district court to dismiss the claims asserted against them in appellants second amended complaint on the basis that no duty was owed to appellants. The pharmacies subsequently moved the district court for summary judgment. Appellants opposed the motions.
1 Copening is not a party to this appeal. Appellants claims against her remain pending in the district court, and we make no observations regarding the substantive legal issues pending in the underlying action.

Dec. 2009]

Sanchez v. Wal-Mart Stores

823

At the hearing on the pharmacies motions, the district court stated that no statute imposed a duty on the pharmacies to take action after receiving the Task Force letter. The district court further stated that absent a legislative duty, the case was governed by Nevadas dram-shop cases and that there appeared to be no material difference between a bartender providing a customer alcohol and a pharmacist filling a customers prescription, and therefore, proximate cause did not exist.2 Thereafter, the district court entered a summary order that granted the pharmacies motions to dismiss under NRCP 12(b)(5) and denied as moot the pharmacies summary judgment motions. The court subsequently certified its order as final under NRCP 54(b). This appeal followed. DISCUSSION The issues presented in this appeal raise two long-standing negligence principles. First, we consider whether pharmacies owe a duty of care to unidentified third parties injured by a pharmacy customer or whether public policy creates a duty of care for pharmacies, which when breached, supports a common-law negligence claim. Second, we decide if Nevadas pharmacy statutes and regulations create a statutory duty to support appellants negligence per se claim against the pharmacies. Standard of review
[Headnotes 1-4]

A district court order granting an NRCP 12(b)(5) motion to dismiss is subject to rigorous appellate review. Lubin v. Kunin, 117 Nev. 107, 110-11, 17 P.3d 422, 425 (2001). Similar to the trial court, this court accepts the plaintiffs factual allegations as true, but the allegations must be legally sufficient to constitute the elements of the claim asserted. Malfabon v. Garcia, 111 Nev. 793, 796, 898 P.2d 107, 108 (1995). In reviewing the district courts dismissal order, every reasonable inference is drawn in the plaintiffs favor. Id. Accordingly, to prevail in this appeal, the appellants must demonstrate that a duty of care was owed to them by the pharmacies, which is a question of law that we review de novo. Turner v. Mandalay Sports Entmt, 124 Nev. 213, 217, 220-21, 180 P.3d 1172, 1175, 1177 (2008). Pharmacies do not have a duty to act to prevent a pharmacy customer from injuring an unidentified third party Appellants argue that the district court improperly dismissed their common-law negligence claims for two reasons. First, appellants
2 We note that the district courts reliance on Nevadas dram-shop cases was unnecessary. In particular, it appears that after concluding that there was no legislative mandate imposing a legal duty, the district court next considered whether

824

Sanchez v. Wal-Mart Stores

[125 Nev.

contend that the pharmacies had a duty to prevent harm to appellants because Copening was a customer to whom the pharmacies continuously dispensed drugs, and the pharmacies had notice from the Task Force letter that Copening was a potential drug abuser. Second, appellants assert that NRS 453.1545 establishes a public policy duty to protect the general public, including appellants. The pharmacies counter that no special relationship exists between the pharmacies and appellants, and that no public policy duty is created by NRS 453.1545s enactment. We agree with the pharmacies position that the district court properly declined to impose a duty on the pharmacies for the appellants benefit. No special relationship exists to justify imposing a duty on pharmacies in favor of third parties
[Headnotes 5-8]

It is well established that to prevail on a negligence claim, a plaintiff must establish four elements: (1) the existence of a duty of care, (2) breach of that duty, (3) legal causation, and (4) damages. Turner, 124 Nev. at 217, 180 P.3d at 1175. With regard to the duty element, under common-law principles, no duty is owed to control the dangerous conduct of another or to warn others of the dangerous conduct. See Mangeris v. Gordon, 94 Nev. 400, 402, 580 P.2d 481, 483 (1978). An exception to this general rule arises, however, and an affirmative duty to aid others is recognized when (1) a special relationship exists between the parties or between the defendant and the identifiable victim, and (2) the harm created by the defendants conduct is foreseeable. Lee v. GNLV Corp., 117 Nev. 291, 295, 22 P.3d 209, 212 (2001); Elko Enterprises v. Broyles, 105 Nev. 562, 565-66, 779 P.2d 961, 964 (1989); Mangeris, 94 Nev. at 402, 580 P.2d at 483. As a threshold matter, to determine whether appellants can maintain a common-law negligence claim against the pharmacies for Copenings criminal act of driving while under the influence of controlled substances, we must consider the relationship between the parties and if a legal obligation can be imposed upon the pharmacies for the third-party appellants benefit. The issue of whether, under common-law principles, a special relationship exists between a pharmacy and a third party to justify imposing a duty of care for the third partys benefit is an issue of first impression. We find persuasive to our analysis a Florida District Court of Appeal opinion inproximate cause existed. An analysis of proximate cause, however, was not required, as the district court correctly noted the absence of a legal duty imposed on respondents in favor of appellants. Accordingly, we determine that we need not consider the proximate cause element in this matter. See Rosenstein v. Steele, 103 Nev. 571, 575, 747 P.2d 230, 233 (1987) (noting that this court will affirm a district courts order if the district court reached the correct result, even for the wrong reason).

Dec. 2009]

Sanchez v. Wal-Mart Stores

825

volving a pharmacys potential liability to a third party. Dent v. Dennis Pharmacy, Inc., 924 So. 2d 927 (Fla. Dist. Ct. App. 2006). In Dent, a motorist, Dent, was involved in a collision with a pharmacy patron who drove while under the influence of prescribed medication and fell asleep at the wheel, causing injuries to Dent. 924 So. 2d at 928. Dent filed a negligence action against the pharmacy, alleging that because the pharmacy voluntarily undertook the duty of warning the patron about the prescription drugs effect on driving, the pharmacy owed a duty of care to Dent, the injured motorist. Id. at 929. The pharmacy moved the trial court to dismiss the action on the basis that it owed no duty to an unidentified third party. The trial court agreed and dismissed Dents complaint. Id. On appeal, the Dent court recognized that in the context of professional relationships, the duty element of negligence could be established in one of two ways: (1) a plaintiff having a direct relationship with the defendant, or (2) by establishing that the plaintiff is a known or identifiable third party to whom the defendant owes a legal duty. Id. The court determined that no duty of care was owed to Dent because she had no direct relationship with the pharmacy; the pharmacy merely filled its customers prescription and warned the customer of the medications side effects. Id. The court further concluded that Dent was an anonymous member of the driving public and was therefore not a known or identifiable third party. The pharmacy had no control over whether its customer would take the medication and then drive, or even take the medication at all. Id. Therefore, a finding that Dent was a known or identifiable third party to whom the pharmacy owed a legal duty under those circumstances would create a zone of risk [that] would be impossible to define. Id. (quoting Cheeks v. Dorsey, 846 So. 2d 1169, 1173 (Fla. Dist. Ct. App. 2003)). Thus, the pharmacys actions did not create a legal duty in favor of the motoring public. Following the Florida courts reasoning, we conclude that in this matter the pharmacies did not owe a duty to the third-party appellants. The pharmacies have no direct relationship with the thirdparty appellants. In addition, as in Dent, the appellants in this matter are unidentifiable members of the general public who were unknown to the pharmacies.3 Thus, the pharmacies acts of dis3 We note that, at the time that the underlying accident occurred, the pharmacies had no obligation to do anything after receiving the Task Force letter and only limited authority to refuse to fill any prescriptions. In 2006, however, the Board of Pharmacy amended its regulations, which may have created a special relationship that could justify imposing a duty in favor of third parties. NAC 639.753 provides that if a pharmacist declines to fill a prescription, because in his professional judgment the prescription is (1) fraudulent, (2) potentially harmful to the customers health, (3) not for a legitimate medical purpose, or (4) filling the prescription would be unlawful, the pharmacist must in a timely manner contact the prescribing physician to resolve the pharmacists concerns. The amendment further provides that after speaking with the physician, the phar-

826

Sanchez v. Wal-Mart Stores

[125 Nev.

pensing prescription drugs to Copening did not create a legal duty. We conclude that the district court did not err in dismissing appellants negligence causes of action asserted against the pharmacies on this ground.4 NRS 453.1545s public policy does not create a duty of care for pharmacies
[Headnote 9]

Appellants allege that while NRS 453.1545s language does not expressly require pharmacies to take action to prevent prescriptiondrug abuse, the statutes language and legislative history implies that pharmacies are required to take action to fulfill the statutes purpose. The pharmacies assert that neither the statutes plain language nor its legislative history demonstrates that the Legislature intended to impose any obligation on pharmacies in favor of third parties. We agree with the pharmacies. NRS 453.1545(1) requires Nevadas State Board of Pharmacy and the Investigation Division of the Department of Public Safety to create a computerized program to track controlled substance prescriptions that are filled by registered pharmacies or that are dispensed by a registered practitioner. The tracking program is designed to provide information relating to a customers inappropriate use of specific controlled substances filled by board-registered pharmacies and practitioners: 1. The Board and the Division shall cooperatively develop a computerized program to track each prescription for [specific] controlled substance[s] . . . filled by a pharmacy that is registered with the Board or that is dispensed by a practitioner who is registered with the Board. The program must:
macist may fill the prescription if the pharmacist reasonably believes, in his professional judgment, that the prescription is not fraudulent or harmful to the patients health or is lawful or for a legitimate medical purpose. NAC 639.753(3)(a)-(d). If one of these conditions is not met, after discussing the prescription with the physician, the pharmacist is mandated not to fill the prescription and must retain the prescription. NAC 639.753(4). We make no determination as to whether this regulation imposes a duty on pharmacies or creates a special relationship with their customers. 4 Because we conclude that no direct relationship exists between the pharmacies and the third-party appellants, or that appellants are identifiable members of the general public, to impose a duty on pharmacists for the general publics protection, we need not consider whether the pharmacies actions created foreseeable harm to appellants. Appellants additional argumentthat a common-law negligence claim is established merely as a result of alleged violations of a professional standard of carefails. Unlike Mainor v. Nault, 120 Nev. 750, 101 P.3d 308 (2004), where a special relationship existed between the plaintiff, the client, and the plaintiffs attorneys, here, no special relationship exists between appellants and the pharmacies.

Dec. 2009]

Sanchez v. Wal-Mart Stores

827

(a) Be designed to provide information regarding: (1) The inappropriate use by a patient of [specific] controlled substances . . . to pharmacies, practitioners and appropriate state agencies to prevent the improper or illegal use of those controlled substances. NRS 453.1545(1)(a)(1). Although NRS 453.1545(1)(a)(1) states that the information will be provided to pharmacies, subsection 5 of the same statute explains that the [i]nformation obtained from the program . . . is confidential and, except as otherwise provided by this section . . . must not be disclosed to any person. NRS 453.1545(5). The Board or Division are required, however, to report any suspected fraud or illegal activity to law enforcement or the appropriate occupational licensing board. NRS 453.1545(4). Thus, while the statutes language states that gathering information related to prescription-drug use and disseminating it to pharmacies and practitioners is to prevent prescription-drug abuse, only the Board or Division may share the information gathered from the pharmacies. Pharmacies and practitioners are expressly prohibited from disclosing any information. NRS 453.1545(5). Further, nothing in NRS 453.1545 requires pharmacies to take action to protect the general public after receiving a Task Force letter. Thus, based on the statutes plain language, it is evident that the Legislature did not intend to create a policy that requires pharmacies to protect third parties from a pharmacy customers actions. NRS 453.1545s legislative history further supports our conclusion. The statutes underlying purpose is to computerize a manual system for tracking prescription-drug use, i.e., a recordkeeping system. See Hearings on S.B. 36 Before the Senate Comm. on Human Resources and Facilities and Before the Assembly Comm. on Health and Human Services, 68th Leg. (Nev., January 25, February 1, June 7, 1995). When suggested to the legislators that another purpose of the computerized program was to identify drug abusers early on before they become serious drug users, kill themselves or someone else, a legislator responded that the Legislature is not responsible for peoples personal decisions and, ultimately, it is the Boards duty to prosecute regulatory violations. Hearing on S.B. 36 Before the Senate Comm. on Human Resources and Facilities, 68th Leg. (Nev., February 1, 1995) (testimony by lobbyist for the Nevada State Board of Pharmacy, and comment by state senator); Hearing on S.B. 36 Before the Assembly Comm. on Ways and Means, 68th Leg. (Nev., June 20, 1995) (comment by committee vice-chair). Subsequently, when it enacted NRS 453.1545, the Legislature declined to impose additional obligations on pharmacies. NRS 453.1545; Hearing on S.B. 36 Before the Senate Comm. on Human Resources and Facilities, 68th Leg. (Nev., February 1, 1995) (testimony by lobbyist for the Nevada State Board of Pharmacy).

828

Sanchez v. Wal-Mart Stores

[125 Nev.

Thus, the legislative history demonstrates that NRS 453.1545s enactment was intended to enhance recordkeeping by permitting more thorough and accurate information to be available to enforcement and regulatory authorities and for transmission by the Task Force to physicians, pharmacies, and others. We therefore reject appellants contention that NRS 453.1545 creates a public policy duty for pharmacies to protect third parties. Nevadas pharmacy statutes and regulations do not support appellants negligence per se claim against the pharmacies
[Headnote 10]

Appellants assert that the district court erred in dismissing their negligence per se claim against the pharmacies because the pharmacies violated a number of Nevada statutes and regulations enacted to protect the general public, of whom the appellants are members, from the unlawful distribution of controlled substances.5 The pharmacies counter that the statutes and regulations relied on by appellants do not mandate that a pharmacist must refuse to fill a valid prescription for the general publics protection.
[Headnotes 11, 12]

A negligence per se claim arises when a duty is created by statute. Torrealba v. Kesmetis, 124 Nev. 95, 178 P.3d 716 (2008). A civil statutes violation establishes the duty and breach elements of negligence when the injured party is in the class of persons whom the statute is intended to protect and the injury is of the type against which the statute is intended to protect. Ashwood v. Clark County, 113 Nev. 80, 86, 930 P.2d 740, 744 (1997); Sagebrush Ltd. v. Carson City, 99 Nev. 204, 208, 660 P.2d 1013, 1015 (1983). But a statute that regulates the communication of information regarding the administration of drugs does not impose a duty on a pharmacy that runs to an unidentifiable third party. Crippens v. Sav On Drug Stores, 114 Nev. 760, 763 n.1, 961 P.2d 761, 763 n.1 (1998). The statutes and regulatory provisions the appellants rely on to assert a negligence per se claim against the pharmacies are not in5 Appellants cite to the following statutes and regulations to support their negligence per se claim: NRS 453.1545 (creating computerized program to track prescriptions for controlled substances); NRS 453.256 (outlining requirements for dispensing specific controlled substances); NRS 453.257 (prohibiting the filling of second or subsequent prescriptions for certain controlled substances unless the frequency of prescriptions is in conformity with the directions for use and the increased amount is verified by the practitioner personally by telephone or in writing); NRS 639.2392 (establishing requirements for maintaining patient records); NRS 639.2393 (establishing limitations on filling controlled substance prescriptions); NAC 639.485 (concerning the maintenance of records for controlled substances); NAC 639.742 (discussing the duties and authority of a dispensing practitioner to dispense controlled substances); NAC 639.745 (outlining duties concerning dispensing controlled substances); NAC 639.926 (regarding dispensing controlled substances to certain individuals and maintaining records).

Dec. 2009]

Sanchez v. Wal-Mart Stores

829

tended for the general publics protection or to protect against any injury that the third-party appellants may have sustained. The duty owed under these statutes or regulations is to the person for whom the prescription was written, the pharmacys customer, if anyone, and not for the general publics protection. And although various statutory and regulatory provisions may express standards of care for the practice of pharmacology, under the circumstances of this case, those standards of care do not extend to unidentified third parties. Therefore, we conclude that the district court properly dismissed appellants negligence per se claims asserted against the pharmacies.6 CONCLUSION
[Headnote 13]

We affirm the district courts order dismissing appellants action against the pharmacies for failure to state a claim upon which relief can be granted.7 PARRAGUIRRE, DOUGLAS, GIBBONS, and PICKERING, JJ., concur. CHERRY, J., with whom SAITTA, J., agrees, dissenting: I differ with my colleagues as to their resolution of this appeal. In particular, I conclude that the district court erred when it granted the pharmacies motions to dismiss because the appellants have sufficiently stated common-law negligence and negligence per se claims that preclude dismissal. I therefore dissent. DISCUSSION Common-law negligence cause of action The majority concludes that no special relationship exists to extend a duty of care from the pharmacies to the third-party appellants. I disagree with this conclusion. This court has recognized a special relationship between an innkeeper-guest, teacher-student, and employer-employee. See Lee v. GNLV Corp., 117 Nev. 291, 295, 22 P.3d 209, 212 (2001). The relationship between a pharmacy and pharmacy customer should also be considered a special relationship. Thus, in my opinion, appellants allegations in their complaint are
6 The pharmacies contend that Nevada State Board of Pharmacy v. Garrigus, 88 Nev. 277, 496 P.2d 748 (1972), is dispositive of appellants negligence per se claim. But Garrigus is inapposite to our consideration of whether the pharmacies owed a duty to appellants, as that case concerned whether the Nevada State Board of Pharmacys decision to revoke several pharmacists licenses was supported by substantial evidence. Id. at 278-79, 496 P.2d at 749. 7 After briefing in this appeal had concluded, appellants filed a supplemental brief. In that supplemental brief, appellants provided additional authority, which was available when their reply brief was filed, and appellants asserted a new argument that was not previously raised in their opening or reply briefs. We did not consider the arguments raised in appellants supplemental brief because they exceeded the scope of NRAP 31. See U.S. v. Vazquez-Rivera, 407 F.3d 476, 487

830

Sanchez v. Wal-Mart Stores

[125 Nev.

legally sufficient to constitute a common-law negligence cause of action. Generally, a defendant does not have a duty to control anothers dangerous conduct or to warn others when dangerous conduct arises. Mangeris v. Gordon, 94 Nev. 400, 402, 580 P.2d 481, 483 (1978). But an exception to this general rule occurs when a special relationship exists between the defendant and the actor who allegedly caused the injury. Id. If a special relationship exists, the defendant has a duty to take measures to protect foreseeable victims from foreseeable harm. See Elko Enterprises v. Broyles, 105 Nev. 562, 56566, 779 P.2d 961, 964 (1989); El Dorado Hotel v. Brown, 100 Nev. 622, 627, 691 P.2d 436, 440 (1984), overruled on other grounds by Vinci v. Las Vegas Sands, 115 Nev. 243, 984 P.2d 750 (1999). Here, contrary to the majoritys position, I determine that the pharmacies owed appellants a duty of care to, among other things, investigate the validity of Copenings prescriptions or to refuse to fill her prescriptions, if warranted, based on the special relationship that exists between a pharmacist and pharmacy customer, together with the information distributed by the Task Force. While I conclude that sufficient information exists to reverse the district courts dismissal of appellants common-law negligence claim, because the underlying proceedings are at an early stage of the litigation, there also remain unanswered questions relating to foreseeability that justify remanding this appeal to the district court for further proceedings. Special relationship element of common-law negligence cause of action A pharmacists professional standards of care, considered with the notice contained in the Task Force letter, justifies extending the duty owed by the pharmacies under a common-law negligence cause of action to these appellants. Not only do pharmacists possess an expertise in the dispensation of prescription drugs, NRS 639.213; NRS 639.0124(4), as recognized by the majority, but pharmacists must ensure that the drugs sought by a customer are dispensed only for medically necessary purposes and according to prevailing standards of care for practitioners practicing in the specialty claimed or practiced by the dispensing practitioner. NAC 639.742(3)(h). Nevadas Legislature has recognized that pharmacists are trained to recognize potential drug abuse based on the frequency of a drugs refill and dosages. NRS 639.0124; NAC 639.707(4). Before filling a
(1st Cir. 2005) (considering authority raised in a supplemental brief that was not raised in the opening brief because there was an intervening change in law); U.S. v. Khorozian, 333 F.3d 498, 506 n.7 (3d Cir. 2003) (providing that FRAP 28(j) cannot be used to raise supplemental arguments); U.S. v. Kimler, 335 F.3d 1132, 1138 n.6 (10th Cir. 2003) (refusing to consider an argument that should have been raised in the partys opening or reply brief).

Dec. 2009]

Sanchez v. Wal-Mart Stores

831

prescription, a pharmacist must review a customers records to determine the prescriptions therapeutic appropriateness by considering possible drug abuse, overuse of a particular drug, adverse side effects, or improper dosages or treatment durations. NAC 639.707(4). If a pharmacist reasonably believes that a prescription for a controlled substance was not issued in the normal course of a professionals practice, a pharmacist is prohibited from filling the prescription. NRS 453.381(4). Based on a pharmacists professional standards of care, the Legislature contemplated that pharmacists may be subject to civil liability for improperly dispensing prescription drugs when it enacted NRS 453.256(6). This statute provides that civil liability cannot be imposed upon a pharmacist if the pharmacist acts in good faith in reliance on a reasonable belief that an order purporting to be a prescription was issued by a practitioner in the usual course of professional treatment, implying that civil liability could arise if the good faith requirement is not met. See also International Game Tech. v. Dist. Ct., 122 Nev. 132, 154, 127 P.3d 1088, 1103 (2006) (noting that this court presumes that when the Legislature enacts a statute it does so with full knowledge of existing statutes relating to the same subject (internal quotes and citation omitted)). Consequently, the special relationship between a pharmacist and pharmacy customer, entails more than blindly filling prescriptions, and thus, a special relationship is created between a pharmacist and customer when a prescription is filled. Generally, the relationship between a customer and pharmacist does not establish a duty in favor of third parties. This case, however, includes a component that the majority ignoresnotice. The actual notice to the pharmacies contained in the Task Force letter (which, according to the complaint, was sent to and received by all the pharmacies in this action), together with a pharmacists professional standard of care, noted above, clearly refutes the majoritys conclusion that no special relationship exists to justify extending a duty of care owed by the pharmacies to the appellants. Appellants second amended complaint alleges that the pharmacies that received the Task Force letter outlining Copenings prescription-filling activities were informed that Copening had received 4,500 hydrocodone pills within a 12-month period by having numerous prescriptions filled at 13 different pharmacies.1 The complaint also contends that despite receiving the Task Force letter the pharmacies continued to fill narcotic or SOMA prescriptions for
1 Hydrocodone is a narcotic pain reliever used for the relief of moderate to moderately severe pain and has a high potential for abuse. Physicians Desk Reference 3143-44 (63d ed. 2009); NRS 453.176; NAC 453.520. It may impair ones mental or physical abilities required for the performance of potentially hazardous tasks, such as driving a car. Physicians Desk Reference 3143-44 (63d ed. 2009).

832

Sanchez v. Wal-Mart Stores

[125 Nev.

Copening.2 It is unclear why Copening was filling prescriptions for this amount of narcotic medication within a years time. But the pharmacies had, at a minimum, inquiry notice that continuing to fill Copenings prescriptions for hydrocodone or SOMA could result in harm to herself or others. See Ogle v. Salamatof Native Assn, Inc., 906 F. Supp. 1321, 1326 (D. Alaska 1995) (explaining that inquiry notice exists when one has knowledge of facts that would lead a reasonable and prudent person using ordinary care to make further inquiries). Here, the pharmacists had a duty to review Copenings prescription records, including giving consideration to the Task Force letter, before filling her next prescription. In light of the Task Force letter identifying Copenings prescription history, the pharmacies were required to evaluate the prescriptions therapeutic appropriateness (considering possible drug abuse, overuse of a particular drug, or improper dosages or treatment durations). NAC 639.707(4). In their professional analysis, if the pharmacists reasonably believed that Copenings prescriptions for hydrocodone were not issued in the normal course of her physicians practice, they were prohibited from filling the prescriptions. NAC 639.742(3)(h); NRS 453.381(4). Thus, the pharmacists owed appellants a duty to exercise that standard of care that is required of the pharmacy profession in the same or similar circumstances. See Dooley v. Everett, 805 S.W.2d 380 (Tenn. Ct. App. 1990); see also Pittman v. Upjohn Co., 890 S.W.2d 425, 434 (Tenn. 1994) (suggesting that because a pharmacy has a duty to do more than fill a customers prescription correctly, a pharmacy may owe a duty to a noncustomer). For these reasons, I conclude that the first element to the common-law exception for a duty of care has been established. The next issue presented is whether the harm created by the pharmacies dispensation of the drugs to Copening was foreseeable. Foreseeability element of common-law negligence cause of action This court has held that [a] negligent defendant is responsible for all foreseeable consequences proximately caused by his or her negligent act. Taylor v. Silva, 96 Nev. 738, 741, 615 P.2d 970, 971 (1980). A defendants liability can be extinguished when an unforeseeable intervening cause occurs between a defendants negligence and a plaintiffs injury. El Dorado Hotel v. Brown, 100 Nev. 622,
2 SOMA, also known as carisoprodol, is used for the relief of acute pain. Physicians Desk Reference 1931 (63d ed. 2009). It is recommended that it only be used for acute treatment periods up to two or three weeks, and it also may impair ones ability to operate a motor vehicle. Id. According to appellants complaint, the combination of hydrocodone and SOMA is known as The Vegas Cocktail.

Dec. 2009]

Sanchez v. Wal-Mart Stores

833

628-29, 691 P.2d 436, 441 (1984), overruled on other grounds by Vinci v. Las Vegas Sands, 115 Nev. 243, 984 P.2d 750 (1999). But when a third partys intervening intentional act is reasonably foreseeable, a negligent defendant is not relieved of liability. Id. at 629, 691 P.2d at 441. The issue of foreseeability, thus, can be a mixed question of law and fact. Elko Enterprises v. Broyles, 105 Nev. 562, 566, 779 P.2d 961, 964 (1989). Because the majority concludes that no special relationship exists between the pharmacies and third-party appellants to establish a duty of care owed to appellants, they decline to reach the foreseeability issue. As noted above, however, I conclude that the relationship between the pharmacy and its customer is sufficient to establish the first duty element and that sufficient allegations were pleaded by appellants to address the foreseeability element that precluded the district court from dismissing the common-law negligence cause of action. According to appellants second amended complaint, the Task Force notified the pharmacies that Copening was potentially abusing drugs. The Task Force informed each pharmacy that Copening went, during a 12-month period, to multiple pharmacies to fill her prescriptions. According to appellants, in the months before the accident, the pharmacies continued to fill Copenings prescriptions for hydrocodone and SOMA and that the amount of prescriptions filled for Copening provided her with at least 25 pills a day. Why Copening obtained this amount of a narcotic prescription in a 12-month period is not clear, but it may involve misuse of prescription drugs. In my view, these are reasonable inferences that could be drawn from the facts alleged in the appellants complaint, and the district court was required to accept them as true. See Malfabon v. Garcia, 111 Nev. 793, 796, 898 P.2d 107, 108 (1995) (providing that, in the context of a motion to dismiss under NRCP 12(b)(5), the plaintiffs allegations are taken as true and every reasonable inference is resolved in plaintiffs favor). Thus, it may have been reasonably foreseeable that Copening could not be expected to take the medication as prescribed and would drive while under the prescription drugs influence. A natural consequence of those combined actions was that Copening could cause harm to herself or others. Although the appellants allegations are not conclusive of the pharmacies potential liability, appellants were not required to prove their claim against the pharmacies while defending a motion to dismiss. See Malfabon, 111 Nev. at 796, 898 P.2d at 108. At a minimum, questions of fact remain as to whether the pharmacies had actual or inquiry notice that Copening was potentially abusing drugs and that she was purportedly pharmacy shopping. Thus, I conclude that sufficient allegations, raised in appellants pleadings, regarding foreseeability exist and coupled with my determination that a special relationship, together with the actual notice received by the phar-

834

Sanchez v. Wal-Mart Stores

[125 Nev.

macies, exists to support imposing a duty on the pharmacies for appellants benefit. I would reverse and remand this issue to the district court for further proceedings. Negligence per se cause of action that precludes dismissal The majority concludes that a negligence per se claim is unavailable to appellants because the statutes and regulations relied on by appellants were not intended for the general publics protection or to protect against any injury that third parties may sustain. I disagree. A negligence per se claim is available when a defendant violates a statute that is designed to protect others against the type of injury that was incurred. Ashwood v. Clark County, 113 Nev. 80, 86, 930 P.2d 740, 744 (1997). The Legislature has recognized that pharmacology affects public safety and welfare. NRS 639.213. Consequently, the Legislature regulates the profession, including in what manner and when controlled substances may be dispensed. See NRS 639.2171; NRS 639.0124; NRS 453.381. To that end, the Legislature directed the Board of Pharmacy to adopt regulations as are necessary for the protection of the public, appertaining to the practice of pharmacy. NRS 639.070(1)(a). Nevada law requires pharmacists to review customers records before filling prescriptions to determine prescriptions therapeutic appropriateness. NAC 639.707(4). Pharmacists must ensure that the substance is being dispensed solely for medically necessary purposes and in accordance with prevailing professional standards of care. NAC 639.742(3)(h). Based on the enactment of these statutory and regulatory provisions, it is apparent to me that the Legislature intended to prevent pharmacy shopping and the overfilling of certain controlled substances, and ultimately, to protect the general public from prescription-drug abuse and its effects. The abuse of either hydrocodone or SOMA can impair ones driving ability. In my opinion, motorists, like appellants, who are injured by an individual who is driving under the influence of prescription drugs are in the class of persons that the Legislature intended to protect and the injury is a type that the statutes and regulations intended to prevent. Having reached this conclusion, I would reverse the district courts dismissal of appellants negligence per se claim and remand this matter to the district court for additional proceedings. CONCLUSION In my view, the appellants complaint sufficiently states a common-law negligence cause of action because the special relationship and foreseeability elements to create an affirmative duty on the pharmacies to act for the appellants benefit have been ade-

Dec. 2009]

In re Parental Rights as to N.J.

835

quately pleaded. The appellants negligence per se claim should similarly not have been dismissed under NRCP 12(b)(5), as the elements of that claim have also been met. In light of the above, I would reverse the district courts order and remand this matter to the district court to allow appellants claims to proceed against those pharmacies that had actual or inquiry notice of the drivers prescription-filling activities. For these reasons, I dissent.

IN

THE

MATTER

OF THE

PARENTAL RIGHTS

AS TO

N.J.

DAWN M., APPELLANT, v. NEVADA STATE DIVISION OF CHILD AND FAMILY SERVICES; AND FAYE CA VENDER, RESPONDENTS.
No. 51125 December 24, 2009 221 P.3d 1255

Appeal from a district court order terminating appellants parental rights as to a minor child. Seventh Judicial District Court, White Pine County; Steve L. Dobrescu, Judge. The supreme court, SAITTA, J., held that: (1) dual-standard approach applied to termination of parental rights proceeding involving child who was eligible to enroll in Native American tribe, (2) termination of parental rights was in childs best interests, (3) evidence of parental fault was sufficient for termination of parental rights, (4) mother was an unfit parent, (5) DCFS failed to meet its beyond-a-reasonable-doubt burden of proof under Indian Child Welfare Act (ICWA), and (6) Existing Indian Family (EIF) doctrine applied. Affirmed. Law Office of John C. Brown and John C. Brown, Alamo, for Appellant. Catherine Cortez Masto, Attorney General, and Shannon C. Richards, Deputy Attorney General, Carson City, for Respondents.
1. INDIANS. Child whose father was enrolled member of Native American tribe was eligible for enrollment, and thus, termination of parental rights proceedings were subject to Indian Child Welfare Act (ICWA). 25 U.S.C. 1912(f). 2. INDIANS. Dual-standard approach, under which state law grounds for termination of parental rights were required to be proved under clear-andconvincing standard and Indian Child Welfare Act (ICWA) grounds for termination were required to be proved under beyond-a-reasonable-doubt stan-

836

In re Parental Rights as to N.J.

[125 Nev.

3. 4.

5.

6.

7.

8.

9. 10.

11.

12.

13.

dard, applied to termination of parental rights proceeding involving child who was eligible to enroll in Native American tribe. 25 U.S.C. 1912(f). INFANTS. Evidentiary standard for parental termination cases is clear and convincing. INDIANS. Indian Child Welfare Act (ICWA) requires that a beyond-a-reasonabledoubt evidentiary standard be met before granting a petition for termination of parental rights. 25 U.S.C. 1912(f). STATUTES. When interpreting a statute with clear and unambiguous language, the apparent intent of the statute will be given effect, thereby avoiding meaningless or unreasonable results. STATUTES. When construing a specific portion of a statute, the statute should be read as a whole, and, where possible, the statute should be read to give meaning to all of its parts. INDIANS. Indian Child Welfare Act (ICWA) does not expressly provide a uniform standard for removal of Native American children from their families but creates the minimum criterion for ICWA-related findings. 25 U.S.C. 1902. INFANTS. To terminate parental rights, a petitioner must prove by clear and convincing evidence that termination is in the childs best interest and that parental fault exists. NRS 128.105. INFANTS. Supreme court will uphold a district courts order to terminate parental rights if substantial evidence supports the decision. NRS 128.105. INFANTS. When presumption exists that termination of parental rights is in the childs best interest since child was in foster care for 14 of any 20 consecutive months, parent bears the burden of presenting enough evidence to overcome the presumption. NRS 128.109(2). INFANTS. Presumption that termination of parental rights was in the childs best interests applied to child who was in foster care almost her entire life, and mother who challenged termination of her parental rights had burden to overcome presumption; childs foster mother took her home from hospital, and child had lived with foster family for 20 months. NRS 128.109(2). INFANTS. Mother who failed to maintain sobriety and bond with daughter failed to overcome presumption that termination of parental rights was in childs best interests; child was in foster care almost her entire life, was released from hospital to foster mother, and lived with foster family for approximately 20 months. NRS 128.109(2). INFANTS. Substantial evidence supported conclusion that child had become fully integrated into foster family, and, thus, termination of parental rights was in childs best interests; child sought out her foster parents for protection, comfort, and pleasure; it would have been traumatic for child if she was removed from foster home; child bonded with foster family; and child had thrived with foster family, which met her medical needs and intended to permanently adopt the child if given the opportunity. NRS 128.108.

Dec. 2009]

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14. INFANTS. Substantial evidence in termination of parental rights proceedings supported finding of parental fault on ground of neglect; mother was unable to care for child from birth because of mothers ongoing addiction to drugs, mother made minimal efforts to bond with her daughter, missed more than half of scheduled visitations, and continued to use drugs; child was born and diagnosed with failure to thrive, possibly due to mothers use of alcohol, methamphetamine, and marijuana during pregnancy; mother did not attend childs medical appointments; mother never provided any financial assistance to child; agency made active efforts to reunite, and further efforts would be futile because of mothers continued drug use and lack of bond between her and child. NRS 128.014(2), 128.106(4), (8). 15. INFANTS. Substantial evidence in termination of parental rights proceedings supported finding of parental fault on ground of unfitness, despite mothers presentation of evidence of brief period of sobriety; mother continued to use drugs, mother failed to provide for any aspect of childs physical or mental well-being, mother remained in ongoing relationship described as a domestic violence situation, and mother continued to test positive for drugs despite her brief period of sobriety. NRS 128.018, 128.109(1)(a), (2). 16. INFANTS. What constitutes being an unfit parent can vary from case to case but generally includes continued drug use, criminal activity, domestic violence, or an overall inability to provide for the childs physical, mental, or emotional health and development. NRS 128.106(6). 17. INFANTS. Substantial evidence in termination of parental rights proceedings supported finding of parental fault on ground of token efforts; mother made only token efforts to support or communicate with child during the first 18 months of childs life, mother provided no financial assistance for childs care despite her receipt of disability income, mother was observed falling asleep during her visits with child, mother made only token efforts to address her drug addiction some 17 months after childs birth, and mother failed to terminate an abusive domestic relationship, all demonstrating lack of effort on mothers part to prevent neglect, avoid unfitness, and eliminate risk of serious emotional and physical harm to child. NRS 128.105(2)(f). 18. INDIANS. Division of Child and Family Services (DCFS) failed to meet its beyond-a-reasonable-doubt burden of proof under Indian Child Welfare Act (ICWA) to terminate parental rights to child who was eligible to enroll in Native American tribe, although DCFS presented substantial evidence that mother was an unfit parent and termination of her parental rights was in childs best interest with regard to Nevadas standards; there was no qualified expert witness who testified as to the likelihood of serious physical or emotional harm to child if she were returned to either parent. 25 U.S.C. 1912(f). 19. INDIANS. Existing Indian Family (EIF) doctrine, which is an exception to the Indian Child Welfare Act (ICWA) that precludes its application in cases where the court determines that there is no existing Native American family, applied to child who was eligible to enroll in Native American tribe, but whose putative father and tribe were not contesting termination of parental rights; termination of parental rights would not result in breakup of Native American family, only person contesting termination was childs non-Native American mother, childs foster family that intended to adopt child was committed to educating her about her heritage, and termination advanced

838

In re Parental Rights as to N.J.

[125 Nev.

goal of ICWA to protect best interests of Native American children. 25 U.S.C. 1912(f). 20. INDIANS. Existing Indian Family (EIF) doctrine is a judicially created doctrine that is an exception to the Indian Child Welfare Act (ICWA) that precludes its application in cases where the court determines that there is no existing Native American family, meaning the child is not, and never was, part of a Native American family or tribe. 25 U.S.C. 1912(f). 21. INDIANS. Existing Indian Family (EIF) doctrine should be used on a caseby-case basis to avoid results that are counter to the Indian Child Welfare Acts (ICWA) goal of protecting the best interest of a Native American child; when a non-Native American parent is challenging the termination of parental rights, the breakup of a Native American family is not at issue, and neither the tribe nor the Native American parent is contesting the termination, application of the doctrine may be appropriate. 25 U.S.C. 1912(f).

Before the Court EN BANC. OPINION By the Court, SAITTA, J.: In this appeal, we resolve questions concerning the Indian Child Welfare Act (ICWA), 25 U.S.C. 1901-1963 (2006). Specifically, we address what evidentiary standards apply in parental termination cases involving the ICWA. We also consider whether the Existing Indian Family (EIF) doctrine, a judicially created exception to the ICWA, applies in those cases in which neither the Native American parent nor the tribe is contesting termination. We conclude that a dual-standard burden of proof is appropriate for evidentiary findings in parental termination cases involving the ICWA. Therefore, the higher beyond-a-reasonable-doubt evidentiary standards of the ICWA will be used for ICWA-related findings, and Nevadas clear-and-convincing evidence standard will apply to state law findings. We further hold that under specific circumstances, such as when the breakup of a Native American family is not at issue, application of the EIF doctrine may be appropriate. FACTS AND PROCEDURAL HISTORY N.J. was born in Nevada in September 2005, two weeks premature. At the time of her birth, N.J. and her mother, petitioner Dawn M., tested positive for marijuana and methamphetamine. N.J. suffered respiratory problems and was flown to a childrens hospital in Utah. Having determined that Dawn had exposed N.J. to drugs while in utero, respondent Nevada State Division of Child and Family Services (DCFS) became involved and worked with Dawn to find

Dec. 2009]

In re Parental Rights as to N.J.

839

a safe placement for not only N.J., but also Dawns two other minor children. On September 16, 2005, Dawn informed DCFS that she was unable to secure a suitable placement for N.J. DCFS was unable to locate the putative father, Javy J. On September 20, 2005, N.J. was released from the hospital and placed in foster care, where she remains today. In October 2005, Javy made contact with DCFS. Subsequent DNA tests showed that Javy was the biological father of N.J. However, according to DCFS, Javy denied paternity. Moreover, he never made further contact with DCFS, nor did he ever contact N.J., acknowledge her, or petition the court to establish his parental rights. It was determined that Javy is an enrolled member of the Ely Shoshone Tribe, and therefore, N.J. was eligible to become a member of the tribe. Yet the Ely Shoshone Tribe did not intervene in the underlying case, and its only participation was to provide expert testimony when called upon. Furthermore, Dawn is neither a member of the Ely Shoshone Tribe nor any other Native American tribe. DCFS made arrangements for Dawn to visit N.J. and created a case plan for her to follow. In addition, DCFS referred Dawn for a drug and alcohol evaluation and to parenting and mental health classes. In May 2007, due to Dawns continued drug use and failure to abide by the case plan, DCFS filed a petition to terminate her parental rights as to N.J. At the parental rights termination hearing, DCFS presented testimony that for the first 18 months of N.J.s life, Dawn continued to test positive for marijuana and methamphetamine. It further established that it was not until the spring of 2007, more than 18 months after N.J.s birth, that Dawn showed more compliance with her case plan by maintaining sobriety and attending mental health appointments, as well as visitation appointments with N.J. However, Dawn managed to maintain only a few months of sobriety, testing positive for illegal substances again in October 2007. The testimony showed that DCFS was seeking termination of Dawns parental rights because reunification efforts had failed as a result of her continued drug use. Respondent Faye Cavender, a social worker with DCFS, stated that she witnessed Dawn fall asleep during some of her visits with N.J. She testified that Dawns continued struggle with drugs; the lack of a meaningful bond between Dawn and N.J.; the ongoing relationship between Dawn and her boyfriend, which was described as a domestic violence situation; and the fact that N.J.s entire life had been spent in foster care were all factors that led the agency to seek termination of Dawns parental rights. N.J.s foster mother, Karla, also provided relevant testimony that showed that N.J. was fully integrated into the foster family. Karla testified that since the day she and her husband, Mark, brought a fragile N.J. home, they had worked to enable N.J. to thrive physi-

840

In re Parental Rights as to N.J.

[125 Nev.

cally by taking her to all of her doctor appointments. They also worked on supporting her emotional needs. Karla explained that both she and Mark had Native American ancestry and would help educate N.J. about her tribal roots. She also provided detailed testimony regarding N.J.s close bond with Mark and the couples other children. Karla testified that the family would adopt N.J. if the petition for termination of parental rights was granted. Jacqueline Volkmann, a clinical social worker with DCFS with 15 years of experience, who had an opportunity to observe N.J. with her foster family, testified that N.J. was integrated into the family. In Volkmanns opinion, removing N.J. from the only family she had ever known would be traumatic for the child. In addition, Volkmann testified that in her experiences dealing with methamphetamine users, it was impossible to parent well on even the lowest dosage of the drug. DCFS also presented the testimony of Diane Buckner, the chairperson and health director for the Ely Shoshone Tribe. As to the traditions of the tribe, Buckner explained that the tribe is so integrated in the non-native community that each family chooses what tradition it will practice. Buckner stated that she had no concerns about N.J.s placement with a non-native family. She explained that upon her review of Dawns case file, it was her opinion that returning N.J. to Dawn would be problematic. However, during crossexamination, Buckner testified that she did not feel qualified to make such an assessment. Dawn testified on her own behalf, admitting to her struggles with alcohol, marijuana, and methamphetamine abuse. Dawn admitted that during the first year of N.J.s life, she may have missed more than half of the scheduled visits with her daughter because she was not given adequate notice. Dawn stated that she and N.J. had bonded. Following the hearing, the district court issued an order granting DCFSs petition for termination of parental rights. In its order, the district court explained that it applied a dual-level evidentiary standard, using a clear-and-convincing standard for state law findings and the ICWAs higher beyond-a-reasonable-doubt standard for the ICWA findings. Accordingly, it found by clear and convincing evidence that N.J.s best interest would be served by terminating Dawns parental rights. However, it determined that DCFS failed to meet the ICWAs higher evidentiary standard. In making this determination, it found that Buckner, though a qualified tribal expert, was not qualified to testify whether continued custody by either of N.J.s parents would result in serious harm. In noting this evidentiary deficiency, the district court determined that application of the EIF doctrine was appropriate. The EIF doctrine is a judicially created exception to the ICWA. The district court reasoned that in some cases,

Dec. 2009]

In re Parental Rights as to N.J.

841

like N.J.s, in which neither the Native American parent nor the tribe was contesting the termination and the breakup of a Native American family was not at issue, the EIF doctrine was appropriate. Accordingly, it granted DCFSs petition to terminate Dawns parental rights, and she appeals. DISCUSSION
[Headnote 1]

This appeal involves a child who is eligible for enrollment with the Ely Shoshone Tribe. The Tribe sent a letter to DCFS indicating that N.J.s putative father, Javy, is an enrolled member, and therefore, N.J. is eligible for enrollment. Accordingly, N.J. is a Native American child, and the parental termination proceedings are subject to the ICWA. See Matter of Petition of Phillip A. C., 122 Nev. 1284, 1291, 149 P.3d 51, 56 (2006). On appeal, Dawn raises two overarching issues. She asserts that the district court erred when it found clear and convincing evidence of parental fault. Dawn additionally contends that the EIF doctrine should not apply in this case. In resolving these issues, we first address the evidentiary standard of parental termination cases involving the ICWA. We adopt the dual-standard approach, which is used in the majority of states and requires state law grounds for termination to be proved by a clear-and-convincing standard and the ICWA grounds for termination to be proved by the higher beyonda-reasonable-doubt standard. Additionally, we hold that the EIF doctrine is applicable under limited circumstances, such as when neither the Native American parent nor the tribe is contesting the termination. Evidentiary standards
[Headnote 2]

As a threshold issue, we must first define the evidentiary standards applicable in this case. The specific issue before us is the interplay between Nevadas and the ICWAs standards of proof in parental termination cases.
[Headnotes 3, 4]

Nevada has a clear-and-convincing evidentiary standard for parental termination cases, Matter of Parental Rights as to D.R.H., 120 Nev. 422, 428, 92 P.3d 1230, 1234 (2004), while the ICWA requires that a beyond-a-reasonable-doubt evidentiary standard be met before granting a petition for termination of parental rights. 25 U.S.C. 1912(f) (2006). When a case arises, such as this, where both standards are implicated, the fact-finder is faced with two competing standards. In reconciling this difference, we conclude that the state standard applies to state law findings and the ICWA standard

842

In re Parental Rights as to N.J.

[125 Nev.

applies to federal law findings. We find support for our holding in the federal statutes language.
[Headnotes 5, 6]

When interpreting a statute with clear and unambiguous language, the apparent intent of the statute will be given effect, thereby avoiding meaningless or unreasonable results. Matter of Petition of Phillip A. C., 122 Nev. at 1293, 149 P.3d at 57. When construing a specific portion of a statute, the statute should be read as a whole, and, where possible, the statute should be read to give meaning to all of its parts. Id. at 1293, 149 P.3d at 57-58 (quoting Building & Constr. Trades v. Public Works, 108 Nev. 605, 610, 836 P.2d 633, 636 (1992)). This court has held that statutes with a protective purpose, such as the ICWA, should be liberally construed in order to effectuate the intended benefits. Id. at 1293, 149 P.3d at 58.
[Headnote 7]

By its own terms, 25 U.S.C. 1902 describes the ICWA as setting forth minimum Federal standards for the removal of Native American children from their families. The language, therefore, does not expressly provide a uniform standard, but rather, creates the minimum criterion for ICWA-related findings. In another section of the ICWA, the evidentiary standard issue is addressed more directly: [i]n any case where State or Federal law applicable to a child custody proceeding under State or Federal law provides a higher standard of protection to the rights of the parent or [Native American] custodian of [a Native American] child than the rights provided under this subchapter, the State or Federal court shall apply the State or Federal standard. Id. 1921. We determine that these sections read together to effectuate the ICWAs intended benefitsmainly the best interests of Native American childrenrequire the stricter evidentiary standard of the ICWA to only apply to findings related to the federal statute. We find support for our interpretation of the ICWA in a recent decision by the Arizona Supreme Court, which noted that almost every state court that has considered this issue has concluded that the ICWA allows states to specify the standard of proof for state-law findings distinct from the findings required by ICWA. Valerie M. v. Arizona Dept. of Econom. Sec., 198 P.3d 1203, 1207 (Ariz. 2009); see also Matter of J.R.B., 715 P.2d 1170, 1171 (Alaska 1986); In Interest of H.A.M., 961 P.2d 716, 721 (Kan. Ct. App. 1998); In re T.F., 681 N.W.2d 786, 791-92 (N.D. 2004). Accordingly, so do we. With those evidentiary principles in mind, we now turn to the issue of whether the evidence presented supported a finding of parental fault warranting termination of Dawns parental rights. We begin our analysis with Nevadas evidentiary standard.

Dec. 2009]

In re Parental Rights as to N.J.

843

Clear-and-convincing standard
[Headnotes 8, 9]

In Nevada, to terminate parental rights, a petitioner must prove by clear and convincing evidence that termination is in the childs best interest and that parental fault exists. Matter of Parental Rights as to D.R.H., 120 Nev. at 428, 92 P.3d at 1234; see NRS 128.105. This court will uphold a district courts order to terminate parental rights if substantial evidence supports the decision. Matter of Parental Rights as to D.R.H., 120 Nev. at 428, 92 P.3d at 1234. Childs best interest
[Headnote 10]

In determining what is in a childs best interest, the district court must consider the childs continuing need for proper, physical, mental and emotional growth and development. NRS 128.005(2)(c). It is presumed that termination of parental rights is in the childs best interest if a child has been in foster care for 14 of any 20 consecutive months. NRS 128.109(2). When this presumption applies, the parent bears the burden of presenting enough evidence to overcome the presumption. Matter of Parental Rights as to A.J.G., 122 Nev. 1418, 1426, 148 P.3d 759, 764 (2006).
[Headnotes 11, 12]

In the present case, N.J. has been in foster care almost her entire life. It was her foster mother, Karla, who took N.J. home after she was released from the hospital. At the time that DCFS filed the petition to terminate parental rights, N.J. had been living with her foster family for approximately 20 months. Therefore, the presumption of NRS 128.109(2) applied, and it was up to Dawn to overcome it. Dawns failure to maintain sobriety and bond with her daughter demonstrate that she failed to overcome this presumption. Foster care considerations
[Headnote 13]

In instances where the child has been placed in foster care and the custodial agency institutes proceedings to terminate parental rights, with the ultimate goal of having the childs foster family adopt her, the district court must look at specific considerations, including whether the child has become integrated into the foster family to the extent that [her] familial identity is with that family. NRS 128.108. Other considerations include [t]he length of time the child has lived in a stable . . . foster home and [t]he permanence as a family unit of the foster family. NRS 128.108(4) and (5). We conclude that there was substantial evidence that N.J. had become fully integrated into the foster family. Volkmann, who spent time with N.J. and her foster parents, testified that N.J. would seek

844

In re Parental Rights as to N.J.

[125 Nev.

out her foster parents for protection, comfort, and pleasure. She witnessed N.J. trip on two occasions and call out for Mark, her foster father, for comfort. Volkmann further testified that it would be traumatic for N.J. if she was removed from the foster home. N.J.s foster mother, Karla, testified that N.J. had bonded not only with her and her husband, but also with Karla and Marks other children. With the foster family, N.J. has thrived, and Karla and Mark have provided for N.J.s medical needs since they brought her home from the hospital. The family intends to permanently adopt N.J. given the opportunity. In sum, the foster care considerations in this case supported the district courts finding that termination of Dawns parental rights was in N.J.s best interest. Parental fault
[Headnote 14]

Dawn argues that there was not substantial evidence of parental fault. Specifically, she asserts that the district court improperly gave too much weight to the evidence of her drug use and ignored the brief period of sobriety. We disagree. The district court found parental fault on the following grounds: neglect, unfitness, and token efforts. We consider each in turn. Neglect
[Headnote 15]

In Nevada, a child is considered neglected if a parent neglects or refuses to provide proper or necessary subsistence, education, medical or . . . other care necessary for [the childs] health, morals or well-being. NRS 128.014(2). NRS 128.106(4) provides that when determining neglect, the court shall consider whether excessive drug and alcohol use interfered with the parents ability to care for the child. And NRS 128.106(8) requires the court to consider the inability of public agencies to reunite the parent and child, despite reasonable efforts. With regard to neglect, the district courts findings were as follows: Dawn was not able to care for N.J. from the time the child was born because of Dawns ongoing addiction to drugs. During the first 17 months of N.J.s life, Dawn made minimal efforts to bond with her daughter, missed more than half of the scheduled visitations, and continued to use drugs. N.J. was born and diagnosed with a failure to thrive, due possibly to Dawns use of alcohol, methamphetamine, and marijuana during pregnancy. Dawn did not attend N.J.s medical appointments to keep up with N.J.s physical progress. Additionally, Dawn has never provided any financial assistance to N.J. Moreover, DCFS made active efforts to reunite mother and daughter by providing a case plan and offering Dawn the opportunity to visit N.J. as much as five times a week. It is clear

Dec. 2009]

In re Parental Rights as to N.J.

845

from the record that further efforts would be futile because of Dawns continued drug use and the lack of a bond between her and N.J. Accordingly, we conclude that substantial evidence supports the district courts finding of neglect. Unfitness
[Headnote 16]

An unfit parent is any parent of a child who, by reason of his fault or habit or conduct toward the child or other persons, fails to provide such child with proper care, guidance and support. NRS 128.018. What constitutes being unfit can vary from case to case but generally includes continued drug use, criminal activity, domestic violence, or an overall inability to provide for the childs physical, mental or emotional health and development. Matter of Parental Rights as to D.R.H., 120 Nev. at 429-30, 92 P.3d at 1235 (quoting NRS 128.106(6)); see Matter of Parental Rights as to K.D.L., 118 Nev. 737, 746-47, 58 P.3d 181, 187 (2002). The district court properly determined that Dawn was an unfit parent because of her continued drug use, her failure to provide for any aspect of N.J.s physical or mental well-being, and her ongoing relationship with her then-boyfriend, which was described as a domestic violence situation. Dawn argues that the district court overlooked the few months of sobriety she maintained in 2007; however, she misstates the record. The district court indeed took note of the brief period of sobriety, but it appropriately ruled that Dawn was unfit because she continued to test positive for drugs. In the months leading up to the termination of parental rights hearing, Dawn again used methamphetamine, was subsequently arrested, and spent 30 days in jail. Additionally, an experienced social worker, Volkmann, testified that in her experience with recovering addicts, it was practically impossible to parent on even the lowest dose of methamphetamine. The evidence of Dawns unfitness as a parent was overwhelming, and the district court did not improperly emphasize any one period of time. Accordingly, we conclude that substantial evidence supports the district courts finding of parental unfitness. Token efforts
[Headnote 17]

Pursuant to NRS 128.105(2)(f), parental fault may be established when a parent engages in only token efforts to (1) support or communicate with the child; (2) prevent neglect of the child; (3) avoid being an unfit parent; or (4) eliminate the risk of serious physical, mental or emotional [harm] to the child. Moreover, NRS 128.109(1)(a) and (2) state that if a child has been in foster care for 14 months of a 20-month period, it is presumed that the parent has made only token efforts to care for the child and that termination of parental rights is in the childs best interest.

846

In re Parental Rights as to N.J.

[125 Nev.

The district court, while not addressing each of the four factors, determined that Dawn had, at best, made token efforts as defined by NRS 128.105(2)(f). We agree. First, the record demonstrates that Dawn made only token efforts to support or communicate with N.J. during the first 18 months of the childs life. While not employed, Dawn received disability income, but she failed to provide any financial assistance for N.J.s care. In addition, Dawn was observed falling asleep during her visits with N.J. Moreover, Dawn only made token efforts to address her drug addiction some 17 months after N.J.s birth. Her failure to address her drug issue and terminate an abusive domestic relationship demonstrate a lack of effort on Dawns part to prevent neglect, avoid unfitness, and eliminate risk of serious emotional and physical harm to N.J. A mere few months of sobriety almost a year and onehalf after N.J.s birth is a token effort at best. Accordingly, we conclude that substantial evidence supports the district courts finding that Dawn made only token efforts to care for her daughter. Having concluded that substantial evidence exists to support the district courts determination, pursuant to Nevadas clear-andconvincing evidentiary standard, that termination of Dawns parental rights is in the best interest of N.J., we now turn to the issue of whether the evidence presented supports termination pursuant to the ICWAs higher evidentiary standard. Beyond-a-reasonable-doubt standard In passing the ICWA, Congress declared that it is the United States policy to advance the best interests of Native American children and Native American families by establishing minimum federal standards for the removal and adoption of Native American children. 25 U.S.C. 1902 (1978). Congress expressly stated that the ICWA was enacted in response to the alarmingly high percentage of Native American families that were broken up due to the oftentimes unwarranted removal of Native American children by nontribal public and private agencies. Id. 1901(4). It further noted that state courts have often failed to recognize the essential tribal relations of [Native American] people and the cultural and social standards prevailing in [Native American] communities and families. Id. 1901(5). Those policy goals comport with the statutes higher evidentiary standards. The ICWA requires that the district court make two findings before terminating the parental rights of a Native American child. First, there must be a determination, supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or [Native

Dec. 2009]

In re Parental Rights as to N.J.

847

American] custodian is likely to result in serious emotional or physical damage to the child. Id. 1912(f). Second, the court must also be persuaded that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the [Native American] family and that these efforts have proved unsuccessful. Id. 1912(d). For the reasons set forth below, we agree with the district court that DCFS did not meet the ICWAs higher evidentiary standard, yet termination of parental rights was proper because of the application of the EIF doctrine. Qualified witness testimony
[Headnote 18]

The ICWA does not expressly define a qualified expert witness. We determine that NRS 128.093(2) is helpful. It states: As used in this section, qualified expert witness includes, without limitation: (a) [A Native American] person who has personal knowledge about the [Native American] childs tribe and its customs related to raising a child and the organization of the family; and (b) A person who has: (1) Substantial experience and training regarding the customs of [Native American] tribes related to raising a child; and (2) Extensive knowledge of the social values and cultural influences of [Native American] tribes. The district court determined that DCFS did not sufficiently meet the ICWA evidentiary standard because there was no qualified expert witness who testified as to the likelihood of serious physical or emotional harm to N.J. if she were returned to either parent. We agree. While DCFS presented substantial evidence that Dawn was an unfit parent and termination of her parental rights was in N.J.s best interest with regard to Nevadas standards, it did not meet its burden of proof pursuant to the ICWA. While the tribal expert provided by DCFS, Buckner, met the standards of NRS 128.093(2) because she was the chairperson of the Ely Shoshone Tribe and had substantial experience about the tribe and its customs related to raising children, she could not provide testimony that returning N.J. to Dawn would result in serious emotional or physical damage to the child as is required by 1912(f). We note that one witness, Volkmann, a clinical social worker with DCFS, testified that removing N.J. from the fos-

848

In re Parental Rights as to N.J.

[125 Nev.

ter family would be traumatic. However, she could not testify as to whether returning N.J. to Dawn would result in serious harm. Therefore, DCFS failed to meet the ICWAs higher evidentiary standard for termination of parental rights. The EIF doctrine
[Headnote 19]

As the ICWA was enacted to protect against the unwarranted removal of Native American children from an existing Native American family unit and the resultant breakup of the Native American family, we agree with the district courts observation that the application of the ICWA to this case would serve only one purpose: to deprive N.J. of the only home she has ever known and come to love. We determine that the outcome would be counter to the ICWAs goal of protecting the best interests of Native American children.
[Headnote 20]

The judicially created EIF doctrine is an exception to the ICWA that precludes its application in cases where the court determines that there is no existing Native American family, meaning the child is not, and never was, part of a Native American family or tribe. In re Alexandria Y., 53 Cal. Rptr. 2d 679, 686 (Ct. App. 1996) (holding that recognition of the [EIF] doctrine is necessary to avoid serious constitutional flaws in the ICWA).
[Headnote 21]

We hold that the EIF doctrine should be used on a case-bycase basis to avoid results that are counter to the ICWAs policy goal of protecting the best interest of a Native American child. In the present case, we recognize that N.J.s interest is protected by the ICWA because her putative father is a member of the Ely Shoshone Tribe. Her father, however, is not contesting the termination, nor is the tribe. The termination will not result in the breakup of a Native American family. Indeed, the only person contesting the termination is the non-Native American parent, Dawn. In addition, the foster family that is taking care of N.J. plans on adopting N.J. and is committed to educating her about her heritage. Those factors lead us to conclude that in this circumstance, the application of the EIF doctrine is appropriate because, while it is an exception to the ICWA, in such scenarios it serves to advance the ICWAs goal to protect the best interests of Native American children. Because we conclude that the EIF doctrine is applicable, we need not reach the issue of whether DCFS made active efforts, pursuant to the ICWA, see 25 U.S.C. 1912(d), to reunite Dawn and N.J., as application of the EIF doctrine negates the necessity of that inquiry.

Dec. 2009]

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CONCLUSION In parental termination cases in which the ICWA is implicated, we conclude that a dual-evidentiary standard is appropriate. The district court shall use Nevadas clear-and-convincing standard for state law findings and the ICWAs higher beyond-a-reasonable-doubt standard for ICWA-related findings. We further hold that the judicially created exception to the ICWA, the EIF doctrine, may be applicable on a case-by-case basis. Specifically, when a non-Native American parent is challenging the termination of parental rights, the breakup of a Native American family is not at issue, and neither the tribe nor the Native American parent is contesting the termination, we conclude that application of the EIF doctrine may be appropriate. In the present case, we conclude that substantial evidence supports the district courts determination that termination of parental rights was in the childs best interest and that parental fault existed. We further determine that the district court correctly applied the EIF doctrine in this case. Accordingly, we affirm the district courts judgment. HARDESTY, C.J., PARRAGUIRRE, DOUGLAS, CHERRY, GIBBONS, and PICKERING, JJ., concur.

STEPHENS MEDIA, LLC, A NEVADA LIMITED LIABILITY COMPANY DBA LAS VEGAS REVIEW JOURNAL AND THE ASSOCIATED PRESS, PETITIONERS, v. THE EIGHTH JUDICIAL DISTRICT COURT OF THE STATE OF NEV ADA, IN AND FOR THE COUNTY OF CLARK, AND THE HONORABLE JACKIE GLASS, DISTRICT JUDGE, RESPON DENTS, AND THE STATE OF NEV ADA, ORENTHAL JAMES SIMPSON, AND CHARLES CJ STEWART, REAL PARTIES IN INTEREST.
No. 52399 December 24, 2009 221 P.3d 1240

Original petition for a writ of prohibition or mandamus challenging a district court order denying a motion to intervene and modify the courts decorum order regarding juror questionnaires. The supreme court, HARDESTY, C.J., held that: (1) issue fell within exception to mootness doctrine for issues that were capable of repetition, yet would evade review; (2) public and press have right to seek limited intervention in criminal case to advance or argue constitutional claims concerning access to court proceedings; (3) First Amendments guarantee of public access to criminal proceedings

850

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extended to juror questionnaires; (4) district court was required to make specific findings and consider whether alternatives to total suppression of questionnaires would protect defendants interests; (5) district court erred by denying request of newspaper and news service; (6) order was not narrowly tailored to protect defendants fair trial rights; and (7) release after jury verdict of redacted versions of completed questionnaires did not cure order. Petition granted. Campbell & Williams and Donald J. Campbell and J. Colby Williams, Las Vegas, for Petitioners. Catherine Cortez Masto, Attorney General, and Jill Carol Davis, Senior Deputy Attorney General, Carson City, for Respondents.
1. PROHIBITION. Writ of prohibition serves to stop a district court from carrying on its judicial functions when it is acting outside its jurisdiction. 2. MANDAMUS. Writ of mandamus is appropriate to compel the performance of an act which the law requires as a duty resulting from an office or where discretion has been manifestly abused or exercised arbitrarily or capriciously. 3. APPEAL AND ERROR; MANDAMUS. District courts denial of an application to intervene is not an appealable order; thus, party seeking relief from denial of motion to intervene must seek relief via a petition for extraordinary relief. 4. MANDAMUS; PROHIBITION. Supreme court would exercise its discretion to consider merits of petition by newspaper and news service for writ of prohibition or mandamus challenging district court order denying their motion to intervene in a criminal proceeding and modify the courts decorum order regarding juror questionnaires; media did not have adequate remedy at law to challenge district courts order denying its application to intervene. 5. APPEAL AND ERROR. Generally, supreme court will only review cases that present live controversies. 6. ACTION. When a live controversy becomes moot by the occurrence of subsequent events, supreme court will not make legal determinations that cannot affect the outcome of the case. 7. ACTION. A moot case is justiciable where an issue is capable of repetition, yet will evade review because of the nature of its timing. 8. APPEAL AND ERROR. Supreme court will exercise its discretion to adjudicate a moot case when: (1) the contested issue is likely to arise again, and (2) the challenged action is too short in its duration to be fully litigated prior to its natural expiration. 9. APPEAL AND ERROR. Issue of whether juror questionnaires were subject to public disclosure fell within exception to mootness doctrine for issues that were capable of repetition, yet would evade review because of the nature of its timing; it was

Dec. 2009]

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10.

11.

12. 13. 14.

15.

16.

17. 18.

exceedingly likely that media would seek access to juror questionnaires and voir dire proceedings in future high-profile criminal trials, and closure of voir dire proceedings and the conclusion of the underlying criminal trial were both likely to expire before the constitutional implications of the closure were properly considered. CRIMINAL LAW. Public and press have right to seek limited intervention in criminal case to advance or argue constitutional claims concerning access to court proceedings; presumption of an open court is firmly rooted in American jurisprudence; criminal trials have historically been open to the public and the press; right to access criminal trials is grounded in logic and plays an integral role in the administration of justice; public participation comes from public access and advances the quality and integrity of the judicial process; and press often acts as a proxy for the public, advancing the publics understanding and awareness of the criminal justice system. CRIMINAL LAW. Public access to criminal trials inherently promotes public scrutiny of the judicial process, which enhances both the fairness of criminal proceedings and the public confidence in the criminal justice system; even if an individual does not attend a criminal proceeding, the fact that the public is free to attend enhances his or her confidence in the system by assuring that established procedures are followed. CRIMINAL LAW. Public participation derived from public access to criminal trials advances the quality and integrity of the judicial process. CRIMINAL LAW. Press often acts as a proxy for the public, advancing the publics understanding and awareness of the criminal justice system. MANDAMUS. When considering a writ of mandamus, supreme court generally applies a manifest abuse of discretion standard of review; but, when the issue presented requires it to draw a line between speech unconditionally guaranteed and speech which may legitimately be regulated, it applies de novo review. MANDAMUS. Newspaper and news services request to access juror questionnaires required supreme court to draw line between speech unconditionally guaranteed and speech which could legitimately be regulated, and thus, standard of review in mandamus proceeding would be de novo; de novo review would ensure that any restrictions on free speech did not impermissibly intrude on the field of free expression. U.S. CONST. amends. 1, 6. CONSTITUTIONAL LAW; CRIMINAL LAW. First Amendments guarantee of public access to criminal proceedings extended to juror questionnaires; because juror questionnaires merely facilitated and expedited oral voir dire, they were a part of the overall voir dire process and were presumed to be accessible as part of the criminal proceeding, and historical practice of open jury selection supported conclusion that public and press had right to access voir dire proceedings as an integral part of the criminal trial. U.S. CONST. amends. 1, 6. JURY. Juror questionnaires perform a valuable function in the jury-selection process by expediting and assisting a district courts voir dire. CRIMINAL LAW; JURY. Use of juror questionnaires does not implicate a separate and distinct proceeding from a criminal trial; rather, use of the questionnaires is merely

852

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19.

20. 21.

22.

23.

24.

25.

26. 27.

a part of the overall voir dire process, subject to public access and the same qualified limitations as applied to oral voir dire. U.S. CONST. amends. 1, 6. CONSTITUTIONAL LAW; CRIMINAL LAW. First and Sixth Amendment guarantees could not be prioritized, and thus, district court was required under balancing test, in order to refuse newspaper and news service access to juror questionnaires in criminal trial, to: (1) make specific findings demonstrating substantial probability that defendant would be deprived of fair trial by disclosure of questionnaires and (2) consider whether alternatives to total suppression would protect defendants interests, and order could not be broader than necessary, rather it had to be narrowly tailored to protect defendants fair trial rights; authors of Bill of Rights did not assign priorities, and it was not appropriate to undertake what they declined to do. U.S. CONST. amends. 1, 6. CRIMINAL LAW. Public right of access to criminal proceedings is not absolute. CONSTITUTIONAL LAW. The First Amendment qualifies the public right of access to criminal proceedings by creating a presumption of openness that may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest. U.S. CONST. amends. 1, 6. CONSTITUTIONAL LAW; CRIMINAL LAW. In determining whether to override the presumption of openness, one fundamental interest courts must balance is a criminal defendants Sixth Amendment right to a fair trial against the presss First Amendment right of access. U.S. CONST. amends. 1, 6. CONSTITUTIONAL LAW; CRIMINAL LAW. District court erred by denying request of newspaper and news service to modify order in criminal trial to allow access to completed juror questionnaires, although court promised potential jurors to maintain confidentiality; promise did not supersede First Amendment right to access proceeding, concern that potential jurors would preview questionnaires and formulate answers to better position themselves on jury was based on conjecture, court failed to make specific findings that defeated presumption of openness, and supreme court declined to adopt policy of suspicion and mistrust by determining that 12 citizens who would faithfully perform their jury service could not be found. U.S. CONST. amends. 1, 6. CRIMINAL LAW. In every high-profile criminal case, there is a risk that jurors will prejudge the defendant but will be unwilling to admit their prejudgment; mere risk of juror untruthfulness is not sufficient to support the closure of a criminal proceeding. JURY. Where there is a genuine concern about a particular veniremembers candidness, the proper remedy is to remove the juror for cause during the voir dire process. JURY. Appearance of a fair and impartial jury is essential to the publics confidence in the justice system. U.S. CONST. amends. 1, 6. CRIMINAL LAW. When the district court identifies specific facts that indicate that the possibility of juror taint exists, public scrutiny is essential; publics participation in these instances not only ensures that suspicions of potential juror misconduct are publicized, but ideally, public pressure will discourage those who intend to abuse the system. U.S. CONST. amends. 1, 6.

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28. CRIMINAL LAW. Blanket promise of confidentiality to potential jurors does not satisfy the requirement that a court articulate specific findings to support its decision to prevent media access to juror questionnaires. U.S. CONST. amends. 1, 6. 29. CRIMINAL LAW. Naked assertion without any specific finding of fact does not justify closure of the voir dire proceedings in criminal trial. U.S. CONST. amends. 1, 6. 30. CRIMINAL LAW. Retroactive release by district court of redacted, completed juror questionnaires after newspaper and news service filed petition for writ of mandamus or prohibition challenging courts decorum order in high-profile criminal trial prohibiting disclosure of questionnaires, and after trial was over, was not sufficient to cure its failure to satisfy requirement that it make specific findings to support its denial of access to the questionnaires. U.S. CONST. amends. 1, 6. 31. CRIMINAL LAW. Because the balancing test for determination of whether juror questionnaires may be disclosed to media or public requires the district court to consider whether reasonable alternatives to closure of voir dire proceedings would sufficiently address countervailing interests, circumstances of each case requires a different remedy. U.S. CONST. amends. 1, 6. 32. CRIMINAL LAW. When the district court identifies juror privacy as the countervailing interest to free press rights to open criminal proceedings, such as when questions asked during voir dire are deeply sensitive and personal in nature, a court must balance the privacy interests of prospective jurors with the historical presumption of openness. U.S. CONST. amends. 1, 6. 33. CRIMINAL LAW; JURY. If privacy of potential jurors is a concern in a criminal proceeding, district court should inform them that, if they believe public questioning will prove damaging because of embarrassment, they may properly request an opportunity to present the problem to the judge in camera, but with counsel present and on the record; by requiring jurors to make an affirmative request, court would effectively reduce the risk of unnecessary closure of the voir dire proceedings, as the trial judge could consider whether there is a factual basis for the jurors privacy right, and to protect and ensure the value of openness, the district court may release the transcript of the proceedings when concerns related to the jurors privacy have lessened. U.S. CONST. amends. 1, 6. 34. CRIMINAL LAW; JURY. Decorum order that prohibited publication of name, address, or likeness of juror or prospective juror, publication of blank juror questionnaire, and disclosure of completed questionnaires was not narrowly tailored to protect criminal defendants fair trial right and, thus, was manifest abuse of discretion; court did not consider reasonable alternatives, such as partial closure by limiting access to portions of questionnaires or removing potential jurors who were suspected of attempting to craft answers to get on jury, and advising jury that, although questionnaires would not be held in strict confidence, they could request in camera questioning, before denying request for access to questionnaires. U.S. CONST. amends. 1, 6. 35. CRIMINAL LAW. In a high-profile case that presents the risk of harassment or jury influence by the media, juror candor may be stifled, inhibiting a defendants right to a fair and impartial jury. U.S. CONST. amends. 1, 6.

854

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36. CRIMINAL LAW. District courts are cautioned against hastily closing voir dire proceedings because of the possibility that the presence of the press would inhibit juror candor; court must consider reasonable alternatives to complete closure of the voir dire proceedings, including juror questionnaires. U.S. CONST. amends. 1, 6. 37. CRIMINAL LAW; JURY. If juror privacy was district courts principal concern in issuing decorum order that prohibited publication of name, address, or likeness of juror or prospective juror, proper alternative would have been to advise jury pool that, although jury questionnaires would not be held in strict confidence, individuals could request in camera questioning if they believed that answering particular questions could lead to damaging embarrassment or harassment. U.S. CONST. amends. 1, 6. 38. CRIMINAL LAW. Release after jury verdict in high-profile criminal trial of redacted versions of completed juror questionnaires without articulated findings or discernible criteria did not cure the district courts original order to deny the presss request for access or failure to consider reasonable alternatives before it ordered complete closure of questionnaire facet of voir dire, and thus, newspaper and news service were entitled to all requested juror questionnaires in an unredacted form; by time questionnaires were released, any concerns related to juror harassment or juror influence had all but dissipated, and court neither articulated clear criteria for determining which questions to redact, nor justified its decision to redact the questionnaires after the jury had rendered its verdict. U.S. CONST. amends. 1, 6. 39. CRIMINAL LAW. Subsequent release by district court of redacted, completed juror questionnaires after newspaper and news service filed petition for writ of mandamus or prohibition challenging courts decorum order in high-profile criminal trial prohibiting disclosure of questionnaires, and after trial was over, did not cure the district courts failure to consider reasonable alternatives before it ordered complete closure. U.S. CONST. amends. 1, 6. 40. CRIMINAL LAW. When closure of a voir dire proceeding is properly imposed, a redacted version of the proceedings is the constitutionally preferable method because it advances juror anonymity while concurrently allowing the public and press to access jurors substantive responses. U.S. CONST. amends. 1, 6. 41. CRIMINAL LAW. Granting partial access to voir dire in the form of redacted jury questionnaires requires specific findings demonstrating the justification for restricted access, and the criteria and procedure on which the court relies when redacting the questionnaires. U.S. CONST. amends. 1, 6. 42. CRIMINAL LAW. District courts determination to limit access to juror questionnaires through redactions should be limited in time and in scope. U.S. CONST. amends. 1, 6. 43. CRIMINAL LAW. Because juror harassment or improper influence is significantly reduced after a verdict is rendered, a court must articulate specific findings if it intends to maintain confidentiality of jury questionnaires after the verdict is rendered. U.S. CONST. amends. 1, 6. 44. CRIMINAL LAW. Because of the extent of the press coverage of high-profile criminal trial and the possibility of juror harassment or juror influence, releasing redacted

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versions of the completed jury questionnaires within a reasonable amount of time would have constituted a sound alternative to complete closure, if limited redactions were based upon articulated findings or discernible criteria. U.S. CONST. amends. 1, 6.

Before the Court EN BANC.1 OPINION By the Court, HARDESTY, C.J.: This petition for extraordinary writ relief challenges the district courts denial of petitioners motion to intervene in a criminal trial for the limited purpose of accessing juror questionnaires. In reviewing this petition, we must address two issues of first impression. First, we must resolve whether petitioners motion to intervene in a criminal case to seek access to juror questionnaires is procedurally proper. Second, we are asked to determine whether juror questionnaires used in jury selection are subject to public disclosure. This second inquiry requires an analytical balance between two equally important constitutional rights: the First Amendment right of the public and the press to access criminal proceedings, and the Sixth Amendment right of criminal defendants to receive a fair trial. After weighing all relevant interests, we conclude that limited intervention by the public or the press is an appropriate procedural mechanism by which the public or press may assert its First Amendment interests in a criminal case. We determine that the district court committed error in denying petitioners motion to intervene. We further conclude that juror questionnaires used in jury selection are, like the jury-selection process itself, presumptively subject to public disclosure. The presumption of openness may be overcome, however, only if the district court identifies a countervailing interest to public access and demonstrates, by specific findings, that closure is necessary and narrowly tailored to serve a higher interest. Because we conclude that the district court neither articulated specific findings to show that concerns about juror candor superseded the First Amendments presumption of open proceedings in jury selection nor considered reasonable alternatives to a complete closure of the questionnaires, we grant petitioners petition and direct the district court to release all blank and completed juror questionnaires to petitioners. We recognize that because the underlying criminal trial concluded and the jury rendered a verdict, this remedy might be considered
1 THE HONORABLE KRISTINA PICKERING, Justice, voluntarily recused herself from participation in the decision of this matter.

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moot. Nonetheless, we consider this petition because the primary issuewhether juror questionnaires used in jury selection are subject to public disclosureis of a type that is capable of repetition but evading review. FACTUAL AND PROCEDURAL HISTORY On September 8, 2008, the district court was scheduled to try Orenthal James (O.J.) Simpson and Charles CJ Stewart for various criminal offenses. The criminal trial attracted intense press coverage due to Simpsons celebrity status as a former professional athlete and his previous criminal and civil cases involving the murders of his ex-wife, Nicole Simpson, and Ron Goldman. On September 3, 2008, the district court issued a decorum order to establish the rules and guidelines for the press and other observers who wished to view the trial. Within the decorum order, under Guidelines for the Media, provision 5 provided, in part: No party, counsel, representative of the media, or member of the public shall publish in any way the name or address of any juror or prospective juror, nor a likeness of any juror or prospective juror, in a manner that discloses or may disclose the identity of that person. Additionally, provision 7 of the order provided, A sample copy of the jury questionnaire will be provided by the Court after a jury is seated and sworn in to hear the case. On September 8, 2008, petitioners Stephens Media, LLC, dba Las Vegas Review Journal, and The Associated Press (collectively, the press) filed an emergency application to intervene for the limited purpose of modifying the district courts Decorum Order as it relates to the issue of juror questionnaires. The press sought access to a copy of the blank juror questionnaire before oral voir dire commenced and access to the completed questionnaires of the jurors and alternates who were ultimately selected to serve as members of the jury. The district court held a brief hearing on the application to intervene but denied the presss application in a written order. In its order, the district court summarily denied the presss application based on the proposition that Nevada law does not permit intervention in criminal cases. Nevertheless, the district court addressed the presss argument that it had a First Amendment right to access the questionnaires. The court stated that it would not provide access to the blank questionnaires because it was concerned about jury taint and the likelihood that potential jurors would access the questionnaires and tailor their answers to better position themselves onto the jury. Additionally, the court stated that it would not release completed questionnaires for one simple reason: the court promised the jurors that the questionnaires would be kept in con-

Dec. 2009]

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fidence, under seal and would be used solely in the selection of a jury and for no other purpose. After the jury was seated and sworn, the district court permitted the press to access the blank juror questionnaire. The press filed an emergency petition for writ of prohibition or mandamus challenging the district courts denial of its application to intervene. This court directed an answer from respondent district court judge and determined that an answer from real parties in interest was not necessary to the disposition of this writ. Notably, after the press filed its petition for writ of prohibition or mandamus in this court and after the criminal trial concluded, the district court allowed the press to access a redacted version of the completed juror questionnaires. DISCUSSION
[Headnotes 1, 2]

A writ of prohibition serves to stop a district court from carrying on its judicial functions when it is acting outside its jurisdiction. Sonia F. v. Dist. Ct., 125 Nev. 495, 498, 215 P.3d 705, 707 (2009). A writ of mandamus is appropriate to compel the performance of an act which the law requires as a duty resulting from an office or where discretion has been manifestly abused or exercised arbitrarily or capriciously. Hidalgo v. Dist. Ct., 124 Nev. 330, 334, 184 P.3d 369, 372 (2008) (quoting Redeker v. Dist. Ct., 122 Nev. 164, 167, 127 P.3d 520, 522 (2006)). An extraordinary writ may be issued only in cases where there is not a plain, speedy and adequate remedy at law. NRS 34.330; see American Home Assurance Co. v. Dist. Ct., 122 Nev. 1229, 1234, 147 P.3d 1120, 1124 (2006).
[Headnote 3]

In American Home Assurance Co., we held that there is no other adequate means [besides an extraordinary writ] by which to challenge the district courts refusal to allow [a petitioner] to intervene. 122 Nev. at 1234, 147 P.3d at 1124. A district courts denial of an application to intervene is not an appealable order. Aetna Life & Casualty v. Rowan, 107 Nev. 362, 363, 812 P.2d 350, 350-51 (1991). Thus, a petitioner must seek relief from a district courts denial of a motion to intervene via a petition for extraordinary relief. Id. at 363, 812 P.2d at 351. We have also stated that where an important issue of law needs clarification and public policy is served by this courts invocation of its original jurisdiction, our consideration of a petition for extraordinary relief may be justified. Mineral County v. State, Dept of Conserv., 117 Nev. 235, 243, 20 P.3d 800, 805 (2001) (quoting Business Computer Rentals v. State Treas., 114 Nev. 63, 67, 953 P.2d 13, 15 (1998)).

858
[Headnote 4]

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[125 Nev.

Here, the press did not have an adequate remedy at law to challenge the district courts order denying its application to intervene. Moreover, this petition involves two issues of first impression, both of which implicate significant public policy concerns. Thus, we exercise our discretion to consider the merits of the presss petition and conclude that mandamus, not prohibition, relief is appropriate if we determine that the issues are not rendered moot. The issues raised in this writ petition fall within the exception to the mootness doctrine
[Headnotes 5-8]

At the outset, we note that because the criminal trial has concluded, any relief afforded in this writ petition has no practical implications in the underlying case. Generally, this court will only review cases that present live controversies. University Sys. v. Nevadans for Sound Govt, 120 Nev. 712, 720, 100 P.3d 179, 186 (2004). When a live controversy become[s] moot by the occurrence of subsequent events, we will not make legal determinations that cannot affect the outcome of the case. Id.; Matter of Guardianship of L.S. & H.S., 120 Nev. 157, 161, 87 P.3d 521, 523-24 (2004). Nevertheless, we have recognized that a moot case is justiciable where an issue is capable of repetition, yet will evade review because of the nature of its timing. Matter of L.S. & H.S., 120 Nev. at 161, 87 P.3d at 524. Thus, we will exercise our discretion to adjudicate a moot case when (1) the contested issue is likely to arise again, and (2) the challenged action is too short in its duration to be fully litigated prior to its natural expiration. Id.
[Headnote 9]

The issues presented here are within the exception to the mootness doctrine. It is exceedingly likely that the media will seek access to juror questionnaires and voir dire proceedings in future high-profile criminal trials. See ABC, Inc. v. Stewart, 360 F.3d 90, 97-98 (2d Cir. 2004) (stating that it is reasonably likely that members of the media will continue to seek access to voir dire sessions in highprofile criminal cases). Moreover, closure of voir dire proceedings and the conclusion of the underlying criminal trial are both likely to expire before the constitutional implications of the closure are properly considered. See, e.g., Nebraska Press Assn. v. Stuart, 427 U.S. 539, 546-47 (1976); Stewart, 360 F.3d at 97-98; U.S. v. Simone, 14 F.3d 833, 836 (3d Cir. 1994); United States v. Peters, 754 F.2d 753, 758 (7th Cir. 1985). Accordingly, we conclude that the presss petition presents an appropriate circumstance under which we will exercise our original jurisdiction.

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Limited intervention is procedurally proper when the press asserts its First Amendment right to access criminal proceedings
[Headnote 10]

This court has not previously considered when it is appropriate to grant a motion to intervene in a criminal case. Moreover, neither Nevadas statutes on criminal procedure nor the Federal Rules of Criminal Procedure reference a motion to intervene in a criminal case. U.S. v. Aref, 533 F.3d 72, 81 (2d Cir. 2008); but see NRCP 24 (outlining intervention of right and permissive intervention in civil actions). However, several federal jurisdictions have held that because the First Amendment implicitly guarantees the right to access criminal trials, motions to intervene are procedurally proper when the public or press seeks to intervene for the limited purpose of accessing a criminal proceeding or court documents. In re Associated Press, 162 F.3d 503, 507 (7th Cir. 1998); United States v. Brooklier, 685 F.2d 1162, 1168 (9th Cir. 1982); United States v. Criden, 675 F.2d 550, 559 (3d Cir. 1982). Although the United States Constitution2 does not explicitly state that the press or the public have a right to access criminal trials, the presumption of an open court is firmly rooted in American jurisprudence. Press-Enterprise Co. v. Superior Court of Cal. (PressEnterprise I), 464 U.S. 501, 505-08 (1984). The United States Supreme Court has explained that the presumption of open trials is grounded both in history and in logic. Press-Enterprise Co. v. Superior Court (Press-Enterprise II), 478 U.S. 1, 8-9 (1986). First, criminal trials have historically been open to the public and the press. Forum Communications Co. v. Paulson, 752 N.W.2d 177, 181 (N.D. 2008). Indeed, the tradition of openness can be traced back to sixteenth-century English common law, which carried over to colonial America, where public trials and public jury selection existed as common practice before the United States Constitution was ratified. Press-Enterprise I, 464 U.S. at 505-08; Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 589 (1980) (Brennan, J., concurring) (emphasizing that the tradition of openness commands respect in part because the Constitution carries the gloss of history).
[Headnotes 11, 12]

Second, the right to access criminal trials is grounded in logic and plays an integral role in the administration of justice. Press2 Petitioners did not challenge the district courts denial under the Nevada Constitution; however, this court has held that the Nevada Constitution affords no greater protection to speech activity than does the First Amendment to the United States Constitution. University Sys. v. Nevadans for Sound Govt, 120 Nev. 712, 722, 100 P.3d 179, 187 (2004).

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Enterprise I, 464 U.S. at 508; Forum Communications Co., 752 N.W.2d at 181. Public access inherently promotes public scrutiny of the judicial process, which enhances both the fairness of criminal proceedings and the public confidence in the criminal justice system. Id. Even if an individual does not attend a criminal proceeding, the fact that the public is free to attend enhances his or her confidence in the system by assuring that established procedures are followed. State ex rel. Beacon Journal v. Bond, 781 N.E.2d 180, 188 (Ohio 2002). Moreover, public participation derived from public access advances the quality and integrity of the judicial process. Id.; see also Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 606 (1982).
[Headnote 13]

As in this case, we acknowledge that the press often acts as a proxy for the public, advancing the publics understanding and awareness of the criminal justice system. See Press-Enterprise I, 464 U.S. at 508-09; Richmond Newspapers, Inc., 448 U.S. at 573, 57576. Accordingly, we hold that the public and the press have the right to seek limited intervention in a criminal case to advance or argue constitutional claims concerning access to court proceedings.
[Headnotes 14, 15]

Here, the presss motion to intervene was denied by the district court, and they now seek writ relief before this court. When considering a writ of mandamus, we generally apply a manifest abuse of discretion standard, see Hidalgo, 124 Nev. at 334, 184 P.3d at 372; however, when the issue presented to us requires us to draw a line between speech unconditionally guaranteed and speech which may legitimately be regulated, we conclude that de novo review is the proper standard of review. See New York Times Co. v. Sullivan, 376 U.S. 254, 285 (1964) (quoting Speiser v. Randall, 357 U.S. 513, 525 (1958)). Here, the presss request to access juror questionnaires requires us to draw such a line and, thus, we conduct de novo review to ensure that any restrictions on free speech do not impermissibly intrude on the field of free expression. See id.; see also U.S. v. Antar, 38 F.3d 1348, 1357 (3d Cir. 1994); Simone, 14 F.3d at 837. The First Amendments guarantee of public access to criminal proceedings extends to juror questionnaires
[Headnote 16]

In this case, the press argues that the district courts order denying its request to access the blank and completed juror questionnaires in Simpsons and Stewarts criminal trial violated the presss First Amendment right to access criminal proceedings, including oral voir dire proceedings. The press further contends that the district courts generalized fair trial and juror privacy concerns do not outweigh the presss First Amendment rights.

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In Press-Enterprise I, the United States Supreme Court determined that the right of access to criminal proceedings extended to oral voir dire proceedings and the jury-selection process. 464 U.S. at 505. The Court recognized that since the origins of trial by jury, the selection of jurors has been a public process, vital not just to concerned parties but to the entire criminal justice system. Id. Indeed, historical evidence shows that public attendance at juryselection proceedings was originally compulsory. Id. And over time, standards for attendance relaxed and the jury became an impartial trier of fact, promoted in part by the use of peremptory and forcause challenges asserted in open court. Id. at 506. Thus, the historical practice of open jury selection supports the conclusion that the public and press have a right to access voir dire proceedings as an integral part of the criminal trial. Id. at 505-06. Although the Supreme Court has explicitly stated that the presumption of openness applies to voir dire proceedings, see PressEnterprise II, 478 U.S. at 13-14, the Court has not yet addressed whether juror questionnaires prepared in anticipation of oral voir dire are subject to public access. However, several other courts have applied the presumption of openness to preliminary juror questionnaires. See, e.g., U.S. v. King, 140 F.3d 76, 82 (2d Cir. 1998); Forum Communications Co., 752 N.W.2d at 185; Beacon Journal, 781 N.E.2d at 188. The Ohio Supreme Court, for example, held that because juror questionnaires merely facilitate and expedite oral voir dire, they are a part of the overall voir dire process and presumed to be accessible as part of the criminal proceeding. Beacon Journal, 781 N.E.2d at 188. We agree.
[Headnotes 17, 18]

Juror questionnaires perform a valuable function in the juryselection process by expediting and assisting a district courts voir dire. Moreover, the use of juror questionnaires does not implicate a separate and distinct proceeding. Rather, use of the questionnaires is merely a part of the overall voir dire process, subject to public access and the same qualified limitations as applied to oral voir dire. See Forum Communications Co., 752 N.W.2d at 185 (concluding that a written questionnaire serves as an alternative to oral disclosure of the same information in open court and is, therefore, synonymous with, and a part of, voir dire). Accordingly, we conclude that the First Amendments qualified right of access extends to juror questionnaires prepared in anticipation of oral voir dire. Public access to criminal court proceedings and documents may be limited through application of the Press-Enterprise II balancing test
[Headnotes 19-21]

The public right of access to criminal proceedings is not absolute. Press-Enterprise I, 464 U.S. at 510. The First Amendment

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[125 Nev.

qualifies the right by creating a presumption of openness that may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest. Id.
[Headnote 22]

In determining whether to override the presumption of openness, one fundamental interest we must balance is a criminal defendants Sixth Amendment right to a fair trial against the presss First Amendment right of access. Id. at 510-13; Press-Enterprise II, 478 U.S. at 7-10. Significantly, however, the Supreme Court has refused to prioritize the First Amendment and Sixth Amendment guarantees concluding that [t]he authors of the Bill of Rights did not undertake to assign priorities . . . ranking one as superior to the other, and it is not appropriate to undertak[e] what they declined to do. Nebraska Press Assn. v. Stuart, 427 U.S. 539, 561 (1976). To the contrary, other courts, relying on the Supreme Courts statement that the right to a fair trial is the most fundamental of all freedoms, Estes v. Texas, 381 U.S. 532, 540 (1965), have determined that a defendants Sixth Amendment right takes precedent over the presss First Amendment rights. See Chicago Council of Lawyers v. Bauer, 522 F.2d 242, 248 (7th Cir. 1975); The News-Journal Corp. v. Foxman, 939 F.2d 1499, 1512 (11th Cir. 1991); see also State Record Co., Inc. v. State, 504 S.E.2d 592, 595 n.12 (S.C. 1998). We agree with the rationale in Nebraska Press Assn., and, declining to assign priorities, we instead conclude that the more appropriate approach is to apply a balancing test on a case-by-case basis. In Press-Enterprise II, the Supreme Court articulated a test to apply when balancing the publics and presss First Amendment right to access a criminal proceeding against the defendants competing Sixth Amendment right to receive a fair trial: If the interest asserted is the right of the accused to a fair trial, the preliminary hearing shall be closed only if specific findings are made demonstrating that, first, there is a substantial probability that the defendants right to a fair trial will be prejudiced by publicity that closure would prevent and, second, reasonable alternatives to closure cannot adequately protect the defendants fair trial rights. 478 U.S. at 14. Press-Enterprise II concerned the right of access to a preliminary hearing, but because the interests at stake during a preliminary hearing and voir dire proceedings are similarthe publics and presss right to access a criminal proceeding and the defendants right to a fair trialwe now adopt Press-Enterprise IIs balancing test to determine when a district court may limit access to juror questionnaires. Applying the analytical framework established in Press-Enterprise II, a district court may refuse access to juror

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questionnaires only after it (1) make[s] specific findings, on the record, demonstrating that there is a substantial probability that the defendant would be deprived of a fair trial by the disclosure of the questionnaires and (2) consider[s] whether alternatives to total suppression of the questionnaires would have protected the interest of the accused. Beacon Journal, 781 N.E.2d at 191. The district courts order must not be broader than necessary, rather it must be narrowly tailored to protect the defendants fair trial rights. PressEnterprise II, 478 U.S. at 14. We consider each of the PressEnterprise II factors in turn. Additionally, we consider whether disclosure of redacted completed questionnaires satisfies constitutional standards. The district court failed to make explicit findings that indicated that disclosure of the juror questionnaires would have created a substantial probability of infringement of the defendants right to a fair trial
[Headnote 23]

The first prong of the Press-Enterprise II balancing test requires a district court to articulate the overriding interest at stake and detail specific findings to support the limitation of access to criminal proceedings and court documents. 478 U.S. at 14. In this case, the district court identified the defendants fair trial right as the competing interest when it denied the presss request to access the juror questionnaires. Therefore, we must review the district courts findings to determine whether there is evidence demonstrating a substantial probability that the defendants would be deprived of a fair trial absent denial of access to the questionnaires. Id. The United States Supreme Court has historically been skeptical of prior restraints on speech based on the risk that pretrial publicity would affect the attitude of potential jurors in such a manner that causes an infringement of the defendants right to a fair trial. Nebraska Press Assn., 427 U.S. at 568-69. In Nebraska Press Assn., the Court emphasized: [T]here was indeed a risk that pretrial news . . . would have some adverse impact on the attitudes of [potential] jurors. But . . . it is not clear that further publicity, unchecked, would so distort the views of potential jurors that 12 could not be found who would . . . fulfill their sworn duty to render a just verdict exclusively on the evidence presented in open court. Id. Likewise, other courts have concluded that even in highly publicized trials, the mere risk of potential jurors untruthfulness does not demonstrate the required substantial probability that the defendants fair trial rights will be violated. See ABC, Inc. v. Stewart, 360 F.3d 90, 101-02 (2d Cir. 2004) (concluding, in part, that absent

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Stephens Media v. Dist. Ct.

[125 Nev.

controversial issues to be probed in voir dire, the record did not demonstrate that the medias intense presence alone would influence jurors); U.S. v. Simone, 14 F.3d 833, 840 (3d Cir. 1994) ([W]e do not believe that a generic concern about the veracity of testimony constitutes sufficient grounds on which to base closure.); United States v. Peters, 754 F.2d 753, 762 (7th Cir. 1985) ([T]he entire voir dire relies on honest and candid answers to questions of court and counsel. There is no more reason to doubt the integrity of jurors in this regard than in any other area of inquiry.). Indeed, in Stewart, the court reasoned that when voir dire proceedings do not concern sensitive or controversial issues, the venirepersons awareness of the presss presence may actually encourage honesty and discourage fabrication. 360 F.3d at 101-02. Citing U.S. v. King, 140 F.3d 76 (2d Cir. 1998), the district court urges this court to deny the presss petition because there was a substantial probability that the defendants rights to a fair trial could be violated. Specifically, the court argues that, like King, this case involves a notorious defendant, intense press coverage, and significant concerns related to juror candor. See King, 140 F.3d 76. In King, the court affirmed the district courts closure because it concluded that the district court had properly considered the PressEnterprise II balancing test. King, 140 F.3d at 82. Namely, the district court had (1) made explicit findings to support its closure order, (2) considered alternatives to closure, and (3) limited its closure order in duration. Id. Although the facts and issues in this case are similar to those considered in King, we conclude that King is not dispositive. Notably, unlike the district court in King, the district court in this case did not make specific findings to support its denial of access to juror questionnaires and did not discuss alternatives to closure. Instead, the district court expressed a general concern with potential jurors candidness, particularly because of the extent of press coverage and the possibility that the presss influence could affect the courts ability to impanel a fair and impartial jury.
[Headnotes 24-27]

In every high-profile criminal case, there is a risk that jurors will prejudge the defendant but will be unwilling to admit their prejudgment. However, we agree with other jurisdictions in concluding that the mere risk of juror untruthfulness is not sufficient to support the closure of a criminal proceeding.3 See Stewart, 360 F.3d at 101-02; Peters, 754 F.2d at 762; Beacon Journal, 781 N.E.2d at 191. The appearance of a fair and impartial jury is essential to the publics confidence in the justice system. Thus, when the district court iden3 Where there is a genuine concern about a particular veniremembers candidness, the proper remedy is to remove the juror for cause during the voir dire process. See Beacon Journal, 781 N.E.2d at 191.

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tifies specific facts that indicate that the possibility of juror taint exists, public scrutiny is essential. See Simone, 14 F.3d at 840. The publics participation in these instances not only ensures that suspicions of potential juror misconduct are publicized, but ideally, public pressure will discourage those who intend to abuse the system. See King, 140 F.3d at 84-85 (Cabranes, J., dissenting) ([I]t is precisely in those cases involving controversial or notorious defendants that the publicand its media proxiesare likely to take an interest . . . . It would be perverse to enshrine a constitutional right of public access . . . and then to enforce that right only [when] the public has no interest.). We determine that the district courts concern that potential jurors would preview the questionnaires and formulate their answers to better position themselves on the jury is based on unsupported conjecture. We recognize that as a result of Simpsons celebrity status and previous murder trial, there was significant press coverage and public interest in the underlying criminal case. However, the district court failed to articulate specific findings that would defeat the First Amendments presumption of openness. Although juror candidness is a valid, considerable interest, we decline to adopt a policy of suspicion and mistrust in this case by determining that 12 citizens could not be found among a large pool of potential jurors who would faithfully perform their jury service. See Nebraska Press Assn., 427 U.S. at 568-69. The district court also summarily denied the presss request to access the completed questionnaires of the jurors who were actually impaneled for one simple reason: the court promised the jurors that the questionnaires would be kept in confidence, under seal and would be used solely in the selection of a jury and for no other purpose. After the press filed its petition for extraordinary relief, and after the criminal trial concluded, the district court determined that it would allow access to redacted versions of the impaneled jurors completed questionnaires.
[Headnotes 28, 29]

We conclude that the district court erred in denying the presss request for access to the completed juror questionnaires. The courts blanket promise of confidentiality does not satisfy the PressEnterprise II requirement that a court articulate specific findings to support its decision. We stress that a naked assertion . . . without any specific finding of fact does not justify closure of the voir dire proceedings. In re Memphis Pub. Co., 887 F.2d 646, 648-49 (6th Cir. 1989); see also Simone, 14 F.3d at 840-41.
[Headnote 30]

In light of the historic tradition of open and oral voir dire proceedings, a district courts promise to maintain confidentiality does not supersede the publics and the presss First Amendment right to

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Stephens Media v. Dist. Ct.

[125 Nev.

access criminal proceedings. Because the district courts blanket promise to ensure juror confidentiality was not based on specific findings, it was not sufficient to support its denial of access to completed juror questionnaires. See Beacon Journal, 781 N.E.2d at 190 (Constitutional rights are not superseded by the mere promise of a trial judge to act contrary to those rights.). Furthermore, although here the district court subsequently released redacted versions of the completed questionnaires, we conclude that this retroactive release is not sufficient to cure the district courts failure to satisfy the Press-Enterprise II requirement that it make specific findings to support its denial of access to the juror questionnaires. See U.S. v. Antar, 38 F.3d 1348, 1351 (3d Cir. 1994); Simone, 14 F.3d at 842. The district court did not consider alternative options prior to denying access to the juror questionnaires
[Headnote 31]

For the purpose of providing guidance to the district courts in future criminal cases, we assume arguendo that the district court did articulate findings that were sufficient to warrant suppression of both the blank and completed juror questionnaires. Thus, assuming the first Press-Enterprise II prong is satisfied, next we must consider the second prong of the Press-Enterprise II balancing test, that is, whether the district court considered alternative methods of protecting the defendants fair trial rights before ordering complete suppression of the questionnaires. Press-Enterprise Co. v. Superior Court (Press-Enterprise II), 478 U.S. 1, 14 (1986). Because the balancing test requires the district court to consider whether reasonable alternatives to closure would sufficiently address countervailing interests, we stress that the circumstances of each case require a different remedy. See Copley Press v. San Diego County, 278 Cal. Rptr. 443, 449 (Ct. App. 1991) ([A]n individualized approach rather than a blanket one is better suited to consider countervailing interest while simultaneously preserv[ing] the constitutional values of openness.). Analysis when juror privacy is the countervailing interest
[Headnote 32]

When the district court identifies juror privacy as the countervailing interest, such as when questions asked during voir dire are deeply sensitive and personal in nature, a court must balance the privacy interests of prospective jurors with the historical presumption of openness. Press-Enterprise Co. v. Superior Court of Cal. (PressEnterprise I), 464 U.S. 501, 511-12 (1984); King, 140 F.3d at 81.

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Because, in this case, the district court did not identify juror privacy as the countervailing interest conflicting with the First Amendment, we only address this issue in order to provide guidance to the district courts in future matters.
[Headnote 33]

In cases where juror privacy is a concern and when considering alternatives under the second prong of Press-Enterprise II, we instruct district courts to follow the procedure set forth in PressEnterprise I: after disclosure to prospective jurors of the general nature of sensitive questions being asked during voir dire, the district court should inform those prospective jurors that if they believ[e] public questioning will prove damaging because of embarrassment, [they] may properly request an opportunity to present the problem to the judge in camera but with counsel present and on the record. Press-Enterprise I, 464 U.S. at 512; see also Beacon Journal, 781 N.E.2d at 189-90. By requiring jurors to make an affirmative request, we determine that the procedure would effectively reduce the risk of unnecessary closure of the voir dire proceedings, as the trial judge could consider whether there is a factual basis for the jurors privacy right. PressEnterprise I, 464 U.S. at 512. And to protect and ensure the value of openness, the district court may release the transcript of the proceedings when concerns related to the jurors privacy have lessened. See Simone, 14 F.3d at 842 (recognizing, however, that the court must nonetheless strictly analyze the standards for closure, as the subsequent release of in camera transcripts is not the equivalent of an open proceeding). Analysis when a defendants right to a fair trial is the countervailing interest
[Headnotes 34-36]

In a high-profile case that presents the risk of harassment or jury influence by the media, juror candor may be stifled, inhibiting a defendants right to a fair and impartial jury. See King, 140 F.3d at 82. However, we caution district courts from hastily closing voir dire proceedings because of the possibility that the presence of the press would inhibit juror candor. In protecting a defendants fair trial rights, the district court must consider reasonable alternatives to complete closure of the voir dire proceedings, which, as we previously stated, includes juror questionnaires. See, e.g., Forum Communications Co. v. Paulson, 752 N.W.2d 177, 186 (N.D. 2008); Stewart, 360 F.3d at 105; King, 140 F.3d at 82. Here, the district court expressed concern that a lack of juror candor may violate defendants right to a fair trial; however, the court did not consider reasonable alternatives before denying the presss

868

Stephens Media v. Dist. Ct.

[125 Nev.

request for access to both the blank and completed questionnaires. Accordingly, we conclude that the district courts order was not narrowly tailored. Blank questionnaires We recognize at least two available alternatives to complete suppression of the blank questionnaires. First, we determine that partial closurelimiting access to portions of the questionnaires based on articulated and systematic findingscould have sufficiently ensured juror truthfulness. Because a majority of the questions concerned customary background information and the jurors familiarity with Simpson, we see no benefit associated with the complete suppression of the blank juror questionnaire. Second, although the court expressed concerns that if the questionnaire was accessible, potential jurors would craft their answers to better place themselves on the jury panel, we conclude that removing a suspicious juror for cause is a reasonable and practical alternative to complete closure. See Beacon Journal, 781 N.E.2d at 191. Completed questionnaires
[Headnote 37]

We conclude that the district courts decision to completely suppress the potential jurors completed questionnaires was not narrowly tailored to ensure juror candor. The district court instructed potential jurors that the completed questionnaires would be kept in confidence, under seal and would be used solely in the selection of a jury and for no other purpose. However, if juror privacy was the district courts principal concern, the proper alternative would have been to advise the jury pool that although the questionnaires would not be held in strict confidence, individuals may request in camera questioning if they believed that answering particular questions may lead to damaging embarrassment or harassment. See Press-Enterprise I, 464 U.S. at 512. Thus, we conclude that the district courts failure to follow the Press-Enterprise I in camera procedure, in addition to the courts failure to consider any other reasonable alternatives to complete suppression, constituted a manifest abuse of discretion. Whether redacted versions of completed juror questionnaires satisfy constitutional standards
[Headnotes 38, 39]

We emphasize that the district courts subsequent release of redacted versions of the completed questionnaires upon the conclusion of the trial did not cure the district courts failure to consider reasonable alternatives before it ordered complete closure. See Antar, 38 F.3d at 1351. Nonetheless, in order to guide the district

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courts in future cases, we consider in general whether and when redactions of completed juror questionnaires conform to constitutional standards.
[Headnotes 40, 41]

First, we note that when closure of a voir dire proceeding is properly imposed, a redacted version of the proceedings is the constitutionally preferable method because it advances juror anonymity while concurrently allowing the public and press to access jurors substantive responses. Press-Enterprise I, 464 U.S. at 520 (Marshall, J., concurring). However, we hold that granting partial access in the form of redacted questionnaires similarly requires specific findings demonstrating the justification for restricted access, and the criteria and procedure on which the court relies when redacting the questionnaires. See, e.g., In re Baltimore Sun Co., 841 F.2d 74, 76 (4th Cir. 1988) (recognizing the great risk of the public losing confidence in the justice system if a criminal defendant is tried by an anonymous jury); In re Juror Names, 592 N.W.2d 798, 809 (Mich. Ct. App. 1999) (holding that a court cannot deny press access to jurors background information without first determining whether concerns regarding juror privacy and safety are legitimate and reasonable); Beacon Journal, 781 N.E.2d at 194 (holding that the suppression of juror names and addresses requires particularized findings).
[Headnotes 42, 43]

Second, a district courts determination to limit access through redactions should be limited in time and in scope. Because juror harassment or improper influence is significantly reduced after a verdict is rendered, a court must articulate specific findings if it intends to maintain confidentiality after the verdict is rendered. See In re Globe Newspaper Co., 920 F.2d 88, 91 (1st Cir. 1990) (No doubt stronger reasons to withhold juror names and addresses will often exist during trial than after a verdict is rendered.); see also U.S. v. Wecht, 537 F.3d 222, 239 (3d Cir. 2008) ([A] presumption of openness exists at the latest at the time of the swearing and empanelment of the jury.).
[Headnote 44]

In this case, after the jury rendered its verdict in the underlying criminal trial, the district court modified its order and allowed the press access to redacted versions of the completed questionnaires.4 Because of the extent of the press coverage and the possibility of
4 The court redacted nine questions. Numbered as they were in the questionnaire, they are as follows: 6. Where were you born and raised? 7. In what city and neighborhood or area do you live? (Do not list street address.)

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Stephens Media v. Dist. Ct.

[125 Nev.

juror harassment or juror influence, releasing redacted versions of the completed questionnaires within a reasonable amount of time would have constituted a sound alternative to complete closure. However, the limited redactions in this case were not based on articulated findings or discernible criteria. In its answer, the district court argues that its redactions were centered upon protecting the location of the jurors and identifiers that in this modern day and age permit a juror to be physically located. After reviewing the redacted questions and the district courts ruling below, it is unclear what criteria the district court used to determine the questions to be redacted. More importantly, however, the district court redacted the questionnaires after the jury had rendered its verdict. By this point, any concerns related to juror harassment or juror influence had all but dissipated. Therefore, even if the court was legitimately concerned with the jurors privacy or safety, it neither articulated clear criteria for determining which questions to redact, nor did it justify its decision to redact the questionnaires after the jury had rendered its verdict. See Forum Communications Co. v. Paulson, 752 N.W.2d 177, 185 (N.D. 2008) (concluding that the district courts decision to seal juror names after the jury was discharged was insufficient because the court did not articulate specific findings as to why closure was necessary after the trial ended). Thus, the subsequent release of the redacted juror questionnaires did not cure the district courts original order to deny the presss request for access. However, even if the court had initially considered redaction as an alternative, we nonetheless conclude that the courts
8. Which of the following best describes where you live? (Own home, Own apartment/condo, Rental house, Rental apartment/condo, Live with friends or relatives, Other (please specify)[.] 10. What are/were your parents and/or step-parents occupations? (If retired or deceased, what did they do?) 11. Do you have any children or stepchildren? If so, please state: (Sex[,] Age[,] Child living with you?[,] Level of Education[,] Occupation)[.] 15. If you are now employed: (Name and location of employer, Job title and duties[.]) 16. If you (a) have been with your current employer less than ten years or (b) if you checked unemployed, retired, disabled or student, please answer the following questions about your last job: How long were you at this job? Termination date[.] Name and location of employer[.] Job title and duties[.] 17. In addition to the jobs listed in questions 14 and 15, please list other jobs you have had or work you have done as an adult. (Start with your first job and work forward.) 18. Are you currently an employee, vendor or contractor of the United States government, state government or local government?

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ultimate redaction was not reasonable based on the district courts failure to make specific findings or provide discernible criteria. Thus, the press was entitled to all requested juror questionnaires in an unredacted form. Accordingly, we grant the petition. The clerk of this court shall issue a writ of mandamus instructing the district court to release the blank juror questionnaires and all unredacted completed juror questionnaires to petitioners. PARRAGUIRRE, DOUGLAS, CHERRY, SAITTA, and GIBBONS, JJ., concur.