Nevada Reports 1978 (94 Nev.) PDF

94 Nev.
1, 1 (1978)
REPORTS OF CASES
DETERMINED BY THE
SUPREME COURT
OF THE
STATE OF NEVADA
____________
Volume 94
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94 Nev. 1, 1 (1978) Woodruff v. Woodruff
CHARLOTTE M. WOODRUFF, Appellant, v.
WILLIAM E. WOODRUFF, Respondent.
No. 8930
January 9, 1978 573 P.2d 206
Appeal from a judgment of divorce, First Judicial District Court, Carson City; Frank B.
Gregory, Judge.
The district court entered judgment dissolving the parties' marriage and distributing their
community property and the wife appealed. The Supreme court, Gunderson, J., held that: (1)
substantial evidence supported the trial court's finding that plaintiff satisfied the residency
requirement; (2) the wife was precluded from attacking the trial court's ruling on her oral
motion for continuance by the fact that she did not file an affidavit to support her motion; (3)
the distribution of the property was fair and equitable; (4) there was no abuse of discretion in
ordering the parties to bear their own costs, and (5) the trial court erred by not permitting
evidence on the matter of alimony.
Affirmed in part; reversed in part and remanded.
Robert A. Grayson, Carson City, for Appellant.
Manoukian, Scarpello & Alling, Ltd., Carson City, for Respondent.
1. Divorce.
The question of plaintiff's residence in a divorce action is one of fact to be determined by the trial court.
NRS 125.020, 125.020, subd. 1(e).
2. Divorce.
In divorce proceeding, substantial evidence supported the trial court's finding that plaintiff satisfied the
residency requirement. NRS 125.020, 125.020, subd. 1(e).
3. Divorce.
Where no affidavit was filed, in divorce action to support wife's oral motion for a continuance, ruling
denying continuance could not be challenged on appeal. DCR 21.
4. Divorce.
In divorce proceeding, distribution of marital property was fair and equitable. NRS 125.150.
5. Divorce.
In divorce proceeding, trial court did not abuse discretion in ordering parties to bear their own costs.
6. Divorce.
Alimony is incidental to a divorce and need not be specifically pleaded. NRCP 9; NRS 125.150,
subds. 1, 2.
7. Divorce.
In divorce proceeding, trial court erred by not permitting evidence on the matter of alimony. NRS
125.150, subds. 1, 2.
8. Divorce.
Whether to grant an award of alimony is within the trial court's discretion. NRS 125.150, subds. 1, 2.
OPINION
By the Court, Gunderson, J.:
After the trial court entered judgment dissolving the parties' marriage and distributing their
community property, appellant Charlotte M. Woodruff appealed contending the district court
(1) lacked jurisdiction, (2) abused its discretion by denying a continuance, (3) made improper
rulings with respect to property distribution and attorneys' fees, and (4) erred in refusing
evidence to support an award of alimony. Appellant's last contention has merit and
necessitates further proceedings.
[Headnotes 1, 2]
1. Appellant first contends the trial court lacked jurisdiction to grant the divorce because
respondent failed to satisfy the residency requirement of NRS 125.020.1 The question of
plaintiff's residence in a divorce action is one of fact to be determined by the trial court.
the residency requirement of NRS 125.020.
1
The question of plaintiff's residence in a
divorce action is one of fact to be determined by the trial court. See Boisen v. Boisen, 85 Nev.
122, 124, 451 P.2d 363, 364 (1969); Moore v. Moore, 75 Nev. 189, 192, 336 P.2d 1073, 1074
(1959). Here, there is substantial evidence to support the district court's finding of
respondent's bona fide residence. Boisen v. Boisen, cited above; Baker v. Baker, 76 Nev. 127,
130, 350 P.2d 140, 141 (1960).
[Headnote 3]
2. Appellant next contends the trial court abused its discretion by denying an oral motion
for continuance. Appellant may not attack the district court's ruling since no affidavit was
filed to support her motion. DCR 21; Baer v. Amos, 85 Nev. 219, 452 P.2d 916 (1969);
Piazza v. Reid, 83 Nev. 123, 424 P.2d 413 (1967).
[Headnotes 4, 5]
3. Appellant also complains the court improperly distributed the property and denied
attorneys' fees. We believe the distribution of the property fair and equitable, NRS 125.150;
Armour v. Armour, 93 Nev. 63, 560 P.2d 148 (1977); Jolley v. Jolley, 92 Nev. 298, 549 P.2d
1407 (1976); Fletcher v. Fletcher, 89 Nev. 540, 542, 516 P.2d 103, 104 (1973); and perceive
no abuse of discretion in ordering the parties to bear their own costs. Fletcher v. Fletcher, 89
Nev. at 542-543, 516 P.2d at 104.
4. Finally, appellant urges that the district court erred in excluding evidence to support an
award of alimony. It appears that the court believed alimony must be specially pleaded, and
rejected as untimely appellant's request to amend the pleadings in accord with such view of
the law.
[Headnote 6]
In other jurisdictions, alimony is incidental to a divorce and need not be specifically
pleaded. Cf. Mitchell v. Mitchell, 264 P.2d 673 (N.M. 1953); Stephens v. Stephens, 311 P.2d
241, 244 (Okla. 1957); Nelson v. Nelson, 182 P.2d 416, 419 (Or. 1947); Cochrum v.
Cochrum, 328 P.2d 1000, 1004 (Cal.App. 1958); Mose v. Mose, 480 P.2d 517, 520
(Wash.App. 1971). Interpretation of our law leads to a similar conclusion.
NRCP 9 lists matters which must be specially pleaded, but alimony is not among them.
Under NRS 125.150, attorneys' fees in divorce actions must either be sought by motion, or a
request therefor placed in issue by the pleadings.2 However, the same statute creates no
such requirement as to alimony, but rather unqualifiedly vests district courts with
authority to grant alimony to either spouse "in granting a divorce."3
[Headnotes 7, S]
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1
NRS 125.020(1)(e) provides: Divorce from the bonds of matrimony may be obtained. . . . If plaintiff shall
have resided 6 weeks in the state before suit be brought.
request therefor placed in issue by the pleadings.
2
However, the same statute creates no such
requirement as to alimony, but rather unqualifiedly vests district courts with authority to grant
alimony to either spouse in granting a divorce.
3

[Headnotes 7, 8]
Since we accordingly conclude alimony is incidental to a divorce and need not be pleaded,
the court erred by not permitting evidence on the matter. The decision to grant such an award
is, of course, within the discretion of the district court. NRS 125.150(1); Fletcher v. Fletcher,
89 Nev. at 542, 516 P.2d at 1004.
Remanded for further proceedings.
Thompson and Mowbray, JJ., and Young, D. J.,
4
and Hoyt, D. J.,
5
concur.
____________________

2
NRS 125.150(2) provides:
Whether or not application for suit money has been made under the provisions of NRS 125.040, the court
may award a reasonable attorney's fee to either party to an action for divorce if attorneys' fees are in issue under
the pleadings.

3
In granting a divorce, the court may award such alimony to the wife, or to the husband if he is disabled or
unable to provide for himself, in a specified principal sum or as specified periodic payments, and shall make
such disposition of the community property of the parties, as appears just and equitable, having regard to the
respective merits of the parties and to the condition in which they will be left by such divorce, and to the party
through whom the property was acquired, and to the burdens, it any, imposed upon it, for the benefit of the
children.

4
Chief Justice Batjer voluntarily disqualified himself and took no part in this decision. The Governor,
pursuant to Art. 6, 4 of the Constitution, designated District Judge Llewellyn Young to sit in his stead.

5
Justice Manoukian disqualified himself, and the Governor designated District Judge Merlyn Hoyt to sit in
his stead.
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94 Nev. 5, 5 (1978) Grondin v. State
BARRY EDWARD GRONDIN, Appellant, v.
THE STATE OF NEVADA, Respondent.
No. 9603
January 9, 1978 573 P.2d 205
Appeal from judgment of conviction, Eighth Judicial District Court, Clark County; Paul S.
Goldman, Judge.
Defendant was convicted in the district court of second degree murder, and he appealed.
The Supreme Court held that discrepancy between emergency room doctor's finding that
victim at time he entered hospital after beating by defendant had one broken rib and
pathologist's finding that victim had four broken ribs did not establish that defendant's acts
were not cause of victim's death of ruptured spleen from massive blunt force so as to preclude
murder conviction.
Affirmed.
Morgan D. Harris, Public Defender, and George E. Franzen, Deputy Public Defender,
Clark County, for Appellant.
Robert List, Attorney General, Carson City; and George E. Holt, District Attorney, Clark
County, for Respondent.
Homicide.
Discrepancy between emergency room doctor's finding that victim at time he entered hospital after
beating by defendant had one broken rib and pathologist's finding that victim had four broken ribs did not
establish that defendant's acts were not cause of victim's death of ruptured spleen from massive blunt force
so as to preclude murder conviction; jury was at liberty not to credit all findings of emergency room
doctor's initial examination but to infer instead, from severity of beating and pathologist's findings, that
victim actually had four broken ribs at time he entered hospital.
OPINION
Per Curiam:
1

Barry Edward Grondin appeals his conviction and sentence for second degree murder,
contending his acts were not the proximate cause of Wilbur Peterson's death.
The record reveals appellant went to Peterson's apartment, started a fight, severely beat
Peterson about the head and shoulders, and repeatedly kicked him in the chest and abdomen.
The fight was witnessed by Mrs. Peterson who heard appellant yell: "You're going to die,
you're going to die."
____________________

1
The Chief Justice designated Hon. David Zenoff, Chief Justice (Retired), to sit in this case. Nev. Const. art.
6, 19; SCR 244.
94 Nev. 5, 6 (1978) Grondin v. State
appellant yell: You're going to die, you're going to die. The police subsequently arrived and
took Peterson to the hospital. The initial emergency room examination revealed one fractured
rib, a broken nose, and normal vital signs. The examining doctor also diagnosed a ruptured
bowel.
After being taken to the x-ray room for further examination, Peterson's condition rapidly
deteriorated. He went into shock and died several minutes later. A pathologist testified the
cause of death was a ruptured spleen from a massive blunt force; the autopsy revealed four
fractured ribs.
Appellant's claim that his acts were not the proximate cause of death hinges upon
testimonial discrepancies concerning the number of broken ribs. The examining doctor
discovered only one fractured rib; the pathologist found four. Thus, appellant reasons, some
unknown person at some unknown time must have broken three more ribs and caused
Peterson's spleen to rupture.
If appellant's theory were the only legally permissible explanation for Peterson's demise,
appellant arguably would not be legally responsible for the homicide, because there might
then appear gross negligence or medical malpractice sufficient to constitute a supervening
intervening force to break the causal chain. See State v. Ulin, 548 P.2d 19 (Ariz. 1976);
People v. Calvaresi, 534 P.2d 316 (Colo. 1975); Pettigrew v. State, 554 P.2d 1186
(Okla.Crim. 1976). However, [t]he jury was at liberty to accept or reject all or a part of such
[expert] opinion. See Eisentrager v. State, 79 Nev. 38, 48, 378 P.2d 526, 532 (1963). It was
therefore quite appropriate for the jury not to credit all findings of the emergency room
doctor's initial examination, but to infer instead, from the severity of the beating and the
pathologist's findings, that Peterson actually had four broken ribs at the time he entered the
hospital.
Appellant's other contentions have no arguable merit.
Affirmed.
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94 Nev. 6, 6 (1978) Johnson v. Goldman
JAMES ROBERT JOHNSON, Petitioner, v. PAUL S. GOLDMAN, as Judge of the Eighth
Judicial District Court of the State of Nevada in and for the County of Clark, Respondent.
No. 10327
January 25, 1978 575 P.2d 929
Petitioner brought original proceeding in prohibition seeking to prohibit judge from
presiding over his trial. The Supreme Court held that: (1) statute passed in 1977 entitling any
party who pays $100 in any civil action or proceeding pending in any court except Supreme
Court to a peremptory challenge against judge assigned to try or hear case and making no
provision for filing of affidavit of bias or prejudice or otherwise alleging any grounds for
disqualification is unconstitutional and {2) inasmuch as statute passed in 1977 is
unconstitutional with result that such enactment is null and void, 1975 statute
establishing procedures governing judicial recusal by a party's affidavit alleging bias or
prejudice remains in effect.
court except Supreme Court to a peremptory challenge against judge assigned to try or hear
case and making no provision for filing of affidavit of bias or prejudice or otherwise alleging
any grounds for disqualification is unconstitutional and (2) inasmuch as statute passed in
1977 is unconstitutional with result that such enactment is null and void, 1975 statute
establishing procedures governing judicial recusal by a party's affidavit alleging bias or
prejudice remains in effect.
Writ denied.
Peter L. Flangas, Las Vegas, for Petitioner.
Robert List, Attorney General, Carson City; George E. Holt, District Attorney, and
Thomas D. Beatty, Assistant District Attorney, Clark County, for Respondent.
1. Constitutional Law; Judges.
Statute passed in 1977 entitling any party who pays $100 in any civil action or proceeding pending in any
court except Supreme Court to a peremptory challenge against judge assigned to try or hear case and
making no provisions for filing of affidavit of bias or prejudice or otherwise alleging any grounds for
disqualification is unconstitutional, inasmuch as such statute constitutes an unwarranted interference with
courts in exercise of their judicial function and violates doctrine of separation of powers. NRS 1.240.
2. Statutes.
Inasmuch as statute passed in 1977 entitling any party who pays $100 in any civil action or proceeding
pending in any court except Supreme Court to a peremptory challenge against judge assigned to try or hear
case is unconstitutional with result that such enactment is null and void, 1975 statute establishing
procedures governing judicial recusal by a party's affidavit alleging bias or prejudice remains in effect.
NRS 1.230, subds. 5-7, Stats. Nev. 1975, ch. 415; NRS 1.240, Stats. Nev. 1957, ch. 46.
OPINION
Per Curiam:
[Headnote 1]
In this original proceeding, petitioner James Robert Johnson seeks an extraordinary writ
prohibiting respondent judge from presiding over his trial. Without filing an affidavit of bias
or prejudice or otherwise alleging any grounds for disqualification, petitioner sought to
disqualify respondent by utilizing the peremptory challenge procedure established by 1977
Nev. Stats. ch. 398, 2 (codified as NRS 1.240).
1
Respondent contends 1977 Nev. Stats. ch.
398, 2, constitutes an unwarranted interference with the courts in the exercise of their
judicial function and violates the doctrine of separation of powers.
____________________

1
1977 Nev. Stats. ch. 398, 2 (codified as NRS 1.240), provides:
1. Any party to any civil action or proceeding pending in any court except the supreme court is entitled to a
peremptory challenge against the judge
function and violates the doctrine of separation of powers. We agree and hereby declare the
enactment null and void.
Pursuant to 1977 Nev. Stats. ch. 398, 2, upon paying $100, [a]ny party to any civil
action or proceeding pending in any court except the supreme court is entitled to a
peremptory challenge against the judge assigned to try or hear the case, . . . Nothing more is
required.
2

In C.V.L. Co. v. District Court, 58 Nev. 456, 83 P.2d 1031 (1938), we struck down a
recusal statute nearly identical to 1977 Nev. Stats. ch. 398, 2, wherein the legislature
attempted to subject the judicial power of a duly appointed or elected and qualified judge to
the whims and caprices of the litigants and their attorneys.
3
Other statutory recusal
procedures, such as those envisioned by the 1977 enactment, have also been declared
unconstitutional.
____________________
assigned to try or hear the case, subject to the provisions of this section. The peremptory challenge shall be filed
in writing with the clerk of the court in which the case is pending and a copy served on the opposing party. The
filing shall be accompanied by a fee of $100 which the clerk shall transmit to the state treasurer. The fee shall be
deposited in the state treasury to the credit of the state general fund for the support of district judges' travel.
2. Except as provided in subsection 3, the peremptory challenge shall be filed:
(a) Not less than 30 days before the date set for trial or hearing of the case; or
(b) Not less than 3 days before the date set for the hearing of any pretrial matter.
3. If a case is not assigned to a judge before the time required for filing the peremptory challenge, the
challenge shall be filed:
(a) Within 3 days after the party or his attorney is notified that the case has been assigned to a judge; or
(b) Before the jury is empaneled, evidence taken or any ruling made in the trial or hearing, whichever occurs
first.
4. If one or two or more parties on one side of an action or proceeding files a challenge, no other party on
that side may file a separate challenge, but each is entitled to notice of the challenge and may file the name of
any other judge to whom he would object. When the action or proceeding is transferred, it shall be transferred to
a judge to whom none of the parties has objected, or if there is no such judge within the category of judges to
whom it may be transferred, then to the judge to whom the fewest parties on that side have objected.
5. The judge against whom a peremptory challenge is filed shall transfer the case to another department of
the court, if there is more than one department of the court in the district, or request the judge of another district
to preside at the trial or hearing of the matter.
6. The provisions of this section do not apply in delinquency cases in juvenile court proceedings under
chapter 62 of NRS.

2
Petitioner's challenge to respondent judge provided, in toto:
I, JAMES ROBERT JOHNSON, pursuant to NRS 1.240 as amended, peremptorily challenges [sic] the
Honorable PAUL S. GOLDMAN, District Judge, Department X, assigned to try this case.

3
That statute provided:
[I]f any of the parties to a civil action or proceeding to be tried in any district court of this state, or his or its
attorney or agent, shall make and file a request for a change of judge in the hearing and trial of such civil action
or proceeding, such district judge shall at once transfer the action or proceeding to some other department of the
court, if there be more than one department
declared unconstitutional. See, for example, State v. Vandenberg, 280 P.2d 344 (Ore. 1955);
Austin v. Lambert, 77 P.2d 849 (Cal. 1938).
[Headnote 2]
Because 1977 Nev. Stats. ch. 398, 2 (codified as NRS 1.240), is unconstitutional, the
procedures which previously governed judicial recusal by affidavit, set forth in 1975 Nev.
Stats. ch. 415, 1, paras. 5, 6 and 7 (previously codified as NRS 1.230(5), (6) and (7)) and
1957 Nev. Stats. ch. 46, 2 (previously codified at NRS 1.240), and which were purportedly
repealed by 1977 Nev. Stats. ch. 398, remain in effect.
4
See C.V.L. Co. v. District Court,
supra.
Accordingly, the writ is denied.
____________________
of said court in such district, or in the event there is only one department of the district court in such district,
such district judge shall call in a district judge from some other district of this state to preside at the hearing and
trial of said civil action or proceeding and to hear all further proceedings to be had therein; . . . . 1937 Nev.
Stats. ch. 117, p. 214 et seq.

4
The portions of the prior enactments which remain in effect are:
1975 Nev. Stats. ch. 415, 1, paras. 5, 6 and 7 (previously codified as NRS 1.230(5), (6) and (7)), which
provide:
. . .
5. A judge shall not act as such if either party to a civil action in the district court shall file an affidavit
alleging that the judge before whom the action is to be tried has a bias or prejudice either against him or in favor
of an opposite party to the action. The judge shall proceed no further therein but either transfer the action to
some other department of the court, if there be more than one department of the court in the district, or request
the judge of some other district court of some other district to preside at the hearing and trial of the action. Every
affidavit must be filed at least 10 days before the hearing of a contested matter if a judge has been assigned to
hear such matter or, if a judge has not been assigned at least 10 days prior to such hearing, the affidavit must be
filed when the party or his attorney is notified that a judge has been assigned to hear the matter. No affidavit
shall be filed unless accompanied by a certificate of the attorney of record for affiant that the affidavit is made in
good faith and not for delay, and the party filing the affidavit for change of judge shall at the time of filing same
pay to the clerk of the court in which the affidavit is filed $25, which sum shall be by the clerk transmitted to the
state treasurer who shall place the same to the credit of the district judges' traveling fund. The right hereby
granted may be lost by the failure of a party to comply with the requirements set forth in this subsection or by a
waiver in writing executed by the party or by his attorney, and not otherwise. The provisions of this subsection
do not apply in delinquency cases in juvenile court proceedings under chapter 62 of NRS.
6. No judge or court shall punish for contempt anyone making, filing or presenting . . . an affidavit pursuant
to subsection 5.
7. This section shall not apply to the arrangement of the calendar or the regulation of the order of
business. . . .
1957 Nev. Stats. ch. 46, 2 (previously codified as NRS 1.240), which provides:
Not more than one change of judge may be granted in any civil action under the procedure provided by
subsection 5 of NRS 1.230, but each party to the action shall have an opportunity to urge his objections to any
judge before the action or proceeding is assigned to another judge, and the assignment shall be to the most
convenient judge to whom the objections of the parties do not apply or are least applicable.
____________
94 Nev. 10, 10 (1978) Dalie v. State
WALTER LAWRENCE DALIE, Appellant, v. THE
STATE OF NEVADA, Respondent.
No. 9565
January 25, 1978 574 P.2d 271
Appeal from judgment of conviction, Eighth Judicial District Court, Clark County; Carl J.
Christensen, Judge.
Defendant was convicted before the district court of robbery and assault with intent to
commit murder, and he appealed. The Supreme Court held that: (1) evidence in issue whether
money was taken by force . . . or fear of injury was sufficient to sustain robbery conviction,
and (2) evidence supported finding that defendant had used a deadly weapon in commission
of robbery offense, and, thus, that an enhanced sentence could be imposed.
Affirmed.
Morgan D. Harris, Public Defender, and James B. Gibson and George E. Franzen, Deputy
Public Defenders, Clark County, for Appellant.
Robert List, Attorney General, Carson City; George E. Holt, District Attorney, and H.
Leon Simon, Chief Appellate Deputy, Clark County, for Respondent.
1. Robbery.
Evidence on issue whether money was taken by force . . . or fear of injury was sufficient to sustain
accused's robbery conviction. NRS 200.380.
2. Robbery.
In proceeding in which accused was convicted of robbery, evidence supported finding that he had used a
deadly weapon in commission of such offense, and thus, that an enhanced sentence could be imposed.
NRS 193.165, 200.380.
3. Criminal Law.
Issue whether trial court erred in failing to define certain word, as used in statute, would not be
considered on appeal from conviction where accused failed to request such an instruction at trial. NRS
193.165.
OPINION
Per Curiam:
Appellant was convicted, by jury verdict, of robbery (NRS 200.380) and assault with
intent to commit murder (NRS 200.010, NRS 208.070), and, pursuant to NRS 193.165,
received an enhanced sentence for use of a deadly weapon in commission of the robbery.
1
Appellant contends we are compelled to reverse because (1) the evidence was insufficient to
sustain his conviction for robbery, {2) the evidence was insufficient to support the finding
he used a deadly weapon in the commission of the robbery, and {3) the district court
erred in failing to properly instruct the jury.
____________________

1
NRS 193.165 provides, in pertinent part:
1. Any person who uses a firearm or other deadly weapon in the commission of a crime shall be punished
by imprisonment in the state prison for a term
94 Nev. 10, 11 (1978) Dalie v. State
sustain his conviction for robbery, (2) the evidence was insufficient to support the finding he
used a deadly weapon in the commission of the robbery, and (3) the district court erred in
failing to properly instruct the jury. We disagree.
On June 11, 1976, appellant approached a cashier at the Thrifty Drug Store on E.
Charleston Boulevard in Las Vegas, Nevada, to buy some candy. The cashier took his money
and, as [she] turned to give him his change . . . [she] hit a gun and [appellant] reached in and
grabbed the [money]. The cashier began screaming and two employees ran to her assistance.
Meanwhile, appellant ran out the door, jumped into a waiting Ford Mustang, and sped away.
The cashier told the two employees what had occurred, and the employees pursued the
Mustang in their own van. As the employees approached the rear of the Mustang, appellant
leaned out the window and fired two shots, one of which hit the van's radiator, forcing the
employees to abandon their pursuit. Appellant was arrested several days later in New
Hampshire.
[Headnote 1]
1. Appellant contends his robbery conviction was not supported by the evidence. He
admits he committed a crime in taking the money, but argues the crime was larceny instead of
robbery because there was no proof that the money was taken by use of force . . . or fear of
injury, as contemplated by NRS 200.380.
2
The thrust of his argument is that the taking of
the money had already occurred when the cashier first noticed the gun, thus, the gun was not
used to perpetrate the crime.
On direct examination, the cashier testified that she was aware of the presence of the gun
before appellant reached for the money, and further, that she was frightened. In our view,
the jury could properly conclude from this evidence that the money was taken by force . . . or
fear of injury and, accordingly, appellant's conviction will not be disturbed. See Watkins v.
State, 93 Nev. 100, 560 P.2d 921 (1977); Hayden v. State, 91 Nev. 474, 538 P.2d 583 (1975);
State v. Childs, 422 P.2d 898 (Kan. 1967). Cf. Mangerich v. State, 93 Nev. 683, 572 P.2d 542
(1977).
____________________
equal to and in addition to the term of imprisonment prescribed by statute for such crime. The sentence
prescribed by this section shall run consecutively with the sentence prescribed by statute for such crime.

2
1. Robbery is the unlawful taking of personal property from the person of another, or in his presence,
against his will, by means of force or violence or fear of injury, immediate or future, to his person or property, or
the person or property of a member of his family, or of anyone in his company at the time of the robbery. Such
force or fear must be used to obtain or retain possession of the property, or to prevent or overcome resistance to
the taking, in either of which cases the degree of force is immaterial. If used merely as a means of escape, it does
not constitute robbery.
94 Nev. 10, 12 (1978) Dalie v. State
[Headnote 2]
2. Appellant next argues the evidence was insufficient to support the finding that he used
a deadly weapon in commission of the robbery.
The jury, by its verdict, found that appellant had used a deadly weapon in the commission
of a crime and the record clearly supports that finding. Thus, we will neither disturb the
verdict nor set aside the judgment in this appeal. See Sanders v. State, 90 Nev. 433, 529 P.2d
206 (1974).
[Headnote 3]
3. Finally, appellant contends the district court should have instructed the jury on the
definition of use as that word is used in NRS 193.165. Because of appellant's failure to
request such an instruction at trial, we decline to consider the contention. Larsen v. State, 93
Nev. 397, 566 P.2d 413 (1977).
The district court judgment is affirmed.
3

____________________

3
The Chief Justice designated Hon. David Zenoff, Chief Justice (Retired), to sit in this case, Nev. Const. art
6, 19; SCR 244.
____________
94 Nev. 12, 12 (1978) Antonini v. Hanna Industries
ROBERT ANTONINI, Appellant, v. HANNA INDUSTRIES,
a Foreign Corporation, Respondent.
No. 9185
January 25, 1978 573 P.2d 1184
Appeal from a judgment dismissing an action in tort. Eighth Judicial District Court, Clark
County; John F. Mendoza, Judge.
Worker who was injured while dismantling a convention exhibit brought tort action
against the owner of the exhibit. The district court dismissed and worker appealed. The
Supreme Court held that: (1) the employee, who had been provided through a firm which
entered into contracts for the assembling and dismantling of exhibits was a joint employee of
both the labor broker and the exhibitor, and (2) since labor broker had paid Nevada Industrial
Commission premiums and provided the employee with full coverage under the workmen's
compensation act, the exhibitor had provided and secured compensation for the worker within
the meaning of the Act.
Affirmed.
Pat J. Fitzgibbons, of Las Vegas, for Appellant.
Lorin D. Parraguirre, of Las Vegas, for Respondent.
1. Workmen's Compensation.
In determining the existence of an employment relationship, court should consider the degree of
supervision exercised over the details of the work, the source of the worker's wages, the existence of a right
to hire and fire the worker, and the extent to which the worker's activities further the general business
concerns of the alleged employer.
Convention exhibitor which contracted with another company for assembling and dismantling of exhibit,
which insisted upon complete control over the dismantling operation because of the complexity of its
exhibit, which retained the right to demand a replacement worker if it became dissatisfied with the worker
assigned, and which indirectly paid the wages of the worker by making payments to the contractor, and
which received benefits to its regular business was an employer of the workman. NRS 616.010 et seq.
Worker's continued employment relationship with one company in no way precludes another employment
relationship, based on identical activities, with a second firm. NRS 616.010 et seq.
An employer who fails to provide and secure coverage under the workmen's compensation act may be
proceeded against in tort, with the considerable burden of being deprived of all common-law affirmative
defenses and subjected to a presumption of negligence. NRS 616.370.
Company which has contracted for labor services has provided and secured compensation for purposes of
workmen's compensation act when the labor broker supplying the employee has paid the Nevada Industrial
Commission premiums and provided the worker, who was a joint employee of both the contractee and the
broker, with full coverage under the Act. NRS 616.270.
OPINION
Per Curiam:
Robert Antonini has appealed from an order of the district court dismissing his action in
tort against Hanna Industries. The district court found that Hanna, as Antonini's employer,
was statutorily immune from tort liability under the provisions of the Nevada Industrial
Insurance Act (NIIA). NRS 616.010 et seq. We affirm that decision.
Antonini was injured on September 13, 1974, when a steel arch comprising part of a
carwash display that he was attempting to dismantle collapsed beneath him. This display was
owned by Hanna Industries, a Texas corporation, and had been exhibited by Hanna at the Las
Vegas Convention Center.
Antonini was hired out of Teamsters Local No. 631 on September 12, 1974, by Las Vegas
Convention Services, Inc. (LVCS). The normal business practice of LVCS was to contract
with convention exhibitors for the assembly and dismantling of exhibits at the Convention
Center.
Antonini had worked for LVCS on a number of previous occasions. In the vast majority of
his past jobs with LVCS, his activities at the Convention Center had been supervised and
directed exclusively by LVCS personnel, the exhibitor merely retaining control over the end
result of the work. However in this instance, due apparently to the complexity of the carwash
apparatus, the exhibitor Hanna Industries insisted upon the retention of complete control over
the dismantling operation. While dismantling the display under the direction of Les, an
employee of Hanna, Antonini was injured.
Antonini sought and recovered an award from the Nevada Industrial Commission (NIC)
under the policy of LVCS. He then brought this tort action against Hanna, alleging its liability
under two alternative theories.
1
First, he argues that Hanna is liable as a third-party
tort-feasor under NRS 616.560.
2
Alternatively, he argues that even if an employment
relationship arose between Hanna and himself, Hanna should nonetheless be found liable in
tort as an uninsured employer under NRS 616.375.
3

I. Was Hanna Industries Antonini's employer within the meaning of the NIIA?
NRS 616.090 defines employer for the purposes of Nevada's workmen's compensation
act to include [e]very person, firm, and private corporation . . . which has any natural person
in service. In the interpretation of this provision, this court has not deemed itself bound by
common law tests of employment derived from the particular policies underlying the doctrine
of vicarious liability. Heidtman v. Nevada Ind. Comm'n, 78 Nev. 25, 368 P.2d 763 (1962).
Rather, in keeping with the particular purposes of the Nevada Industrial Insurance Act
(NIIA), we have adopted a policy of broad and liberal interpretation, Nevada Ind. Comm'n v.
Bibb, 78 Nev. 377, 374 P.2d 531 {1962), recognizing that the NIIA should operate not
only for the benefit of injured workers, Industrial Commission v. Peck, 69 Nev. 1
____________________

1
NRS 616.370 provides, in pertinent part, that [t]he rights and remedies provided in [Ch. 616, NRS] for an
employee . . . shall be exclusive . . . of all other rights and remedies of the employee . . . at common law or
otherwise. . . . Antonini is therefore confined to the provisions of Ch. 616. See Tab Constr. Co. v. District
Court, 83 Nev. 364, 432 P.2d 90 (1967).

2
NRS 616.560 provides, in pertinent part, that an employee coming under the provisions of [the NIIA who]
receives an injury for which compensation is payable under [Ch. 616, NRS] which injury was caused under
circumstances creating a legal liability in some person other than the employer or a person in the same employ,
may proceed against such third party in tort. (Emphasis supplied.)

3
NRS 616.375 provides, in pertinent part, that any employer within the provisions of [Ch. 616 who] fails to
provide and secure compensation to an injured employee shall be liable in tort to such employee. In such an
action, the non-participating employer is deprived of all common law defenses, and may only escape liability
upon proof that he was completely non-negligent.
P.2d 531 (1962), recognizing that the NIIA should operate not only for the benefit of injured
workers, Industrial Commission v. Peck, 69 Nev. 1, 239 P.2d 244 (1952), but also for the
protection of employers against common law tort actions. Simon Service v. Mitchell, 73 Nev.
9, 307 P.2d 110 (1957). See Jackson v. Southern Pacific Company, 285 F.Supp. 388 (D. Nev.
1968). These dual concerns are in accord with the interpretive policies of the majority of
other U.S. courts. See 1A Larson, Workmen's Compensation Law, 43-44 (1973).
[Headnote 1]
In characterizing the relationship between an owner-contractee and a worker engaged in a
particular project with respect to that owner's property, we have placed primary emphasis
upon the amount of control exercised by the contractee over the worker.
4
Under the
general term control, several factors have been accorded substantially equal weight in
determining the existence of an employment relationship. These include the degree of
supervision exercised over the details of the work, the source of the worker's wages, the
existence of a right to hire and fire the worker, and the extent to which the worker's activities
further the general business concerns of the alleged employer.
5
Titanium Metals v. District
Court, supra; McDowell Constr. Supply Co. v. Williams, 90 Nev. 75, 518 P.2d 604 (1974);
Nevada Ind. Comm'n v. Bibb, supra.
Under this flexible approach, we have held that an owner-contractee who exercised
significant operational control over the details of the construction work for which he had
contracted assumed employer status for the purposes of NRS 616.560. Simon Service v.
Mitchell, supra; Titanium Metals v. District Court, supra; Frith v. Harrah's South Shore
Corporation, supra. Conversely, in Nevada Ind. Comm'n v. Bibb, supra, we found a newsboy
to be an employee rather than an independent contractor, although the newspaper had not
____________________

4
Thus, we have held that an inactive owner of property does not become an employer under the NIIA
merely through his status as a contractee for services to his property. Frith v. Harrah's South Shore Corp., 92
Nev. 447, 552 P.2d 337 (1976). Simon Service v. Mitchell, supra; Titanium Metals v. District Court, 76 Nev.
72, 349 P.2d 444 (1960). Therefore, in what apparently was LVCS's normal contract procedure, in assumed a
direct supervisory role over which an exhibitor merely engaged LVCS to erect and disassemble an exhibit
under the direction of LVCS personnel, the inactive exhibitor did not become, by reason of its status as an
owner-contractee, an employer subject to the NIIA.

5
The rejection of a test focusing exclusively upon the degree of control over operational details has been
echoed in a substantial number of other U.S. jurisdictions. See Danek v. Meldrum Mfg. and Engineering Co.,
Inc., 252 N.W.2d 255 (Minn. 1977); Schwartz v. Riekes and Sons, 240 N.W.2d 581 (Neb. 1976); Wright v.
Habco, Inc., 419 S.W.2d 34 (Mo. 1967).
assumed a direct supervisory role over his activities. We relied nonetheless upon the retained
right to control the hours and the location of employment, the right to specify the prices at
which the newspapers could be sold, and the right summarily to terminate the newsboy's
services to find that an employment relationship had arisen for the purpose of providing
compensation under the Act.
On the other hand, in McDowell Construction Supply Co. v. Williams, supra, we held that
a seller's delivery man did not become a loaned employee of the buyer merely by unloading
the purchased material at the direction of the buyer at specified locations throughout a
construction site. We found that the amount of operational control and supervision exercised
by the buyer was insufficient to establish an employment relationship when balanced against
the absence of the right to hire and fire, the right to control the details of the worker's forklift
operations, the deliveryman's continued payment by the seller, and the fact that the delivery
was primarily in furtherance of the course of business of the seller.
6

The record reveals that the arrangement between LVCS and Hanna Industries was quite
different from LVCS's normal contract arrangement at the Convention Center. Specifically,
Hanna informed LVCS that because of the complexity of the apparatus, it wished to supervise
and control the dismantling operation itself. LVCS was merely to supply a crew of workers
who, under Hanna's detailed direction, would dismantle the exhibits.
Clearly, Antonini remained in the employ of LVCS while he was dismantling the exhibit.
He remained on the payroll of LVCS, and was originally hired by LVCS. LVCS retained the
right to fire him. Similarly, Antonini's activities were in direct furtherance of LVCS's general
business.
[Headnote 2]
However, under the flexible approach enunciated in our prior cases, we conclude that an
employment relationship also arose between Antonini and Hanna Industries. Control over
Antonini's activities was strictly and exclusively exercised by Hanna.
____________________

6
Cf. Jackson v. Southern Pacific Company, 285 F.Supp. 388 (D. Nev. 1968), where a federal district court
applying Nevada law held that an employee of the seller of a bridge who, as part of the contract of sale, was
assigned to assist the buyer in dismantling the bridge, came under such operational control as to render him an
employee of the buyer for workmen's compensation purposes. The court relied upon the buyer's right to direct
him as to what he was to do . . . the manner in which he was to do the work . . . [and] the right to dismiss him
from working on the particular job or project. 285 F.Supp. at 390. The fact that, in rendering service to the
buyer, the worker was also furthering the business interest of his original employer was not deemed relevant in
determining whether a new and independent employment relationship had been established.
Antonini's activities was strictly and exclusively exercised by Hanna. Simon Service v.
Mitchell, supra; Titanium Metals v. District Court, supra. Hanna retained the right to demand
a replacement worker from LVCS if it became dissatisfied with Antonini. Such a demand
would clearly have terminated Antonini's employment with LVCS under that particular
contract, and thus constitutes a right to fire. McDowell Construction Supply Co. v. Williams,
supra; Nevada Ind. Comm'n v. Bibb, supra. Although LVCS paid Antonini his wages, the
source of those payments was Hanna, who paid LVCS for the workers it provided. Finally,
Antonini's activities were clearly in furtherance of Hanna's regular business: the exhibit was
in promotion of its business as a manufacturer of carwashes. Nevada Ind. Comm'n v. Bibb,
supra; cf. Jackson v. Southern Pacific Company, supra. We find, therefore, that Hanna
became Antonini's employer within the meaning of Ch. 616, NRS.
[Headnote 3]
Antonini argues that the degree of control exercised by LVCS compels the conclusion that
it, and not Hanna Industries, was his employer. However the concept of joint employment is
accepted in Nevada, as it is in other jurisdictions. See Jackson v. Southern Pacific Company,
supra, at 391, citing Famous Players Lasky Corp. v. Industrial Accident Commission, 228 P.
5 (Cal. 1924). In Beaver v. Jacuzzi Bros. (8th Cir. 1972), 454 F.2d 284, 285, the court stated:
As a matter of common experience and of present business practices in our economy, it is
clear that an employee may be employed by more than one employer even while doing the
same work. See also lA Larson, supra, 48.40, at 8-254. Antonini's continued employment
relationship with LVCS in no way precludes another employment relationship, based upon
identical activities, with Hanna Industries.
The tripartite relationship among Hanna, LVCS, and Antonini has been characterized in
other jurisdictions as a labor broker relationship: the immediate employer LVCS contracted
to provide workers for the customer Hanna, to be employed in the customer's business
activities and under his direct supervision. Courts in other jurisdictions have concluded that
an employment relationship results between the worker and the labor broker's customer.
7
Danek v. Meldrum Mfg. and Engineering Co., Inc., supra; Schwartz v. Riekes and Sons,
supra; Beaver v. Jacuzzi Bros., supra; Wright v. Habco, Inc., supra; Daniels v. MacGregor
Co., 206 N.E.2d 554 {Ohio 1965); Shipman v. Macco Corporation, 392 P.2d 9 {N.M. 1964).
____________________

7
In Renfroe v. Higgins Rack Coating & Manufacturing Co., 169 N.W.2d 326 (Mich.App. 1969), the court
stated The economic reality of this case is that both [the labor broker] and [the customer-contractee] were
employers of [the injured worker], each in a different way. It is not necessary to make fine semantic distinctions
as to types of degrees of control. It is enough to say that either could be liable under the workmen's
compensation act. . . . See also St. Claire v. Minnesota Harbor Service, Inc., 211 F.Supp. 521 (D.Minn. 1962).
Engineering Co., Inc., supra; Schwartz v. Riekes and Sons, supra; Beaver v. Jacuzzi Bros.,
supra; Wright v. Habco, Inc., supra; Daniels v. MacGregor Co., 206 N.E.2d 554 (Ohio
1965); Shipman v. Macco Corporation, 392 P.2d 9 (N.M. 1964). This new employment
relationship is not inconsistent with the continued existence of an employment relationship
with the labor broker. Smith v. Kelley Labor Service, 239 So.2d 685 (La.App. 1970).
We therefore conclude that Hanna Industries was Antonini's employer under the NIIA. As
an employer, it is immune from third-party tort liability under NRS 616.370 and NRS
616.560.
II. May Hanna be sued as a non-participating employer?
[Headnote 4]
Antonini alternatively argues that even if Hanna is an employer and is thus immune from
third-party tort liability under NRS 616.370, he should nonetheless be able to maintain an
action under the onerous penalty provision NRS 616.375. See Cahow v. Michelas, 62 Nev.
295, 149 P.2d 233 (1944).
8
Under this section, an employer who fails to provide and secure
coverage under the Act may be proceeded against in tort, with the considerable burden of
being deprived of all common law affirmative defenses and subjected to a presumption of
negligence. Hanna concedes that it did not participate in the NIIA scheme by paying
insurance premiums into the NIC Fund. Antonini concedes that he was in fact covered under
the NIC policy of LVCS, and was accorded benefits under that policy by the NIC.
If Hanna, as Antonini's employer, had directly participated in the NIIA scheme through the
payment of premiums to the State Fund, it would have been immune both from third-party
tort liability under NRS 616.560 and non-participating employer liability under NRS 616.375.
Simon Service v. Mitchell, supra; Frith v. Harrah's South Shore Corp., supra. This case,
however, raises an issue of first impression in Nevada: whether, in a labor broker/joint
employment situation, NIC recovery under the policy of the labor broker precludes a tort
action under NRS 616.375 against a non-participating customer employer.
Under NRS 616.270(1), it is the duty of every employer to provide and secure
compensation according to the . . . provisions of [the NIIA] for accidental injuries to
employees arising in the course of employment.9 If an employer has in fact "provide[d]
and secure[d]" compensation for an injured employee, he is "relieved from other liability
for recovery of damages or other compensation. . . ."
____________________

8
NRS 616.375 is reprinted in pertinent part at note 3, supra. Nevada, like many of its sister states, has elected
to provide an inducement to employer participation in the NIIA scheme by subjecting them to the threat of a
common law tort action in which they are deprived of all common law affirmative defenses in the event that they
should elect not to participate. See 2A Larson, supra, 67.10, at 12-32.
ing in the course of employment.
9
If an employer has in fact provide[d] and secure[d]
compensation for an injured employee, he is relieved from other liability for recovery of
damages or other compensation. . . . NRS 616.270.
Whether Antonini may proceed against Hanna under NRS 616.375 depends, therefore,
upon whether Hanna has provide[d] and secure[d] compensation under NRS 616.270.
Since Hanna admittedly was not a direct participant in the NIIA scheme, Antonini's success in
this case depends upon whether LVCS's participation may be attributed to Hanna.
[Headnote 5]
Our analysis of the NIIA and its underlying policies leads us to conclude that a contractee
for labor services (the customer of the labor broker) has provided and secured
compensation within the meaning of NRS 616.270 when the labor broker has paid NIC
premiums and provided the joint employee with full coverage under the Act.
Several sound policy reasons militate in favor of this conclusion. First, the costs incurred
by the labor broker in securing Nevada industrial insurance coverage will ultimately be borne
by the customer-contractee as part of the contract price. See Fiscus v. Beartooth Electric, 522
P.2d 87 (Mont. 1974). In contrast to the uninsured employer, therefore, the
customer-contractee has sustained a real cost directly attributable to participation in the NIIA
scheme. This cost is borne by the customer-contractee to the same extent as if he had paid the
premiums himself.
Second, there exists no rational policy in favor of requiring both employers in a joint
employment situation to secure independent Nevada industrial insurance coverage.
10
Such a
requirement would have as its only result the payment of two premiums into the State Fund
to cover an employee to the identical extent to which he would be covered if only one
premium were paid.
____________________

9
The Nevada Industrial Insurance Act, in contrast with many other workmen's compensation acts, thus
imposes no primary liability upon any one of several bona fide employers. (But see, Stolte, Inc. v. District Court,
89 Nev. 257, 510 P.2d 870 (1973), where we held that in a situation involving a statutory employer such as a
principal contractor, see NRS 616.085, such a principal contractor is primarily responsible for securing
coverage.) In a joint employment situation involving two bona fide employers, the responsibility, and liability, of
each employer is present and real, rather than secondary and latent. For this reason, those cases arising in other
jurisdictions addressed to the tort immunity of a secondarily-liable guarantor statutory employer are of little
guidance in determining the liability of a bona fide employer primarily liable for coverage. See eg., Lindler v.
District of Columbia, 502 F.2d 495 (D.C. Cir. 1974); Fonseca v. Pacific Construction Co., Ltd., 513 P.2d 156
(Haw. 1973).

10
Since Nevada is one of the six states whose industrial insurance schemes are administered through a
monopolistic state fund, see 4 Larson, supra, 92, at 17-2, there arise under the NIIA no questions of
indemnification between the private insurers of various employers. See eg., Drennon v. Braden Drilling
Company, 483 P.2d 1022 (Kan. 1971).
premiums into the State Fund to cover an employee to the identical extent to which he would
be covered if only one premium were paid. No additional benefit would inure to the employee
by reason of such double coverage.
Third, there appears to be no policy against allowing joint employers to arrange between
themselves, whether by explicit contract terms or through general business practice, for the
coverage of a joint employee under the Act. Notably, the NIIA does allow an employer to
make arrangements other than NIC coverage for the protection of his employees. See NRS
616.415. Such arrangements, if satisfactorily concluded, will constitute full performance of
the employer's duty to provide industrial accident insurance, and will confer a concomitant
tort immunity upon the employer. While this section is admittedly addressed to an employer
wishing to secure outside no-fault insurance protection, it evidences a policy in favor of
allowing employers some flexibility in the manner in which they carry out their responsibility
to provide and secure compensation. Such policy is not offended by an arrangement
between two employers, jointly subject to NRS 616.375 in the event that no coverage is
secured, to assign to one or the other party the duty to secure coverage through the payment of
premiums into the NIIA scheme.
We therefore interpret NRS 616.270 to mean that in a labor broker/joint employment
situation, a customer-contractee may fulfill his responsibility to provide and secure
compensation through an arrangement with the labor broker to the effect that the latter will
pay premiums to the Nevada Industrial Insurance Fund. And, as the Federal District Court for
the District of Puerto Rico stated in a related context, [t]he type or kind of action taken by
the principal employer to make sure that his independent contractor has complied with the
Act is immaterial. . . . It makes no difference whether he so explicitly demanded in the
contract . . . or whether the latter did so voluntarily as an ordinary custom in the industry.
Lopez-Correa v. Marine Navigation Co., 289 F.Supp. 993, 999-1000 (D.P.R. 1968). Failure
of the labor broker to secure coverage under the Act will of course result in the liability of
either or both employers under NRS 616.560. Cf. Hobelman v. Mel Krebs Construction
Company, 366 P.2d 270 (Kan. 1961). However, when the labor broker has in fact secured full
coverage for the injured employee through the payment of premiums into the Fund, the
compensatory purposes of the Act have been fulfilled, and such full coverage will immunize
both employers from tort liability.
Affirmed.
____________
94 Nev. 21, 21 (1978) Cord v. Neuhoff
VIRGINIA KIRK CORD, Appellant, v. EDWARD D. NEUHOFF and CHARLES E. CORD,
Coexecutors of the Estate of E. L. CORD, also Known as Errett L. Cord and Errett Lobban
Cord, Deceased, and Individually, Respondents.
No. 9530
January 25, 1978 573 P.2d 1170
Appeal from judgment dismissing action to set aside a postnuptial property settlement
agreement; Second Judicial District Court, Washoe County; James J. Guinan, Judge.
After husband's death in 1974, wife commenced action to set aside 1953 postnuptial
property settlement agreement. The district court entered judgment dismissing action, and
plaintiff appealed. The Supreme Court, Thompson, J., held that: (1) entire integrated
postnuptial agreement had to be annulled since material part of it limiting husband's
obligations to support wife was illegal; (2) action was not barred by laches; and (3) proper
method to be utilized in determining whether any of husband's estate should be apportioned
to community was year-by-year analysis, as opposed to overall recapitulation.
Reversed and remanded.
[Rehearing denied March 2, 1978]
Nada Novakovich, of Reno, for Appellant.
Bradley & Drendel, Ltd., of Reno, for Respondents.
1. Appeal and Error.
Where extrinsic evidence was not offered as to meaning of postnuptial agreement and trial court's
interpretation thereof came from within four corners of document itself, trial court's interpretation of
agreement was not binding on the Supreme Court.
2. Husband and Wife.
Spouses intended an integrated agreement when they executed postnuptial agreement which clearly
expressed that they intended to settle their property and support rights and that reciprocal promises with
regard to property and support were given in consideration for each other, and provisions for support and
maintenance were integral and inseparable parts of property settlement.
Entire integrated postnuptial agreement purporting to settle support and property rights of spouses had to
be annulled since material part of agreement limiting husband's obligation to support his wife was illegal.
NRS 123.080.
4. Cancellation of Instruments.
Wife's action, commenced after her husband's death in 1974, challenging parties' 1953 postnuptial
agreement which purported to settle their support and property rights and which was
executed by wife for sole purpose of saving her marriage, was not barred by laches.
support and property rights and which was executed by wife for sole purpose of saving her marriage, was
not barred by laches.
Policy of law is to refrain from fostering domestic discord which may follow from litigation between
spouses commenced for fear that bar of laches would attach by lapse of time.
Under law of California and Nevada, rents and profits from a spouse's separate property is separate
property.
Under law of California and Nevada, earnings of either spouse during coverture are allocable to
community.
Where spouse devotes his time, labor and skill to production of income from separate property, or to
enhancement in value of that separate property, there must be an apportionment of any increment in value
between separate estate of owner and community, unless increment is due solely to a natural enhancement
of property, or owner of separate estate expended only minimal effort and there was no evidence presented
attributing a value to his services.
Pereira method of apportionment of separate and community property is to allocate a fair return on
investment to separate property and to allocate any excess to community property as arising from husband's
efforts; in absence of evidence of a fair return, court will adopt rate of legal interest, 7 percent per
annum.
Van Camp method for apportionment of separate and community property allocates to community an
annual sum equal to salary which would have to be paid an employee rendering services proportionate to
husband's and treats balance as separate property attributable to normal earnings of separate estate.
Preferred method for apportionment of separate and community property is Pereira method, whereby
fair return on investment is allocated to separate property and excess to community, unless owner of
separate estate can establish that a different method of allocation is more likely to accomplish justice.
Where apportionment of increment in value between separate and community estates was required,
present, existing and equal [community] interest of wife arose very moment increment in value was large
enough to require allocation, and that end could best be utilized by utilizing a year-by-year analysis, as
opposed to overall recapitulation. NRS 123.225.
OPINION
By the Court, Thompson, J.:
This case mainly concerns the validity of a postnuptial agreement purporting to settle the
support and property rights of Errett and Virginia Cord.
The Cords were married January 3, 1931, and were husband and wife until Errett's death
on January 2, 1974. He died testate leaving an estate valued at $39,251,149.85. His Last Will
declared the entire estate to be his separate property. His widow Virginia commenced this
action asserting the estate to be community property and her entitlement to one half thereof.
1

The district court dismissed her action. The dismissal rests primarily upon a 1953
postnuptial agreement between Errett and Virginia wherein Virginia released present and
future community property rights. The court found the property provisions of the agreement
enforceable, and severed those provisions from other parts of the agreement limiting Errett's
obligation to support Virginia which the court found invalid. Consequently, Virginia's 1953
release of present and future community property rights precludes her from now asserting a
community interest in Errett's estate. The court also found her action barred by laches. This
appeal followed.
[Headnote 1]
1. It is Virginia's contention that the postnuptial agreement is an integrated agreement,
incapable of severance, and that since the support provisions thereof are invalid, the entire
agreement fails and may not be enforced in any respect. Extrinsic evidence was not offered as
to the meaning of the agreement. The trial court's interpretation came from within the four
corners of the document itself. In this circumstance, that court's interpretation of the
agreement is not binding on this court. Messenger v. Messenger, 297 P.2d 988 (Cal. 1956).
In a different context, that of court power to modify a property settlement and support
agreement, we found that the language of the agreement itself established that the parties
intended an integrated agreement. Barbash v. Barbash, 91 Nev. 320, 323, 535 P.2d 781, 783
(1975). We there noted that the agreement dealt both with rights to marital property and
support, that the parties desired a full and final adjustment and settlement of their property
rights and claims against each other, and that they released each other from any liability for
support and maintenance.
[Headnote 2]
In line with Barbash v. Barbash, supra, the words of the postnuptial agreement before us
renders inescapable the conclusion that the parties intended an integrated agreement and that
the provisions for support and maintenance are an integral and inseparable part of their
property settlement.
____________________

1
The Last Will gave Virginia $500,000, certain real estate and personal property. She renounced those
bequests and, in lieu thereof, claimed a community interest in the estate. In a separate action, the district court
ruled that she could assert a claim to one half of the community property. That decision was not appealed.
that the provisions for support and maintenance are an integral and inseparable part of their
property settlement. Pertinent parts of the agreement are quoted in the footnote.
2
It is clearly
expressed that they intended to settle their property and support rights and the reciprocal
promises with regard to property and support were given in consideration for each other. Cf.
Marriage of Dawley, 551 P.2d 323 (Cal. 1976), where the agreement stated that the
provisions were severable and the court honored that expressed intention.
[Headnote 3]
We already have noted the district court conclusion that the provisions of the agreement
limiting Errett's duty to support Virginia were unenforceable. The agreement limited Errett's
support duty to the period of five years even though they continued living together as husband
and wife. Such provision violates statutory command and is void.
3
Errett and Virginia
continued to live together as husband and wife until his death. Indeed, no party to this appeal
challenges the district court conclusion in this regard. It follows inevitably that the entire
integrated agreement must be annulled since a material part of it is illegal. Pereira v. Pereira,
103 P. 488 (Cal. 1909). The failure of the district court to so rule was error.
[Headnotes 4, 5]
2. The district court found this action barred by laches. We do not agree. The policy of the
law is to refrain from fostering domestic discord which may follow from litigation between
spouses commenced for fear that the bar of laches would attach by lapse of time.
Consequently, most jurisdictions will not allow laches to run between husband and wife
during the continuance of the marital relationship.
____________________

2
The parties hereto desire to settle now and forever all rights of property, all homestead rights, and all other
property rights, including all rights of each party in and to any and all community property, if any, and claims
growing out of the marriage relationship existing between them which either of them has or may have against the
other, and all rights which either of them has or may have against the other, and all rights which either of them
has or may hereafter have in the property, of every kind and nature, real, personal and mixed, now owned by the
other, or which may be hereafter acquired by the other.
This agreement is to be final and is to remain in effect, whether the parties remain husband and wife, or are
hereafter legally separated or divorced.
Now, therefore, in consideration of the mutual promises, covenants and agreements herein contained and to
be performed by the parties hereto. . . .
This agreement is intended as and for a full and complete and final settlement, establishment, as herein
provided, of the personal rights and property rights of the parties hereto, and each of them as regards to the
other.

3
NRS 123.080, formerly N.C.L. 3374: A husband and wife cannot by any contract with each other alter
their legal relations except as to property, and except that they may agree to an immediate separation and may
make provision for the support of either of them . . . during such separation. See also Calif. Civil Code 4802,
formerly 159.
not allow laches to run between husband and wife during the continuance of the marital
relationship. Cases coll. Annot., 121 A.L.R. 1382.
A fair reading of the record before us discloses that Virginia Cord executed the postnuptial
agreement for the sole purpose of saving her marriage. Thus, the circumstances are not unlike
those before the court in Rottman v. Rottman, 204 P. 47 (Cal. 1921), where the court in
holding the wife not barred by laches wrote:
Not only is she the wife of appellant but according to the amended complaint, the two
contracts she seeks to rescind were entered into by her for the sole purpose of securing to
herself a continuance of the relations which she had a right to expect from the very fact
of marriage, but which her husband had threatened to deny her. This, we repeat, places
her in a position from which she may strongly combat the charge that she unduly delayed
the commencement of her action. Having made a very foolish and improvident contract,
treating the two as one, for the purpose of securing her rights as a wife, other than the
right to support, which she cast away in order to hold the remainder, she could hardly be
expected to be zealously diligent in attempting to cancel the contracts. A move in that
direction might imperil the very consummation she had so devoutly wished. She was
justified, without incurring the charge of guilt of laches in holding to the last possible
moment to the hope that, in the language of the amended Complaint, her husband would
live with her and love her as a husband should, and that she might retain his presence
with her.
3. Since we have concluded that this action should not have been dismissed it becomes
necessary to comment upon a problem which will face the district court upon remand, that is,
the method to be utilized in determining whether any of Errett's estate should be apportioned
to the community.
The Cords did not live in a community property jurisdiction, California, until 1937. They
continued to live there, and subsequently in Nevada, also a community property state, until
Errett's death in 1974. Errett's wealth in 1937 was about eight million dollars and was his
separate property. When he died in 1974 the value of that estate had increased almost five
fold.
[Headnotes 6, 7]
The law of California and Nevada is that rents and profits from a spouse's separate
property is separate property. However, it also is true that the earnings of either spouse during
coverture are allocable to the community.
coverture are allocable to the community. It is evident that these concepts come into conflict
when a spouse devotes his time, labor, and skill to the production of income from separate
property, or to the enhancement in value of that separate property.
[Headnote 8]
It is now settled in each jurisdiction that in such circumstance there must be an
apportionment of any increment in value between the separate estate of the owner and the
community [Pereira v. Pereira, 103 P. 488 (Cal. 1909); Johnson v. Johnson, 89 Nev. 244, 510
P.2d 625 (1973)], unless the increment is due solely to a natural enhancement of the property,
or the owner of the separate estate expended only minimal effort and there was no evidence
presented attributing a value to his services. There is no suggestion that the increased value of
Errett's estate was due to a natural enhancement, or that he expended only minimal effort. The
evidence is otherwise and establishes that he devoted great time and energy to the
management of his wealth.
The methods of apportionment are expressed in the California cases of Pereira v. Pereira,
supra, and Van Camp v. Van Camp, 199 P. 885 (Cal.App. 1921), which we have approved.
Johnson v. Johnson, 89 Nev. 244, 510 P.2d 625 (1973); Wells v. Bank of Nevada, 90 Nev.
192, 522 P.2d 1014 (1974); Schulman v. Schulman, 92 Nev. 707, 558 P.2d 525 (1976).
[Headnote 9]
The Pereira method of apportionment is to allocate a fair return on the investment to the
separate property and to allocate any excess to the community property as arising from the
husband's efforts. In the absence of evidence of a fair return the court will adopt the rate of
legal interest, 7 percent per annum. Beam v. Bank of America, 490 P.2d 256 (Cal. 1971).
[Headnote 10]
The Van Camp method allocates to the community an annual sum equal to the salary
which would have to be paid an employee rendering services proportionate to the husband's,
and treats the balance as separate property attributable to the normal earnings of the separate
estate.
[Headnote 11]
The preferred method appears to be that suggested in Pereira unless the owner of the
separate estate can establish that a different method of allocation is more likely to accomplish
justice. In re Neilson's Estate, 317 P.2d 745 (Cal. 1962); Weinberg v. Weinberg, 432 P.2d
709 (Cal. 1967). Here, we find nothing to suggest that a different method of allocation
would be more appropriate.
to suggest that a different method of allocation would be more appropriate.
The financial records of Errett's wealth, income, capital gains, etc., from 1937 to 1953
were introduced in evidence. We assume that the coexecutors can produce similar records
from 1953 to the year of Errett's death, 1974. If such complete financial information is
available, a yearly analysis of the income generated by Errett's activities should be made, and
a yearly allocation to separate and community estates accomplished. This method is
preferable to an overall recapitulation for the reasons expressed by Justice Traynor in See v.
See, 415 P.2d 776 (Cal. 1966). There, in a different evidentiary setting, the court rejected a
tracing methodology under which the total community income over 21 years of marriage was
balanced against the total community expenses for the same period. In doing so the court
wrote: It would transform a wife's interest in the community property from a present,
existing and equal interest' as specified by Civil Code sec. 161a, into an inchoate expectancy
to be realized only if upon termination of the marriage the community income fortuitously
exceeded community expenditures. Id. at 779.
[Headnote 12]
The same reasoning with respect to a proper recognition of the wife's present, existing
and equal interest [NRS 123.225] applies with equal force to the case at hand. Since there
must be an apportionment of the increment in value between the separate and community
estates, the present, existing and equal community interest of Virginia arises the very
moment the increment in value is large enough to require allocation. It is evident that this end
can best be realized by utilizing a year-by-year analysis.
4
For the reasons expressed we
reverse the judgment dismissing this action and remand for trial to determine the extent
of Virginia's community interest in the Estate of Errett Cord.
____________________

4
The financial records before the court, 1937 to 1953, are revealing in this regard. A year-by-year Pereira
analysis discloses that between 1937 and 1946, Virginia acquired no community property, because the yearly
income generated by the preceding year's net worth was always less than 7 percent. In 1947, however, income
exceeded 7 percent, thus generating community income which, when decreased by 1947 community expenses,
constituted 3.5 percent of the 1947 year-end net worth. Again in 1948, the income generated by the 96.5 percent
of the corpus remaining separate property exceeded a normal 7 percent return, resulting in an allocation of the
excess to the community estate. This excess, when added to the income directly generated by the 3.5 percent of
the corpus constituting community property and decreased by 1948 expenses, increased the community interest
in the entire corpus to approximately 15.8 percent. In all years between 1949 and 1952, community expenses
exceeded community income, thus causing a decrease in residual community holdings. Thus on December 31,
1952, approximately 11.6 percent of the holdings constituted community property.
On the other hand, a total recapitulation analysis conducted from the vantage point of 1953 would reflect that
Virginia had no community property in 1953. As noted in respondents' brief: [c]ompounding $8,356,673 at 7%
per
For the reasons expressed we reverse the judgment dismissing this action and remand for
trial to determine the extent of Virginia's community interest in the Estate of Errett Cord.
Batjer, C. J., and Mowbray, Gunderson, and Manoukian, JJ., concur.
____________________
year through December 31, 1952, would increase E. L. Cord's sole and separate property to $24,473,219, before
there could be any community property. E. L. Cord's net worth on December 31, 1952, was $8,346,720.
Therefore, obviously under the Pereira formula, there was no community property as of the date of the property
settlement agreement.
____________
94 Nev. 28, 28 (1978) Zessman v. State
ERIC WILLIAM ZESSMAN and MARY EVELINA ZESSMAN,
Appellants, v. THE STATE OF NEVADA, Respondent.
No. 9067
January 25, 1978 573 P.2d 1174
Appellants appeal from separate judgments of conviction for first degree murder. First
Judicial District Court, Carson City; Frank B. Gregory, Judge.
Parents were found guilty by jury in the district court of first degree murder in the death of
their six-month-old son, and they appealed. The Supreme Court, Manoukian, J., held that: (1)
trial judge's misinformation at arraignment that murder charge at most constituted second
degree murder and not first degree murder and trial judge's belated correction on day of trial
that charge included charge of first degree murder effectively deprived parents of any notice
of first degree murder charges prior to trial with result that denial of motion for a continuance
was not error which was harmless beyond a reasonable doubt and thus there was a
constitutionally inadequate time to prepare a defense, and (2) evidence supported charges of
second degree murder of which parents were duly informed.
Modified and remanded with instructions.
Morgan D. Harris, Public Defender, and Thomas Leen, Deputy Public Defender, for Eric
William Zessman; and Horace R. Goff, Nevada State Public Defender, and Thomas Susich,
Deputy Public Defender, Carson City, for Mary Evelina Zessman.
Robert List, Attorney General, Carson City; and David B. Small, District Attorney, and
Terry A. Friedman, Deputy District Attorney, Carson City, for Respondent.
1. Criminal Law.
Matter of continuance is traditionally within discretion of trial judge and not every denial of a request for
additional time violates due process.
2. Criminal Law.
A myopic insistance upon expediency in face of a justifiable request for delay can make right to defend
with counsel of little value.
3. Indictment and Information; Witnesses.
Accused has right to be informed of nature and cause of accusation against him and must be afforded a
reasonable opportunity to obtain witnesses in his favor.
4. Criminal law.
Trial judge's misinformation at arraignment that murder charge at most constituted second degree murder
and not first degree murder and his belated correction on day of trial that charge included charge of first
degree murder effectively deprived defendants of any notice of first degree murder charges prior to trial
with result that denial of motion for continuance was not error which was harmless beyond a reasonable
doubt, since defendants were brought to trial without notice that evidence would be considered on issue of
premeditation, and thus there was a constitutionally inadequate time to prepare a defense. NRS 200.010,
200.030, 200.030, subds. 2, 3.
5. Criminal Law.
The remedy for prejudicial surprise resulting in a defendant's inability to present his defense adequately is
a continuance, and where a motion for continuance is made in good faith and not for delay, motion should
be granted.
6. Homicide.
In murder prosecution of parents for the death of their six-month-old son, who was found dead on front
seat of parent's automobile, nude and scantily covered, in cold temperatures, whose primary cause of death
was listed as inanition and dehydration, who suffered from a severe case of rickets, and whose multiple
fractures of substantial number of bones, including left and right femurs and several ribs, were in all
probability result of batterings, evidence supported charges of second degree murder of which parents were
duly informed. NRS 200.030, subd. 3.
7. Homicide.
In murder prosecution of parents for the death of their six-month-old-son, whether parents formed
requisite intent to kill son was question for jury. NRS 47.250, subd. 1, 200.030, subd. 3.
8. Criminal Law.
In murder prosecution of parents for the death of their six-month-old son, admission into evidence of
color photographs of son, over defense counsel's objection, was not error, in that probative value of
evidence outweighed any prejudicial effect.
OPINION
By the Court, Manoukian, J.:
Following a trial by jury, appellants, both approximately twenty years of age at time of
sentencing, were found guilty of first degree murder, {NRS 200.010; NRS 200.030), in the
death of their six-month-old son Frederick.1 Thereafter, the court sentenced both
appellants to life imprisonment without possibility of parole.
first degree murder, (NRS 200.010; NRS 200.030), in the death of their six-month-old son
Frederick.
1
Thereafter, the court sentenced both appellants to life imprisonment without
possibility of parole. Appellants appeal from these judgments.
Appellants assign the following as error: (1) the trial court's refusal to grant Mary
Zessman's motion for continuance; (2) insufficiency of the evidence to support the verdicts;
and (3) admission into evidence of color photographs of the deceased, over defense counsel's
objection. We are constrained to agree with appellants' first contention.
On January 12, 1976, appellants, represented by counsel, were arraigned in district court.
The indictment recited:
That the above-named Defendants did, willfully and unlawfully with malice
aforethought, expressed or implied, murder, FREDERICK SAMUEL ZESSMAN, an
infant human being, by failing to provide said infant with food sufficient to sustain his
life, thereby causing his death by starvation and dehydration, on or about November 9,
1975, all of which occurred in the west parking lot of the Carson City Nugget near Curry
Street between Robinson Street and Spear Street, Carson City, Nevada.
Preceding the entry of pleas, the following colloquy occurred between the trial judge and
the deputy district attorney.
2
Following the referenced discussion, the court proceeded to
inform the appellants that the maximum penalty to which they would be subject would be a
term of not less than five years nor more than life, consistent with a second degree murder
charge. Appellants both entered not guilty pleas to the indictment. The court then set the case
for trial by jury to commence May 11, 1976.
During the morning of May 11, 1976, just prior to the commencement of the trial, the trial
judge again arraigned appellants, stating, At that time {January 12, 1976), I advised you
that in my opinion this indictment carried only a maximum charge of second degree
murder, but further research has shown me it does also include the charge of first degree
murder.3
____________________

1
NRS 200.010, in relevant part, defines murder as the unlawful killing of a human being with malice
aforethought.
NRS 200.030(2) provides that: 2. Murder of the first degree is murder which is: (a) perpetrated by means of
poison, or lying in wait, torture, or by any other kind of willful, deliberate, and premeditated killing . . .
(Emphasis added.)

2
THE COURT: I am trying to determine from this indictment whether it was sought to charge murder in the
first degree or not. I don't think it does.
MR. FRIEDMAN: No, Your Honor, merely an open murder charge.
THE COURT: Which at the most would constitute second degree murder. All right.
At that time (January 12, 1976), I advised you that in my opinion this indictment carried
only a maximum charge of second degree murder, but further research has shown me it
does also include the charge of first degree murder.
3

Counsel for appellants then made a motion for continuance claiming additional time was
necessary to prepare for trial on the new element of premeditation included in first degree
murder. The record is silent as to whether appellants were informed of the element of
premeditation prior to the motion for continuance. The court, determining that the defense
would not be prejudiced, denied the motion. It is now claimed that because of the surprise
attendant to the second arraignment and the denial of the request for continuance, they have
been denied their constitutional rights to effective representation and due process.
4

[Headnotes 1-3]
The matter of continuance is traditionally within the discretion of the trial judge and not
every denial of a request for additional time violates due process. Ungar v. Sarafite, 376 U.S.
575 (1964); Polito v. State, 71 Nev. 135, 282 P.2d 801 (1955). Each case must turn on its
own circumstances, with emphasis upon the reasons presented to the trial judge at the time
the request is made. See, Nilva v. United States, 352 U.S. 385 (1957). A myopic insistance
upon expediency in the face of a justifiable request for delay can make the right to defend
with counsel of little value. Chandler v. Fretag, 348 U.S. 3 (1954). Accuseds have the right to
be informed of the nature and cause of the accusation against them and must be afforded a
reasonable opportunity to obtain witnesses in their favor. Cole v. Arkansas, 333 U.S. 196
(1948).
[Headnote 4]
The trial judge's misinformation and belated correction effectively deprived appellants of
any notice of first degree murder charges prior to trial, thus denial of the motion for a
continuance cannot be said to be error which is harmless beyond a reasonable doubt,
Chapman v. California, 386 U.S. 18, 24 (1967), since appellants were brought to trial without
____________________

3
NRS 200.030(3) defines murder of the second degree as comprehending all other kinds of murder.

4
The issue was initially expressly raised by appellant Eric Zessman in the trial court and in view of the
constitutional magnitude of it, we naturally recognize it in regard to both appellants. Cf. Rhodes v. State, 91 Nev.
720, 542 P.2d 196 (1975); Garner v. State, 78 Nev. 366, 374 P.2d 525 (1962); Nuelsen v. Sorensen, notice
that evidence would be considered 293 F.2d 454 (9th Cir. 1961).
notice that evidence would be considered on the issue of premeditation. Here, there was a
constitutionally inadequate time to prepare a defense. Cf. Ungar, supra; United States v.
Anderson, 509 F.2d 312 (D.C. Cir. 1974), cert. denied, 420 U.S. 991.
[Headnote 5]
What transpired here is analogous to an amendment of substance to an information, which
has been held to carry with it a corresponding obligation to allow the defense an adequate
time in which to prepare. In re Newburn, 350 P.2d 116 (Cal. 1960). In accord, Ex Parte
Groesbeck, 77 Nev. 412, 365 P.2d 491 (1961). The remedy for prejudicial surprise resulting
in a defendant's inability to present his defense adequately is a continuance, and where, as
here, a motion for continuance is made in good faith and not for delay, the motion should be
granted. O'Brien v. State, 88 Nev. 488, 500 P.2d 693 (1972); Garden v. State, 73 Nev. 312,
318 P.2d 652 (1957); cf. Polito, supra.
[Headnote 6]
Although this conclusion ordinarily would require reversal and remand for new trial, here
it is unnecessary to do so.
5
Because of our unique facts, we need not decide whether the
record would justify a charge of first degree murder. Since the district attorney desires to
abandon those charges rather than to again prosecute appellants for open murder, we need
consider only whether the evidence supports charges of second degree murder of which
appellants were duly informed. We hold that it does.
The record reveals that although the deceased infant Frederick Zessman suffered severe
medical problems following his premature birth resulting in hospitalization in Colorado for
several months, he became strong enough to be released into his parents' care.
____________________

5
The following discussion between Justice E. M. Gunderson and special Deputy District Attorney, Terry
Friedman, demonstrates the State's dispositional preference in the event of a remand.
THE COURT: So far as the State is concerned, the judge's error can only be corrected by giving a . . . new
trial, if there was a mistake that deprived the defendants of procedural due process.
COUNSEL: Are you asking me, Your Honor, whether or not it would have to be remanded for a new trial?
THE COURT: Would you be willing . . . if we . . . felt constrained to find that there was a denial of procedural
due process . . . to accept a modification down to second degree murder, rather than a new trial?
COUNSEL: The District Attorney of Carson City instructed me . . . that if that question were to be asked that
they would request modification [to a lesser degree of crime], as opposed to a remand [for a new trial].
NOTE: Appellant Mary Zessman in her opening brief, stated: This Court should reduce the conviction to a
lesser offense consistent with the evidence or remand the matter for a new trial. Eric Zessman generally
evidences his concurrence with this disposition.
several months, he became strong enough to be released into his parents' care. When the child
was released, and during out-patient treatment which followed, the appellants were carefully
instructed about the special care he needed. This included feedings on a demand basis (every
two to three hours), vitamin supplements, and medication. Appellants expressed some
dissatisfaction with the feeding schedule and insisted on feeding the child every five hours.
During his out-patient care, Frederick gained weight but at a much slower rate than when in
the hospital. His doctor therefore continued to urge appellants to feed him more often.
In October, appellants left Colorado and came to Carson City, Nevada, living on an
alternate day basis in their vehicle and rented motel rooms. On November 9, 1975, appellants'
son was found dead on the front seat of his parents' automobile, nude and scantily covered, in
cold temperatures.
The primary cause of death was listed as inanition and dehydration. Frederick's autopsy
revealed he only weighed five pounds and was completely dehydrated. It further revealed that
his stomach was empty and that both the small and large bowels were almost empty,
containing much less than the usual amount of fecal material and food stuff. He suffered
wasting of muscle, a complete lack of subcutaneous fat, and lacerations were visible about the
face. In addition, the child suffered from a severe case of rickets, a condition almost alien in
the contemporary United States because of the presence of vitamin D in all milks and baby
formulas. Furthermore, x-rays revealed multiple fractures of a substantial number of
Frederick's bones, including the left and right femurs and several ribs. Expert medical
testimony revealed these fractures were in all probability the result of batterings.
[Headnote 7]
NRS 47.250(1) raises a disputable presumption, [t]hat an unlawful act was done with an
unlawful intent. In the face of the overwhelming evidence against them, appellants make
reference to testimony and evidence offered which tended to show that the child had been fed
at somewhat regular intervals and that the infant's history of medical problems was a
contributing factor to the death. Their version clearly failed to convince the jury. Any
suggested mitigation notwithstanding, when we consider the entire record and the continuing
course of abuse and neglect of the child by his parents, it was quite permissible for the jury to
conclude that appellants formed the requisite intent to kill Frederick.
Accordingly, as a consequence of the due process deprivation, coupled with the express
request of the State,
6
appellants' convictions must be modified to second degree murder
pursuant to NRS 177.265. Compare, People v. Ford, 416 P.2d 132 (Cal. 1966), cert. denied,
385 U.S. 1018; People v. Wolff, 394 P.2d 959 (Cal. 1964).
The judgments imposing the penalties of life imprisonment without the possibility of
parole are therefore modified by reducing the degree of crime to murder of the second degree
and, as so modified, are affirmed.
[Headnote 8]
Concerning appellants' contention that admission of color photographs was error, we find
that the probative value of the evidence outweighed any prejudicial effect. Dearman v. State,
93 Nev. 364, 566 P.2d 407 (1977); Allen v. State, 91 Nev. 78, 530 P.2d 1195 (1975).
The causes are remanded to the trial court with directions to pronounce judgment and
resentence appellants for second degree murder. Cf. Holbrook v. State, 90 Nev. 95, 518 P.2d
1242 (1974); Spillers v. State, 84 Nev. 23, 436 P.2d 18 (1968).
Batjer, C. J., and Mowbray, Gunderson, and Thompson, JJ., concur.
____________________

6
See footnote 5, supra.
____________
94 Nev. 34, 34 (1978) Ellett v. Ellett
JAMES D. ELLETT, Appellant, v.
NORMA T. ELLETT, Respondent.
No. 8909
January 25, 1978 573 P.2d 1179
Appeal from decree of divorce. Second Judicial District Court, Washoe County; John W.
Barrett, Judge.
In a divorce proceeding, the district court entered partial decree of divorce and a
subsequent decree regarding division of community property and community debts and award
of alimony, and husband appealed. The Supreme Court, Manoukian, J., held that: (1) husband
was not entitled to relief on theory that trial court erred in awarding wife one-half interest in
husband's retirement fund benefits accruing up to date of supplemental decree of divorce
when the marital relationship was terminated by partial decree of divorce four months earlier;
(2) trial court, in entering the interlocutory decree of divorce and reserving jurisdiction to
issue the subsequent decree, had acted within court's sound discretion; {3) award of two
community property vehicles to parties' adult daughters was error; {4) evidence justified
an award of alimony to wife, and the award of alimony of $750 per month was not an
abuse of discretion; {5) award of $3,000 to wife for attorney fees in divorce proceeding
was not an abuse of discretion; {6) decree ordering husband to pay "all of the outstanding
bills incurred by the parties hereto including monies borrowed by [wife] up to [specified
date]" was not void on ground of vagueness, and {7) wife would be denied attorney fees
on appeal.
divorce and reserving jurisdiction to issue the subsequent decree, had acted within court's
sound discretion; (3) award of two community property vehicles to parties' adult daughters
was error; (4) evidence justified an award of alimony to wife, and the award of alimony of
$750 per month was not an abuse of discretion; (5) award of $3,000 to wife for attorney fees
in divorce proceeding was not an abuse of discretion; (6) decree ordering husband to pay all
of the outstanding bills incurred by the parties hereto including monies borrowed by [wife] up
to [specified date] was not void on ground of vagueness, and (7) wife would be denied
attorney fees on appeal.
Affirmed in part; reversed in part.
Erickson, Thorpe & Swainston, Ltd., Reno, for Appellant.
Leslie B. Gray, Reno, for Respondent.
1. Divorce.
Divorced husband was not entitled to relief on appeal on theory that trial court erred in awarding
divorced wife one-half interest in husband's retirement fund benefits accruing up to date of supplemental
decree of divorce when the marital relationship was terminated by partial decree of divorce four months
earlier, in view of fact that such partial divorce decree, which expressly reserved jurisdiction to issue a
subsequent decree regarding division of community property and community debts and the award of
alimony, was an interlocutory judgment rather than a final judgment. NRS 125.150, subds. 1, 3.
2. Judgment.
Order or judgment which reserves a question for future consideration and determination is interlocutory
and is not a final judgment.
3. Divorce.
Trial court, in entering interlocutory decree of divorce and reserving jurisdiction to issue subsequent
decree regarding division of community property and community debts and award of alimony, had acted
within court's sound discretion.
4. Divorce.
Latitude of discretion statutorily conferred on trial court to dispose of community property with regard to
the burden, if any, imposed upon it, for the benefit of the children does not pertain to children beyond the
age of majority. NRS 125.150, subd. 1.
5. Divorce.
In divorce proceeding, award of two community property vehicles to parties' adult daughters was error.
NRS 125.150, subd. 1, 129.010.
6. Divorce.
Evidence in divorce proceeding, including evidence that wife could not obtain permanent employment
because of her ileitis and that she would be unable to procure adequate medical insurance coverage on her
own, justified an award of alimony to wife; awarding alimony of $750 per month was not an abuse of
discretion.
7. Divorce.
Award of attorney fees in a divorce proceeding falls within sound discretion of trial court. NRS
125.150, subd. 2.
8. Divorce.
Necessitous circumstances are not a prerequisite to the awarding of attorney fees in a divorce proceeding.
NRS 125.150, subd. 2.
9. Divorce.
Award of $3,000 to wife for attorney fees in divorce proceeding was not an abuse of discretion, though
the community property awarded her included shares of salable stock. NRS 125.150, subd. 2.
10. Divorce.
Supplemental divorce decree, which ordered husband to pay all of the outstanding bills incurred by the
parties hereto including monies borrowed by [wife] up to [specified date] was not void on ground of
vagueness, in light of fact that, though the decree may have been uncertain on its face, a review of the
record demonstrated sufficient clarity and definiteness to enable husband to comply with decree's
requirements.
11. Divorce.
Divorced wife would be denied attorney fees on husband's appeal from divorce decree, in view of fact
that community property awards and alimony award rendered her sufficiently capable of paying such
attorney fees.
OPINION
On June 5, 1948, the appellant and respondent were married in San Francisco and
continued to live in California until 1956 when they became residents of Nevada. During
1966 or 1967, the appellant moved out of the family home in Reno and subsequently lived
with another woman.
The appellant, forty-eight years of age at time of trial, is the resident vice-president and
manager of Fireman's Fund Insurance Company located in Reno. His annual gross salary
from Fireman's is $31,600, but he receives intermittent supplemental income earned as a
referee and as an instructor at the University of Nevada in Reno.
The two children by this marriage have each attained the age of majority. The respondent
was, at the time of trial, forty-seven years of age and unemployed, contending that she is
precluded from employment due to her physical condition, namely, ileitis, a disease of the
lower bowel. The existence of the claimed ileitis was challenged by appellant, and each party
introduced expert medical testimony to support their respective contentions.
Evidence offered at trial indicated that during the first three years of an approximately nine
year separation, appellant placed a monthly sum of $700 to $800 in respondent's checking
account from which she paid her bills. Subsequently, appellant began to pay respondent's bills
directly and in addition gave her $150 per month for groceries.
her $150 per month for groceries. Upon institution of the divorce action, the parties entered
into an agreement pending the outcome of the litigation by which appellant was to pay all of
respondent's expenses and provide an additional $300 in cash per month.
The trial court entered a partial decree of divorce on January 29, 1976, which terminated
the marital relationship, however, expressly reserving jurisdiction to issue a subsequent
decree regarding the division of community property and community debts, and the award of
alimony. That supplemental decree was entered on May 17, 1976, and appellant now appeals
therefrom.
Appellant claims the trial court erred and abused its discretion in: (1) making disposition
of appellant's retirement plan after the decree of divorce was entered; (2) awarding two
community property vehicles to the emancipated children of appellant and respondent; (3)
awarding respondent permanent alimony of $750 per month; (4) awarding respondent
attorney's fees of $3,000; and (5) entering an uncertain and ambiguous order in requiring
appellant to satisfy all out-standing debts of the parties. We now turn to a resolution of
these questions.
1. The Retirement Plan.
[Headnote 1]
Appellant's first claim of error and abuse concerns the trial court's award to respondent of a
half-interest in the retirement fund benefits accruing up to the date of the supplemental decree
of divorce when the marital relationship was terminated by the partial decree of divorce some
four months earlier. Appellant, citing NRS 125.150(3), contends that this constituted an
arbitrary award of his separate property in contravention of statutory authority.
1
Appellant
does not question the trial court's division of the nonvested retirement rights, thereby
implicitly acknowledging the propriety thereof, see, In re Marriage of Brown, 544 P.2d 561
(Cal. 1976), however he does contend that it was error to credit respondent with the
additional approximate four months' equity in the benefits plan.
[Headnote 2]
Much of appellant's error in this contention rests on his misconception of the partial decree
as a final judgment. We need not reach the issue of the trial court's claimed departure from
NRS 125.150{3), since NRS 125.150{1) in relevant part empowers the trial court to "make
such disposition of the community property of the parties, as appears just and equitable,"
and the January decree being interlocutory by its express terms reserved jurisdiction of
respondent's community interest in the retirement rights pending final adjudication of the
parties' rights following the May proceeding.
____________________

1
NRS 125.150(3) provides: The court may also set apart such portion of the husband's property for the
wife's support, or the wife's property for the husband's support if he is disabled or unable to provide for himself,
or the property of either spouse for the support of their children as shall be deemed just and equitable.
NRS 125.150(3), since NRS 125.150(1) in relevant part empowers the trial court to make
such disposition of the community property of the parties, as appears just and equitable, and
the January decree being interlocutory by its express terms reserved jurisdiction of
respondent's community interest in the retirement rights pending final adjudication of the
parties' rights following the May proceeding. Ormachea v. Ormachea, 67 Nev. 273, 217 P.2d
355 (1950). An order or judgment which reserves a question for future consideration and
determination is interlocutory and is not a final judgment. Ormachea, supra; Alper v. Posin,
77 Nev. 328, 363 P.2d 502 (1961); Elsman v. Elsman, 54 Nev. 20, 2 P.2d 139 (1931).
[Headnote 3]
Before we will reverse the trial court, the record must reveal that the judgment was clearly
erroneous and not based upon substantial evidence. Savini Constr. Co. v. A & K
Earthmovers, 88 Nev. 5, 492 P.2d 125 (1972). In the instant case, the trial court, in entering
the interlocutory decree and reserving jurisdiction to later make its final distribution, was
acting within its sound discretion. Fletcher v. Fletcher, 89 Nev. 540, 516 P.2d 103 (1973);
Shane v. Shane, 84 Nev. 20, 435 P.2d 753 (1968).
2. Community Property Vehicles.
Appellant claims as error the trial court's awarding two, old community property vehicles
to the adult daughters of the parties. We agree.
[Headnotes 4, 5]
Respondent, while acknowledging that the disposition cannot be characterized as child
support or a transfer to respondent, nonetheless argues that the trial court's action was well
within the discretion conferred upon the trial court by NRS 125.150(1). This question was
settled long ago by our Legislature and this Court. The latitude of discretion conferred upon
the trial court by NRS 125.150(1) to dispose of community property with regard to the
burden, if any, imposed upon it, for the benefit of the children, does not pertain to children
beyond the age of majority. NRS 129.010; Lewis v. Lewis, 71 Nev. 301, 289 P.2d 414
(1955).
The action by the trial court constituted error and requires reversal and remand.
3. Award of Alimony.
[Headnote 6]
Appellant next contends that the trial court abused its discretion by awarding permanent
alimony of $750 per month. He basically contends that respondent is capable of gainful
employment and that being the case disqualifies respondent from alimony consideration.
from alimony consideration. We need not address that narrow issue, since we find the record
to be replete with evidence supporting the trial court's determination.
Respondent's medical expert, who has treated her since 1959, testified that, in his opinion,
respondent could not obtain permanent employment because of her ileitis. Evidence was also
presented that respondent was forced to resign employment as a result of her medical
condition. Respondent had not worked full-time since the birth of the parties' first child in
1953 and had held various part-time jobs, including secretarial, clerical, and teaching until
some time in 1973. Appellant's medical expert, however, testified that respondent could
obtain employment. The expert's opinion was premised solely on her review of the
respondent's x-rays. The expert admitted that she had never seen the respondent physically,
much less professionally, and that she knew nothing of respondent's medical or surgical
history nor current drug therapy.
It is well within the province of the lower court to consider such conflicting testimony and
to award alimony in accordance with its judgment. Fletcher, supra. The trial court was
equally concerned that, upon divorce, respondent would no longer be entitled to the medical
benefits of appellant's health plan. The record shows that because of her past medical history,
respondent would undoubtedly be unable to procure adequate medical insurance coverage on
her own. Thus, in the event that further medical treatment or surgery became necessary,
respondent would incur expenses having to be paid from her alimony award.
As this Court stated in Buchanan v. Buchanan, 90 Nev. 209, 523 P.2d 1 (1974):
In determining whether alimony should be paid, as well as the amount thereof, courts
are vested with a wide range of discretion. This power of determination is neither
arbitrary nor uncontrolled. Much depends upon the particular facts of the individual case.
Among the matters to be considered are: the financial condition of the parties; the nature
and value of their respective property; . . . the duration of the marriage; the husband's
income, his earning capacity, his age, health and ability to labor; and the wife's age,
health, station and ability to earn a living. (Emphasis added.)
Id. at 215, 523 P.2d at 5.
In Freeman v. Freeman, 79 Nev. 33, 35, 378 P.2d 264, 265 (1963), we stated that: the
action of the trial court in awarding alimony in a proper case will not be disturbed on appeal.
The trial court was within our Buchanan, supra, pronouncements, and we conclude that this
is a proper case for the award of alimony and that there was no abuse in the amount of the
award.
4. Award of Attorney's Fees.
[Headnotes 7, 8]
Appellant next objects to the trial court's award of $3,000 to respondent for attorney's fees.
An award of attorneys' fees in a divorce proceeding falls within the sound discretion of the
trial court. NRS 125.150(2); Fletcher, supra; Fox v. Fox, 81 Nev. 186, 401 P.2d 53 (1965).
Appellant contends that since respondent was awarded certain items of community property,
including some shares of readily salable stock, that she should accept the burden of her fees
and that the trial court abused its discretion in awarding such fees. We cannot accept
appellant's argument. Necessitous circumstances are no longer a prerequisite to the awarding
of fees. Sargeant v. Sargeant, 88 Nev. 223, 495 P.2d 618 (1972).
[Headnote 9]
Here, the trial judge was thoroughly familiar with the file and proceedings, presided over
the initial trial as well as supplemental proceedings, and was familiar with pretrial activity
and probable time dedication in terms of counsel's preparation for trial. The record further
shows that a reasonable record was made substantiating the ultimate award. Nothing has been
presented to indicate that the lower court abused its discretion.
5. Outstanding Debts.
[Headnote 10]
The trial court ordered appellant to assume all outstanding debts incurred by respondent
prior to the May decree. Appellant contends that this order is so vague and uncertain as to be
void, thereby providing a basis for reversal. We cannot agree. Here, the trial court, in its
partial decree of divorce of January 29, 1976, ordered appellant to continue to pay
respondent's necessary expenses, which, as the record reflects, he had done for several years
previous, and further ordered appellant to pay $300 per month until the date of the
supplemental decree of May 17, 1976. It was on this later date that appellant was ordered to
pay all of the outstanding bills incurred by the parties hereto including monies borrowed by
the plaintiff (respondent herein) up to May 1, 1976. In Smith v. District Court, 63 Nev. 249,
167 P.2d 648 (1946), this Court stated: A judgment or decree may be so uncertain and
indefinite as to be impossible of administration, unenforceable and void. And a judgment may
be partly valid and partly void. Id. at 257, 167 P.2d at 651.
P.2d at 651. That case is distinguished, as the Smith court stressed that in water rights cases,
greater certainty was required. In Kittle v. Lang, 237 P.2d 673 (Cal.App. 1951), a case whose
facts are somewhat allied to ours, a judgment was entered requiring the defendant to pay all
sums of money . . . for and on behalf of plaintiff . . . . Id. at 678. That judgment was reversed
for uncertainty with the court stating: As to the finding and judgment for the payment of
money, a stricter rule seems to prevail, i.e., that a judgment of money must be stated with
certainty and should specify the amount. Id.
As stated in 49 C.J.S., Judgments, 72:
A judgment must be definite and certain in itself, or capable of being made so by proper
construction. It must fix clearly the rights and liabilities of the respective parties to the
cause, and be such as defendant may readily understand and be capable of performing,
and such as to admit of enforcement. . . . Where the record entry is wholly uncertain,
repugnant, or contradictory, the judgment is at least erroneous, and it may be void. An
obscure judgment entry may, however, be construed with reference to the pleadings and
record, and, where on the whole record its sense can be clearly ascertained, the
judgment will be upheld. (Emphasis added; footnotes omitted.)
As already mentioned, appellant for the several years preceding commencement of the
divorce action had assumed responsibility for all the bill paying for the parties. Throughout
the transcript there are numerous references to ordinary and fixed expenses of the parties.
Appellant was thoroughly familiar with the bills and all creditor information, including the
names of creditors, the nature of the obligations, the balances, when the debts were payable,
and the like. Moreover, respondent testified, without contradiction, that she had not
purchased any extraordinary or luxury items since the January hearing. Although the decree
may be uncertain on its face, a review of the record demonstrates sufficient clarity and
definiteness to enable appellant to comply with the decree's requirements.
Here, appellant took no steps in the court below to either set aside or amend the judgment,
NRCP 59(e), or to clarify the decree, NRCP 60(a).
2
Had he, such action may have averted
appellate review.
[Headnote 11]
Finally, respondent has moved for attorney's fees on appeal. The awards given respondent
in community property and alimony show that she is sufficiently capable of financing her
own appeal.
____________________

2
Appellant's present counsel was not counsel of record in the court below.
appeal. We have allowed fees on appeal when a clear showing of entitlement has been
presented and circumstances so warrant. Reid v. Reid, 89 Nev. 460, 514 P.2d 1294 (1973);
Leeming v. Leeming, 87 Nev. 530, 490 P.2d 342 (1971). Here, such a showing is absent, and
we accordingly deny the request for fees.
Appellant's remaining claims of error, being without merit, are rejected.
Affirmed in part; reversed in part and remanded for redistribution of the two community
property automobiles.
Batjer, C. J., and Mowbray and Gunderson, JJ., and Babcock, D. J.,
3
concur.
____________________

3
The Governor designated the Honorable Howard W. Babcock, Judge of the Eighth Judicial District, to sit in
the place of The Honorable Gordon Thompson, Justice, who was disabled. Nev. Const. art. 6, 4.
____________
94 Nev. 42, 42 (1978) State ex rel. PSC v. District Court
THE STATE OF NEVADA, Ex Rel. PUBLIC SERVICE COMMISSION OF NEVADA,
NOEL A. CLARK, Chairman, EVO A. GRANATA and HEBER P. HARDY, As Members
of the Commission, Petitioners, v. THE FIRST JUDICIAL DISTRICT COURT OF THE
STATE OF NEVADA, IN AND FOR CARSON CITY, NEVADA, THE HONORABLE
STANLEY A. SMART, Judge Thereof, and SOUTHWEST GAS CORPORATION, a
California Corporation, Respondents.
No. 9706
January 26, 1978 574 P.2d 272
Petition for writ of prohibition to vacate order entered in the First Judicial District Court,
Carson City; Stanley A. Smart, Judge.
The Public Service Commission, a state agency, petitioned to prohibit the district court
from imposing contempt of court sanctions for failure to comply with trial court order
following notice of appeal by Commission without an application for stay. The Supreme
Court, Manoukian, J., held that although State or its agencies did not have to file a bond, it
was required to file a separate and distinct application for stay of trial court order pending
appeal.
Petition denied.
Robert List, Attorney General, and George M. Keele, Deputy Attorney General, Carson
City, for Petitioners.
Guild, Hagen, and Clark, Ltd., and Thomas J. Hall, Reno, for Respondents.
Appeal and Error.
State of Nevada and its agencies is not entitled to stay of trial court's judgment on mere filing of notice of
appeal, and must make a separate and distinct application for a stay, even though not required to file bond.
NRCP 62(d)(e); Const. art. 6, 4.
OPINION
In early 1975, petitioner Public Service Commission of Nevada (hereinafter referred to as
Commission), a State agency, issued its opinion and order denying an application by
respondent Southwest Gas Corporation (hereinafter referred to as Southwest) to increase
rates to its customers to recover through a proposed surcharge approximately $109,188.00 in
revenues lost when a supplier of gas to Southwest raised its price. In late 1975 Southwest
commenced an action in the district court seeking judicial review of the Commission's order.
Respondent judge in December of 1976 entered an order directing the Commission to grant
the application for surcharge. On January 27, 1977, the Commission timely filed its notice of
appeal from the district court's order and judgments. That appeal is docketed to be heard in
this Court at a subsequent date.
The facts relating to the instant matter concern events which transpired after the
Commission had filed its notice of appeal. The Commission did not seek a stay of the trial
court's order pending review by this Court. Respondent Southwest attempted to induce
compliance with the court order by involving a contempt of court sanction against the several
petitioners. Following a show cause hearing, the trial court issued its order finding petitioner
Commission and its individual members in contempt. A supplemental order subsequently
issued requiring petitioners to advise the trial court by a certain date what actions it had taken
to implement the court's previous order to grant the surcharge application or, alternatively, to
be punished for contempt.
Petitioners then filed the petition for prohibition currently before this Court to prohibit the
trial court from imposing contempt of court sanctions. This Court temporarily stayed the
lower court's order pending a determination pertaining to this preliminary question.
lower court's order pending a determination pertaining to this preliminary question.
The case essentially involves statutory interpretation. The thrust of petitioners' argument
focuses principally on the language of Nevada Rules of Civil Procedure, Rule 62(d) and
62(e), as read in conjunction with Nevada Rules of Appellate Procedure, Rule 8(a).
1

In the ordinary course of civil appeals, an appellant must comply with Rule 8(a) which
provides that an application for stay of a judgment or order must typically be made to the
district court. This application, as well, must concurrently comply with Rule 62(d) requiring a
supersedeas bond.
When an appeal is taken the appellant by giving a supersedeas bond may obtain a stay.
The bond may be given at or after the time of filing the notice of appeal. The stay is
effective when the supersedeas bond is filed. (Emphasis added.)
When the State of Nevada or its agency appeals a civil judgment, however, the
requirement of a supersedeas bond no longer obtains. Rule 62(e) reads, in part:
When an appeal is taken by the State . . . and the operation or enforcement of the
judgment is stayed, no bond, obligation, or other security shall be required from the
appellant. (Emphasis added.)
A review of the several analogous sections of the Nevada Rules of Civil Procedure
evidences their consistency with our ultimate conclusion that the sufficiency and amount of
the supersedeas bond are secondary and a distinctly separate consideration from the issue of
entitlement to the stay. For example, relevant sections of the Rules provide as follow:
NRCP 62(a): Execution . . . to enforce a judgment may issue . . . unless the court in its
discretion and on such conditions for the security of the adverse party as are proper,
otherwise directs. (Emphasis added.)
____________________

1
NRAP 8(a) provides in part as follows: Application for a stay of the judgment or order of a district court
pending appeal, or for approval of a supersedeas bond . . . must ordinarily be made in the first instance in the
district court. A motion for such relief may be made to the Supreme Court or to a justice thereof, but the motion
shall show that application to the district court for the relief sought is not practicable, or that the district court
has denied an application, or has failed to afford the relief which the applicant requested, with the reasons given
by the district court for its action. . . . (Emphasis added.)
We believe it is sound policy for the district court to first consider applications for stays, particularly given
the time restraints typically associated with such application. NRAP 8(a).
NRCP 62(b): In its discretion and on such conditions for the security of the adverse
party as are proper, the court may stay the execution of . . . a judgment pending the
disposition of a motion. . . . (Emphasis added.)
NRCP 62(c): When an appeal is taken from an interlocutory or final judgment granting,
dissolving, or denying an injunction, the court in its discretion may suspend, modify,
restore, or grant an injunction during the pendency of the appeal upon such terms as to
bond . . . as it considers proper for the security of the rights of the adverse party.
(Emphasis added.)
Although the conjunctive and in Rule 62(e) requires a separate application for a stay of
judgment, petitioners ask us to interpret the language as being superfluous. Respondents
request a literal reading.
Petitioners contend that notwithstanding the use of the permissive may in Rule 62(d) the
federal courts have held, subject to satisfactory procedural compliance with the supersedeas
bond requirement, the taking of an appeal entitles the appellant to a stay of judgment as a
matter of right. Ivor B. Clark Co. v. Hogan, 296 F.Supp. 407 (S.D. N.Y. 1969); American
Manuf. Mut. Ins. Co. v. American Broadcasting-Paramount Theaters, Inc., 87 S.Ct. 1 (1966).
Petitioners further contend that the discretion of the trial judge is limited solely to
determining whether the conditions of the bond conform to the statutory language. They
suggest that the Court may approve or disapprove of a tendered bond, but once approved,
the trial court has no further discretion and a stay of judgment is automatically invoked. See,
In re Federal Facilities Realty Trust, 227 F.2d 651 (7th Cir. 1955). We are not persuaded by
this reasoning.
In the instant case, if the premise is adopted that the permissive may in NRCP, Rule
62(d), as contended by petitioners, limits the trial court's discretion only to determining the
adequacy of the supersedeas bond, and if upon adequacy of the bond, a non-governmental
appellant is entitled to a stay of judgment as a matter of right, then it might logically follow
that the State of Nevada or its agency, not required to post a bond, is entitled to a stay of
judgment upon the mere filing of the notice of appeal. Not only here would such a result
torture our prevailing rules of court, but such a determination would render the language
meaningless and would do untold mischief to the effective administration of justice. We find
the language in our Rules to be plain and unambiguous, with no need for construction.
construction. Compare, Schoonover v. Caudill, 337 P.2d 402 (N.M. 1959); In re Walters'
Estate, 60 Nev. 172, 104 P.2d 968 (1940). We accordingly interpret the may in Rule 62(d)
to be permissive and not mandatory and construe the conjunctive and contained in Rule
62(e) to require a separate and distinct application for a stay.
The petition for a writ of prohibition is denied.
Batjer, C. J., and Mowbray and Gunderson, JJ., and Goldman, D. J.,
2
concur.
____________________

2
The Governor designated the Honorable Paul S. Goldman, Judge of the Eighth Judicial District, to sit in the
place of The Honorable Gordon Thompson, Justice, who was disabled. Nev. Const. art. 6, 4.
____________
94 Nev. 46, 46 (1978) Henry v. Sheriff
WILBUR GEORGE HENRY, Appellant, v. SHERIFF,
CLARK COUNTY, NEVADA, Respondent.
No. 10398
January 26, 1978 573 P.2d 671
Appeal from order denying pretrial petition for writ of habeas corpus, Eighth Judicial
District Court, Clark County; Michael J. Wendell, Judge.
The Supreme Court held that evidence not complained of was sufficient to meet statutory
probable cause standard and the presence, companionship and conduct criteria specified in
case law and thus was sufficient to sustain the indictment as against the contention that
admissible evidence presented to the grand jury did not establish that defendant had
felonious possession of stolen property.
Affirmed.
Jeffrey D. Sobel, Las Vegas, for Appellant.
Robert List, Attorney General, Carson City; George E. Holt, District Attorney, and L. J.
O'Neale, Deputy District Attorney, Clark County, for Respondent.
Indictment and Information.
Evidence not complained of was sufficient to meet statutory probable cause standard and presence,
companionship and conduct criteria specified in case law and thus was sufficient to sustain indictment as
against contention that "admissible" evidence presented grand jury did not establish
that defendant had felonious possession of stolen property.
contention that admissible evidence presented grand jury did not establish that defendant had felonious
possession of stolen property. NRS 172.155, 205.275.
OPINION
Per Curiam:
Pursuant to a True Bill Returned by the Clark County Grand Jury, Wilbur George Henry
was charged, by indictment, with the felonious possession of stolen property (NRS 205.275).
A pretrial petition for a writ of habeas corpus contended, inter alia, the admissible evidence
which the prosecuting attorney had presented to the grand jury did not establish that Henry
had probably committed the charged offense. Habeas was denied and in this appeal the same
contention is reasserted.
At the grand jury proceedings, an employee of a car rental agency testified that a 1977
white Chevrolet Nova automobile had been rented to Michael J. Woodwyk. Mr. Woodwyk
testified that he had rented such an automobile and left it in the care of a hotel bell captain or
carhop. He also testified that he called for the car several hours later and was advised that it
could not be found.
Other evidence came from an undercover Las Vegas Police Officer who narrated that a
1977 white Chevrolet Nova automobile had been purchased from one Morale, for $300. The
undercover agent also testified that Henry and Morale participated in the price negotiations
and that Henry was present when Morale received the $300.
Henry's central claim of error is that the undercover agent could not specifically identify
the vehicle license number without referring to a written report prepared by another police
officer in Henry's presence. Even if we concede the merit of this claim and disregard such
testimony, in our view the other recited evidence is sufficient to meet the probable cause
standard delineated in NRS 172.155, and the presence, companionship and conduct criteria
specified in Robertson v. Sheriff, 85 Nev. 681, 462 P.2d 528 (1969).
[W]e are not now concerned with the prospect that the evidence presently in the record
may, by itself, be insufficient to sustain a conviction. McDonald v. Sheriff, 89 Nev. 326,
327, 512 P.2d 774, 775 (1973). Other issues do not warrant comment. Accordingly, we
affirm.
____________
94 Nev. 48, 48 (1978) Grego v. Sheriff
JEROME GREGO Appellant, v. SHERIFF, CLARK
COUNTY, NEVADA, Respondent.
Nos. 9937 and 9939
January 26, 1978 574 P.2d 275
Appeals from orders denying pretrial petitions for writs of habeas corpus. Eighth Judicial
The Supreme Court, Mowbray, J., held that statute conditioning use of pretrial petitions
for writs of habeas corpus on petitioner's waiver of the 60-day limitation for trial is a
reasonable legislative regulation of writ and is not an unconstitutional suspension of writ of
habeas corpus.
Affirmed.
Robert N. Peccole, Las Vegas, for Appellant.
Leon Simon, Chief Appellate Deputy District Attorney, Clark County, for Respondent.
1. Habeas Corpus.
Both United States constitution and Nevada constitution prohibit abolishment of habeas corpus. NRS
34.375; Const. art. 1, 5; art. 6, 4, 6; U.S.C.A.Const. art. 1, 9, cl. 2.
2. Habeas corpus.
Nevada statute conditioning a pretrial petition for writ of habeas corpus upon a petitioner's waiver of
60-day limitation for trial is not an unconstitutional suspension of right to writ and is a reasonable
legislative regulation. NRS 34.375; Const. art. 1, 5; art. 6, 4, 6.
OPINION
By the Court, Mowbray, J.:
Appeals have been taken from orders of the district court denying appellant's petitions for
writs of habeas corpus that challenge the constitutionality of NRS 34.375.
1
Appellant was
indicted for sale of a controlled substance, a felony, and conspiracy to sell a controlled
substance, a gross misdemeanor.
____________________

1
NRS 34.375, in relevant part:
1. Except as provided in subsection 2, a pretrial petition for a writ of habeas corpus based on alleged want of
probable cause or otherwise challenging the court's right or jurisdiction to proceed to the trial of a criminal
charge shall not be considered unless:
(a) The petition and all supporting documents are filed within 21 days after the first appearance of the
accused in the district court; and
(b) The petition contains a statement that the accused:
(1) Waives the 60 day limitation for bringing an accused to trial;
Appellant was indicted for sale of a controlled substance, a felony, and conspiracy to sell a
controlled substance, a gross misdemeanor. The district judge denied the petitions for habeas.
We affirm.
Appellant, who has predicated his claims for habeas on the insufficiency of the evidence to
sustain his indictments and on a unreasonable prearrest delay, suggests that the imposed
stipulations of the statutee.g., waiver of the 60-day limitation for trialsuspend his
constitutional rights to the writs. We do not agree.
2

[Headnote 1]
Any attempt by the Legislature to abolish habeas corpus is prohibited by the United States
Constitution and the Nevada Constitution.
3

[Headnote 2]
NRS 34.375 does not constitute a suspension of habeas corpus. It is a reasonable
regulation of the writ by the Legislature and does not violate the antisuspension clause, so
long as the traditional efficacy of the writ is not impaired. LaGore v. Ramsey, 126 S.W.2d
1153 {Mo.
____________________
(2) If the petition is not decided within 15 days before the date set for trial, consents that the court may,
without notice of hearing, continue the trial indefinitely or to a date designated by the court;
(3) If any party appeals the court's ruling and the appeal is not determined before the date set for trial,
consents that the trial date is automatically vacated and the trial postponed unless the court otherwise orders.

2
The Nevada Legislature has provided that the sufficiency of the evidence to sustain an indictment may be
challenged by a pretrial writ of habeas. NRS 172.155(2).
We note that, although the federal courts have long examined the evidence behind an indictment to determine
probable cause under the federal removal statute [e.g., Tinsley v. Treat, 205 U.S. 20 (1907); Price v. Henkel,
216 U.S. 488 (1910)], the Supreme Court has rejected the contention that any constitutional right is involved. In
Costello v. United States, 350 U.S. 359 at 363 (1956), the High Court articulated concerns which may have
prompted many jurisdictions to limit this use of the writ:
If indictments were to be held open to challenge on the ground that there was inadequate or
incompetent evidence before the grand jury, the resulting delay would be great indeed. The result of such
a rule would be that before trial on the merits a defendant could always insist on a kind of preliminary
trial to determine the competency and adequacy of the evidence before the grand jury. This is not
required by the Fifth Amendment.

3
The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or
Invasion the public Safety may require it. U.S. Const. art. I, 9, cl. 2. This provision is incorporated in the
Nevada Constitution, Declaration of Rights, art. 1, 5: The privilege of the writ of Habeas Corpus, shall not be
suspended unless when in cases of rebellion or invasion the public safety may require its suspension. The
Nevada Constitution also confers jurisdiction to issue the writ upon the Supreme Court and its Justices, art. 6,
4, and upon the district courts in which petitioners are held in custody, art. 6, 6.
Ramsey, 126 S.W.2d 1153 (Mo. 1939); Johnson v. Burke, 148 N.E.2d 413 (Ind. 1958).
The scope of the writ of habeas corpus is not altered by NRS 34.375. The statute merely
imposes certain procedural requirements. Randolph v. Sheriff, 93 Nev. 532, 569 P.2d 408
(1977). The Supreme Court of Colorado has held: Although the privilege of the writ of
habeas corpus is constitutionally guaranteed, the procedural mechanism for its exercise may
change. People ex rel. Wyse v. District Court, 503 P.2d 154, 156 (Colo. 1972). See also
United States ex rel. Wakeley v. Commonwealth of Pennsylvania, 257 F.Supp. 644 (W.D. Pa.
1966).
Other state courts have upheld the constitutionality of habeas corpus legislation which has
limited the nature of habeas relief [LaGore v. Ramsey, 126 S.W.2d 1153 (Mo. 1939)]; limited
jurisdiction to grant habeas petitions to a particular court [Lash v. Wright, 287 N.E.2d 255
(Ind.App. 1973)]; or limited the scope of inquiry on habeas corpus in extradition proceedings
[Johnson v. Burke, 148 N.E.2d 413 (Ind. 1958)].
4

In United States v. Hayman, 342 U.S. 205 (1952), the United States Supreme Court upheld
the constitutionality of 28 U.S.C. 2255, which provided that application for post-conviction
relief could not be entertained if petitioner had failed to apply for relief by motion, or had
applied and been denied, and could not demonstrate that the motion remedy was inadequate.
The Court noted that the statute represented a reform passed at the instance of the Judicial
Conference to meet practical difficulties that had arisen in administering the habeas corpus
jurisdiction of the federal courts. 342 U.S. at 219. The court further observed that the statute
merely expressed a result which would have followed under our decision. 342 U.S. at 223,
n. 40.
The legislative reform represented by NRS 34.375 was similarly designed to deal with
practical administrative problems faced by the courts of Nevada.
5
Courts have become
clogged with repeated appearances by pretrial petitioners seeking continuance of trial,
particularly when denials of petitions are appealed.
____________________

4
In the first half of the nineteenth century, many states precluded examination of the evidentiary basis for an
indictment. D. Oaks, Habeas Corpus in the States: 1776-1865, 32 Chi.L.Rev. 243, 261 (1965); and see R. Hurd,
Habeas Corpus, 435, 439-440 (1876; 1972 ed.). Several state legislatures have passed similar laws in the
twentieth century, some even prohibiting review of any judicial finding of probable cause. See Ex parte Kruse,
71 P.2d 318 (Okla.Crim.App. 1937); Harris v. Whittle, 10 S.E.2d 926 (Ga. 1940).

5
In this State, pretrial petitions are particularly numerous, since petitioners are entitled to a transcript of the
grand jury proceedings in order to challenge probable cause, Ivey v. State, 82 Nev. 448, 420 P.2d 853 (1966),
and the writ is available to those released on bail, Ex parte Philipie, 82 Nev. 215, 414 P.2d 949 (1966).
with repeated appearances by pretrial petitioners seeking continuance of trial, particularly
when denials of petitions are appealed. The legislation at issue is designed to deal with this
administrative problem by providing an automatic procedure in place of a cumbersome series
of appearances.
Furthermore, this court has repeatedly held that the consequence of filing a pretrial petition
for habeas corpus is a waiver of the 60-day rule, to the extent that delay is caused by
petitioner's action. Oberle v. Fogliani, 82 Nev. 428, 420 P.2d 251 (1966). Therefore, as in
Hayman, the statute merely represents a codification of prior decisions. The requirement that
petitioners expressly waive the statutory privileges merely insures that they will be on notice
of the consequences.
The statute is a reasonable legislative regulation of the writ of habeas corpus and therefore
does not violate the antisuspension clause of the United States Constitution or the Nevada
Constitution.
We conclude, therefore, that NRS 34.375 is constitutional and is a reasonable legislative
regulation of the writ of habeas corpus. The orders denying habeas are affirmed.
Batjer, C. J., and Gunderson, Manoukian, and Zenoff,
6
JJ., concur.
____________________

6
6, 19.
____________
94 Nev. 51, 51 (1978) McCullough v. State
JOE LOUIS McCULLOUGH, Appellant, v. THE
No. 9728
January 30, 1978 574 P.2d 585
Appeal from judgment entered upon guilty plea to offense of attempted burglary; Second
Judicial District Court, Washoe County; John E. Gabrielli, Judge.
The Supreme court held that: (1) fact that defendant had only an eighth grade education
did not require trial court to inquire into defendant's competency to enter guilty plea, in
absence of any evidence suggesting incompetency, and (2) sentence of four years'
imprisonment was within statutory authorization and was not excessive, notwithstanding fact
that such sentence exceeded the sentence recommended by the Department of Parole and
Probation.
Affirmed.
[Reporter's note: McCullough v. State, Adv. Op. 164, filed September 19, 1977, was
recalled October 4, 1977.] William M.
William M. Dunseath, Public Defender, and Michael B. McDonald, Deputy Public
Defender, Washoe County, for Appellant.
Larry R. Hicks, District Attorney, and John L. Connor, Assistant Chief Deputy District
Attorney, Washoe County, for Respondent.
1. Criminal Law.
Fact that defendant had only an eighth grade education did not require trial court to inquire into
defendant's competency to enter a guilty plea, in absence of any evidence suggesting incompetency.
2. Burglary.
Sentence of four years' imprisonment imposed upon defendant convicted of attempted burglary was
within statutory authorization and was not excessive, notwithstanding fact that such sentence exceeded the
sentence recommended by Department of Parole and Probation. NRS 205.060, 208.070.
OPINION
Per Curiam:
Upon his plea of guilty to the crime of attempted burglary, the appellant was sentenced to
serve a term of four years in prison. He now complains that the court should have inquired
into his competency to enter a guilty plea since he had only an eighth grade education; that he
had been promised probation by someone; and, in any event, the sentence imposed is too
severe.
[Headnote 1]
His contentions are before us because of Anders v. California, 386 U.S. 738 (1967), and
Sanchez v. State, 85 Nev. 95, 450 P.2d 793 (1969), and counsel for appellant has filed with
us his affidavit of no merit appeal. Our independent review of the record reveals that this
appeal is frivolous.
Authority is not cited for the proposition that an accused with only an eighth grade
education is to be presumed incompetent to knowingly and intelligently plead guilty, nor are
we aware of any such authority. There was nothing presented to the district court to suggest
incompetency.
Neither does the record hint a promise of probation. To the contrary, it is clear that the
appellant knew that the matter of sentence rested exclusively with the court.
[Headnote 2]
The sentence imposed was within statutory authorization, NRS 205.060, 208.070. Cf.
Carter v. State, 84 Nev. 592, 446 P.2d 165 (1968). The fact that the sentence imposed by the
court exceeded the sentence recommended by the Department of Parole and Probation is
of no consequence.
court exceeded the sentence recommended by the Department of Parole and Probation is of
no consequence. Collins v. State, 88 Nev. 168, 494 P.2d 956 (1972). The victim of the
attempted burglary was a 72-year-old woman whom the appellant admitted striking. She
suffered injuries and was hospitalized. This alone may have persuaded the court to impose a
more severe sentence than recommended by the department.
Affirmed.
____________
94 Nev. 53, 53 (1978) Sievers v. Zenoff
FERDIE SIEVERS and VIRGINIA SIEVERS, his Wife; and SECURITY NATIONAL
BANK OF NEVADA, a National Banking Association, Appellants, v. DAVID ZENOFF and
BEVERLY ZENOFF, his Wife; DON TOWNSEND and LELA J. TOWNSEND, his Wife;
RUDOLPH S. GERSICK and GERTRUDE A. GERSICK, his Wife; and F. G. LEONETTI
and ECHO LEONETTI, his Wife, Respondents.
No. 9835
January 30, 1978 573 P.2d 1190
Appeal from a declaratory judgment of the Second Judicial District Court, Washoe
County; John W. Barrett, Judge.
Suit was instituted for declaratory judgment defining extent of certain easements created
by deeds. The district court entered judgment for plaintiffs, and defendants appealed. The
Supreme Court held that: (1) trial court was justified in concluding, on basis of testimony of
plaintiffs as owners of dominant tenements as to representations made to them by defendants
as owners of servient estate at time of purchases, that intent of parties at time easements were
granted was to convey nonexclusive easements over entire servient estate to plaintiff as
owners of dominant tenements, and (2) trial court was not precluded from enjoining owners
of servient estate and their heirs, successors and assigns from interfering or interrupting in
any manner quiet enjoyment of permanent easement over property held by owners of
dominant tenements where injunctive order made no specific reference to servient owners'
proposed use of property.
Affirmed.
[Rehearing denied March 15, 1978]
Vargas, Bartlett & Dixon, and John P. Sande, III, Reno, for Appellants Ferdie and
Virginia Sievers.
Hawkins, Rhodes, Sharp & Barbagelata, Reno, for Appellant Security National Bank of
Nevada.
Guild, Hagen & Clark, Ltd., and Thomas J. Hall, Reno, for Respondents.
1. Easements.
Extent of an easement created by deed is generally fixed by that deed.
2. Evidence.
Extrinsic evidence is not admissible for purpose of interpreting clear and unambiguous terms of an
easement created by deed.
3. Easements.
When width of an easement is not specified, conveying instrument must be construed in light of facts and
circumstances existing at its date and affecting property, intention of parties being object of inquiry.
4. Easements.
Trial court was justified in concluding, on basis of testimony of plaintiffs as owners of dominant
tenements as to representations made to them by defendants as owners of servient estate at time of
purchases, that intent of parties at time easements were granted was to convey nonexclusive easements over
entire servient estate to plaintiffs as owners of dominant tenements.
5. Evidence.
The trial court has the right as the trier of fact to consider the credibility of witnesses.
An appellant's construction of the facts will not be substituted by the Supreme Court for the meaning
given them by the trial court.
7. Easements.
Bank, as owner of deed of trust to which servient estate was subject, was not in a position to challenge
trial court's determination that owners of dominant tenements were entitled to nonexclusive easements over
entire servient estate, where bank had constructive notice of easements by virtue of recorded deeds. NRS
111.315, 111.320.
8. Declaratory Judgment.
Trial court was not precluded in declaratory proceedings from enjoining owners of servient estate and
their heirs, successors, and assigns from interfering or interrupting in any manner quiet enjoyment of
permanent easement over property held by owners of dominant tenements where injunctive order made no
specific reference to servient owners' proposed use of property.
OPINION
Per Curiam:
This is an appeal from a declaratory judgment defining the extent of certain easements
created by deeds. Respondents Zenoff et al., by their complaint, and Appellants Ferdie and
Virginia Sievers (hereafter jointly referred to as the Sieverses) and Security National Bank of
Nevada (hereafter, Bank), by their respective answers, have sought determination of their
rights under easements granted respondents over land currently owned by the Sieverses and
subject to a deed of trust owned by Bank.
owned by the Sieverses and subject to a deed of trust owned by Bank. The court below found
in favor of the respondents; hence, this appeal. The existence of the easements is not in
dispute, and the principal issue presented is narrowed to the trial court's ruling as to the scope
and extent of the easements.
1. The Facts.
Respondents purchased homes in Skyland Subdivision, Zephyr Cove, Nevada, from the
Sieverses and coowner, Swift Builders. Their four homes were located on Parcel A, on lots
designated A-1 through A-4, respectively. The remaining portion of Parcel A was retained by
the Sieverses and Swift Builders. Subsequently, the Sieverses acquired sole fee ownership of
the property, which eventually came to be designated Lot A-5. It has always been used by
respondents as a common area for ingress, egress, and parking.
It later became known to respondents that the Sieverses wished to construct a house on Lot
A-5. Respondents disputed the Sieverses' right to build, claiming such action would interfere
with their easements. Respondents then commenced this action, seeking a declaration of the
rights of the parties in and to Lot A-5.
The easement grant contained in each of the deeds of respondents is as follows:
a non-exclusive right-of-way and easement for ingress to and egress from the
above-described parcel to Skyland Court, as shown on the map of Skyland Subdivision
No. 1, filed in the office of the County Recorder of Douglas County, Nevada, on
February 27, 1958, over and across the following described parcel:
[Two deeds contain a legal description of Lot A-5 in its entirety; the other two except a
portion thereof.]
TOGETHER WITH the right to install, operate, repair, maintain and replace leaching
lines in common with others entitled to use the same granted by Document recorded in
Book 17 of Official Records at page 599 under Document No. 22641, Douglas County,
Nevada, Records.
Various respondents testified that agents or the partner of the Sieverses represented to
them at the time of their purchases of Lots A-1 through A-4 that the remaining portion of
Parcel A would be a common area for the four existing homes, that it could be used for
parking, and that no house would ever be built thereon.
The trial court found that defendants gave, and plaintiffs understood they were acquiring,
an easement to use Parcel [Lot] A-5 as a common area in connection with their ownership
and occupancy of Parcels [Lots] A-1 through 4, and that now, years later, defendants have
decided otherwise than they originally intended, represented and accomplished."
that now, years later, defendants have decided otherwise than they originally intended,
represented and accomplished.
In its written judgment the trial court declared (1) that plaintiffs (respondents) were
entitled to a permanent easement for parking, ingress, egress and utility purposes . . . over
and including Parcel [Lot] A-5; (2) that defendants the Sieverses and their heirs, successors,
and assigns were permanently enjoined from interfering or interrupting in any manner the
quiet enjoyment thereof by respondents and their guests; and (3) that respondents were to
assume and pay all taxes and assessments on Lot A-5 from the date of judgment.
2. The Issues.
A. The Easement Included all of Lot A -5.
[Headnotes 1-3]
The existence of an easement over and across Lot A-5 is not in dispute. Appellants contest
only its extent, as determined by the trial court. The basic rules for determining the extent of
an easement created by deed are set forth in Cox v. Glenbrook Co., 78 Nev. 254, 371 P.2d
647 (1962). The general rule is that the extent of an easement created by conveyance is fixed
by the conveyance. 78 Nev. at 262, 371 P.2d at 652. Extrinsic evidence is not admissible for
the purpose of interpreting clear and unambiguous terms. 78 Nev. at 261-262, 371 P.2d at
652. However, [w]hen the width [of the easement] is not specified, the conveying instrument
must be construed in the light of the facts and circumstances existing at its date and affecting
the property, the intention of the parties being the object of inquiry. 78 Nev. at 264, 371 P.2d
at 654.
[Headnote 4]
In the case at hand, the deeds conveyed an easement over and across Lot A-5. The trial
court was justified in concluding, on the basis of respondents' testimony as to the
representations made to them at the time of their respective purchases, and as to their own
understanding of the conveyances, that the intent of the parties at the time the easements were
granted was to convey nonexclusive easements to the owners of the four dominant tenements
over all of Lot A-5.
[Headnotes 5, 6]
Although Mr. Sievers testified at one point that he had always intended to build on A-5, he
also admitted that it was not a definite thing. As the trier of fact the trial court had the
right to consider the credibility of witnesses; the appellate court will not substitute an
appellant's construction of the facts for the meaning given them by the trial judge. Fox v.
First W.
First W. Sav. & Loan Ass'n, 86 Nev. 469, 472, 470 P.2d 424, 426 (1970).
[Headnote 7]
Bank is in no better position than the Sieverses with regard to its challenge of the trial
court's determination of the width of the easements. It had constructive notice of the
easements by virtue of the four recorded deeds. NRS 111.315 and 111.320. Since the trial
court's determination may be upheld on the basis of its interpretation of the conveyances
themselves, it is unnecessary to determine whether Bank had a further duty of inquiry as to
respondents' actual use of the easement. See Snow v. Pioneer Title Ins. Co., 84 Nev. 480, 444
P.2d 125 (1968).
Upon the basis of the evidence, both documentary and oral, we hold that the Sieverses and
Bank are bound by the trial court's determination that the respondents were entitled under
their recorded deeds to the easements over all of Lot A-5.
B. The Injunction Was Not Premature.
[Headnote 8]
Appellants contend that, since the construction of a house on Lot A-5 has not yet
commenced, the injunction granted by the trial court is precluded in an action for declaratory
relief by the holding in Cox v. Glenbrook Co., 78 Nev. 254, 371 P.2d 647 (1962). This
contention is without merit; the injunction issued by the trial court fully complied with the
requirement set forth in that case.
In Cox, the trial court had issued an injunction based upon its specific determination that a
particular proposed use of an easement by the owners of the dominant tenement would
constitute an illegal burden and surcharge upon the servient estate. 78 Nev. at 266, 371 P.2d
at 655 (emphasis in original). This court held that the trial court should have done no more
than to announce, in general terms, the applicable legal principle within which a subsequent
factual determination could be made if occasion therefor arises. 78 Nev. at 268-269, 371
P.2d at 656.
In this case, the injunction granted by the trial court made no specific reference to the
Sieverses' proposed use of the property; it simply enjoined the Sieverses and their heirs,
successors, and assigns from interfering or interrupting in any manner the quiet enjoyment of
the . . . permanent easement by respondents and respondents' successors, assigns, guests, and
invitees.
We conclude, therefore, that the judgment of the trial court must be upheld. The lower
court's determination that the intent of the parties was to create an easement over and
across all of Lot A-5 is supported by substantial evidence in the record.
intent of the parties was to create an easement over and across all of Lot A-5 is supported by
substantial evidence in the record. The injunction against interference with respondents' use
of the easement was not premature.
Affirmed.
1

____________________

1
The Governor designated Hon. Michael E. Fondi, Judge of the First Judicial District, to sit in place of Hon.
Noel E. Manoukian, Justice, who voluntarily disqualified himself in this case. Nev. Const. art. 6, 4.
____________
94 Nev. 58, 58 (1978) Eikelberger v. Tolotti
FRED L. EIKELBERGER and MARGARET A. EIKELBERGER, Appellants, v. JOHN
TOLOTTI and MARY ELLEN TOLOTTI, Respondents.
No. 9113
February 8, 1978 574 P.2d 277
Appeal from judgment entered on a jury verdict and from an order denying an alternative
motion for additur or a new trial. Second Judicial District Court, Washoe County; Roy L.
Torvinen, Judge.
Sublessors brought action against sublessees-tenants holding over, praying for possession,
back rent and damages. The district court entered judgment on jury verdict for sublessors
assessing rent and damages at $16,206.83, with $2,722.62 interest to time of trial and denied
sublessors' motion for additur or, in the alternative, for a new trial on issue of damages, and
sublessors appealed. The Supreme Court, Mowbray, J., held that sublessors failed to
demonstrate that award of jury was inadequate as to rent, damages, or prejudgment interest,
or that it was in manifest disregard of instructions of court.
Affirmed.
Douglas G. Lohse, Reno, for Appellants.
Stewart and Horton, Ltd., Reno, for Respondents.
1. New Trial.
Party moving for additur must show both that verdict is clearly inadequate and that a new trial should be
granted.
2. New Trial.
In absence of a showing of plain error or a showing of manifest injustice insufficiency of the evidence to
support the verdict is no longer a basis for motion for new trial on issue of damages based upon ground of
manifest disregard by jury of instructions of court. NRCP 59(a), (a)(5).
3. New Trial.
Party moving for new trial on issue of damages based on ground of manifest disregard by jury of
instructions of court must show that had jurors properly applied instructions of court it would have been
impossible for them to reach verdict which they reached. NRCP 59(a), (a)(5).
4. New Trial.
Where jury was entitled, on basis of evidence submitted by sublessors, to conclude that no rent was due
sublessors under sublease as of time of trial, verdict was neither inadequate nor represented manifest
disregard of court's instructions and thus sublessors were not entitled to additur.
5. New Trial.
Where sublessors, suing sublessees-tenants holding over for possession, back rent and damages, neither
objected in trial court nor questioned on appeal instruction that jury was to determine amount of damages
suffered by sublessors because of sublessee's continued possession if they found that sublease had been
validly terminated, sublessors, in order to obtain additur, had to demonstrate, that had such instruction been
properly applied, it would have been impossible for jury to reach conclusion that sublessors' damages were
the amount awarded. NRCP 59(a), (a)(5).
6. Landlord and Tenant.
Sublessees holding over after valid termination of sublease because of their breach became tenants at
sufferance.
7. New Trial.
Where sublessors presented no independent evidence of reasonable rental value of property and jury
would have been justified in concluding that damages for wrongful use and occupation of property by
sublessees holding over did not exceed agreed rental rate, verdict of jury in regard to damages was neither
inadequate nor in manifest disregard of instructions of court and thus sublessors were not entitled to
additur.
8. New Trial.
Where instruction, given without objection, called upon jury to assess interest only for rent due under
sublease and jury was entitled to find that no rent was due under sublease, jury's award in regard to
prejudgment interest was neither inadequate nor in manifest disregard of instructions of jury and thus
sublessors were not entitled to additur.
OPINION
The principal issue presented is whether the jury erred in failing to assess adequate rent,
damages, and prejudgment interest in an action brought by Appellants Eikelbergers against
Respondents Tolottis.
This is the latest in a series of cases that have reached this court involving the same parties
and the leasing of the Y-Rancho Trailer Park. See Eikelberger v. Tolotti, 90 Nev. 463, 530
P.2d 104 (1974); Eikelberger v. Tolotti, 90 Nev. 465, 530 P.2d 105 (1974); and Tolotti v.
Eikelberger, 90 Nev. 466, 530 P.2d 106 (1974), which adjudicated the rights of the parties in
the trailer park for the period prior to January 1, 1972.
This case involves the period from January 1, 1972, to October 31, 1973. During this time,
the Manzos (not parties to this action) and the Tolottis were fee owners of the trailer park and
were lessors under a master lease executed November 11, 1957. The Eikelbergers were
lessees under the 1957 lease and were sublessors of the park, with the exception of the
laundry room, under a sublease back to the Tolottis executed September 1, 1964. Under the
terms of the sublease, the Tolottis, who were operating the park during the period involved in
this case, were to keep accurate accounts and pay the Eikelbergers the net income of the
trailer park, if any, in excess of $1,000 per month. In August 1972, the Eikelbergers, through
their attorney, sent the Tolottis a notice of termination of the sublease, based upon alleged
breaches of the sublease provisions related to rent and accountings for the period 1965-1971.
1. On September 15, 1972, the Eikelbergers, as sublessors, instituted this action against
the Tolottis, as sublessees and tenants holding over, praying primarily for possession, back
rent, and damages.
The master lease expired on October 31, 1973. The major issues at trial, therefore, were
(1) the amount, if any, of back rent due the Eikelbergers under the sublease after January 1,
1972; (2) whether, as the Eikelbergers claimed, the sublease had been validly terminated in
August 1972; and (3), if so, what damages were due the Eikelbergers for the Tolottis'
wrongful possession of the park from August 1972 to October 31, 1973.
The jury found for the Eikelbergers, assessing rent and damages at $16,206.83, with
$2,722.62 interest to the time of trial. In answer to a special interrogatory, the jury also found
that the sublease had been breached by the Tolottis and validly terminated by the
Eikelbergers.
Appellants then moved for additur or, in the alternative, for a new trial on the issue of
damages. Respondents opposed the motion and submitted a motion for remittur. Both
motions were denied. Appellants filed notice of appeal from the jury verdict, the judgment
entered thereon, and the order denying appellants' alternative motion for additur or a new
trial.
2. Appellants assert that the jury erred (1) in failing to award rent and damages in the sum
of $27,112.13, the net profit of the park as calculated by their accountants, deducting $1,000
per month only until termination of the sublease in August 1972, and (2) in failing to grant
prejudgment interest from the time each payment became due.
[Headnote 1]
This court has held that additur is appropriate upon a determination that the damages
awarded by a jury are clearly inadequate, and if so, [that] the case would be a proper one
for granting a motion for a new trial."
inadequate, and if so, [that] the case would be a proper one for granting a motion for a new
trial. Drummond v. Mid-West Growers Cooperative Corp., 91 Nev. 698, 712, 542 P.2d 198,
208 (1975). Appellants, therefore, must show both that the verdict is clearly inadequate and
that a new trial should have been granted.
[Headnotes 2, 3]
Appellants' alternative motion for a new trial on the issue of damages was based upon
NRCP 59(a), which provides that a new trial may be granted on the ground, among others not
available to appellants here, of [m]anifest disregard by the jury of the instructions of the
court. NRCP 59(a)(5). Insufficiency of the evidence to support the verdict is no longer a
basis for such motion, in the absence of a showing of plain error or a showing of manifest
injustice. Fox v. Cusick, 91 Nev. 218, 220, 533 P.2d 466, 467 (1975). Appellants must show
that had the jurors properly applied the instructions of the court `it would have been
impossible for them to reach the verdict which they reached.' Price v. Sinnott, 85 Nev. 600,
606, 460 P.2d 837, 840 (1969), as quoted in Fox v. Cusick, 91 Nev. at 220, 533 P.2d at 467.
Examination of the jury verdict as to rent, damages, and interest reveals that appellants
have not demonstrated either that the verdict is clearly inadequate or that it represents
manifest disregard of the court's instructions.
A. Rent.
[Headnote 4]
As the jury verdict consolidated rent and damages, it is impossible to ascertain how much
of the $16,206.83 sum was allocated to each by the jury. Appellants are entitled only to rent
under the terms of the sublease until August 1972. According to the figures supplied by
appellants' accountants, accrued rental from January to August 1972 amounted to $7,674.04,
against which must be credited payments of $9,677.
If payments received as noted in appellants' accounting are first credited to accrued
interest, at the statutory rate, the Tolottis had fully paid the rent owed under the sublease by
March 1973.
The jury was therefore entitled, on the basis of the evidence submitted by appellants, to
conclude that no rent was due the Eikelbergers under the sublease as of the time of the trial in
March 1976.
B. Damages.
Appellants claim that, after valid termination of the sublease, as found by the jury, they
were entitled to the entire profits of the trailer park, without deduction of $1,000 per month
as provided in the sublease.
as provided in the sublease. They claim that the total rents and damages thus due, after
crediting the Tolottis with payments made and applying those payments first to accrued
interest, amounted to $27,112.13. Respondents, on the other hand, point out that if $1,000 per
month during the period of respondents' holding over (14 months) is deducted from this
figure, the result is some $3,000 less than the jury verdict.
[Headnote 5]
The only instruction submitted to the jury relating to damages simply instructed them,
upon a finding that the sublease had been validly terminated, to determine the amount of the
damages suffered by Eikelbergers because of Tolottis' continued possession of the trailer
park. The instructions were not objected to in trial court, nor are they questioned on appeal.
In order to prevail, then, appellants must demonstrate, which they have failed to do, that had
this instruction been properly applied, it would have been impossible for the jury to reach the
conclusion that appellants' damages amounted to only $16,206.83, a figure which exceeds the
net monthly profits in excess of $1,000 for the period from August 1972 to October 31, 1973.
[Headnote 6]
After August 1972, the Tolottis became tenants at sufferance. See Baker v. Simonds, 79
Nev. 434, 368 P.2d 86 (1963).
According to the Second Restatement of Property (Landlord and Tenant), 14.5, at 30
(1977), a landlord is entitled to recover from a tenant at sufferance for the use and
occupation of the leased property during the holdover period at a rate based on the previous
rental rate, or on the proven reasonable value independently established if that differs from
the previous rental rate.
[Headnote 7]
In the instant case, appellants presented no independent evidence of the reasonable rental
value of the property. Therefore, the jury would have been justified in concluding that the
damages for wrongful use and occupation of the property by the Tolottis did not exceed the
agreed rental ratenet profits in excess of $1,000 per month. See Great Atl. & Pac. Tea Co.
v. Athens Lodge, 207 S.W.2d 217, 226-228 (Tex.Civ.App. 1947) (error to award more than
previous rental rate without independent evidence of change in rental value).
The verdict of the jury in regard to damages was therefore neither clearly inadequate nor
in manifest disregard . . . of the instructions of the court.
C. Prejudgment Interest.
[Headnote 8]
Appellants contend that the jury's award of $2,722.62 in prejudgment interest was clearly
inadequate and in disregard of the court's instructions, because it failed to compute interest
from the date each payment became due. This contention is also without merit.
The relevant jury instruction provided:
If you find that the Eikelbergers are entitled to any rent under the sublease, the
Eikelbergers are also entitled to recover interest upon such rent from the date each
amount of rent became due to the present time at the rate of 7% per annum. In computing
any interest you allow, you must also allow, as a credit, all amounts paid by Tolottis to
Eikelbergers on the rent. Such amounts shall first be credited to interest that has accrued
and the balance then credited to rent.
The instruction, given without objection, called upon the jury to assess such interest only
for rent due under the sublease. As noted above, the jury was entitled to find that no rent, as
such, was due under the sublease. Therefore, appellants have no argument that any
prejudgment interest awarded was inadequate, in light of the instruction given.
We conclude, therefore, that appellants have not demonstrated that the award of the jury
was inadequate as to rent, damages, or prejudgment interest, or that it was in manifest
disregard of the instructions of the court. The verdict, the judgment thereon, and the order of
the court denying additur or a new trial are affirmed.
Batjer, C. J., Thompson and Gunderson, JJ., and Fondi,
1
D. J., concur.
____________________

1
The Governor designated Hon. Michael E. Fondi, Judge of the First Judicial District, to sit in place of Hon.
Noel E. Manoukian, Justice, who voluntarily disqualified himself in this case. Nev. Const. art. 6, 4.
____________
94 Nev. 63, 63 (1978) Sheriff v. Martinez
SHERIFF, CLARK COUNTY, NEVADA, Appellant, v.
HENRY MARTINEZ, Respondent.
No. 10183
February 7, 1978 574 P.2d 281
Appeal from order granting pretrial petition for writ of habeas corpus, Eighth Judicial
District Court, Clark County; Carl J. Christensen, Judge.
Defendant, who was charged with indecent exposure, filed pretrial petition for habeas
corpus. The district court granted habeas, and state appealed. The Supreme Court held that:
(1) statutory provisions requiring habeas corpus petitioners to waive 60-day limit for being
brought to trial is constitutional, and (2) evidence supported reasonable inference that
petitioner probably committed the charged offense.
Reversed.
O'Neale, Deputy District Attorney, Clark County, for Appellant.
Morgan D. Harris, Public Defender, and James B. Gibson, Deputy Public Defender, Clark
1. Habeas Corpus.
Statutory provisions requiring habeas corpus petitioners to waive 60-day limit for being brought to trial is
constitutional. Stat. Nev. 1977, ch. 545.
2. Habeas Corpus.
Evidence adduced at preliminary examination supported reasonable inference that habeas corpus
petitioner, who contended that there was insufficient evidence to establish probable cause, had probably
committed the charged offense of indecent exposure. NRS 171.206, 201.220.
OPINION
Per Curiam:
At the conclusion of a preliminary examination, Henry Martinez was ordered to stand trial
for indecent exposure (NRS 201.220). Martinez then filed a pretrial petition for habeas corpus
contending: (1) Chapter 545 of the 1977 Nevada Statutes, requiring habeas corpus petitioners
to waive the sixty-day limit for being brought to trial, is unconstitutional; and, (2) there is
insufficient evidence to establish probable cause to believe he committed the charged offense.
The district court granted habeas and the State has appealed.
[Headnote 1]
1. Martinez's first contention was considered and rejected in Randolph v. Sheriff, 93 Nev.
532, 569 P.2d 408 (1977). Accord, Grego v. Sheriff, 94 Nev. 48, 574 P.2d 275 (1978).
[Headnote 2]
2. The thrust of Martinez's second contention is that his identification as the perpetrator is
insufficient. Even assuming this issue is cognizable (Sheriff v. Toston, 93 Nev. 394, 566 P.2d
411 {1977)), it is without merit.
P.2d 411 (1977)), it is without merit. See Williams v. State, 93 Nev. 405, 566 P.2d 417
(1977). Evidence adduced at the preliminary examination supports a reasonable inference that
Martinez probably committed the charged offense. NRS 171.206; State v. von Brincken, 86
Nev. 769, 476 P.2d 733 (1970).
Accordingly, we reverse the district court's order granting Martinez's petition for a writ of
habeas corpus.
____________
94 Nev. 65, 65 (1978) Cunningham v. Sheriff
JAMES CUNNINGHAM, Appellant, v. SHERIFF,
No. 10499
February 7, 1978 574 P.2d 282
Appeal from order denying pretrial petition for a writ of habeas corpus, Eighth Judicial
District Court, Clark County; Paul S. Goldman, Judge.
The Supreme Court held that evidence was insufficient to establish probable cause that
petitioner committed charged offense of felonious sale of cocaine.
Reversed, with instructions.
Bell, Leavitt & Green, Chtd., Las Vegas, for Appellant.
Officer's grand jury testimony that, when he arrived at residence where he ultimately negotiated purchase
of cocaine from another person, stranger later identified as petitioner departed residence, allegedly stating
that Your timing is just about perfect. I just dropped the stuff off, was insufficient to establish probable
cause that petitioner had committed charged offense of felonious sale of cocaine. NRS 453.171,
453.321.
OPINION
Per Curiam:
An indictment charged James Cunningham with the felonious sale of cocaine, a controlled
substance (NRS 453.321 and NRS 453.171). A pretrial petition for a writ of habeas corpus
contended there was insufficient evidence to establish probable cause to believe
Cunningham committed the charged offense.
94 Nev. 65, 66 (1978) Cunningham v. Sheriff
cause to believe Cunningham committed the charged offense. Habeas was denied and the
same contention is reasserted in this appeal.
The transcript of the grand jury proceedings reflects that the only evidence relating to
Cunningham was given by an undercover police officer. The officer testified that on
September 26, 1977, when he arrived at the residence where he ultimately negotiated a
purchase of cocaine from another person, a stranger departed the residence. The stranger, who
at a later date was identified as Cunningham, allegedly made the statement: Your timing is
just about perfect. I just dropped the stuff off.
While it is conceivable that the recited facts might establish probable cause that
Cunningham committed some transgression of the law, they are insufficient to establish
probable cause that [he] made a sale' of cocaine. Egan v. Sheriff, 88 Nev. 611, 614, 503
P.2d 16, 18 (1972).
Accordingly, we reverse and remand this case to the district court with instructions to
grant the petition for the writ of habeas corpus.
____________
WILBUR GEORGE HENRY, Appellant, v. SHERIFF,
No. 10397
February 7, 1978 574 P.2d 1011
The Supreme Court held that: (1) evidence before grand jury, including testimony of
undercover officer that defendant had possession of stolen automobile, was sufficient to
establish probable cause for charge of felonious possession of stolen property, and (2) there
was no prosecutorial abuse in electing to pursue charge of possession of stolen property rather
than grand larceny, despite defendant's contention that the latter was the proper offense and
was more difficult to prove.
Affirmed.
1. Indictment and Information.
Evidence before grand jury, including testimony of undercover officer that defendant had possession of
stolen automobile, was sufficient to establish probable cause for charge of felonious possession of stolen
property. NRS 205.275, 205.275, subd. 1.
2. Criminal Law.
There was no prosecutorial abuse in electing to pursue charge of possession of stolen property rather than
grand larceny, despite defendant's contention that the latter was the proper offense and was more difficult
to prove. NRS 173.045, 252.110.
OPINION
Per Curiam:
Pursuant to a True Bill returned by the Clark County Grand Jury, Wilbur George Henry
was charged by indictment with the felonious possession of stolen property (NRS 205.275).
A pretrial petition for writ of habeas corpus was denied, and Henry has appealed contending
(1) a lack of admissible evidence to establish probable cause; and (2) prosecutorial abuse.
[Headnote 1]
Even if we accept Henry's claim that some of the evidence was inadmissible, his claim is
without merit. In unchallenged evidence presented to the grand jury, the lessee of a 1976
Lincoln Continental automobile testified that right after lunch on April 5, 1977, he had left
the automobile in the care of a hotel valet parking service. He also testified that when he
called for the automobile the next day it could not be found.
In other unchallenged evidence an undercover police officer testified that on April 5, 1977,
about 1:40 in the afternoon he met with Henry who stated that he wanted to sell a 1976
Lincoln automobile which he [Henry] had just stolen from a hotel parking lot. The officer
testified that Henry wanted a large sum of money, and after lengthy negotiations Henry was
paid $1,000, and the officer took possession of the vehicle.
1. Although the present record shows some of the recited evidence is circumstantial, it is,
in our view, sufficient to sustain the district judge's determination. This Court has
consistently upheld convictions based on circumstantial evidence. See, for example, O'Brien
v. State, 88 Nev. 488, 500 P.2d 693 (1972), and its progeny. A fortiori, such evidence will
support a finding of probable cause.
Moreover, we have also held that possession of stolen property by an accused person
gives rise to an inference of guilt. . . . Staab v. State, 90 Nev. 347, 350, 526 P.2d 338, 340
(1974). A fortiori, the police officer's testimony that Henry had possession of the automobile
supports the district judge's determination.
possession of the automobile supports the district judge's determination. The grand jury was
entitled to conclude that probable cause existed to believe that appellant possessed stolen
property for his own gain with knowledge of its stolen character. See, NRS 205.275(1).
[Headnote 2]
2. In support of the assertion of prosecutorial abuse, Henry suggests the district attorney,
by failing to instruct the grand jury as to applicable law, manipulated it by electing to pursue
the charge of possession of stolen property rather than grand larceny which, according to
Henry, was the appropriate offense and is more difficult to prove.
1
This claim is without
merit. The matter of the prosecution of any criminal case is within the entire control of the
district attorney. . . . Cairns v. Sheriff, 89 Nev. 113, 115, 508 P.2d 1015, 1017 (1973); NRS
173.045 and NRS 252.110.
Affirmed.
____________________

1
The maximum penalty which can be assessed for either offense is 10 years imprisonment.
____________
94 Nev. 68, 68 (1978) Lambert v. State
LARRY JAMES LAMBERT, Appellant, v. THE
No. 9949
February 7, 1978 574 P.2d 586
Appeal from judgment of conviction, Eighth Judicial District Court, Clark County;
Michael J. Wendell, Judge.
Defendant was convicted before the district court of robbery, and he appealed. The
Supreme Court held that: (1) no reversible error resulted from trial court's alleged oral
misstatement whereby trial court inadvertently substituted the words act itself for the word
accuracy in instructing jury that they had to be satisfied beyond reasonable doubt of the
accuracy of identification of defendant; (2) defendant was not denied effective assistance of
counsel; (3) evidence sustained conviction, and (4) trial court did not abuse its discretion in
denying defendant's motion to suppress identification testimony of prosecution witness, in
absence of evidence of any suggestive or improper conduct supporting defendant's claim that
the edentification [identification] testimony was highly suspect.
Affirmed.
Gerald F. Neal, Las Vegas, for Appellant.
Leon Simon, Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
In prosecution for robbery, no reversible error resulted from trial court's alleged oral misstatement
whereby trial court inadvertently substituted the words act itself for the word accuracy in instructing
jury that they had to be satisfied beyond reasonable doubt of the accuracy of the identification of defendant,
in view of fact that jury could not have been misled by such language, defendant did not consider alleged
misstatement of sufficient import to warrant objection at trial, and unchallenged written instruction was
furnished to jury and remained with them throughout their deliberations.
2. Criminal Law.
Defendant in prosecution for robbery was not denied effective assistance of counsel.
3. Robbery.
Evidence in prosecution for robbery sustained conviction. NRS 200.380.
4. Criminal Law.
In prosecution for robbery, trial court did not err in denying defendant's motion to suppress identification
testimony by prosecution witness, in absence of any evidence of suggestive or improper conduct supporting
defendant's claim that the identification testimony was highly suspect.
OPINION
Per Curiam:
After being convicted, by jury verdict, of robbery (NRS 200.380), Larry James Lambert
received an enhanced sentence for having used a deadly weapon while committing the
robbery.
1
In asking us to reverse, Lambert contends: (1) the district court committed
prejudicial error while orally instructing the jury, (2) he was denied effective assistance of
trial counsel, (3) the evidence was insufficient to support his conviction, and (4) identification
testimony by a prosecution witness should have been suppressed. None of the contentions has
merit.
[Headnote 1]
1. Lambert's initial claim, raised for the first time on appeal, is directed to an alleged oral
misstatement the district judge may have made while instructing the jury on the State's
burden of proving appellant's identity.
____________________

1
1. Any person who uses a firearm or other deadly weapon in the commission of a crime shall be punished
by imprisonment in the state prison for a term equal to and in addition to the term of imprisonment prescribed by
statute for such crime. The sentence prescribed by this section shall run consecutively with the sentence
prescribed by statute for such crime.
judge may have made while instructing the jury on the State's burden of proving appellant's
identity.
While reading the instruction, the judge either inadvertently substituted the words act
itself for the word accuracy, or the court reporter misrecorded the word.
2
In either event,
we perceive no reversible error for several reasons.
First: If, in fact, a misstatement was made, Lambert did not consider it of sufficient import
to warrant an objection or a request for clarification. See Cutler v. State, 93 Nev. 329, 566
P.2d 809 (1977); McCall v. State, 91 Nev. 556, 540 P.2d 95 (1975).
Second: The written instruction, which is not challenged, was furnished to the jury and
remained with them throughout their deliberations. It is the duty of juries to read and
consider all the instructions of the court, and we presume that they do so. State of Nevada v.
Ah Mook, 12 Nev. 369, 388 (1877).
Third: In a case such as this, where, from the entire charge it clearly appears that the jury
could not be misled by the language objected to, the judgment will not be disturbed. State v.
Fitch, 65 Nev. 668, 689, 200 P.2d 991, 1002 (1948).
[Headnote 2]
2. Appellant's contention that his trial counsel was ineffective and inadequate is also
without merit. It is presumed that an attorney has fully discharged his duties. This
presumption can be overcome by strong and convincing proof to the contrary. This record
does not contain evidence of incompetency upon the part of appellant's trial counsel. Cutler
v. State, supra at 336, 566 P.2d at 813 (1977). See also Curtis v. State, 93 Nev. 504, 568 P.2d
583 (1977).
[Headnote 3]
3. Lambert's challenge to the sufficiency of the evidence is rejected on the authority of
Dearman v. State, 93 Nev. 364, 566 P.2d 407 (1977), and the cases cited therein, all of which
hold that where, as here, there is substantial evidence to support the verdict, it will not be
disturbed on appeal.
____________________

2
The written instruction provided:
The burden is on the State to prove beyond a reasonable doubt that the defendant is the person who
committed the offense with which he is charged. You must be satisfied beyond a reasonable doubt of the
accuracy of the identification of defendant as the person who committed the offense before you may convict
him. If, from the circumstances of the identification, you have a reasonable doubt whether defendant was the
person who committed the offense, you must give the defendant the benefit of that doubt and find him not
guilty. (Emphasis added.)
[Headnote 4]
4. Although Lambert assigns as error the failure of the district judge to grant the motion to
suppress the identification testimony given by Raymond Bremner, the witness of the robbery,
other than the statement that the identification testimony was highly suspect, we are not
apprised of any suggestive or improper conduct that might support Lambert's subjective
claim. Cf. Stovall v. Denno, 388 U.S. 293 (1967); Brown v. State, 91 Nev. 777, 542 P.2d
1068 (1975). Furthermore, we find nothing in the record to suggest impropriety. See Kirby v.
Illinois, 406 U.S. 682 (1972). See also Moss v. State, 88 Nev. 19, 492 P.2d 1307 (1972).
Affirmed.
____________
94 Nev. 71, 71 (1978) Constancio v. Sheriff
NIEVES BENITO CONSTANCIO, Appellant, v. SHERIFF,
No. 10316
February 8, 1978 574 P.2d 1012
District Court, Clark County, Paul S. Goldman, Judge.
Accused charged with attempted murder sought a writ of habeas corpus. The district court
denied relief and accused appealed. The Supreme Court held that where 12 grand jurors
concurred in the finding against the accused and these 12 had all attended an earlier session of
the grand jury at which the evidence against the accused was first received, the true bill which
resulted in the indictment against the accused was valid and the fact that three additional
jurors attended the session at which the true bill was returned was immaterial.
Affirmed.
Morgan D. Harris, Public Defender, and Robert B. Amundson, Deputy Public Defender,
94 Nev. 71, 72 (1978) Constancio v. Sheriff
Where 12 grand jurors concurred in finding against accused and these 12 had all attended earlier session
of grand jury at which evidence against accused was first received, true bill which resulted in indictment
against accused was valid and fact that three additional jurors attended session at which true bill was
returned was immaterial. NRS 172.255, subd. 1.
OPINION
Per Curiam:
After being charged, by indictment, with attempted murder (NRS 200.010; NRS 208.070),
Nieves Benito Constancio, perfected this appeal from an order which denied his petition for a
writ of habeas corpus. Constancio's claim below, which is reasserted here, is that the charge
must fail because the grand jury was contaminated.
The first session of the grand jury which received evidence against Constancio took place
August 11, 1977. That session recessed until September 8, 1977. On that date when the jury
reconvened, one of the thirteen jurors who had been present at the August session was absent;
however, three other jurors who did not attend that session were present. At this reconvened
session the jury returned the True Bill which resulted in the challenged indictment.
Constancio's central argument is that the attendance of the three additional jurors at the
September session contaminated the jury. In the context of this proceeding Constancio's
contention is without merit. NRS 172.255(1) provides, in part, that [a] presentment or
indictment may be found only upon the concurrence of 12 or more jurors.
Here, twelve (12) of the jurors who attended the August session also attended the
September session and those jurors all concurred in the finding against Constancio; thus, it is
immaterial that the three additional jurors attended the September session. NRS 172.235.
1

Affirmed.
____________________

1
NRS 172.235 provides:
The district attorney, the witness under examination, interpreters when needed, a stenographer for the
purpose of taking the evidence, any person engaged by the grand jury pursuant to NRS 172.205, and any person
requested by the grand jury to be present may be present while the grand jury is in session, but no person other
than the jurors may be present while the grand jury is deliberating or voting. Here, the three challenged persons
were duly chosen grand jurors and were authorized to attend the September session of the grand jury
proceedings. See also NRS 6.110(2).
____________
94 Nev. 73, 73 (1978) Ad-Art, Inc. v. Denison
AD-ART, INC., a California Corporation, Appellant, v. JACK DENISON and ALIBI ROOM,
INC., a Nevada Corporation, Respondents.
No. 8924
February 15, 1978 574 P.2d 1016
Appeal from order of dismissal, Eighth Judicial District Court, Clark County; Paul S.
Goldman, Judge.
In action for breach of contract, appeal was taken from the action of the district court, in
dismissing the action for lack of prosecution. The Supreme Court held that the action was
brought to trial within five years of its institution when, within such period, three witnesses
testified before a mistrial was declared.
Roger L. Wright, Reno, for Appellant.
Smith & O'Brien, Las Vegas, for Respondent, Jack Denison.
Embry, Shaner and Lang, Las Vegas, for Respondent, Alibi Room, Inc.
Pretrial Procedure.
Suit was brought to trial within five years of its institution where, within such period, trial was begun
and three witnesses testified before mistrial was declared; suit therefore should not have been dismissed for
lack of prosecution. Const. art. 6, 4; NRCP 41(e).
OPINION
Per Curiam:
The sole issue presented in this appeal is whether appellant's action was brought to trial
within the five-year limitation prescribed by NRCP 41(e).
1

Appellant sought damages arising from respondents' alleged breach of contract. Within
five years of the date the action was filed a trial was commenced and appellant called three
witnesses before the district court declared a mistrial. Subsequently, after numerous
continuances, respondents moved for a dismissal of the action for want of prosecution.
____________________

1
NRCP 41(e) provides, in pertinent part: Any action heretofore or hereafter commenced shall be dismissed
by the court in which the same shall have been commenced or to which it may be transferred on motion of the
defendant, after due notice to plaintiff or by the court upon its own motion, unless such action is brought to trial
within five years after the plaintiff has filed his action, except where the parties have stipulated in writing that the
time may be extended.
94 Nev. 73, 74 (1978) Ad-Art, Inc. v. Denison
a dismissal of the action for want of prosecution. The district court granted respondents'
motion on the ground the . . . action was not brought to trial within five years after . . .
filing.
We have previously held that NRCP 41(e) is clear and unequivocal: any action not brought
to trial within five years must, upon proper motion, be dismissed. See Thran v. District Court,
79 Nev. 176, 380 P.2d 297 (1963). Respondents contend the mistrial was the equivalent of no
trial at all, and therefore, since the five-year limitation expired before further trial proceedings
were commenced, the action was not brought to trial within the prescribed limitation. We
disagree.
For purposes of complying with NRCP 41(e), one way an action may be brought to trial
is by calling one witness who testifies. See Weeks v. Roberts, 442 P.2d 361 (Cal. 1968).
Here, three witnesses testified before the mistrial was declared. Under these circumstances,
we believe appellant has satisfied the mandate of NRCP 41(e) and dismissal was improper.
Accordingly, the district court order must be vacated and the cause remanded for proceedings
consistent with this opinion.
2

____________________

2
The Governor designated Peter I. Breen, Judge of the Second Judicial District, to sit in place of Hon.
Gordon Thompson, Justice, who was disabled. Nev. Const. art. 6, 4.
____________
94 Nev. 74, 74 (1978) Clark County v. City of Las Vegas
CLARK COUNTY, and the Unincorporated Towns of EAST LAS VEGAS, PARADISE,
SUNRISE MANOR and WINCHESTER, and DART ANTHONY, FRED KIRSCHNER,
JEAN TURNBAUGH and AARON J. WILLIS, Appellants, v. THE CITY OF LAS VEGAS,
a Municipal Corporation, Respondent.
No. 9953
February 15, 1978 574 P.2d 1013
Appeal from judgment declaring metropolitan fire department act constitutional; Eighth
Judicial District Court, Clark County; Joseph S. Pavlikowski, Judge.
Action was commenced to challenge constitutionality of statute creating metropolitan fire
department in any city which has population of 125,000 or more or which is located in county
which has population of 200,000 or more and from which there is county fire agency within
ten miles. The district court declared the act constitutional and appeal was taken. The
Supreme Court, Thompson, J., held that the statute violated equal protection clause,
where entire governing board of fire district and majority of budget committee was
elected only by residents of City of Las Vegas, resulting in near total disenfranchisement
of almost 50 percent of Clark County residents who reside outside the city but within the
fire district, and there was no cognizable compelling state interest for denying franchise
to such substantial number of residents.
Supreme Court, Thompson, J., held that the statute violated equal protection clause, where
entire governing board of fire district and majority of budget committee was elected only by
residents of City of Las Vegas, resulting in near total disenfranchisement of almost 50 percent
of Clark County residents who reside outside the city but within the fire district, and there
was no cognizable compelling state interest for denying franchise to such substantial number
of residents.
Reversed.
George E. Holt, District Attorney, Thomas J. Moore and James M. Bartley, Deputy
District Attorneys, Clark County, and Wanderer & Wanderer, of Las Vegas, for Appellants.
Robert List, Attorney General, Frank W. Daykin, of Carson City, Marcus H. Sloan, City
Attorney, Janson F. Stewart, Deputy City Attorney, City of Las Vegas, and Hilbrecht, Jones,
Schreck & Bybee, of Las Vegas, for Respondent.
1. Constitutional Law.
Political subdivisions have no standing, either as parens patriae or to vindicate any rights of their own,
to challenge state laws under Fourteenth Amendment. U.S.C.A. Const. Amend. 14.
Individual taxpayers had standing to maintain action challenging constitutionality of statute creating
metropolitan fire department in cities of designated populations. NRS 280A.011-280A.201.
3. Municipal Corporations.
A metropolitan fire department which is a new political unit having its own governing board and
exercising governmental powers is envisioned by statute creating department in any city which has
population of 125,000 or more or which is located in county which has population of 200,000 or more and
from which there is county fire agency within ten miles. NRS 280A.011-280A.201; Const. art. 4,
20; U.S.C.A.Const. Amend. 14.
One man, one vote concept embraced by equal protection clause applies only to elected governing
bodies; thus members who are appointed to govern political unit need not represent equal numbers of
voters nor districts of substantially equal population. U.S.C.A.Const. Amend. 14.
For purposes of determining whether one man, one vote concept applies to municipal governing body,
whether governing structure is appointed or elected depends upon whether election automatically results in
membership. U.S.C.A.Const. Amend. 14.
Presence of three appointed officials on budget committee of metropolitan fire department did not
insulate the fire department from judicial scrutiny for fair apportionment. NRS 280A.011-280A.201;
Const. art. 4, 20; U.S.C.A.Const. Amend. 14.
7. Constitutional Law; Municipal Corporations.
Statute creating metropolitan fire department violated equal protection clause, where entire governing
board of district and majority of budget committee were elected only by residents of City of
Las Vegas, resulting in near total disenfranchisement, of almost 50 percent of Clark
County residents who resided outside the city but within the district, and there was
not cognizable compelling state interest for denying franchise to such substantial
number of residents.
budget committee were elected only by residents of City of Las Vegas, resulting in near total
disenfranchisement, of almost 50 percent of Clark County residents who resided outside the city but within
the district, and there was not cognizable compelling state interest for denying franchise to such substantial
number of residents. NRS 280A.011-280A.201; Const. art. 4, 20; U.S.C.A.Const. Amend. 14.
OPINION
This action was commenced to challenge the constitutionality of the 1977 legislative act
creating a metropolitan fire department in any city having a population of 125,000 or more
located in a county having a population of 200,000 or more and in which a county fire agency
exists within 10 miles of the city. NRS 280A.011-280A.201.
[Headnotes 1, 2]
The constitutional challenge is twofold. First, that since only the City of Las Vegas and the
County of Clark have the requisite population, the Act must fall as local and special
legislation prohibited by Nev. Const. art. 4, 20; second, that the Act denies equal protection
because citizens of Clark County who are not also residents of the City of Las Vegas are
disenfranchised.
1

The district court found no constitutional infirmity. We need not reach the question of
whether the Act is local or special legislation, cf. Damus v. County of Clark, 93 Nev. 512,
569 P.2d 933 (1977), since we believe that the Act denies equal protection and must be
annulled for that reason. We, therefore, reverse.
In order to increase efficiency, lower purchasing costs, coordinate efforts and improve the
use of equipment, personnel and supplies, the legislature proposed a merger of city and
county fire agencies {in cities and counties having the requisite population) thereby
creating a metropolitan fire department.
____________________

1
The plaintiffs in this action consist of Clark County, several unincorporated towns, and four individual
taxpayer plaintiffs. It is well-established that political subdivisions have no standing, either at parens patriae or
to vindicate any rights of their own, to challenge state laws under the Fourteenth Amendment. City of New
York v. Richardson, 473 F.2d 923 (2d Cir. 1973), cert. den. sub nom Lavine v. Lindsay, 412 U.S. 950 (1973);
Board of Supervisors of Fairfax County v. U.S., 408 F.Supp. 556 (D.C.Va. 1976). Because the individual
taxpayer plaintiffs clearly have standing to maintain this action, see Hadley v. Junior College District, 397 U.S.
50 (1970), we do not address the issue of whether the county officials in their official capacity might be able to
maintain this action based upon the potentially conflicting legal duties which might arise from their compliance
with the Act. See Board of Com'rs v. Kokomo City Plan Com'n, 330 N.E.2d 92 (Ind. 1975); Richmond County
v. Pierce, 215 S.E.2d 665 (Ga. 1975); Arnold v. Schumpert, 217 So.2d 116 (Fla. 1968).
county fire agencies (in cities and counties having the requisite population) thereby creating a
metropolitan fire department. This end was to be accomplished by directing the city
commission to manage, administer, supervise and control the department [NRS
280A.101(3)], and to prepare the annual budget for the ultimate approval or modification of
the budget committee [NRS 280A.161(1)].
The City Commission of Las Vegas is an elected body. The commissioners automatically
govern the metropolitan fire department (except for budget control) by reason of their popular
election to the City Commission. Since residents of the County who are not residents of the
City do not vote for city commissioners, such residents have no voice in governing the
metropolitan fire department (except for budget control) and are not represented.
Indeed, even with regard to budget control, county residents of the fire district who are not
residents of the city have only a diluted representation upon the budget committee. That
committee is composed of eight members; the four city commissioners, the city mayor, and
three county commissioners. City representation upon the budget committee is automatic by
reason of the commissioners' popular election and the popular election of the mayor. The
three county commissioners are appointed to the budget committee by their fellow county
commissioners. Thus, residents of the county and fire district who are not residents of the city
have, at best, a 3/8-representation upon the budget committee, while the city enjoys a
5/8-representation.
2

The central question presented by this litigation is whether the governmental structure of
the metropolitan fire department denies equal protection to county residents within the fire
district who are not residents of the city.
[Headnote 3]
1. The metropolitan fire department envisioned by the Act is a new political unit with its
own governing body. It exercises governmental powers. Cantwell v. Hudnut, 566 F.2d 30, 36
(7th Cir. 1977); Hadley v. Junior College District, 397 U.S. 50 (1970).
[Headnote 4]
The one man, one vote concept embraced by the equal protection clause [Gray v.
Sanders, 372 U.S. 368 (1963); Reynolds v. Sims, 377 U.S. 533 (1964); Avery v. Midland
County, 390 U.S. 474 {196S); State ex rel.
____________________

2
Since there is no requirement that all three county representatives on a committee represent county
commissioner districts outside the city, county representation conceivably could be less than a
3/8-representation.
390 U.S. 474 (1968); State ex rel. Pagni v. Brown, 88 Nev. 339, 497 P.2d 1364 (1972)]
applies only to elected governing bodies. Members who are appointed to govern a political
unit need not represent equal numbers of voters nor districts of substantially equal population.
Sailors v. Board of Education, 387 U.S. 105 (1967); State ex rel. List v. County of Douglas,
90 Nev. 272, 524 P.2d 1271 (1974).
[Headnote 5]
Whether a governing structure is appointed or elected depends upon whether an election
automatically results in membership. Abate v. Mundt, 403 U.S. 182 (1971);
Education/Instruccion, Inc. v. Moore, 503 F.2d 1187 (2d Cir. 1974); Rosenthal v. Board of
Ed. of Central H. S. Dist. No. 3, 385 F.Supp. 223 (E.D.N.Y.), aff'd 420 U.S. 985 (1975); cf.
King County Water District No. 54 v. King County Boundary Review Board, 554 P.2d 1060
(Wash. 1976).
[Headnote 6]
Election is a prerequisite to membership of the governing board of the metropolitan fire
department. Only the budget committee has some appointed members, the three county
commissioners. When considered together, that is, the governing body of the metropolitan
fire district, and its budget committee, we find that 10 members are elected, and only 3 are
appointed. The presence of a minimal number of appointed officials on the budget committee
should not serve to insulate the metropolitan fire department from judicial scrutiny for fair
apportionment. Oliver v. Board of Education of City of New York, 306 F.Supp. 1286
(S.D.N.Y. 1969).
[Headnote 7]
2. Since the true nature of the governing structure is elective, the demands of equal
protection must be met. This is not accomplished by the Act in its present form. The entire
governing board of the fire district and a majority of the budget committee is elected only by
residents of the City of Las Vegas, resulting in the near total disenfranchisement of almost
fifty percent of the residents of Clark County, residing outside the City but within the fire
district.
3
Thus, we are not here concerned with vote dilution [Reynolds v. Sims, 377 U.S.
533 (1964); Avery v. Midland County, 390 U.S. 474 (1968); State ex rel. Pagni v. Brown, 88
Nev. 339, 497 P.2d 1364 (1972); County of Clark v. City of Las Vegas, 92 Nev. 323, 550
P.2d 779 (1976)], but rather with an absolute denial of franchise to a substantial number of
residents within the fire district, without a cognizable compelling state interest for doing
so.
____________________

3
The 1970 census reveals that the City of Las Vegas has a little more than one half of the population of that
portion of Clark County within the fire district.
substantial number of residents within the fire district, without a cognizable compelling state
interest for doing so. Kramer v. Union School District, 395 U.S. 621 (1969).
The Act creating the Metropolitan Fire Department violates the Equal Protection Clause
and is unconstitutional.
____________
94 Nev. 79, 79 (1978) Huneycutt v. Huneycutt
KRISTIN E. HUNEYCUTT, Appellant, v. HARRY
CARR HUNEYCUTT, Respondent.
No. 8858
March 2, 1978 575 P.2d 585
On original motion to remand so that wife might pursue motions in the district court for
relief from judgment and for a new trial, the Supreme Court held that wife's motions should
be filed and heard in the district court, which if inclined to grant relief should then so certify
to the Supreme Court.
Motion denied.
Guild, Hagen & Clark, Ltd., Reno, for Appellant.
Hoy & Miller, Chtd., Reno, for Respondent.
Divorce.
Wife's motions for relief from judgment and for a new trial should be filed and heard in the district court,
which if inclined to grant relief should so certify to the Supreme court, at which point a request for remand
of appeal from portions of divorce decree distributing property would be appropriate. NRCP 59(a),
60(b).
OPINION
Per Curiam:
This appeal, which is in progress, is from the portions of a divorce decree distributing
property. The case is before us on appellant's motion to remand so that she may pursue
motions in the district court for relief from judgment under NRCP 60(b) and for a new trial
under NRCP 59(a).
1
In support of the motion, appellant alleges she has just discovered
new evidence regarding a substantial amount of community property which existed at the
time the divorce was granted, but was not included in the property distributed by the trial
court.
____________________

1
At this juncture, and in the posture of this proceeding, we are not concerned with the time constraints
imposed by the two rules.
In support of the motion, appellant alleges she has just discovered new evidence regarding
a substantial amount of community property which existed at the time the divorce was
granted, but was not included in the property distributed by the trial court. The motion to
remand is denied.
NRCP 59(a) and NRCP 60(b) are patterned after the same numbered Federal Rules of
Civil Procedure. Neither set of rules addresses the mechanics of pursuing such motions after
an appeal is filed; and, the issue has not been before us in a civil case.
In a criminal case, where we were asked to remand because of a claim that new evidence
had been discovered after the appeal had been lodged, we stated: The district court has no
authority to grant a new trial once the notice of appeal has been filed. It may, however, hear
the motion, and certify that it is inclined to grant it. At that juncture remand would be
appropriate. Layton v. State, 89 Nev. 252, 254, 510 P.2d 864, 865 (1973). Our decision in
Layton relied on federal court interpretation of Fed.R.Crim.P. 33 after which our new trial
statute (NRS 176.515(3)) was patterned. See the cases cited in Layton at 254, 510 P.2d at
865.
The federal courts have also adopted the same procedure for making such motions after an
appeal is filed in civil cases. See Smith v. Pollin, 194 F.2d 349, 350 (D.C. Cir. 1952), where
the court said:
It is clear that the District Court could not grant a motion for a new trial in a case which
is pending in this court upon appeal. Jurisdiction of the case is in this court while the
appeal is pending. So the rule of law applicable to civil cases is exactly the same as the
specific statement in Criminal Rule 33. That being so, we think that the procedure
already established for criminal cases can be established for civil cases also.
Reported cases indicate that six (6) other federal circuits and at least two (2) states (Hawaii
and Alaska) have adopted the Smith procedure for civil cases.
2
This procedure has been
characterized as sound in theory and preferable in practice. 11 Wright & Miller, Federal
Practice and Procedure, Civ. 2873 (1973). We agree with the view . . . that the described
procedure is proper and calculated to be most economical of the effort of courts and parties.'
Life of the Land v. Ariyoshi, 553 P.2d 464, 466 (Hawaii 1976). Therefore, it is unnecessary
and improper for appellant to apply to this court for remand.
____________________

2
Ryan v. United States Lines Company, 303 F.2d 430 (2nd Cir. 1962); Ferrell v. Trailmobile, Inc., 223 F.2d
697 (5th Cir. 1955); Herring v. Kennedy-Herring Hardware Company, 261 F.2d 202 (6th Cir. 1958); Binks Mfg.
Co. v.
Her motions should be filed and heard in the district court. If that court is inclined to grant
relief, then it should so certify to this court and, at that juncture, a request for remand would
be appropriate.
Appellant's motion to remand is denied.
____________________
Ransburg Electro-Coating Corp., 281 F.2d 252 (7th Cir. 1960); Greear v. Greear, 288 F.2d 466 (9th Cir. 1961);
Aune v. Reynders, 344 F.2d 835 (10th Cir. 1965); Duriron Company v. Bakke, 431 P.2d 499 (Alaska 1967);
Life of the Land v. Ariyoshi, 553 P.2d 464 (Hawaii 1976).
____________
94 Nev. 81, 81 (1978) Marcinko v. Harrah's Club
ANDREW J. MARCINKO, Appellant, v. HARRAH'S
CLUB, a Nevada Corporation, Respondent.
No. 9064
March 2, 1978 575 P.2d 586
Appeal from summary judgment. Second Judicial District Court, Washoe County; William
N. Forman, Judge.
Former employee brought action against former employer to collect benefits allegedly due
under pension trust and retirement plan. The district court granted employer summary
judgment and employee appealed. The Supreme Court held that: (1) employee was not
entitled to benefits under the plan unless he was employed at both effective and qualification
dates, and (2) employee's affidavit had not sufficiently created a material dispute of fact in
regard to whether employer constructively terminated employee's employment and thereby
prohibited employee's compliance with requirement that he be employed at qualification date.
Affirmed.
Petersen and Petersen, Reno, for Appellant.
Vargas, Bartlett and Dixon, and Fred Starich, Reno, for Respondent.
1. Master and Servant.
In regard to pension trust and retirement plan, which provided that each employee . . . who has been and,
at the date this plan becomes qualified . . . continues to be employed by the company at the effective date
of this plan . . . shall become a participant in this plan as of the effective date and that each employee . . .
at the effective date . . . who has been and, at the date this plan becomes qualified . . . continues to be
continuously employed . . . shall become a participant . . . as of said effective date, employee was not
entitled to benefits under plan unless he was employed at both effective and qualification dates.
2. Judgment.
In action in which former employee sought to collect benefits allegedly due him under pension trust and
retirement plan and in which employer was granted summary judgment, employee's affidavit had not
sufficiently created a material dispute of fact in regard to whether employer constructively terminated
employee's employment and thereby prohibited employee's compliance with requirement that employee be
employed at qualification date in order to be eligible for benefits under plan. NRCP 56(e).
OPINION
Per Curiam:
Appellant Marcinko, a former employee of Harrah's Club, a corporation, instituted an
action in the lower court to collect benefits allegedly due him pursuant to the Harrah's Club
Past Service Pension Trust and the Harrah's Retirement Plan. Both the Pension Trust and the
Retirement Plan were principally designed by Harrah's Club to defer compensation and to
create tax advantages to respondent.
Both instruments were executed on April 13, 1970, and both subsequently amended on
December 31, 1970. Each instrument referred to an Effective Date of July 1, 1969, and to a
date on which the instrument was to qualify with the Internal Revenue Service. The
Qualification Date of the Pension Trust was January 18, 1971, and that of the Retirement Plan
was January 27, 1971.
Appellant was employed at Harrah's Club continuously from June 20, 1946, through
December 15, 1970, at which latter date appellant voluntarily terminated his employment.
Subsequent to the approval of the Pension Trust and Retirement Plan by the Internal
Revenue Service, appellant commenced this action claiming the benefits allegedly due him.
Upon respondent's motion, the district court entered summary judgment and this appeal
followed.
[Headnote 1]
The sole question before us is whether appellant to be entitled to the benefits accruing
from the Retirement Plan and Pension Trust must have been employed at both the Effective
and Qualification Dates. We answer the question in the affirmative.
Appellant contends that his status as a Harrah's employee at the Effective Dates of the
Pension Trust and Retirement Plan acquired for him a vested right to the benefits of those
compensation plans. He argues that the effect of the Qualification Date was merely a
defeasing condition subsequent negating all employee rights should the plan not receive IRS
approval.
Respondent, in contrast, interprets the Qualification Date as an express condition precedent to
the enjoyment of the plans' benefits. The principal focus to the resolution of this controversy
entails an interpretation of sections 4.01 in both the Retirement Plan and the Pension Trust. It
is these sections which appellant claims are ambiguous and thus give rise to an alleged vested
right in the benefits.
Both sections had been amended after the stated Effective Dates but prior to appellant's
termination of employment, however, appellant claims his rights had vested and that once so
perfected could not be defeated by unilateral amendment to the deferred compensation
instruments. This position obtains a particular saliency for appellant who concedes that the
amended versions of the subject sections expressly require employment at both the Effective
and the Qualification Dates.
Section 4.01 of the Pension Trust (unamended) provides:
Each Employee of the Company who has been and, at the date this Plan becomes
qualified with the Internal Revenue Service, continues to be employed by the Company
at the Effective Date of this Plan, as provided in Article VII hereof, for a period of more
than five (5) years shall become a Participant in this Plan as of the said Effective Date.
Section 4.01 of the Retirement Plan (unamended) similarly provides:
Each Employee of the Company at the Effective Date of this Plan who has been and, at
the date this Plan becomes qualified with the Internal Revenue Service, continues to be
continuously employed by the Company, as determined in accordance with Section 6.07
hereof, for a period of two (2) years or more shall become a Participant in this Plan as of
said Effective Date.
Appellant urges the Qualification Date as a defeasing condition. We disagree. Were the
provision included solely as a defeasing clause, there would be no imperious necessity to
require employment at the Qualification Date. A simple statement that the benefits conferred
were subject to approval by the IRS would be all that was necessary. Inclusion of the phrase
requiring employment at the Qualification Date suggests contemplation of further conditions.
We find the disputed sections to be plain and unambiguous, though somewhat awkward.
We cannot place any construction on the wording of the Retirement and Pension Trust plans
other than that employment is required not only at the Effective Date of the instruments but
also at the Qualification Dates.
Accord, Frietzsche v. First Western Bank & Trust Co., 336 P.2d 589 (Cal.App. 1959); Bos v.
United States Rubber Co., 224 P.2d 386 (Cal.App. 1950). Because appellant has not
complied with both conditions, he cannot participate in the enjoyment of benefits derived
from either deferred compensation plan. Bos, supra; 60 AmJur2d, 76 at 953.
[Headnote 2]
Appellant attempts to create a material dispute of fact by alleging that respondent
constructively terminated him thereby prohibiting compliance with the requirement of
employment at the qualification date. Appellant's affidavit fails to establish, much less
reasonably suggest, the required breach of duty or bad faith on the part of respondent,
necessary to support this theory. NRCP 56(e); Garvey v. Clark County, 91 Nev. 127, 532
P.2d 269 (1975); Tobler and Oliver v. Bd. Trustees, 84 Nev. 438, 442 P.2d 904 (1968);
Dredge Corp. v. Husite Co., 78 Nev. 69, 369 P.2d 676 (1962).
The district court's entry of summary judgment in behalf of respondent is affirmed.
____________
94 Nev. 84, 84 (1978) Richards v. Conklin
DONNELL RICHARDS, Appellant, v. DENNIS B. CONKLIN, JOHN J. DAVIDS, and
MICHAEL FRIEDMAN, a Partnership, and MICHAEL FRIEDMAN, DENNIS B.
CONKLIN and JOHN J. DAVIDS, as Individuals, and PETER CHASE NEUMANN,
Respondents.
No. 8753
March 2, 1978 575 P.2d 588
Appeal from summary judgment, Second Judicial District Court, Washoe County; John E.
Gabrielli, Judge.
Appeal was taken from an order of the district court granting summary judgment in favor
of defendant attorneys in a libel action brought against them by another attorney. The
Supreme Court held that where the allegedly libelous letters impugning plaintiff's
professional competence and integrity were written by defendant attorneys to protect the
interest of their clients, who had hired defendants to conclude a legal matter which plaintiff
had left unresolved and to initiate a malpractice suit against plaintiff, the letters were subject
to both an absolute and a qualified privilege.
Appeal dismissed.
94 Nev. 84, 85 (1978) Richards v. Conklin
Donnell Richards, Reno, for Appellant.
Wait, Shamberger, Georgeson & McQuaid, Reno, for Respondents.
Libel and Slander.
Letters written by defendant attorneys to plaintiff attorney for purpose of protecting interest of
defendants' clients, who had hired defendants to conclude legal matter which plaintiff had left unresolved
and to initiate malpractice suit against plaintiff, were subject to absolute and qualified privilege and could
not form basis for libel action on theory that letters impugned plaintiff's professional competence and
integrity.
OPINION*
Per Curiam:
Appellant commenced this action for libel after receiving certain letters impunging his
professional competence and integrity. Respondents were granted summary judgment,
pursuant to NRCP 56, and appellant contends this was error because, he argues, his complaint
and affidavit raised genuine issues of material fact. We disagree.
By affidavit, respondents established that they had been retained by two clients formerly
represented by appellant for the purpose of: (1) concluding a legal matter which appellant had
left unresolved; and, (2) initiating a malpractice suit.
A review of the complaint and affidavit fails to support appellant's contention. The
instruments neither controvert nor refute respondents' affidavit. Under these circumstances,
we are not persuaded summary judgment was erroneous. Nevada Land & Mtge. v. Hidden
Wells, 83 Nev. 501, 435 P.2d 198 (1967).
The record supports the district court's determination that the letters in question were
written to protect the interest of respondents' clients in both a continuing and anticipated
judicial proceeding and that the letters were, therefore, subject to both an absolute and
qualified privilege. See Romero v. Prince, 513 P.2d 717, 719 (N.M.App. 1973); Restatement
(Third) of Torts 586 (1938). Accordingly, this appeal is without merit and is hereby
dismissed.
It is so ORDERED.
____________________
* This case was disposed of by an unpublished order filed November 22, 1976. Because of the paucity of
published authority on the issue we have been requested to publish the order as an opinion.
____________
94 Nev. 86, 86 (1978) Exchange Bank v. Strout Realty
EXCHANGE BANK, a Banking Corporation,
Appellant, v. STROUT REALTY, Respondent.
No. 9122
March 2, 1978 575 P.2d 589
Appeal from summary judgment, First Judicial District Court, Carson City; Frank B.
Gregory, Judge.
Appeal was taken from judgment of the district court in action for unjust enrichment. The
Supreme Court held that where plaintiff failed to file either affidavits, pleadings or other
papers alleging bad faith on the part of defendant, trial court properly entered summary
judgment upholding finality of payment of check by plaintiff bank despite contention raised
on appeal that issue of fact existed relating to alleged bad faith of defendant payee.
Affirmed.
Carl F. Martillaro, Carson City, for Appellant.
Crowell, Crowell & Crowell, Carson City, for Respondent.
1. Appeal and Error; Judgment.
On cross motions for summary judgment, trial court may enter judgment on an issue of law alone, and
moving party may not alter its position on appeal.
2. Judgment.
Where, in action for unjust enrichment, plaintiff failed to file either affidavits, pleadings or other papers
alleging bad faith on the part of defendant, trial court properly entered summary judgment upholding
finality of payment of check by plaintiff bank despite contention raised on appeal that issue of fact existed
relating to alleged bad faith of defendant payee. NRCP 56, 56(e), NRS 104.3418.
OPINION
Per Curiam:
This case evolves from a case previously decided by this Court. See, Ivanhoe, Inc. v. Strout
Realty, 90 Nev. 380, 528 P.2d 700 (1974). Before us then was the issue of a broker's fee
under a net real estate listing agreement between those parties.
Although this Court eventually found Ivanhoe not obligated to Strout in any manner,
Ivanhoe nevertheless, prior to that litigation and as a condition of sale, had requested the third
party purchaser Carrington to make some fee arrangement with Strout. Strout and Carrington
had already entered into an agreement obligating Carrington to pay a fee of $5,000 should
Carrington purchase the Ivanhoe property brought to his attention by Strout.
94 Nev. 86, 87 (1978) Exchange Bank v. Strout Realty
agreement obligating Carrington to pay a fee of $5,000 should Carrington purchase the
Ivanhoe property brought to his attention by Strout.
Carrington tendered a check in that amount which was retained by Strout's former attorney
pending conclusion of the litigation in Ivanhoe. At the conclusion of that litigation, Strout
deposited the check. In due course, the check was honored by appellant Exchange Bank
which had maintained the Carrington account upon which the draft was drawn. That
particular account, however, had been closed for several months, and appellant through
inadvertence debited another account of Carrington's. Approximately five months after final
payment had been made on the check, appellant made demand upon respondent for the return
of the money. Respondent refused and litigation subsequently ensued for alleged unjust
enrichment. Both parties moved for summary judgment, and after the district court granted
judgment in favor of Strout, Exchange Bank initiated this appeal.
The sole question before us is whether the district court properly entered summary
judgment in behalf of respondent.
[Headnotes 1, 2]
Here, both parties moved for summary judgment pursuant to NRCP 56 and alleged that
there was no genuine issue of fact to be decided. On appeal, appellant alleges that indeed an
issue of fact exists relating to the alleged bad faith of respondent. Below, although respondent
filed a relevant affidavit in support of its motion, appellant failed to file either affidavits,
pleadings, or other papers alleging bad faith on the part of respondent, and there is nothing in
the record whatsoever in support of its motion. See, NRCP 56(e). It is well settled that on
cross motions for summary judgments the trial court may enter judgment on an issue of law
alone and that the moving party may not alter its position on appeal. State ex rel. Welfare v.
Capital Convalescent, 92 Nev. 147, 547 P.2d 677 (1976); City of Las Vegas v. Cragin
Industries, 86 Nev. 933, 478 P.2d 585 (1970); see also, Garrett Freightlines, Inc. v. United
States, 236 F.Supp. 594 (D.C. Idaho 1964). In the instant case, there was no indication that
respondent acted in bad faith or in breach of warranty, and the trial court thus properly
entered summary judgment upholding the finality of payment. NRS 104.3418.
The lower court's order granting summary judgment to respondent is affirmed.
____________
94 Nev. 88, 88 (1978) Sogge v. Sogge
MARY SOGGE, aka MARY JOHNSON, Appellant, v.
RICHARD SOGGE, Respondent.
No. 9294
March 2, 1978 575 P.2d 590
Appeal from order denying award of attorney's fees, Eighth Judicial District Court, Clark
County; Howard W. Babcock, Judge.
The former wife appealed from an order of the district court denying her award of attorney
fees after granting former husband's motion to change control and custody of children, whose
custody and control had been given to the wife by divorce decree. The Supreme Court held
that in absence of any evidence in record showing an abuse of discretion, determination
would not be disturbed.
Affirmed.
John Peter Lee, Las Vegas, for Appellant.
Bell, Leavitt & Green, Las Vegas, for Respondent.
Divorce.
In absence of any evidence in record showing an abuse of discretion by trial court in refusing to award
former wife attorney fees for opposition to former husband's successful motion to change control and
custody of children, whose custody and control had been given to the former wife by divorce decree, such
determination would not be disturbed on appeal.
OPINION
Per Curiam:
Richard and Mary Sogge were granted a divorce on January 9, 1973. Pursuant to the
decree, appellant Mary Sogge was awarded custody of the four minor children, with
respondent Richard Sogge accorded reasonable visitation rights.
On May 13, 1976, respondent moved to modify the decree to change control and custody
of the children. Appellant, in turn, filed a motion on June 11, 1976, for attorney's fees and
deposition costs to enable her to oppose respondent's motion. Appellant's affidavits filed in
support of her motion stated she had received no support payments since April 30, 1976, had
no money on hand or in any account, and could not afford to retain an attorney to represent
her interests.
94 Nev. 88, 89 (1978) Sogge v. Sogge
Respondent's affidavit filed in opposition to appellant's motion stated he had given
appellant $520,000 plus child support since the divorce. After a hearing on the motion, the
trial judge ordered respondent to pay appellant's counsel $600 as and for costs, specifically
reserving his final ruling on the motion.
On October 4, 1976, the court awarded respondent custody of the children. The court also
denied appellant's motion for attorney's fees and costs and ordered the parties to pay their own
costs. Appellant contends the district court erred in denying her motion for attorney's fees.
We disagree.
The award of attorney's fees in divorce proceedings lies within the sound discretion of the
trial judge and where, as here, the record is barren of any evidence of abuse of that discretion,
the trial judge's determination will not be disturbed on appeal. Woodruff v. Woodruff, 94
Nev. 1, 573 P.2d 206 (1978); Applebaum v. Applebaum, 93 Nev. 382, 566 P.2d 85 (1977);
Fletcher v. Fletcher, 89 Nev. 540, 516 P.2d 103 (1973).
Affirmed.
____________
94 Nev. 89, 89 (1978) Beets v. State
ALVIN ROLAND BEETS, Sr., Appellant, v. THE
No. 9553
March 2, 1978 575 P.2d 591
Appeal from judgment of conviction, Eighth Judicial District Court, Clark County; Joseph
S. Pavlikowski, Judge. Defendant was convicted in the district court of first degree murder,
and he appealed. The Supreme Court held that the evidence supported defendant's conviction.
Affirmed.
Morgan D. Harris, Public Defender, and Thomas L. Leen, Deputy Public Defender, Clark
County, for Appellant.
1. Homicide.
Evidence supported defendant's first degree murder conviction despite testimony that he shot victim in
self-defense when she attacked him with pair of scissors.
94 Nev. 89, 90 (1978) Beets v. State
2. Criminal Law.
Court did not err in refusing instruction proposed by defendant where such instruction was adequately
covered in another instruction given by court.
OPINION
Per Curiam:
Convicted by jury verdict of first degree murder, appellant contends (1) the evidence is
insufficient to support the verdict, and (2) the district court erred by refusing to give a jury
instruction proposed by appellant. We disagree.
(Headnote 1]
1. Appellant first contends we must reverse his conviction due to the conflicting
testimony presented on the circumstances of the shooting of the victim. Although appellant
testified he shot the victim in self defense when she attacked him with a pair of scissors, two
prosecution witnesses testified they saw appellant shoot her in the back as she was exiting her
residence to go to work.
When there is conflicting testimony presented, it is for the jury to determine what weight
and credibility to give the testimony. Where there is substantial evidence to support a verdict
in a criminal case, as the record indicates in this case, the reviewing court will not disturb the
verdict nor set aside the judgment.' Hankins v. State, 91 Nev. 477, 478, 538 P.2d 167, 168
(1975).
[Headnote 2]
2. Appellant's second contention is rejected because the subject of the proposed
instruction was covered in another instruction given by the court. It is not error to refuse to
give an instruction when the law encompassed therein is substantially covered by another
instruction given to the jury.' Geary v. State, 91 Nev. 784, 793, 544 P.2d 417, 423 (1975).
Affirmed.
____________
94 Nev. 90, 90 (1978) Banks v. State
DENNIS BANKS, Appellant, v. THE
No. 9809
March 2, 1978 575 P.2d 592
Appeal from judgment of conviction on a jury verdict; Eighth Judicial District Court,
Clark County; J. Charles Thompson, Judge.
94 Nev. 90, 91 (1978) Banks v. State
Defendant was convicted in the district court of robbery with use of a deadly weapon and
first-degree kidnapping, and he appealed. The Supreme Court, Mowbray, J., held that: (1) the
out-of-court identification of defendant was neither unnecessarily suggestive nor conducive to
mistaken identification and (2) seizure of items in plain view during course of search for
possible additional suspects did not violate Fourth Amendment.
Affirmed.
Leon Simon and H. Douglas Clark, Deputy District Attorneys, Clark County, for Respondent.
1. Criminal Law.
In determining admissibility of out-of-court identification, test is whether confrontation conducted was so
unnecessarily suggestive and conducive to irreparable mistaken identification that defendant was denied
due process of law. U.S.C.A.Const. Amend. 14.
2. Criminal Law.
Determination of admissibility of out-of-court identification is to be made after a review of the totality of
circumstances.
3. Criminal Law.
In determining admissibility of out-of-court identification, first, procedure must be shown to be
suggestive and unnecessary because of lack of emergency or exigent circumstances, then, if so, second
inquiry is whether, under all circumstances, identification is reliable despite an unnecessarily suggestive
identification procedure.
4. Criminal Law.
Identification procedure, whereby suspects at scene of arrest were asked to stand individually for
identification by victim, was not unnecessarily suggestive even though defendant was the first one whom
police asked to stand.
5. Criminal Law.
Even a one-to-one confrontation may be justified when, for example, a witness who is unable to attend
lineup is the only one who can exonerate suspect or witness is on the scene at the time of arrest.
Factors which must be considered when determining whether out-of-court identification had sufficient
indicia of reliability so as not to violate due process are opportunity of witness to view criminal at time of
crime, witness' degree of attention, accuracy of his prior description of criminal, level of certainty
demonstrated at confrontation, and time between crime and confrontation; against these factors is to be
weighed corrupting effect of suggestive identification itself. U.S.C.A.Const. Amend. 14.
7. Criminal Law.
Where victim had a good look at defendant during commission of crime and, at confrontation, which took
place only 20 to 25 minutes after robbery, victim identified defendant immediately and
without hesitation, out-of-court identification of defendant had sufficient indicia of
reliability to allow admission of pretrial identification as well as in-court identification
of defendant.
94 Nev. 90, 92 (1978) Banks v. State
robbery, victim identified defendant immediately and without hesitation, out-of-court identification of
defendant had sufficient indicia of reliability to allow admission of pretrial identification as well as in-court
identification of defendant.
8. Searches and Seizures.
Emergency doctrine is an exception to search warrant requirement of Fourth Amendment.
U.S.C.A.Const. Amend. 4.
When policemen are confronted with evidence which would lead a prudent and reasonable official to see
a need to act to protect life or property, they are authorized to act without a warrant on that information
even if ultimately found erroneous.
10. Criminal Law; Searches and Seizures.
Seizure of items in plain view by officers conducting legitimate emergency search for individual suspects
was not in violation of Fourth Amendment and items were properly admitted into evidence. U.S.C.A.Const.
Amend 4.
OPINION
A jury found the appellant, Dennis Banks, guilty of robbery with use of a deadly weapon,
and first-degree kidnapping. He seeks reversal, claiming that the district judge erred (1) in
failing to suppress testimony predicated upon an out-of-court confrontation between Banks
and the victim of the robbery at the time of Banks' arrest and (2) in admitting evidence
obtained in a warrantless search of the apartment from which Banks emerged at the scene of
his arrest.
I.
THE FACTS
On the afternoon when the crimes allegedly occurred, the victim of them, Anthony Silva,
picked up four hitchhikerstwo Black males and two Black females. One of the males and
one of the females joined Silva in the cab of his flatbed truck, while the other two climbed in
the rear. After Silva had driven some distance, the male in the front seat pulled a gun and
began directing Silva. As Silva later testified: He said to go straight, that if I didn't he would
plug me. Eventually Silva was directed to stop, and to empty his pockets, under a similar
threat. The male and female in the front seat took from Silva two knives, two watches, some
money, a credit card, and keys, including the key from the ignition. After remaining in the
vicinity of the truck for three or four minutes, the four hitchhikers left, crossing two open
fields and disappearing from Silva's view.
94 Nev. 90, 93 (1978) Banks v. State
vicinity of the truck for three or four minutes, the four hitchhikers left, crossing two open
fields and disappearing from Silva's view.
When police arrived minutes later, Silva described the events above and the persons
involved, and told police that the hitchhikers had originally mentioned the Honeymooners
as their destination. Police went directly to the Honeymooners apartments, which they knew
to be located approximately 140 yards away in the direction in which the robbers had fled.
One of the several persons questioned by police at the apartment complex said that he had
seen three individuals matching the description given by the police entering a particular
apartment. The police removed people from adjacent apartments, then approached the
apartment that had been pointed out. As the officers at the front door knocked and announced
their presence, the officer at the rear observed a man, and moments later a woman with a gun,
attempting to exit through a window. Both retreated into the apartment at the officer's shouted
command. After officers attempted to kick in the front door, a voice from inside indicated
that the door would be opened. As the officers waited outside, seven personsthree Black
males and four Black femalesemerged from the apartment.
After an initial search revealed no weapons among those outside, officers entered and
searched the apartment. In the course of their search of the bedroom, police discovered a gun
and a knife on the floor of the closet, two watches on a dresser, and a gun magazine under the
bed. Silva subsequently identified the watches and the knife as belonging to him, and the gun
as that used in the robbery.
From the time that the police had attempted to enter the apartment, Silva had been waiting
approximately forty feet away in a police car at the rear of the apartment, where he could hear
and observe many of the events described above. He was also aware from the conversations
with the officers that they believed they had located the robbers.
Approximately five minutes after arriving at the complex, and some twenty to twenty-five
minutes from the time of the robbery, Silva was taken to the front of the apartment, where the
seven persons who had emerged were lying face down on the ground. Each of the suspects
was asked to stand separately for identification. Banks was the first individual directed to
stand; he was immediately identified by Silva as the male in the front seat of the truck. Silva
also identified another of the group as the woman in the front of the truck, but was unable to
identify the two passengers in the rear.
94 Nev. 90, 94 (1978) Banks v. State
identify the two passengers in the rear. All seven individuals were then formally arrested and
taken to jail.
After a hearing, Banks' pretrial motions to suppress testimony predicated upon Silva's
identification at the scene of the arrest, and to suppress the items described above found
during the officers' search of the apartment, were denied.
1
On appeal, Banks challenges these
determinations of the trial court and the admission of such evidence during trial.
II.
THE WITNESS' IDENTIFICATION OF BANKS WAS
NOT A DENIAL OF DUE PROCESS.
[Headnotes 1, 2]
Since the out-of-court identification of Banks by Silva preceded any formal charges, the
case is governed by the standard of Stovall v. Denno, 388 U.S. 293 (1967). Baker v. State, 88
Nev. 369, 498 P.2d 1310 (1972). The test is whether the confrontation conducted in this case
was so unnecessarily suggestive and conducive to irreparable mistaken identification that
[appellant] was denied due process of law. Stovall v. Denno, 388 U.S. at 301-302. This
determination is to be made after a review of the totality of the circumstances. 388 U.S. at
302.
[Headnote 3]
The United States Supreme Court has recently clarified such a determination. First, the
procedure must be shown to be suggestive, and unnecessary because of lack of emergency or
exigent circumstances. Then, if so, the second inquiry is whether, under all the circumstances,
the identification is reliable despite an unnecessarily suggestive identification procedure.
Manson v. Brathwaite, 432 U.S. 98 (1977). [R]eliability is the linchpin. . . . Id. at 114.
A review of the circumstances in this case indicates that the identification procedure used
was neither so unnecessarily suggestive nor so unreliable as to require exclusion of Silva's
testimony regarding his out-of-court identification or his in-court identification of Banks.
A. The Procedure Was Not Unnecessarily Suggestive.
[Headnote 4]
Banks contends that, because Silva was aware that police thought they had the robbers in
custody and because Banks was the first one whom police asked to stand for identification,
the procedure was unnecessarily suggestive.
____________________

1
Banks' motion to suppress evidence seized during the search was granted as to items found between the
mattress and the springs of the bed, which the trial court determined to be outside the plain view of the officers
during the legitimate scope of their search.
94 Nev. 90, 95 (1978) Banks v. State
the procedure was unnecessarily suggestive. This contention is without merit.
Examples of impermissibly suggestive procedures described in United States Supreme
Court cases are distinguishable from the instant case. In Foster v. California, 394 U.S. 440,
443 (1968), the Court found a pretrial identification procedure violative of due process when,
In effect, the police repeatedly said to the witness, This is the man.' The accused had been
presented to the witness in one lineup with two much shorter men, again in a one-to-one
confrontation, and a third time in another lineup. Not until the third viewing was the witness
able to make a positive identification.
In United States v. Wade, 388 U.S. 218, 233 (1967), the Court gave further examples of
impermissibly suggestive lineup procedures, such as presenting a lineup in which all
participants except the suspect are known to the witness, or are grossly dissimilar in
appearance or clothing, or in which the suspect is pointed out before or during the lineup.
In this case, Banks was immediately identified by Silva at their first confrontation. There is
no contention that Banks was grossly dissimilar in appearance from the other two Black
males in the group, or that any in the group were previously known to Silva. The only respect
in which Banks contends that he was singled out was in being asked to stand first. This
cannot provide adequate ground for reversal. The police must begin such an identification
procedure with someone; any rule that would require or forbid any particular order would
become self-defeating.
[Headnote 5]
Even a one-to-one confrontation may be justified when, for example, a witness who is
unable to attend a lineup is the only one who can exonerate a suspect, Stovall v. Denno, 388
U.S. 293 (1967), or is on the scene at the time of arrest, Moss v. State, 88 Nev. 19, 492 P.2d
1307 (1972). In Simmons v. United States, 390 U.S. 377 (1968), a photographic
identification procedure involving snapshots of the suspect and an associate in various groups
was justified when a serious felony had been committed and the suspect was still at large. It
was essential for the FBI agents swiftly to determine whether they were on the right track, so
that they could properly deploy their forces. Id. at 385.
In this case, Silva was already present at the scene of the arrest and was the only one who
could have exonerated Banks. It was imperative for the police to have a prompt determination
of whether the robbery suspects had been apprehended or were still at large. The police are
not to be criticized because they attempted to establish an affirmative identification as
promptly as possible."
94 Nev. 90, 96 (1978) Banks v. State
attempted to establish an affirmative identification as promptly as possible. People v. Floyd,
464 P.2d 64 (Cal. 1970).
B. The Identification was Reliable.
Even if the procedure had been unnecessarily suggestive, there would have been no due
process violation, since the identification by Silva had sufficient indicia of reliability,
measured by the criteria set forth in Manson v. Brathwaite, 432 U.S. 98 (1977).
[Headnote 6]
The factors which must be considered are the opportunity of the witness to view the
criminal at the time of the crime, the witness' degree of attention, the accuracy of his prior
description of the criminal, the level of certainty demonstrated at the confrontation, and the
time between the crime and the confrontation. Against these factors is to be weighed the
corrupting effect of the suggestive identification itself. Id. at 114.
In the case at hand, Silva testified that he had a good look at Banks and his companion,
who were next to Silva for approximately ten minutes in broad daylight. Although Silva's
attention may have been on driving during part of that time, he had an opportunity to observe
Banks for several minutes after the truck had stopped. Situations involving much less
opportunity for observation have been held by this court to constitute the basis for an in-court
identification by a witness independent of an irregular out-of-court identification procedure.
Riley v. State, 86 Nev. 244, 468 P.2d 11 (1970) (seven-second observation during robbery);
Boone v. State, 85 Nev. 450, 456 P.2d 418 (1969) (one good look during car chase).
At the confrontation, which took place only twenty to twenty-five minutes after the
robbery, Silva identified Banks immediately and without hesitation.
[Headnote 7]
The record supports a finding that Silva's identification of Banks had sufficient indicia of
reliability to allow the admission of the pretrial identification as well as the in-court
identification of Banks.
III.
THE WARRANTLESS SEIZURE OF ITEMS IN PLAIN
VIEW DURING THE COURSE OF A SEARCH FOR
ADDITIONAL SUSPECTS DID NOT VIOLATE
THE FOURTH AMENDMENT.
[Headnote 8]
An established exception to the search warrant requirement of the fourth amendment is the
emergency doctrine. Geary v. State, 91 Nev. 784, 544 P.2d 417 (1975).
94 Nev. 90, 97 (1978) Banks v. State
Law enforcement officers may enter private premises without either an arrest or a
search warrant to preserve life or property, . . . provided they have reasonable grounds to
believe that there is an urgent need for such assistance and protective action, or to
promptly launch a criminal investigation involving a substantial threat of imminent
danger to either [sic] life, health, or property, and provided, further, that they do not enter
with an accompanying intent to either arrest or search. If, while on the premises, they
inadvertently discover incriminating evidence in plain view, or as a result of some
activity on their part that bears a material relevance to the initial purpose for their entry,
they may lawfully seize it without warrant.
Id. at 790, 544 P.2d at 421, n. 3, quoting E. Mascolo, The Emergency Doctrine Exception to
the Warrant Requirement Under the Fourth Amendment, 22 Buff.L.Rev. 419, 426-427
(1973).
[Headnote 9]
Police had ample grounds in this case for the belief that urgent action was necessary to
investigate and possibly prevent a substantial threat to their own safety as well as that of
others in the vicinity. They were in pursuit of suspects involved in an armed robbery, who
they had reason to believe had entered the apartment in question. After seven persons had
emerged from the apartment, they had no way of knowing, without entering the apartment,
whether others remained inside. Furthermore, they had ample reason to believe that anyone
remaining inside would have access to a gun, because a woman had been seen with a gun at
the rear window, and an initial search had revealed that none of the seven outside was
carrying such a weapon. When policemen . . . are confronted with evidence which would
lead a prudent and reasonable official to see a need to act to protect life or property, they are
authorized to act [without a warrant] on that information, even if ultimately found erroneous.
Wayne v. United States, 318 F.2d 205, 212 (D.C.Cir. 1963) (Burger, J.), quoted in E.
Mascolo, supra at 429. See also People v. Block, 491 P.2d 9 (Cal. 1971).
Banks contends that, despite the exigencies of the situation and the fact that all items
admitted into evidence had been in plain view of the officers during the legitimate scope of a
search for a possible armed suspect, the search was rendered violative of the fourth
amendment because the officers were not shown to have entered without an accompanying
intent to either arrest or search.' Geary v. State, 91 Nev. at 790, 544 P.2d at 421, quoting E.
Mascolo, supra at 426.
If, as Banks contends, this phrase must be interpreted so as to preclude emergency entries
for any investigative purpose, the exception would swallow the rule.
94 Nev. 90, 98 (1978) Banks v. State
the exception would swallow the rule. In a case often cited as an example of the emergency
doctrine, Warden v. Hayden, 387 U.S. 294 (1967), the Court specifically held that police, in
pursuit of an armed robbery suspect, acted reasonably when they entered the house and
began to research for a man of the description they had been given and for weapons which he
had used in the robbery or might use against them. . . . Speed here was essential, and only a
thorough search of the house for persons and weapons could have ensured that Hayden was
the only man present and that the police had control of all weapons which could be used
against them or to effect an escape. 387 U.S. at 298-299 (emphasis added).
There is nothing in the circumstances of this case that suggests a planned warrantless
seizure. Coolidge v. New Hampshire, 403 U.S. 443, 470, n. 26 (1971). As in Hayden, the
police acted reasonably in their attempt to determine the location of possible suspects, as well
as weapons which might be used against them. This was not a situation in which police had
had the suspects or the apartment under suspicion or surveillance for any length of time. They
simply responded to an emergency situation in a prudent and reasonable manner.
[Headnote 10]
The seizure of the items in plain view by officers conducting a legitimate emergency
search for additional suspects was therefore not in violation of the fourth amendment. Since
the State has met its burden of showing that the evidence was lawfully obtained, State v.
Hardin, 90 Nev. 10, 518 P.2d 151 (1974), the items were properly admitted into evidence.
We conclude, therefore, that the conviction of Banks must be upheld. The out-of-court
identification of him was neither unnecessarily suggestive nor conducive to mistaken
identification. The seizure of items in plain view during the course of a search for possible
additional suspects did not violate the fourth amendment.
Affirmed.
Batjer, C. J., and Thompson, Gunderson, and Manoukian, JJ., concur.
____________
94 Nev. 98, 98 (1978) Loucious v. Sheriff
RICHARD LOUCIOUS, Appellant, v. SHERIFF,
No. 10534
March 2, 1978 575 P.2d 598
On appeal of petitioner from an order of the district court denying his pretrial petition for
writ of habeas corpus challenging the indictment, the Supreme Court held that the evidence
presented to the grand jury was insufficient to establish probable cause that petitioner made a
sale of heroin, where the only evidence that would connect petitioner to the charged offense
was given by an undercover narcotics agent who testified that, on specified date, he
approached a group of people, which included petitioner, for the stated purpose of purchasing
heroin, that petitioner and others conversed with the officer, and that, after the officer stated
he wanted four bags of heroin, another individual in the group produced the bags and
completed a sale.
Bell, Leavitt & Green and Thomas Burns, Las Vegas, for Appellant.
Indictment an Information.
Evidence presented to the grand jury was insufficient to establish probable cause that petitioner made a
sale of heroin, where the only evidence that would connect petitioner to the charged offense was given by
an undercover narcotics agent who testified that, on specified date, he approached a group of people, which
included petitioner, for the stated purpose of purchasing heroin, that petitioner and others conversed with
the officer, and that, after the officer stated he wanted four bags of heroin, another individual in the group
produced the bags and completed a sale. NRS 172.155, subd. 1, 453.161, 453.321.
OPINION
Per Curiam:
An indictment charged Richard Loucious with the felonious sale of controlled substance
(heroin), in violation of NRS 453.321 and NRS 453.161. Loucious challenged the indictment
with a pretrial petition for a writ of habeas corpus contending, inter alia, the evidence
presented to the grand jury was insufficient to sustain the probable cause burden which is
imposed by NRS 172.155(1).
1
The district judge denied habeas and, in this appeal, Loucious
asserts we are compelled to reverse. We agree.
____________________

1
In view of our disposition of the appeal, we need not, and therefore do not, consider other claims of error.
The only evidence contained in the transcript of the grand jury proceedings that would
connect Loucious to the charged offense was given by an undercover narcotics agent. The
agent testified that on September 30, 1977, he approached a group of people, which included
Richard Loucious, for the stated purpose of purchasing a controlled substance, heroin.
Loucious, and others, conversed with the officer and, after the office stated that he wanted
four bags (of heroin), another individual in the group produced four balloons (of heroin)
and completed a sale.
The recited facts may subject Loucious to charges under a criminal statute. However, in
our view, they are insufficient to establish probable cause that [Loucious] made a sale' [of
heroin]. Egan v. Sheriff, 88 Nev. 611, 614, 503 P.2d 16, 17 (1972).
Accordingly, we reverse. This case is remanded to the district court with instructions to
grant the petition for a writ of habeas corpus.
____________
94 Nev. 100, 100 (1978) Earlywine v. Sheriff
DONALD EUGENE EARLYWINE, Jr., Appellant, v.
SHERIFF, ESMERALDA COUNTY, NEVADA, Respondent.
No. 10303
March 2, 1978 575 P.2d 599
Appeal from order denying pretrial petition for a writ of habeas corpus, Fifth Judicial
District Court, Esmeralda County; William P. Beko, Judge.
The Supreme Court held that information containing, at best, conclusory language with
respect to defendant's alleged criminally negligent operation of vehicle was insufficient to
support charges of involuntary manslaughter.
Reversed, without prejudice.
Skupa & Mainor, Las Vegas, and Gary L. Gardner, Salem, Oregon, for Appellant.
Robert List, Attorney General, Carson City; and Alan R. Harter, District Attorney,
Esmeralda County, for Respondent.
Information containing, at best, conclusory language with respect to defendant's alleged criminally
negligent operation of vehicle was insufficient to support charges of involuntary
manslaughter.
94 Nev. 100, 101 (1978) Earlywine v. Sheriff
insufficient to support charges of involuntary manslaughter. NRS 173.035, subd. 3, 200.070.
OPINION
Per Curiam:
At the conclusion of a preliminary examination, Donald Eugene Earlywine, Jr., was
ordered to stand trial for two counts of involuntary manslaughter (NRS 200.070). A pretrial
petition for a writ of habeas corpus contended, inter alia, that the information is insufficient
to support the charges of involuntary manslaughter. The habeas petition was denied and in
this appeal Earlywine argues that we are compelled to reverse. We agree.
In the charging portion of each count of the information, it is alleged that Earlywine
operated a vehicle in an unlawful and criminally negligent manner, to-wit, by operating said
vehicle with wilfull [sic] or wanton disregard for the safety of persons or property in that the
Defendant despite the existence of a special hazard with respect to pedestrians or other traffic,
or as was necessary to avoid colliding with another vehicle, failed to maintain the duty to use
due care, and did thereby cause or allow his vehicle to strike a 1966 Chevrolet vehicle . . .
resulting in injury. . . .
The quoted language is, at best, conclusory and insufficient to charge the alleged crime.
See NRS 173.035(3) which provides, in part, that [a]ll informations shall set forth the crime
committed according to the facts. See also Bielling v. Sheriff, 89 Nev. 112, 113, 508 P.2d
546 (1973), where we said: In order to properly charge appellant with the offense of
involuntary manslaughter, the information must specify the acts of criminal negligence upon
which the state is relying to try to obtain a conviction. Cf. Simpson v. District Court, 88
Nev. 654, 503 P.2d 1225 (1972).
Accordingly, we reverse without prejudice to the right of the prosecution to institute a new
and sufficient accusation within fifteen (15) days after remittitur issues.
____________
94 Nev. 101, 101 (1978) Turk v. Nevada State Prison
RICHARD W. TURK, Appellant, v. NEVADA
STATE PRISON, Respondent.
No. 8839
March 2, 1978 575 P.2d 599
Appeal from judgment, First Judicial District Court, Carson City; Frank B. Gregory,
Judge.
Correctional officer sought judicial review of decision of Nevada Personnel Advisory
Commission hearing officer that the officer was justifiably terminated from his position. The
district court affirmed, and officer appealed. The Supreme Court, Batjer, C. J., held that: (1)
evidence was sufficient to support hearing officer's decision, and (2) defect, if any, in statute
governing dismissal of permanent classified employees was cured by implementation of
comprehensive personnel rules delineating specific classes for termination of permanent
classified employees.
Affirmed.
James F. Sloan, Reno, for Appellant.
Robert List, Attorney General, and David B. Small, Deputy Attorney General, Carson City,
for Respondent.
1. Officers.
In reviewing decision of Personnel Advisory Commission hearing officer, it is function of Supreme
Court, as well as district court to review evidence presented at hearing to determine that decision was
supported by evidence and to ascertain whether hearing officer acted arbitrarily, capriciously, or contrary
to the law. NRS 233B.140.
2. Prisons.
Evidence was sufficient to support decision of Personnel Advisory Commission hearing officer that
correctional officer was justifiably terminated from his position, in view of evidence that officer, while
serving as gatehouse officer, allowed three prisoners returning from work release to enter prison without
conducting or attempting to conduct search for weapons or contraband and in view of evidence that officer
missed mandatory preshift meeting. NRS 233B.140.
3. Statutes.
Defect, if any, in statute governing dismissal of permanent classified employees was cured by
promulgation of comprehensive personnel rule delineating specific causes for termination of permanent
classified employees. NRS 284.155, 284.385.
4. Officers.
Comprehensive personnel rules promulgated by State Department of Personnel had force and effect of
law, where rules were mandated by Legislature and were adopted in accordance with statutory procedures.
NRS 284.155.
OPINION
By the Court, Batjer, C. J.:
Appellant sought judicial review of the Nevada Personnel Advisory Commission hearing
officer's decision which concluded appellant had failed to properly perform sensitive security
duties assigned to him at the Nevada State Prison and was, therefore, justifiably terminated
from his position as a correctional officer.
therefore, justifiably terminated from his position as a correctional officer.
Appellant contended in the district court that (1) the evidence adduced at the hearing was
insufficient to support the hearing officer's decision, and (2) he was terminated without due
process of law. The district court rejected appellant's assignments of error and here appellant
reasserts the same contentions, neither of which has merit.
[Headnotes 1, 2]
1. In reviewing the hearing officer's decision, it is the function of this court, as well as the
district court, to review the evidence presented at the hearing to determine if the decision was
supported by the evidence, and to ascertain whether the hearing officer acted arbitrarily,
capriciously, or contrary to the law. NRS 233B.140; Bryant v. Private Investigator's Lic. Bd.,
92 Nev. 278, 549 P.2d 327 (1976); Miller v. West, 88 Nev. 105, 493 P.2d 1332 (1972). Here,
the record indicates that appellant, while serving as gatehouse officer, allowed three prisoners
returning from work release in the Carson City area to enter the prison without conducting or
attempting to conduct a search for weapons or contraband. The record further indicates that
appellant had, on the day of the above-described incident, missed pre-shift muster, a
mandatory meeting held for the purpose of inspecting the oncoming shift for appearance and
fitness for duty and disseminating any new information pertaining to prison duties. In our
view, these facts are sufficient to support the hearing officer's decision and, further, we
perceive no abuse of the hearing officer's discretion in approving appellant's dismissal.
Windish v. State, 93 Nev. 636, 572 P.2d 210 (1977); Barnum v. Williams, 84 Nev. 37, 436
P.2d 219 (1968); Bd. of Chiropractic Exam'rs v. Babtkis, 83 Nev. 385, 432 P.2d 498 (1967).
2. In support of the due process challenge, appellant contends the statute governing
dismissal of permanent classified employees is unconstitutionally vague. That statute, NRS
284.385, provides, in pertinent part: 1. An appointing authority may: (a) Dismiss or demote
any permanent classified employee when he considers that the good of the public service will
be served thereby. Appellant argues the language good of the public service is vague and
renders no guidance to the individual employee in planning his future conduct.
[Headnotes 3, 4]
The chief of the State Department of Personnel has, pursuant to NRS 284.155(1),
prescribed comprehensive personnel rules delineating, inter alia, specific causes for
termination of permanent classified employees.1 Munoz v. State ex rel. Dep't of Hwys., 92
Nev. 441
permanent classified employees.
1
Munoz v. State ex rel. Dep't of Hwys., 92 Nev. 441, 552
P.2d 42 (1976); Oliver v. Spitz, 76 Nev. 5, 348 P.2d 158 (1960). Those rules, mandated by
the legislature and adopted in accordance with statutory procedures, have the force and effect
of law. NRS 284.155; Oliver v. Spitz, cited above. Thus, even assuming the standard
announced in NRS 284.385(1)(a) constitutes an inadequate legislative guideline for
termination, the implementation of the personnel rules serves to cure any defect. Cf. State of
Nevada v. Rosenthal, 93 Nev. 36, 559 P.2d 830 (1977).
Affirmed.
Mowbray, Thompson, Gunderson, and Manoukian, JJ., concur.
____________________

1
1. The chief shall prescribe a code of rules and regulations for the classified service, which, upon approval
of the commission after public notice and opportunity for public hearing, shall have the force and effect of law.
State Administrative Manual 8200, Rules for Personnel Administration, Rule XII, provides, in pertinent part:
DISMISSAL, SUSPENSION, AND REDUCTION IN GRADE OR COMPENSATION
(Refer to NRS 284.385)
Depending on the seriousness of the misconduct, these disciplinary actions may be taken in any order.
. . .
C. Involuntary Demotion and Dismissal
When other forms of disciplinary or corrective action have proved ineffective or when the seriousness of
the offense or condition warrants, the appointing authority may demote or dismiss the employee for any
cause or causes listed in Section D of this Rule.
D. Causes for Action
Appropriate disciplinary or corrective action may be taken for any of the following causes:
. . .
3. The employee of any institution administering a security program who, in the considered
judgement [sic] of the appointing authority, violates or endangers the security of the institution.
. . .
5. Incompetence or inefficiency.
. . .
7. Inexcusable neglect of duty.
____________
94 Nev. 104, 104 (1978) In re Francovich
In the Matter of SAMUEL B. FRANCOVICH,
Attorney at Law.
No. 8862
March 2, 1978 575 P.2d 931
Petition to review disciplinary recommendations of the Board of Governors of the State
Bar of Nevada.
The Supreme Court, Thompson, J., held that isolated instance of neglect in failing to
communicate with client, to respond to request for status report, and to return all or part of
retaining fee when it became apparent that criminal appeal could not be perfected warrants
public reprimand.
Discipline warranted. Penalty modified.
Gunderson and Manoukian, JJ., dissented.
Garry E. Claiborne, of Las Vegas, and Peter A. Perry, of Reno, for Petitioner.
David R. Belding, of Reno, for Respondent.
1. Attorney and Client.
The failure to perform promised legal services, if a pervasive course of conduct by an attorney, may
warrant severe discipline of suspension or disbarment.
In disciplinary proceedings, although recommendation of the Board of Governors is persuasive, Supreme
Court must exercise its independent judgment.
Isolated instance of neglect in failing to communicate with client, to respond to request for status report,
and to return all or part of retaining fee when it became apparent that criminal appeal could not be
perfected warrants public reprimand.
OPINION
This matter is before us on petition to review recommendations of the Board of Governors
of the State Bar of Nevada that Samuel B. Francovich be suspended from the practice of law
subject to reinstatement upon meeting certain conditions.
1
Francovich accepted a $1,000
retaining fee from Frederick Maclaine, brother of Dennis Maclaine, to represent Dennis on
appeal from his conviction for the possession and sale of marijuana.
____________________

1
The Board recommended:
(1) That Samuel B. Francovich be suspended from the practice of law for six months subject to being
reinstated after three months if, within thirty days from the date of suspension, Mr. Francovich has:
(a) repaid the $1,000 retainer to Mr. Frederick Maclaine; and
(b) files a petition for reinstatement with the Board of Governors pursuant to Supreme Court Rule 162;
(2) That Samuel B. Francovich notify his clients as to his suspension pursuant to Supreme Court Rule
112A(1)(a); and
(3) That Samuel B. Francovich be assessed all costs regarding the proceedings including court reporters' fees,
costs of investigation and costs of the special examiner.
Francovich accepted a $1,000 retaining fee from Frederick Maclaine, brother of Dennis
Maclaine, to represent Dennis on appeal from his conviction for the possession and sale of
marijuana. Dennis then was confined in the Nevada State Prison. After timely filing a notice
of appeal and designation of record, Francovich wrote Dennis notifying him that he had been
retained by brother Frederick, enclosed a copy of the notice of appeal and designation of
record, and advised him of the need for a transcript of testimony and its estimated cost.
Brother Frederick also was told that there would be a transcription cost. Frederick indicated
that further funds were not available. Francovich, therefore, filed a motion for a free
transcript. That motion was denied. Neither Dennis nor Frederick were advised of the denial.
Indeed, Francovich did not thereafter communicate with his client, nor respond to requests for
a status report. The appeal was abandoned for lack of transcript. Francovich did not return the
retaining fee until after the Local Administrative Committee had recommended discipline.
Francovich does not ask this court to excuse his neglect. He admits his errors in failing to
communicate with his client, to respond to requests for a status report, to return all or part of
the retaining fee when it became apparent that the appeal could not be perfected without a
transcript. He does suggest, however, that the penalty of suspension is much too severe.
[Headnote 1]
The failure to perform promised legal services, if a pervasive course of conduct by the
attorney, may warrant the severe discipline of suspension or disbarment. Lester v. State Bar,
551 P.2d 841 (Cal. 1976); Selznick v. State Bar, 547 P.2d 1388(Cal. 1976); Doyle v. State
Bar, 544 P.2d 937 (Cal. 1976); In re Pearce, 540 P.2d 515 (Utah 1975); Montalto v. State
Bar, 520 P.2d 721 (Cal. 1974); Alkow v. State Bar of California, 479 P.2d 638 (Cal. 1971);
Grove v. State Bar of California, 427 P.2d 164 (Cal. 1967).
[Headnotes 2, 3]
In the matter at hand we have a single instance of client neglect, wholly unlike the
circumstances before the court in the cited cases where severe discipline was imposed. We
are not willing to infer a pattern of misconduct when the record does not show it. Although
the recommendation of the Board of Governors is persuasive, this court must exercise its
independent judgment. State Bar v. Raffetto, 64 Nev. 390, 183 P.2d 621 (1947); In re Kellar,
88 Nev. 63, 493 P.2d 1039(1972). We heretofore have modified recommended discipline
when believed to be too severe. In re Cochrane, 92 Nev. 253, 549 P.2d 328 {1976); In re
Kellar, supra.
(1976); In re Kellar, supra. A majority of this court believes that the penalty recommended by
the Board is not warranted, although discipline is in order. We publicly reprimand Samuel B.
Francovich for his conduct in the Maclaine matter and direct him to pay the State Bar of
Nevada all costs of this proceeding including court reporters' fees, costs of investigation and
of the special examiner.
Batjer, C. J., and Mowbray, J., concur.
Gunderson, J., dissenting:
I respectfully dissent.
In the instant case, Mr. Francovich accepted a fee of $1,000 to prosecute an appeal for
which he knew a transcript was required. When the district court denied his request for a free
transcript, Mr. Francovich simply retained the defendant's money, without seeking mandamus
relief in this court, as could have been done. See NRAP 21; Teeter v. District Court, 64 Nev.
256, 180 P.2d 590 (1947).
As a legal principle, I can accept that isolated instances of professional neglect should not
be the subject of Bar disciplinary proceedings, but instead should be left for the courts'
cognizance in civil malpractice actions in instances where damage results. However, I am not
ready to characterize as mere neglect the practice of pocketing substantial amounts of
money for services which a lawyer then makes no good faith effort to perform. Cf. Selznick v.
State Bar, 547 P.2d 1388 (Cal. 1976); Doyle v. State Bar, 544 P.2d 937 (Cal. 1976). Review
of the authorities indicates that other tribunals view such derelictions in terms of moral
turpitude, dishonesty and corruption.
Moreover, I could not in any case countenance modifying Mr. Francovich's penalty on the
ground that, as the majority say: In the matter at hand we have a single case of neglect. I
suggest the Board of Bar Governors knows Mr. Francovich has been in professional
difficulties throughout the years. For example, as I believe they all know, only a few years
ago Mr. Francovich, who had proceeded up though the chairs of the Board of Bar
Governors, had to forego the presidency of the State Bar of Nevada because problems over
one of his professional indiscretions surfaced just prior to his expected election as president.
The Board was constrained to reprimand Mr. Francovich publicly, both for commingling a
client's funds with his own, and for improperly borrowing money from a client. See, Journal
of the Nevada State Bar, 39 Inter Alia 32 (Jan. 1974).
This court has recently held: The previous poor record and repeated misconduct of an
attorney may be considered in determining the severity of the penalty to be assessed in a
disciplinary proceeding. In re Miller, 87 Nev. 65, 72, 482 P.2d 326, 330 (1971). For a
pattern of misconduct nearly identical to what the records establish concerning Mr.
Francovich, the California Supreme Court unanimously approved an actual suspension of one
year, with a further probationary period extending to three years. See Selznick, cited above.
Therefore, I suggest the majority's basis for modifying the Board's recommendation is
contrary to the facts and to precedent.
In general, I question whether suspensions are a very useful method of professional
discipline. After all, an attorney's failure to serve clients to whom he has committed himself
will hardly be corrected by ordering that, for months, he is not to serve his clients at all.
Therefore, where total disbarment does not yet appear appropriate, a suspension or temporary
disbarment may do little to serve the public interest.
Even so, here it appears that although the Board of Governors had already subjected Mr.
Francovich to the discipline of public censure, his lack of professional responsibility
persisted. Thus, despite personal reservations about suspension as a sanction, I cannot
disagree with the Board that suspension is the only remedy remaining, short of disbarment,
which may be sufficient to impress Mr. Francovich that professional obligations must be
honored.
The time comes when compassion for an attorney can only be counted as insensitivity to
the public. The Board of Bar Governors' recommendation should be approved.
Manoukian, J., dissenting:
I respectfully dissent and explicate my difficulty with the Court's opinion.
In the instant case, the Board of Bar Governors concluded: that as a result of his failure to
prosecute an appeal to this Court on behalf of his client and thereby perform the services for
which he was retained, petitioner has violated Rule 197 of this Court and Rule 203 adopting,
inter alia, Canon 7 and Disciplinary Rule 7-101A(2) of the American Bar Association Code
of Professional Responsibility and that the habitual disregard by petitioner for the interests of
his client together with his willful failure to perform legal services for which he was retained
constituted (1) a breach of the good faith and fiduciary duty owed by an attorney to his client,
(2) unethical conduct, and warrants disciplinary action in the form of suspension from the
practice of law. Supreme Court Rule 163.
Here, petitioner failed to file necessary appellate documents for his client, indirectly
misled him through relatives who were interested in the outcome of the proceedings as to the
status of his case, failed to timely return a retainer fee, and generally avoided all
communication with his client. The failure to prosecute an appeal, when such desire is made
known to counsel, can itself constitute a gross dereliction in duty. Compare, Downs v.
Warden, 93 Nev. 475, 568 P.2d 575 (1977).
Although the instant failure to perform promised legal services may not constitute the
pervasive course of conduct by the attorney that warranted the severe discipline imposed in
Grove v. State Bar of California, 427 P.2d 164 (Cal. 1967), and its progeny, and while some
of petitioner's omissions standing alone might be described as merely negligent, his
persistence in refusing to perform services for which he was engaged and for which he
accepted fees, and his representations to his client that petitioner was diligently working on
the case can only be described as deliberate and willful.
Petitioner's behavior, indeed, constitutes serious misconduct. Failure to communicate with
a client and inattention to his needs may alone constitute appropriate grounds for discipline.
Spindell v. State Bar, 530 P.2d 168 (Cal. 1975); Taylor v. State Bar, 521 P.2d 470 (Cal.
1974). The same may be said of the acceptance of compensation for legal services which are
never forthcoming. Grove, supra; Bruns v. State Bar of California, 117 P.2d 327 (Cal. 1941);
compare, In re Kaufman, 93 Nev. 452, 567 P.2d 957 (1977).
There are no settled standards as to the fitting sanction, and each case must be decided on
its own facts. Bradpiece v. State Bar of California, 518 P.2d 337 (Cal. 1974). We should,
however, give great deference to the recommendations of the Board of Bar Governors. See,
Silver v. State Bar, 528 P.2d 1157 (Cal. 1974).
Our primary concern must be the fulfillment of established professional standards, and in
matters such as the instant case where culpability exists in the absence of mitigating
circumstances, the recommended penalties should be adopted by this Court.
On this record, I would approve the Board of Bar Governors' recommendation.
____________
94 Nev. 110, 110 (1978) Knapp v. State
CHARLES RITZ KNAPP, Jr., Appellant, v. THE
No. 9535
March 2, 1978 575 P.2d 601
Appeal from order revoking probation; Ninth Judicial District Court, Douglas County;
Noel E. Manoukian, Judge.
The Supreme Court held that the trial court erred in failing to give credit for days served in
county jail as a condition of probation.
Affirmed as modified.
Horace R. Goff, State Public Defender, and J. Thomas Susich, Chief Deputy Public
Defender, Carson City, for Appellant.
Steven D. McMorris, District Attorney, and William J. Crowell, Jr., Deputy District
Attorney, Douglas County, for Respondent.
1. Criminal Law.
Trial court, after revoking probation, erred in failing to accord credit for days spent in county jail as
condition of probation where effect of denying such credit was to impose sentence in excess of that
authorized by statute. NRS 193.140.
2. Mental Health.
Denial of motion by criminal defendant for psychiatric examination was not error where nothing was
presented to court to justify doubt that defendant was able to assist in his defense or that he was capable of
distinguishing right from wrong.
OPINION
Per Curiam:
Knapp was convicted of conspiring to commit grand larceny. He was sentenced to serve
one year in the county jail. Imposition of sentence was suspended and he was placed on
probation. One condition of probation was that he serve the first 70 days in the county jail. He
did so. Later, his probation was revoked and the original one-year sentence imposed. This
appeal is from the order of revocation.
[Headnotes 1, 2]
The main claim of error is that the district court should have given 70 days credit against
the sentence to be served.
1
Knapp was convicted of a gross misdemeanor which carries a
maximum jail sentence of one year.
____________________

1
At the revocation hearing the appellant moved for a psychiatric examination. His motion was denied and he
asserts such denial as error. The contention lacks substance. Nothing was presented to the district court to justify
a
94 Nev. 110, 111 (1978) Knapp v. State
was convicted of a gross misdemeanor which carries a maximum jail sentence of one year.
NRS 193.140. The effect of denying credit was to impose a sentence in excess of that
authorized by statute. This was error. We remand with direction to modify the sentence to
give credit for time served as a condition of probation.
2

____________________
doubt that he was not able to assist in his defense or that he was incapable of distinguishing right from wrong.
Hollander v. State, 82 Nev. 345, 418 P.2d 802 (1966).

2
The Governor, pursuant to Article 6, Section 4, of the Nevada Constitution designated the Honorable
Michael E. Fondi, Judge of the First Judicial District, to sit in place of The Honorable Noel Manoukian, Justice,
who voluntarily disqualified himself in this case.
____________
94 Nev. 111, 111 (1978) Basic Food Indus., Inc. v. District Court
BASIC FOOD INDUSTRIES, INC., Petitioner, v. THE EIGHTH JUDICIAL DISTRICT
COURT OF THE STATE OF NEVADA, IN AND FOR THE COUNTY OF CLARK,
Respondent.
No. 9517
March 8, 1978 575 P.2d 934
Original proceeding in prohibition, Eighth Judicial District Court, Clark County; Joseph S.
Pavlikowski, Judge.
Original proceeding in prohibition was brought by nonresident corporation seeking writ
directing the district court to quash service and refrain from exercising jurisdiction in suit
brought to collect on note and to enforce guaranty agreement of nonresident corporation. The
Supreme Court, Gunderson, J., held that Nevada court did not have jurisdiction in view of
bare allegations of complaint indicating that the nonresident corporation executed the
guaranty and affidavit by corporation's former president stating that guaranty was neither
signed nor negotiated in Nevada.
Petition granted.
Lionel Sawyer and Collins, and Andrew S. Brignone, Las Vegas, for Petitioner.
Freedman and Whelton, Las Vegas, for Respondent.
1. Corporations.
In suit brought to collect on note and to enforce guaranty agreement of nonresident corporation, Nevada
court did not have jurisdiction, in view of bare allegations of complaint indicating that the
nonresident corporation executed a guaranty, and affidavit by corporation's former
president stating that guaranty was neither signed nor negotiated in Nevada.
view of bare allegations of complaint indicating that the nonresident corporation executed a guaranty, and
affidavit by corporation's former president stating that guaranty was neither signed nor negotiated in
Nevada. NRCP 12(b); NRS 14.065.
2. Courts.
Plaintiff had burden of establishing jurisdiction of court once it was challenged.
OPINION
In this original proceeding in prohibition, petitioner, Basic Food Industries, Inc., seeks a
writ directing respondent court to quash service and refrain from exercising jurisdiction.
Since we conclude that it is unreasonable to exercise in personam jurisdiction over petitioner,
the writ must issue.
From the limited record before us, it appears that petitioner is a Delaware corporation with
no business contacts in Nevada. In 1971, it seems a promoter approached petitioner at its
offices in Miami, Florida, seeking to sell stock in Portion Control, Inc. As part of the
agreement reached, petitioner executed a guaranty on pre-existing indebtedness which Portion
owed to the Valley Bank of Nevada. The parties concede petitioner did not procure the
underlying loan to Portion, and executed the guaranty outside Nevada's territorial limits.
Portion eventually defaulted on its obligations. Valley Bank thereupon brought suit in the
respondent court, to collect on Portion's note and to enforce the guaranty agreement. Upon
receiving summons at its Miami office, petitioner moved to quash service pursuant to NRCP
12(b).
1
Respondent court denied the motion; petitioner challenges that ruling.
The question before us is whether the mere signing of a guaranty in another state will, by
itself, subject the guarantor to in personam jurisdiction under our long-arm statute, NRS
14.065.
2
In Certain-Teed Prods. v. District Court, 87 Nev. 18, 479 P.2d 781 (1971), we
delineated the due process criteria defining the outer limits of in personam jurisdiction over
out-of-state defendants who engaged in a single act within the forum.
____________________

1
NRCP 12(b) provides in pertinent part:
Every defense, . . . shall be asserted in the responsive pleading . . . except that the following defenses may at
the option of the pleader be made by motion: (1) . . ., (2) lack of jurisdiction over the person, (3) insufficiency of
process, (4) insufficiency of service of process, . . .

2
NRS 14.065, in pertinent part, reads:
1. Personal service of summons upon a party outside this state is sufficient to confer upon a court of this
state jurisdiction of the person of the
First, the defendant must purposefully avail himself of the privilege of acting in the
forum state or of causing important consequences in that state. Second, the cause of
action must arise from the consequences in the forum state of the defendant's activities.
Finally, the activities of the defendant or the consequences of those activities must have a
substantial enough connection with the forum state to make the exercise of jurisdiction
over the defendant reasonable. Ibid., 87 Nev. at 23, 479 P.2d at 785.
Using these criteria we later found jurisdiction existed over a California promisor where
he was actively engaged in a corporate activity within Nevada and was partly responsible for
procuring the underlying loan to a corporation. See Abbott v. Harrah, 90 Nev. 321, 526 P.2d
75 (1974). In such a case we held the traditional notions of fair play and substantial justice
were not offended by the exercise of jurisdiction. However, Abbott is not dispositive where,
as here, no more appears than that the guarantor has mechanically executed the guaranty and
mailed it back to the forum. The California Supreme Court recently held it unreasonable to
exercise jurisdiction over a Florida guarantor who had no other business contacts with
California, even though the guaranty caused effects inside that state. See Sibley v. Superior
Court of Los Angeles County, 546 P.2d 322 (Cal. 1976); see also Arkansas Poultry Coop.,
Inc. v. Red Barn System, Inc., 468 F.2d 538 (8th Cir. 1972).
[Headnote 1, 2]
In the instant case, all we have properly before us are the bare allegations of the complaint
indicating that Basic, a nonresident corporation, executed a guaranty, together with an
affidavit by Basic's former president that the guaranty was neither signed nor negotiated in
Nevada. On this record, we feel constrained to hold the exercise of jurisdiction improper.
Valley Bank, as plaintiff in the action below, had the burden to establish jurisdiction once it
was challenged. See e.g., Amba Marketing Systems, Inc. v. Jobar Intern., Inc., 551 F.2d 784
(9th Cir. 1977). They failed to meet this burden by producing any additional evidence to
demonstrate that Nevada's exercise of jurisdiction would be reasonable.
____________________
party so served if: (a) Such service is made by delivering a copy of the summons, together with a copy of the
complaint, to the party served in the manner provided by statute or rule of court for service upon a person of like
kind within this state; and (b) Such party has submitted himself to the jurisdiction of the courts of this state in a
manner provided by this section.
2. Any person who, . . . does any of the acts enumerated in this subsection thereby submits himself . . . to
the jurisdiction of the courts of this state as to any cause of action which arises from the doing of such acts:
a. Transacting any business or negotiating any commercial paper within this state; . . .
any additional evidence to demonstrate that Nevada's exercise of jurisdiction would be
reasonable.
The petition is therefore granted.
Batjer, C. J., and Manoukian, J., and Smart, D. J.,
3
concur.
____________________

3
The Governor designated Stanley A. Smart, Judge of the Third Judicial District, to sit in place of Honorable
Gordon Thompson, Justice, who was disabled. Nev. Const. art. 6, 4. Justice Mowbray having recused himself,
the parties through counsel, Samuel S. Lionel and John C. Whelton, consented to a decision by the panel's
remaining four members.
____________
94 Nev. 114, 114 (1978) Lummis v. District Court
WILLIAM R. LUMMIS and FIRST NATIONAL BANK OF NEVADA, Co-Special
Administrators of the ESTATE OF HOWARD R. HUGHES, Jr., Deceased, Petitioners, v.
THE EIGHTH JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, IN AND
FOR THE COUNTY OF CLARK, Respondent.
No. 9484
March 15, 1978 576 P.2d 272
Petition for Writ of Prohibition, Eighth Judicial District Court, Clark County; Joseph S.
Pavlikowski, Judge.
In original proceeding in prohibition, petitioners sought to bar their substitution as party
defendants for a deceased defendant in certain suits. The Supreme Court, Gunderson, J., held
that fact that defendant was not served with process before his death did not preclude district
court from ordering substitution of other parties for such defendant.
Petition denied.
Morse, Foley and Wadsworth, Las Vegas, for Petitioners.
John Peter Lee, Ltd., James C. Mahan and Arthur J. Crowley, Las Vegas, for Respondent.
Parties.
Fact that defendant in certain suits was not served with process before his death, and, thus, assertedly was
not a party jurisdictionally before the district court did not preclude court from ordering substitution of
other parties for such defendant. NRCP 25(a)(1).
OPINION
In this original proceeding in prohibition, petitioners, William R. Lummis and the First
National Bank of Nevada, seek to bar their substitution as party defendants for the deceased,
Howard R.
Howard R. Hughes, Jr. Since we determine substitution is appropriate under the Nevada
Rules of Civil Procedure, the petition is denied.
On April 5, 1975, Howard R. Hughes, Jr., died. At the time of his death, four different
causes of action were pending involving either Hughes or his Nevada gaming enterprise,
Summa Corporation. What has been called the main case dealt with Summa's right to
exercise an option to purchase the Silver Slipper in Las Vegas.
1
The other three companion
cases involved suits by the former owners of the Silver Slipper (1) to eject Summa and
Hughes, (2) replevy personal property, and (3) recover damages for abuse of process and
economic duress. Hughes was not a named party in the main case, and was never served
with process in the companion cases.
After Hughes died, the probate court appointed the petitioners as co-special administrators
of the estate. The petitioners subsequently rejected the three companion creditor's claims.
Thereafter, the companion plaintiffs moved to substitute petitioners for Hughes as party
defendants in their pending actions. Respondent court granted the motion, and complaints
were served upon the petitioners. Petitioners now seek a writ of prohibition to quash service
and bar substitution.
1. NRCP 25(a)(1) provides in pertinent part: If a party dies and the claim is not thereby
extinguished, the court may order substitution of the proper parties . . . . Petitioners construe
the above language to require the deceased to be a party jurisdictionally before the court. In
their view, since Howard Hughes was never served with process, the district court lacked in
personam jurisdiction to make any substitution after his death. Such a restrictive
interpretation of the identical federal rule has been previously rejected. See Ransom v.
Brennan, 437 F.2d 513 (5th Cir. 1971), cert. denied 403 U.S. 904 (1971); Bertsch v.
Canterbury, 18 F.R.D. 23 (S.D. Cal. 1955). If an action was commenced by the filing of a
complaint but a party named in the complaint dies, . . . before he is served with process,
substitution is available, but, as in any instance of substitution, process must be served on the
new party to acquire in personam jurisdiction. Wright & Miller, Federal Practice and
Procedure, Civil, 1951 (1972); see also Vol. 3B, Moore's Federal Practice,
25.05, (2nd ed. 1977).
We adopt the interpretation of the federal courts. In our view, NRCP 25(a)(1) is a
necessary procedural device which prevents a party's death from destroying an otherwise
valid cause of action. Cf. Walker v. Burkham, 68 Nev. 250, 229 P.2d 15S {1951).
____________________

1
This court recently confirmed Summa's option. See Summa Corp. v. Richardson, 93 Nev. 228, 564 P.2d 181
(1977).
158 (1951). The district court therefore acted within its discretion by making the substitution,
and the petition is denied.
2. The parties have conceded that the causes of action for ejectment (case no. A126151)
and abuse of process (case no. A126150) were rendered moot by our holding in Summa Corp.
v. Richardson, 93 Nev. 228, 564 P.2d 181 (1977). Of course, those complaints should be
dismissed.
Batjer, C. J., and Mowbray, Manoukian, and Zenoff,
2
JJ., concur.
____________________

2
The Chief Justice designated Hon. David Zenoff, Chief Justice (Retired), to sit in this case. Nev. Const., art.
6, 19; SCR 244.
____________
94 Nev. 116, 116 (1978) Gulf Oil Corp. v. Clark County
GULF OIL CORPORATION, a Corporation, and INDUSTRIAL ASPHALT, a Division of
Gulf Oil Corporation, et al., Appellants, v. CLARK COUNTY, NEVADA, a Political
Subdivision, Respondent.
No. 9421
March 15, 1978 575 P.2d 1332
Appeal from summary judgment for defendant Clark County; Eighth Judicial District
Court, Clark County; J. Charles Thompson, Judge.
Low bidder brought action against county to recover damages for failure of county
commissioners to accept its bid for airport improvement project. The district court entered
summary judgment in favor of county, and bidder appealed. The Supreme Court, Thompson,
J., held that where low bidder was not diligent in seeking injunctive relief to enjoin public
authority from awarding contract to another and project is completed, there is no cause of
action for damages against the public authority.
Affirmed.
Vargas, Bartlett & Dixon, of Las Vegas, for Appellants Gulf Oil and Industrial Asphalt.
Pat J. Fitzgibbons, of Las Vegas, for the other appellants.
George E. Holt, District Attorney, and Thomas R. Severns and Victor W. Priebe, Deputy
District Attorneys, Clark County, for Respondent.
1. Contracts.
A bid in response to a solicitation constitutes no more than an offer and until its acceptance, a contract
does not exist.
2. Public Contracts.
The purpose of bidding is to secure competition, save public funds, and to guard against favoritism,
improvidence and corruption and bidding statutes are deemed to be for the benefit of the taxpayer and not
the bidders and are to be construed for the public good.
Although the lowest responsible bidder may have standing to timely challenge the rejection of his bid and
to compel the award of the contract to him, it does not follow that such bidder may recover damages after
project has been completed by contractor whose bid was accepted.
Where low bidder was not diligent in seeking injunctive relief to enjoin public authority from awarding
contract to another and project was completed, there was no cause of action for damages against the public
authority.
OPINION
This appeal is from summary judgment in favor of Clark County in an action by the low
bidder to recover damages for the failure of the Clark County Commissioners to accept its bid
for the McCarran Airport Improvement Project. Originally, the action was to enjoin the
Commissioners from awarding the contract to another bidder, and to compel them to contract
with plaintiff who had submitted the lowest bid.
1
However, such relief was not diligently
pursued, and by the time of submission to the court the project was completed by the party to
whom the Commissioners had awarded the contract. Consequently, the court allowed
amendment of the complaint to request damages. Whether a low bidder who is not awarded
the contract has a cause of action for damages is the issue for our decision.
2
1.
____________________

1
Elsewhere, the remedies of injunction and mandamus are available to compel compliance with public
contract award procedures. Carpet City, Inc. v. Stillwater Municipal Hosp. Auth., 536 P.2d 335 (Okla. 1975);
Federal Electric Corporation v. Fasi, 527 p.2d 1284 (Haw. 1974); City of Phoenix v. Witman Contracting Co.,
509 p.2d 1038 (Ct.App.Ariz. 1973); City of Inglewood-L.A. Cty. Civ. Ctr. v. Superior Court, 500 P.2d 601 (Cal.
1972). Whether such relief is available in Nevada is not settled. See: Hoole v. Kinkead, 16 Nev. 217 (1881);
Reno W. L. & L. Co. v. Osburn, 25 Nev. 53, 56 P. 945 (1899); Douglas Co. Board v. Pederson, 78 Nev. 106,
369 P.2d (1962); Wiener v. City of Reno, 88 Nev. 127, 494 P.2d 277 (1972).

2
That question was not reached in Douglas Co. Board v. Pederson, 78 Nev. 106, 369 P.2d 669 (1962).
1. Industrial Asphalt, as a division of Gulf Oil Corporation, submitted the lowest bid for
the McCarran Airport Improvement Project. Its bid was $168,000 lower than that of Nevada
Rock and Sand, the next lowest bidder. The contract, however, was awarded to Nevada Rock
and Sand because the Attorney General, by official opinion, advised the Commissioners to
disregard the bid of Industrial.
Industrial obtained a Nevada contractor's license in 1964. That license was renewed
annually for seven years and the company conducted business. In 1972, Industrial was
merged into Gulf Oil Corporation. The State Contractors Board reissued the license to
Industrial Asphalt as a division of Gulf Oil. This license was renewed in January 1973. In
February and March of that year Clark County advertised for bids for the airport project. Only
licensed contractors could submit bids.
The vice-chairman of the Clark County Board of Commissioners was told by the attorney
for Nevada Rock and Sand that the license of Industrial might be invalid. This prompted the
vice-chairman to request an opinion from the Attorney General. It was the Attorney General's
opinion that the merger destroyed the existence of Industrial Asphalt and that it could not
hold a contractor's license. Moreover, that since Gulf Oil itself was not licensed as a Nevada
contractor, the Commissioners should disregard the bid of Industrial as a division of Gulf Oil.
We are not here concerned with the merit of that opinion. Neither have we related the
unusual circumstances leading to the securing of it, since bad faith is not alleged. There was
no question concerning the responsibility of the low bidder. NRS 332.065; cf. Douglas Co.
Board v. Pederson, 78 Nev. 106, 369 P.2d 669 (1962). An alternative course was open to the
Commissioners. They could have afforded the low bidder an opportunity to clarify the status
of its license. According to the Secretary of the Contractors Board such clarification could
have been accomplished within 24 hours. The Commissioners adamantly refused to delay the
awarding of the contract pending such clarification.
[Headnotes 1, 2]
2. It is established that a bid in response to a solicitation therefor constitutes no more than
an offer and until its acceptance, a contract does not exist. 1 Williston, Contracts 31 (3d ed.
1957). The purpose of bidding is to secure competition, save public funds, and to guard
against favoritism, improvidence and corruption. Such statutes are deemed to be for the
benefit of the taxpayers and not the bidders, and are to be construed for the public good.
benefit of the taxpayers and not the bidders, and are to be construed for the public good.
The contract awarded to Nevada Rock and Sand was for an amount slightly in excess of
seven and one-half million dollars. The damages sought in this case by the low bidder exceed
$500,000 and embrace the loss of anticipated profits, the cost of preparing and submitting its
bid, and other consequential losses. To allow recovery of such damages would twice penalize
the taxpayers. M. A Stephen Construction Co. v. Borough of Rumson, 308 A.2d 380
(Sp.Ct.App.Div. N. J. 1973); Rapp v. Salt Lake City, 527 P.2d 651 (Utah 1974); City of
Scottsdale v. Deem, 556 P.2d 328 (Ct.App. Ariz. 1976).
[Headnote 3]
Although the lowest responsible bidder may have standing to timely challenge the
rejection of his bid and to compel the award of the contract to him (see cases cited footnote 1
infra), it does not follow that such bidder may recover damages after the project has been
completed by the contractor whose bid was accepted. A timely challenge is compatible with
the public interest since it serves to force compliance with the purpose of the bidding
procedure. After the project is completed, however, it is difficult to perceive how the public
interest is served by investing the low bidder with a cause of action for damages. The public
already has paid the difference between the lowest bid and the bid which was accepted. The
taxpayer should not further be penalized.
[Headnote 4]
In line with the cited cases we hold that in these circumstances the lowest bidder does not
have a cause of action for damages against the public authority.
3. Our holding eliminates the need to discuss whether Clark County is immune from this
damage action by reason of NRS 41.032(2). Neither need we consider the contention that the
opinion of the Attorney General precluded liability of Clark County. See: Cannon v. Taylor,
88 Nev. 89, 493 P.2d 1313 (1972).
Affirmed.
____________
94 Nev. 120, 120 (1978) Myers v. Sheriff
WILLIAM MYERS and BEVERLY PURPURA, Appellants, v. SHERIFF, CLARK
No. 10528
March 15, 1978 576 P.2d 273
In a pretrial habeas challenge to portion of indictment charging conspiracy to sell a
controlled substance the district court denied petition, and petitioners appealed. The Supreme
Court held that indictment did not allege the requisite overt act in furtherance of the
conspiracy by alleging a delivery of contraband to undercover narcotics agent.
Reversed, remanded with instructions.
Goodman, Oshins, Brown & Singer, Las Vegas, and Aiken, Nahoom & Damore, Fort
Lauderdale, Florida, for Appellants.
Conspiracy.
Indictment, which charged defendant with conspiracy to sell a controlled substance, did not allege the
requisite overt act in furtherance of the conspiracy by alleging a delivery of contraband to undercover
narcotics agent, in view of indication that such delivery precluded the formation of the conspiracy. NRS
175.251, 453.401, subd. 1.
OPINION
Per Curiam:
This is an appeal from a district court order denying a pretrial habeas corpus challenge to
the portion of an indictment which charged appellants with conspiracy to sell a controlled
substance.
1

In asking us to reverse, appellants contend the charge is defective in that it fails to allege
the requisite overt act committed in furtherance of the conspiracy. We agree. In order to
constitute the charged offense, NRS 453.401(1) requires that there be an overt act in
furtherance of the conspiracy.2 Where, as here, an overt act is necessary to constitute the
offense of conspiracy NRS 175.251 provides, in pertinent part: "[T]he defendant shall not
be convicted unless one or more overt acts shall be expressly alleged in the indictment. . .
."
____________________

1
The indictment also charged appellants with the sale of a controlled substance, cocaine. That charge is not
here involved.
there be an overt act in furtherance of the conspiracy.
2
Where, as here, an overt act is
necessary to constitute the offense of conspiracy NRS 175.251 provides, in pertinent part:
[T]he defendant shall not be convicted unless one or more overt acts shall be expressly
alleged in the indictment. . . . Here, the overt act so alleged was the delivery of contraband to
the buyer, an undercover narcotics agent.
3
In our view, this was not an overt act in
furtherance of the alleged conspiracy.
An overt act . . . is some act [done] to effect the object of the conspiracy.' Woodring v.
United States, 376 F.2d 619, 621 (10th Cir. 1967). See also Chavez v. United States, 275
F.2d 813 (9th Cir. 1960). As such, necessarily the act must accompany or follow the
agreement. See Blumenthal v. United States, 158 F.2d 883 (9th Cir. 1946); Hall v. United
States, 109 F.2d 976 (10th Cir. 1940).
The transcript of the proceedings before the grand jury discloses that, on December 3,
1977, appellants met with the narcotics agent for the purpose of selling him cocaine. After the
cocaine had been delivered, discussions were then held concerning future sales and an
agreement was reached as to the conduct of these transactions.
The State does not suggest or contend the alleged conspiracy existed prior to these
discussions, nor is there any evidence to support such a conclusion. In light of these
circumstances, we are constrained to hold that the alleged overt act of the cocaine's delivery
preceded the formation of any illicit agreement and is in no way tied into the alleged
conspiracy. Cf. United States v. McGee, 108 F.Supp. 909 (D.Wyo. 1952). Accordingly, the
count of the indictment which charges a conspiracy does not satisfy the mandate of NRS
175.251 and must be dismissed.
The order of the district court is reversed. The case is remanded with instructions to
dismiss the portion of the indictment which charges appellants with conspiracy.
____________________

2
The statute provides, in pertinent part:
[I]f two or more persons conspire to commit any offense which is a felony under the Uniform Controlled
Substances Act . . . and one of the conspirators does an act in furtherance of the conspiracy,. . . (Emphasis
added.)

3
The indictment alleged that on December 3, 1977, appellants did then and there meet, and between
themselves, and each of them with the other, wilfully and unlawfully conspire to commit the crime of Sale of
Controlled Substance, by Defendant, meeting in Room No. 768 of the Hilton Hotel, 3000 Paradise Road, Las
Vegas, Clark County, Nevada, and delivering to R. LILLARD, a controlled substance, to-wit: Cocaine.
____________
94 Nev. 122, 122 (1978) Manzi v. Sheriff
DIANE JEAN MANZI, Appellant, v. SHERIFF,
No. 10529
March 15, 1978 576 P.2d 274
Appeal from order denying petition for habeas corpus, Eighth Judicial District Court,
Clark County; Paul S. Goldman, Judge.
Reversed and remanded with instructions.
William S. Skupa, Las Vegas, for Appellant.
OPINION
Per Curiam:
This appeal from an order denying a pretrial habeas corpus challenge to the portion of an
indictment which charges appellant with conspiracy to sell a controlled substance is reversed
on the authority of, and for the same reasons stated in Myers v. Sheriff, 94 Nev. 120, 576
P.2d 273 (1978). The case is remanded with instructions to dismiss the conspiracy charge.
____________
94 Nev. 122, 122 (1978) Bruner v. Bruner
JAMES LOUIS BRUNER, Appellant, v. CAROL
R. BRUNER, Respondent.
No. 9140
March 15, 1978 575 P.2d 928
Appeal from order denying motion to change custody of minor child; Eighth Judicial
District Court, Clark County; Thomas J. O'Donnell, Judge.
The district court denied father's motion to change custody, and father appealed. The
Supreme Court held that there was substantial evidence to support conclusion that child's
welfare would not be enhanced by change.
Affirmed.
David M. Schreiber, of Las Vegas, for Appellant.
94 Nev. 122, 123 (1978) Bruner v. Bruner
Dickerson, Miles & Pico, of Las Vegas, for Respondent.
Infants.
Substantial evidence supported conclusion that child's welfare would not be enhanced by change of
custody.
OPINION
Per Curiam:
We are asked to annul a discretionary order denying a father's motion to change the
custody of his son. There was substantial evidence submitted to support the apparent
conclusion of the court that the child's welfare would not be enhanced by a change of custody.
Affirmed.
____________
94 Nev. 123, 123 (1978) Alley v. Nevada Real Estate Div.
JERRY L. ALLEY, Appellant, v. NEVADA REAL ESTATE DIVISION and NEVADA
REAL ESTATE ADVISORY COMMISSION, Respondents.
No. 9157
March 15, 1978 575 P.2d 1334
Appeal from an order of the Second Judicial District Court, Washoe County; Roy L.
Torvinen, Judge.
The revocation of a real estate broker's license by the Real Estate Advisory Commission
was affirmed by the district court and the broker appealed. The Supreme Court, McDaniel, D.
J., held that evidence that the broker had received a secret profit of $2,000 for himself and
others by utilizing a double escrow scheme supported the revocation.
Affirmed.
Carl F. Martillaro, Carson City, for Appellant.
Robert List, Attorney General, and James I. Barnes III, Deputy Attorney General, Carson
City, for Respondents.
1. Administrative Law and Procedure.
In reviewing the decision of an administrative board such as the Real Estate Advisory Commission, the
Supreme Court, like the district court, is limited to the record presented below and to the determination of
whether the board acted arbitrarily or capriciously.
2. Brokers.
In a double escrow, the broker or salesman purchases the principal's property in the first escrow and
sells it to a third party at a profit in a second escrow without a full disclosure to both the
principal and the third party; the escrows close at the same time and the broker or
salesman thereby uses the proceeds from the sale in the second escrow to purchase
his principal's property; the broker or salesman receives a commission on the sale in
the first escrow and a secret profit on the closing in the second escrow; such schemes
are not in keeping with fiduciary duties owed by the broker.
second escrow without a full disclosure to both the principal and the third party; the escrows close at the
same time and the broker or salesman thereby uses the proceeds from the sale in the second escrow to
purchase his principal's property; the broker or salesman receives a commission on the sale in the first
escrow and a secret profit on the closing in the second escrow; such schemes are not in keeping with
fiduciary duties owed by the broker.
3. Brokers.
Evidence that real estate broker had received a secret profit of $2,000 for himself and others by utilizing
a double escrow scheme sustained revocation of his real estate broker's license.
OPINION
By the Court, McDaniel, D. J.:
1

This is an appeal from a district court order affirming the decision of the Nevada Real
Estate Division and its Advisory Commission to permanently revoke the real estate broker's
license held by Jerry L. Alley.
[Headnote 1]
We have previously determined that in reviewing an administrative board's decision this
court, like the district court, is limited to the record presented below and to the determination
of whether the board acted arbitrarily or capriciously. See Barnum v. Williams, 84 Nev. 37,
436 P.2d 219 (1968), and its progeny.
Here, the record of the administrative proceedings establishes, inter alia, that Alley had
received a secret profit of $2,000 for himself, and others, by utilizing a double escrow
scheme.
2

[Headnote 2]
In a double escrow, the broker or salesman purchases a principal's property in the first
escrow, and sells it to a third party at a profit in a second escrow without a full disclosure to
both the principal and the third party. The escrows close at the same time and the broker or
salesman thereby uses the proceeds from the sale in the second escrow to purchase his
principal's property. The broker or salesman receives a commission on the sale in the first
escrow and a secret profit on the closing in the second escrow.
____________________

1
The Governor designated the Honorable Joseph O. McDaniel, Judge of the Fourth Judicial District, to sit in
the place of the HonorabLe Noel E. Manoukian, Justice, who was disqualified. Nev. Const. Article 6, 4.

2
Specifically, the Commission found Alley's conduct to be in violation of NRS 645.630(1), (9) and (16);
certain Rules and Regulations of the Commission; and, portions of the Real Estate Code of Ethics.
on the sale in the first escrow and a secret profit on the closing in the second escrow.
Such schemes were denounced in Holland Rlty. v. Nev. Real Est. Comm'n, 84 Nev. 91,
98, 436 P.2d 422, 426 (1968), where this court said:
A broker when pursuing his own interest cannot ignore those of his principal and will
not be permitted to enjoy the fruits of an advantage taken of a fiduciary relationship,
whose dominant characteristic is the confidence reposed by one in another. [Citation
omitted.]
The law does not allow the agent who also has a right to purchase to wait until someone
makes an offer of an amount in excess of the agreed purchase price and then elect to
purchase the property at the lesser price without informing the owner of the higher offer,
and, after the agent has obtained the consent from the owner to buy the property, then
immediately sell it for the higher price as his own property.
[Headnote 3]
The administrative determination to permanently revoke Alley's license finds ample
support in the record; thus, we perceive neither an abuse of discretion nor conduct that could
be considered arbitrary or capricious. Accordingly, we affirm the order of the district court.
Batjer, C. J., and Mowbray, Thompson, and Gunderson, JJ., concur.
____________
94 Nev. 125, 125 (1978) Carstairs v. State
KENNETH JAMES CARSTAIRS, Appellant, v. THE
No. 9670
March 15, 1978, as amended May 10, 1978 575 P.2d 927
Appeal from judgment of conviction, Second Judicial District Court, Washoe County; Roy
L. Torvinen, Judge.
Defendant was convicted before the district court of possession of a controlled substance,
and he appealed. The Supreme Court held that where officer identified fugitive as driver of
truck which contained a second occupant and officer located truck one to two minutes later
when defendant, who was only occupant, repeatedly denied that fugitive or anyone else had
been with him and was otherwise evasive, officers had probable cause to arrest
defendant for harboring a fugitive, and subsequent warrantless search of defendant by
officer was incident to that arrest and thus reasonable.
been with him and was otherwise evasive, officers had probable cause to arrest defendant for
harboring a fugitive, and subsequent warrantless search of defendant by officer was incident
to that arrest and thus reasonable.
Affirmed.
William N. Dunseath, Public Defender, and Michael B. McDonald, Deputy Public
Robert List, Attorney General, Carson City; Larry R. Hicks, District Attorney, and John L.
Conner, Deputy District Attorney, Washoe County, for Respondent.
Arrest.
Where officer identified fugitive as driver of truck which contained a second occupant and officer located
truck one to two minutes later when defendant, who was only occupant, repeatedly denied that fugitive or
anyone else had been with him and was otherwise evasive, officers had probable cause to arrest defendant
for harboring a fugitive, and subsequent warrantless search of defendant by officer was incident to that
arrest and thus reasonable.
OPINION
Per Curiam:
1

On October 26, 1976, Washoe County Sheriff's Deputy Meek and Probation Officers
Nollsch and Bernstone went to a residence in Reno, Nevada, in search of Stanley Chavez.
Meek sought Chavez for questioning as a suspect in a felony battery case, and Nollsch and
Bernstone sought to arrest Chavez on a bench warrant for probation violation.
While Meek and Nollsch maintained surveillance in an alley near the residence, they
observed a truck with two occupants approaching them and tentatively identified Chavez as
the driver. The truck suddenly turned down a side street and the officers temporarily lost sight
of it. They immediately gave chase and when they located the truck one to two minutes later,
it was parked by the side of the road and appellant was the only occupant. The officers
advised appellant of their desire to locate and arrest Chavez on criminal charges, but
appellant denied having any knowledge as to Chavez's whereabouts and, further, repeatedly
denied that anyone else had been in the vehicle with him.
____________________

1
The Governor designated Hon. Merlyn H. Hoyt, Judge of the Seventh Judicial District, to sit in place of
Hon. Gordon Thompson, Justice, who voluntarily disqualified himself in this case. Nev. Const. art. 6, 4.
Deputy Meek left the scene to summon assistance in searching for Chavez. During Meek's
absence, Nollsch placed appellant under arrest for harboring a fugitive, a violation of NRS
195.030. Meek subsequently returned to the area of the original stop and observed appellant
in handcuffs. Although he was never advised that appellant was under arrest, Meek decided to
search appellant for weapons before transporting him to the sheriff's office for additional
interrogation. In the course of his search, Meek reached inside the front pocket of a
down-filled vest, a location where Meek believed a weapon could be hidden, and found three
(3) marijuana cigarettes. Appellant was taken to the Washoe County Jail and charged with
possession of a controlled substance, a violation of NRS 453.336. He was subsequently
ordered to stand trial for (1) possession of marijuana and (2) harboring a fugitive.
A pretrial motion to suppress contended the marijuana was the product of an illegal search.
The district court denied the motion based on the knowledge of all of the officers and the
circumstances existing at the time.
A jury acquitted appellant on the harboring charge, but found him guilty of possession of a
controlled substance. In asking us to reverse, appellant contends the district court erred in
refusing to suppress the marijuana. The thrust of appellant's contention is that there was no
probable cause for Nollsch to make the arrest; thus, any evidence seized as a result of the
search incident to that arrest was inadmissible. We reject the contention.
Appellant's arrest was based on probable cause. Nollsch testified he had tentatively
identified Chavez as the driver of the truck and that there was another person in the truck with
Chavez. When the officers located the truck one to two minutes later, appellant was the only
occupant. When questioned by the officers, appellant repeatedly denied that Chavez or
anyone else had been with him, and was otherwise evasive in his answers to the officers'
questions. These facts and circumstances were sufficient to warrant a reasonable belief that
appellant was assisting Chavez in evading authorities and, therefore, Nollsch had probable
cause to make the arrest for harboring a fugitive. NRS 171.124. See Brinegar v. United States,
338 U.S. 160 (1949); Marschall v. City of Carson, 86 Nev. 107, 464 P.2d 494 (1970);
Thomas v. Sheriff, 85 Nev. 551, 459 P.2d 219 (1969); Fairman v. Warden, 83 Nev. 332, 431
P.2d 660 (1967). The subsequent search by Meek was incident to that arrest and, therefore,
was reasonable. A Minor v. State, 91 Nev. 456, 537 P.2d 477 (1975); Thomas v. Sheriff,
cited above. See United States v. Robinson, 414 U.S. 218, 235 (1973), where Mr. Justice
Rehnquist wrote: A custodial arrest of a suspect based on probable cause is a reasonable
intrusion under the Fourth Amendment; that instruction being lawful, a search incident to
the arrest requires no additional justification.
A custodial arrest of a suspect based on probable cause is a reasonable intrusion under
the Fourth Amendment; that instruction being lawful, a search incident to the arrest
requires no additional justification. It is the fact of the lawful arrest which establishes the
authority to search, and we hold that in the case of a lawful custodial arrest a full search
of the person is not only an exception to the warrant requirement of the Fourth
Amendment, but is also a reasonable search under that Amendment.
See also Gustafson v. Florida, 414 U.S. 260 (1973). Since the search was reasonable, the
contraband was admissible. See Lightford v. State, 90 Nev. 136, 520 P.2d 955 (1974).
Affirmed.
____________
94 Nev. 128, 128 (1978) Cunningham v. State
JON LEE CUNNINGHAM, Appellant, v. THE
No. 9860
March 15, 1978 575 P.2d 936
Appeal from judgment of conviction and sentence, Eighth Judicial District Court, Clark
County; Paul S. Goldman, Judge.
Defendant was convicted by the jury in the district court of first degree murder and was
sentenced to life imprisonment without possibility of parole. Defendant appealed. The
Supreme Court held that: (1) evidence supported jury's guilty verdict; (2) voir dire of jury was
not improperly conducted, and (3) under circumstances, sentencing of defendant without
counsel violated both defendant's right to effective assistance of counsel and statute requiring
that before imposing sentence court shall afford counsel an opportunity to speak on behalf of
defendant.
Judgment of conviction affirmed; sentence vacated and remanded with instructions.
1. Homicide.
In first degree murder prosecution, evidence sustained jury's guilty verdict.
2. Jury.
Where trial court conducted voir dire examination of trial jurors in accordance with statute providing that
court shall conduct examination of prospective jurors, except it shall permit defendant or his attorney and
district attorney to supplement examination by such further inquiry as it deems proper or shall itself submit
to prospective jurors such additional questions by parties or their attorneys as it deems proper, trial court
did not abuse its discretion in manner voir dire was conducted, notwithstanding defendant's bare allegations
to contrary. NRS 175.031.
3. Criminal Law.
Defendant's constitutional challenge to statute providing that court shall conduct examination of
prospective jurors, except it shall permit defendant or his attorney and district attorney to supplement
examination by such further inquiry as it deems proper or shall itself submit to prospective jurors such
additional questions by parties or their attorneys as it deems proper, was not considered inasmuch as
defendant had failed to cite any relevant authority in support of his constitutional challenge. NRS
175.031.
4. Criminal Law.
The sentencing of the defendant is a critical stage of the criminal proceeding at which he is entitled to the
effective assistance of counsel. U.S.C.A.Const. Amend. 6.
5. Criminal Law.
Where defendant's trial counsel, a deputy on public defender's staff, was not present at time set for
sentencing and while another deputy public defender was in attendance, he informed court that he was not
familiar with case nor representing defendant, but was merely appearing to request a one-hour continuance
of proceedings so that defendant's trial counsel could be present, sentencing defendant without counsel,
despite objections and defendant's refusal to waive his right to have his trial counsel present, violated both
defendant's right to effective assistance of counsel and statute requiring that before imposing sentence court
shall afford counsel an opportunity to speak on behalf of defendant. U.S.C.A. Const. 6; NRS 176.015,
subd. 2.
OPINION
Per Curiam:
Convicted by jury verdict of first degree murder and sentenced to life imprisonment
without possibility of parole, appellant contends: (1) there is insufficient evidence to support
the jury's verdict; (2) the voir dire of the jury was improperly conducted; and, (3) the
sentencing procedure of the district court violated his Sixth Amendment right to counsel. We
reject appellant's first two contentions and affirm the judgment of conviction. However, the
third contention has merit and necessitates a remand for the resentencing of appellant.
[Headnote 1]
1. Appellant's first contention is without merit. When there is conflicting testimony
presented, it is for the jury to determine what weight and credibility to give to the testimony.
Where there is substantial evidence to support a verdict in a criminal case, as the record
indicates in this case, the reviewing court will not disturb the verdict nor set aside the
judgment.' Hankins v. State, 91 Nev. 477, 478, 538 P.2d 167, 168 (1975).
[Headnote 2]
2. Appellant's challenge to the manner in which the voir dire examination of the jury was
conducted is also without merit. The district court conducted the examination of the trial
jurors in accordance with NRS 175.031.
1
[T]he scope of that examination is within the
sound discretion of the court[,] Oliver v. State, 85 Nev. 418, 424, 456 P.2d 431, 435 (1969),
and [o]n review such discretion is accorded considerable latitude. Spillers v. State, 84 Nev.
23, 27, 436 P.2d 18, 20 (1968). Notwithstanding appellant's bare allegations to the contrary,
we perceive no abuse of discretion in the manner voir dire was conducted.
[Headnote 3]
Further, we decline to consider appellant's constitutional challenge to NRS 175.031
because he has failed to cite any relevant authority in support of that argument. McKinney v.
Sheriff, 93 Nev. 70, 560 P.2d 151 (1977); Williams v. State, 88 Nev. 164, 494 P.2d 960
(1972).
3. At the time set for sentencing appellant, his trial counsel, a deputy on the public
defender's staff, was not present. While another deputy public defender was in attendance, he
informed the court that he was not familiar with the case nor representing appellant, but was
merely appearing to request a one-hour continuance of the proceedings so that appellant's trial
counsel could be present. Despite objections and appellant's refusal to waive his right to have
his trial counsel present, the district judge proceeded to sentence appellant.
[Headnotes 4, 5]
It is well established that the sentencing [of the defendant] is a critical stage of the
criminal proceeding at which he is entitled to the effective assistance of counsel. Gardner v.
Florida, 430 U.S. 349, 358 (1977). See also Mempa v. Rhay, 389 U.S. 12S {1967); Smith v.
Warden, S5 Nev. S3
____________________

1
The court shall conduct the examination of prospective jurors, except it shall permit the defendant or his
attorney and the district attorney to supplement the examination by such further inquiry as it deems proper or
shall itself submit to the prospective jurors such additional questions by the parties or their attorneys as it deems
proper.
U.S. 128 (1967); Smith v. Warden, 85 Nev. 83, 450 P.2d 356 (1969). Further, NRS
176.015(2) requires that [b]efore imposing sentence the court shall afford counsel an
opportunity to speak on behalf of the defendant. . . . In light of the factual posture of this
case, the sentencing of appellant without counsel violated both these mandates.
Accordingly, the conviction is affirmed. However, the sentence is vacated, and the case is
remanded with instructions to resentence appellant utilizing procedures conforming with the
law.
____________
94 Nev. 131, 131 (1978) Bill Stremmel Mtrs. v. First Nat'l Bank
BILL STREMMEL MOTORS, INC., dba BILL STREMMEL PORSCHE/AUDI, Appellant,
v. FIRST NATIONAL BANK OF NEVADA, a National Banking Association, Respondent.
No. 9078
March 15, 1978 575 P.2d 938
Appeal from summary judgment; Second Judicial District Court, Washoe County; James
J. Guinan, Judge.
Bank brought action against automobile dealer which had issued dealer's report upon
which bank relied in making loan to buyer of automobile. The district court entered summary
judgment in favor of bank, and dealer appealed. The Supreme Court, Thompson, J., held that
where dealer issued dealer's report listing buyer as owner without encumbrance and
forwarded report to Department of Motor Vehicles, where buyer subsequently obtained
second dealer's report from dealer's salesmen, upon which bank relied in loaning buyer
money, where second dealer's report did not appear in dealer's files and was not forwarded to
Department of Motor Vehicles, and where bank consequently did not acquire security interest
in automobile, bank was entitled to recover against automobile dealer for negligently issuing
false dealer's report in violation of statute.
Affirmed.
Vargas, Barlett & Dixon, and John P. Sande, III, of Reno, for Appellant.
Stewart and Horton, and Keith S. K. Ching, of Reno, for Respondent.
1. Negligence.
Where automobile dealer issued dealer's report listing buyer as owner without encumbrance and
forwarded report to Department of Motor Vehicles, where buyer subsequently obtained second dealer's
report from dealer's salesmen, upon which bank relied in loaning buyer money, where second dealer's
report did not appear in dealer's files and was not forwarded to Department of Motor Vehicles, and where
bank consequently did not acquire security interest in automobile, bank was entitled to recover against
automobile dealer for dealer's negligence in issuing false dealer's report in violation of statute. NRS
482.424.
2. Automobiles.
Duties imposed by statutory vehicle registration provisions are designed to provide speedy and simple
way to determine ownership and to prevent fraud and theft. NRS 482.424.
3. Automobiles.
Where bank, a commercial lender, relied upon automobile dealer's report before consummating its loan to
buyer, bank was entitled to assume that dealer's report was true and that automobile dealer would submit
original report to Department of Motor Vehicles pursuant to statute; bank was member of class of persons
for whose benefits statutory duty in dealer was created. NRS 482.424.
4. Judgment.
Denial by answer does not create issue of material fact sufficient to preclude summary judgment. NRCP
56(e).
OPINION
This action was commenced by First National Bank (FNB) to recover $1,162.40 with
interest, costs and attorneys fee from Bill Stremmel Motors, Inc. (Stremmel). The district
court entered summary judgment for FNB. Stremmel asks our review of the propriety of that
ruling.
The facts are admitted. Paul Stuart purchased a 1970 Cadillac from Stremmel and paid for
it with his personal check. The salesman, Guy Peterson, prepared dealer's report No. D79439
listing Stuart & Assoc., Inc., as owner without encumbrance and forwarded the same to the
Department of Motor Vehicles.
1
Four days later, Stuart sought to borrow $1,765.90 from
FNB to purchase the same Cadillac.
____________________

1
NRS 482.424 reads in pertinent part: When a used . . . vehicle is sold in this state by a dealer, . . . the
seller shall complete and execute a dealer's . . . report of sale. The dealer's . . . report of sale shall be in a form
prescribed by the department and shall include a description of the vehicle, the name and address of the seller
and the name and address of the buyer. If a security interest exists at the time of such sale, or if in connection
with such sale a security interest is taken by a person who gives value to enable the buyer to acquire rights in the
vehicle, the name and address of the secured party shall be entered on the dealer's . . . report of sale.
NRS 482.424(2): [t]he seller shall submit the original of the dealer's . . . report of sale to the department
within 45 days after the execution of the instruments which the contract requires to be executed at the time of
sale . . .
Four days later, Stuart sought to borrow $1,765.90 from FNB to purchase the same
Cadillac. The bank required a dealer's report from Stremmel listing FNB as the holder of a
security interest in the car. Stuart obtained such a report from Guy Peterson, report No.
79445, delivered it to FNB and the loan was consummated. That report does not appear in
Stremmel's files and was not forwarded to the Department of Motor Vehicles. Consequently
FNB did not acquire a security interest in the car. NRS 482.432; 482.424; 482.427.
Stuart paid FNB monthly loan installments for six months and defaulted. FNB then
learned that its security interest had not been perfected. Rather, it discovered that Stuart had
taken dealer's report No. 79439 to Beneficial Finance and borrowed money in exchange for a
perfected lien on the car. This action was commenced against Stremmel, Stuart & Assoc.,
Inc., Paul G. Stuart and Guy Peterson alleging fraud and negligence. Apparently only
Stremmel was served with process. The other defendants did not appear, nor does the record
reflect entry of their defaults.
[Headnote 1]
In our view, summary judgment for FNB was correctly entered since the record before the
district court established Stremmel's liability as a matter of law for negligently issuing a false
dealer's report in violation of statute thereby causing damage to FNB.
1. Statute commands the seller to issue a dealer's report of sale which is true and to submit
the original thereof to the Department of Motor Vehicles. NRS 482.424. For a period of time,
normally about six weeks, this report is the only evidence of legal title and the identity of
secured parties since there inevitably is administrative delay in issuing a certificate of
ownership.
[Headnote 2]
Heretofore we have indicated that strict compliance with the scheme of the vehicle code is
essential. Godfrey v. Gilsdorf, 86 Nev. 714, 476 P.2d 3 (1970). Indeed, the duties imposed by
the registration provisions of Chapter 482 are designed to provide a speedy and simple way
to determine ownership and to prevent fraud and theft.
____________________
together with the properly endorsed certificate of title or certificate of ownership previously issued for such
vehicle. . . . Under NRS 482.427, the Department of Motor Vehicles, upon receipt of the dealer's report of sale,
issues a new certificate of ownership. If a security interest is created by the sale, the certificate is issued to the
secured party or his assignee. NRS 482.427(3). Compliance with NRS 482.424 and NRS 482.427 results in the
perfection of a security interest in the vehicle and exemption from the requirement of filing a financing statement
under NRS 104.9302. See NRS 482.432.
a speedy and simple way to determine ownership and to prevent fraud and theft. Perry v.
Byrd, 87 Nev. 431, 488 P.2d 550 (1971).
[Headnote 3]
FNB, a commercial lender, relied upon the dealer's report before consummating its loan to
Stuart, was entitled to assume that it was true and that the seller, Stremmel, would submit the
original thereof to the Department of Motor Vehicles. The report was false and was not
delivered to the Department. This is a violation of NRS 482.424. As a consequence, FNB did
not acquire a security interest in the car and sustained damage. It is apparent that FNB is a
member of the class of persons for whose benefit the statutory duty was created. The theory
of liability is expressed in Restatement (Second) of Torts 552, 1977 ed., pp. 126-127. There
it is stated:
(1) One who, in the course of his business, profession or employment, or in any other
action in which he has a pecuniary interest, supplies false information for the guidance of
others in their business transactions, is subject to liability for pecuniary loss caused to
them by their justifiable reliance upon the information, if he fails to exercise reasonable
care or competence in obtaining or communicating the information.
. . .
(3) The liability of one who is under a public duty to give the information extends to
loss suffered by any one of the class of persons for whose benefit the duty is created, in
any of the transactions in which it is intended to protect them.
The tort is negligent misrepresentation. Cf. Eikelberger v. Rogers, 92 Nev. 282, 549 P.2d
748 (1976), where we rejected that theory of liability absent proof of reliance upon
accounting statements by the party seeking damages.
2. It is not clear in Nevada whether violation of a statute designed to protect the plaintiff is
merely evidence of negligence (Price v. Sinnott, 85 Nev. 600, 605, 450 P.2d 837 (1969), re
administrative regulation), creates a presumption of negligence (Styris v. Folk, 62 Nev. 208,
219, 146 P.2d 782 (1944)), or is negligence as a matter of law, leaving only proof of cause to
be resolved, Paso Builders, Inc. v. Hebard, 83 Nev. 165, 426 P.2d 731 (1967).
[Headnote 4]
We need not resolve this question since, in any event, Stremmel has tendered nothing to
controvert negligence, nor is there a suggestion that Stremmel could do so if afforded an
opportunity.
a suggestion that Stremmel could do so if afforded an opportunity. Denial, by answer, does
not create an issue of material fact. NRCP 56(e); Garvey v. Clark County, 91 Nev. 127, 532
P.2d 269 (1975); Adamson v. Bowker, 85 Nev. 115, 450 P.2d 796 (1969).
Affirmed.
Batjer, C. J., and Mowbray and Gunderson, JJ., and Fondi, D. J., concur.
____________
94 Nev. 135, 135 (1978) Grosney v. Sheriff
SHERMAN GROSNEY, Appellant, v. SHERIFF, CLARK
No. 10431
March 15, 1978 575 P.2d 941
Defendant, under indictment for felonious sale of cocaine, petitioned for writ of habeas
corpus to challenge the quantum and quality of the evidence presented to the grand jury. The
district court denied relief, and defendant appealed. The Supreme Court held that the facts
recited in the grand jury transcript were sufficient to support a determination that defendant
probably committed the charged offense.
Affirmed.
Gary Logan, Las Vegas, for Appellant.
Where transcript of grand jury proceedings contained evidence that undercover officer had given third
party five marked $100 bills for the purpose of purchasing cocaine, that the third party had obtained
cocaine during a brief absence from the undercover officer's automobile while the automobile was parked
in an apartment complex where defendant lived and that shortly thereafter three of the marked $100 bills
were seized from a coffee table in defendant's apartment and one of the marked bills was recovered from
defendant's person, evidence in transcript was sufficient to support the district judge's determination that
defendant probably committed the offense of felonious sale of cocaine and quantum and quality of
evidence presented to grand jury was sufficient to support the indictment.
94 Nev. 135, 136 (1978) Grosney v. Sheriff
evidence presented to grand jury was sufficient to support the indictment. NRS 172.155, subd. 1,
453.171, 453.321.
OPINION
Per Curiam:
Pursuant to a True Bill by a Clark County Grand Jury, Sherman Grosney was indicted for
the felonious sale of cocaine, a controlled substance (NRS 453.321; NRS 453.171). A pretrial
petition for a writ of habeas corpus challenged the quantum and quality of the evidence
presented to the grand jury. Habeas was denied and in this appeal Grosney contends we are
compelled to reverse. We do not agree.
The transcript of the grand jury proceedings reflects that on the morning of October 3,
1977, an undercover narcotics officer met with Lorraine Thompson for the stated purpose of
purchasing a quantity of cocaine. Thompson traveled with the officer in his automobile to an
exclusive apartment complex in Las Vegas. The two were allowed to pass through a security
gate to the parking lot after Thompson stated to the guard: Lorraine Thompson to see
Sherman Grosney. The officer then parked and handed Thompson five (5) marked $100
bills. Thompson left the automobile and vanished into the apartment complex. She returned
about five minutes later and handed the officer a pill bottle which, according to Thompson,
contained cocaine. The officer, who had remained in the automobile during Thompson's
absence, then placed Thompson under arrest and proceeded, with a confederate, to the
Grosney apartment.
After announcing their presence and receiving no response, the officers forced entry into
the apartment where they observed Sherman Grosney seated behind a coffee table. Another
person was also in the apartment. Three of the marked $100 bills were on the coffee table and
were seized. Grosney was arrested and one of the marked $100 bills was recovered from his
person when he was searched. [The fifth marked bill was not accounted for.]
In our view, the recited facts are sufficient to support the district judge's determination that
Grosney probably committed the charged offense. NRS 172.155(1); Kinsey v. Sheriff, 87
Nev. 361, 487 P.2d 340 (1971).
[W]e are not now concerned with the prospect that the evidence presently in the record
may, by itself, be insufficient to sustain a conviction. McDonald v. Sheriff, 89 Nev. 326,
327, 512 P.2d 774, 775 (1973).
Accordingly, we affirm.
____________
94 Nev. 137, 137 (1978) Saka v. Mann Theatres
ELIAS SAKA, Appellant, v. MANN THEATRES,
A Corporation, Respondent.
No. 9039
March 16, 1978 575 P.2d 1335
Appeal from judgment. Eighth Judicial District Court, Clark County; Carl J. Christensen,
Judge.
Suit was brought by theater lessor for amount of dishonored check tendered by film
producer. The district court found producer liable on check, and producer appealed. The
Supreme Court, Manoukian, J., held that theater lessor, which had already begun performance
when notified that check did not clear, qualified as a holder in due course.
Affirmed.
Robert N. Peccole, Las Vegas, for Appellant.
Deaner, Deaner & Reynolds, Las Vegas, for Respondent.
Bills and Notes.
Theater lessor, which rented one of its theaters for exhibition of film for two weeks and which had
already begun performance when notified that check tendered by producer of film did not clear, took such
check for value and therefore qualified as a holder in due course and was entitled to recover on check from
producer.
OPINION
An agreement was reached by respondent and Affinity Pictures whereby respondent was to
rent one of its theaters to Affinity to exhibit a film for two weeks. Appellant was one of the
producers of the film. The rental fee was $10,884 or $5,442 for each seven-day period.
Appellant Saka tendered to Boulevard Theatre, the theater within the Mann Theatre chain
which was rented, two checks each for $5,442. One check was honored, but the second check
did not clear. Respondent sued for the amount of the dishonored check and prevailed in the
district court. The material facts involving the tendered check were sharply disputed and the
trial judge chose to believe respondent's version of the case.
Testimony was proffered that in June of 1974, Saka had contacted a Mark Rosen of Mann
Theatres regarding the rental of Boulevard Theatre. One month later in July, Rosen met with
several parties in Los Angeles and was given two checks drawn by Saka.
94 Nev. 137, 138 (1978) Saka v. Mann Theatres
by Saka. Appellant contends that he wrote the two checks at the request of an officer of
Affinity Pictures who stated that the money was needed to cover the rental fees for the
theater.
Rosen testified that he contacted Saka during the first week of the film exhibition
concerning the returned check and that Saka stated that a temporary hold had been placed on
the account which would be lifted in a matter of days. Rosen, following assurances by Saka
that the check would be later honored, permitted the film to be shown the second week.
Rosen testified that Saka offered to even make periodic payments on the check. The check
was never made good and respondent initiated suit.
The central question is whether the trial court properly found appellant liable on the check.
Saka contends that he is not liable for two reasons. First, he argues respondent was not a
holder in due course, and, second, appellant did not receive any consideration from
respondent upon which to base individual liability. He claims that Mann Theatres was not a
holder in due course because it did not take the instrument for value as required by NRS
104.3302.
1
His argument is that because the check was tendered and accepted for the second
week's showing of the film, Mann Theatres merely gave an executory promise to give value.
Korzenik v. Supreme Radio, Inc., 197 N.E.2d 702 (Mass. 1964). The underlying policy
reason is that when a transferee becomes aware of a defense, he need not enforce the
instrument but may elect to rescind the transaction based upon the breach. Korzenik, supra.
Nevertheless, one is considered a holder in due course to the extent he has performed such
executory promise. Coventry Care, Inc. v. United States, 366 F.Supp. 497 (W.D. Pa. 1973).
Here, testimony indicated that respondent had already begun performance when notified that
the check did not clear. For this reason alone, respondent qualified as a holder in due course.
This determination is dispositive of the appeal, and we find it unnecessary to discuss the issue
of want of consideration.
The judgment of the lower court is affirmed.
____________________

1
NRS 104.3302 provides in part: 1. A holder in due course is a holder who takes the instrument: (a) For
value; and (b) In good faith; and (c) Without notice that it is overdue or has been dishonored or of any defense
against or claim to it on the part of any person.
____________
94 Nev. 139, 139 (1978) Nevada Gaming v. Consolidated Casinos
NEVADA GAMING COMMISSION, Appellant, v. CONSOLIDATED CASINOS
CORPORATION, TAHOE DIVISION dba SAHARA TAHOE, Respondent.
No. 9008
March 16, 1978 575 P.2d 1337
Appeal from judgment vacating order of Nevada Gaming Commission, Eighth Judicial
The district court entered judgment vacating order of State Gaming Commission, which
had fined casino operator, and Commission appealed. The Supreme Court, Gunderson, J.,
held that Commission's order fining casino operator $25,000 for allegedly violating statute
granting Gaming Control Board agents authority to demand access to audit all records of
licensees respecting gross income produced by any gaming business was arbitrary and
capricious because agents failed to follow Board's regulatory mandates.
Affirmed.
Robert List, Attorney General, and A. J. Hicks, Deputy Attorney General, Carson City, for
Appellant.
Lionel Sawyer & Collins, Las Vegas, for Respondent.
1. Gaming.
In reviewing a State Gaming Commission decision, Supreme Court will examine record to determine if
there is any evidence to support Commission's order.
2. Gaming.
Order of State Gaming Commission should be affirmed unless Commission acted arbitrarily, capriciously
or contrary to law.
3. Gaming.
State Gaming Commission order fining casino operator $25,000 for allegedly violating statute granting
Gaming Control Board agents authority to demand access to and audit all records of licensees respecting
gross income produced by any gaming business was arbitrary and capricious inasmuch as failure of agent,
who were trying to conduct routine casino audit starting with a surprise observation of count of gaming
receipts, to produce their audit engagement letter and identity cards when credit supervisor in charge of
cage area questioned their authority caused such supervisor's good-faith action of asking agents to leave
cage area because they had not been checked out. NRS 463.140, subd. 3(d).
OPINION
On May 30, 1975, two State Gaming Control Board agents arrived at the Sahara Tahoe
Hotel to conduct a routine casino audit, which by established practice starts with a surprise
observation of the "count" of gaming receipts.
audit, which by established practice starts with a surprise observation of the count of
gaming receipts. Displaying their photo identity cards to a security guard, they requested
access to the casino cashier's cage and its inner count room. Admitted to the cage, they met
Anne Corson, the credit supervisor then in charge of that area. The agents informed Corson
they were there to observe the count, and, without producing any identification or other
authorization, entered the count room.
Within one minute after their entry, Corson asked the agents to leave the cage area because
they had not been checked out. A few moments later, the assistant manager arrived at the
cage, confirmed the agents' authority by a telephone call to the Gaming Control Board in
Carson City, and immediately granted the agents permission to re-enter the count room. The
agents declined, however, claiming they had lost the surprise element essential to a proper
audit. Only then, just before departing, did the agents show the assistant manager their audit
engagement letter, establishing their authority to conduct an audit on the Control Board's
behalf.
A complaint was thereupon filed charging respondent, which operates the casino, with
violations of NRS 463.140(3)(a) and (d),
1
and Nev. Gaming Regs. 5.030
2
and 5.060.
3
After hearings the Gaming Commission fined respondent $25,000. Respondent petitioned the
district court for review of the Commission's findings of fact and order, and the court vacated
the Commission's order. We affirm that judgment.
____________________

1
NRS 463.140(3) provides in pertinent part:
The board and the commission and their agents, inspectors and employees have the authority:
(a) To inspect and examine all premises wherein gaming is conducted or gambling devices or equipment are
manufactured, sold or distributed. . . .
(d) To demand access to and inspect, examine and audit all papers, books and records or applicants and
licensees respecting the gross income produced by any gaming business, . . .

2
Nev. Gaming Reg. 5.030 provides:
Violation of any provision of the Nevada Gaming Control Act or of these regulations by a licensee, his agent
or employee shall be deemed contrary to the public health, safety, morals, good order and general welfare of the
inhabitants of the State of Nevada and grounds for suspension or revocation of a license. Acceptance of a state
gaming license or renewal thereof by a licensee constitutes an agreement on the part of the licensee to be bound
by all of the regulations of the commission as the same now are or may hereafter be amended or promulgated. It
is the responsibility of the licensee to keep himself informed of the content of all such regulations, and ignorance
thereof will not excuse violations.

3
Nev. Gaming Reg. 5.060 provides:
No applicant, licensee or entolled person shall neglect or refuse to produce records or evidence or to give
information upon proper and lawful demand by an authorized agent of the board or commission, or shall
otherwise interfere or attempt to interfere, with any proper and lawful efforts by the commission, the board or
any agent of either to procure such information.
[Headnotes 1, 2]
In reviewing a Gaming Commission decision, this court will examine the record to
determine if there is any evidence to support the Commission's order. M & R Investment
Company v. Nevada Gaming Commission, 93 Nev. 35, 559 P.2d 829 (1977). The order
should be affirmed unless the Commission acted arbitrarily, capriciously or contrary to law.
See Miller v. West, 88 Nev. 105, 493 P.2d 1332 (1972); Tax Com. v. Mackie, 75 Nev. 6, 333
P.2d 985 (1959). Here, however, we find the Commission's order arbitrary and capricious,
because the agents failed to follow the Gaming Board's regulatory mandates.
[Headnote 3]
It has long been recognized that the gaming industry invites corruption unless it is
effectively controlled. See Nev. Tax Com. v. Hicks, 73 Nev. 115, 310 P.2d 852 (1957); NRS
463.130. To that end, the legislature gave the board, commission and their agents authority to
[d]emand access to and inspect, examine and audit all papers, books and records of . . .
licensees respecting the gross income produced by any gaming business, . . . NRS
463.140(3)(d). The legislature also authorized the commission to adopt regulations governing
the fiscal operation of licensees. See NRS 463.156; 463.157; 463.158; 463.159; 463.1592. As
part of those regulations the Commission adopted Nev. Gaming Reg. 6.110(2) which
provides in pertinent part: Audits or examinations shall be conducted in conformity with
acceptable auditing standards. . . .
Testimony before the Commission established that the Gaming Control Board has not
authorized all of its agents to conduct audits and surprise counts. Only certain authorized
agents of the audit division are granted such power. As accepted general practice, auditing
procedures utilized in the gaming industry, both in the case of privately retained auditors and
Gaming Control Board auditors, contemplate the use of audit engagement letters. Clearly, we
think, the gaming authorities must continue to utilize this or some other reasonable alternative
means of verifying authority to audit. Obviously, a licensee's employees must be permitted to
know the identity and authority of persons requesting access to private areas where money is
counted and stored. Indeed, the commission itself has specifically charged licensees with the
duty to safeguard . . . assets. Nev. Gaming Reg. 6.050(1)(a)(1).
When Anne Corson questioned their authority, the agents should have produced both the
audit engagement letter and their identity cards. The agents would then have conformed to the
acceptable auditing standards dictated by the gaming regulations. See Nev. Gaming Reg.
6.110(2), cited above. In all probability, the misunderstanding which aborted the audit
would have been prevented.
probability, the misunderstanding which aborted the audit would have been prevented.
We deem it arbitrary and capricious to fine a licensee $25,000 for the actions of a well
motivated employee, whose actions were in good faith, and occasioned by imprecise
procedures on the part of the gaming agents. For that reason, the judgment vacating the order
of the Gaming Commission is affirmed.
4

Batjer, C. J., and Mowbray, Thompson, and Manoukian, JJ., concur.
____________________

4
Since the time in question, membership of the Gaming Control Board and the Gaming Commission has
changed.
____________
94 Nev. 142, 142 (1978) Porter v. State
FREDDIE LEE PORTER, Appellant, v. THE
No. 9505
March 22, 1978 576 P.2d 275
Appeal from conviction of robbery and use of deadly weapon in commission of crime.
Eighth Judicial District Court, Clark County; James A. Brennan, Judge.
The Supreme Court, Manoukian, J., held that: (1) evidence including the positive
identification of the victim was sufficient to support the conviction; (2) the trial court did not
err in refusing to permit defendant to offer expert testimony on the matter of eyewitness
identification; (3) defendant was not deprived of a fair trial by allegedly improper and
prejudicial comments in the prosecutor's closing argument, and (4) the trial court did not
abuse discretion in denying defendant's motion for a new trial.
Affirmed.
Morgan D. Harris, Public Defender, and Stephen L. Huffaker, Deputy Public Defender,
1. Criminal Law.
Conflicting testimony addresses the sound discretion of the jury.
2. Robbery.
Where testimony of victim, standing alone, was sufficient to support robbery conviction, such testimony
was no less sufficient by reason of the fact that the defense had presented internally inconsistent
exculpatory testimony.
3. Criminal Law.
The jury is at liberty to reject the defendant's version of events.
4. Robbery; Weapons.
Evidence including robbery victim's positive identification of defendant as perpetrator of robbery was
sufficient to support conviction for robbery and use of a deadly weapon in the commission of a crime.
NRS 193.165, 200.380.
5. Criminal Law.
Supreme court, on review of criminal conviction, cannot assume the function of the jury to weigh the
evidence.
6. Criminal Law.
In prosecution for robbery and use of a deadly weapon in the commission of a crime, trial court did not
abuse discretion in refusing to permit defense to offer testimony of a clinical psychologist on the matter of
eyewitness identification where defendant failed to establish a viable foundation, there was no indication
that the testimony would have aided the trier of fact and there existed a substantial risk that the potential
persuasive appearance of the psychologist would have had a greater influence on the jury than the evidence
presented, thereby interfering with the province of the jury. NRS 50.275.
7. Criminal Law.
Competency of expert testimony is within the trial court's sound discretion and its determination, absent a
manifest abuse of discretion, will not be disturbed on appeal.
8. Criminal Law.
Absent special conditions of admissibility, reference to a defendant's past criminal history is reversible
error.
9. Criminal Law.
Failure of defendant to object during trial to certain references to mug shots and lineup procedures
which assertedly implied that defendant had a previous arrest record precluded consideration of the issues
on appeal.
10. Criminal Law.
In view of fact that two defense witnesses had recently testified as alibi witnesses in another robbery
prosecution, prosecutor's suggestion in closing argument that the defense witnesses were a parade of
prejurers and professional alibi witnesses did not amount to prejudicial error.
11. Criminal Law.
Where evidence proffered by defendant in support of new trial motion, even if material, was not newly
discovered but could have been presented at trial by the exercise of reasonable diligence and where the
evidence was cumulative and corroborative and not such as to render a different result probable upon
retrial, evidence did not require a new trial. NRS 176.515.
12. Criminal Law.
Where alleged newly discovered evidence, adduced in support of new trial motion, consisted essentially
of a purported polygraph examination in which a third party allegedly truthfully admitted committing the
robbery for which defendant was convicted and the affidavit of a court-appointed investigator stating that
the third party had admitted committing the robbery, alleged newly discovered evidence did not meet
guidelines for granting a new trial. NRS 176.515.
13. Criminal Law.
Whether to grant a new trial on grounds of newly discovered evidence is discretionary and trial court's
decision will not be reversed on appeal absent an abuse of discretion. NRS 176.515.
OPINION
Appellant appeals from a judgment and sentences imposed against him following jury
verdicts wherein he was sentenced to nine years imprisonment for robbery, (NRS 200.380),
and nine years for use of a deadly weapon in the commission of a crime, (NRS 193.165), the
sentences, as mandated by statute, to run consecutively.
Appellant presents four issues for our disposition. (1) Was there substantial evidence upon
which to convict appellant; (2) did the trial court commit error in refusing to permit purported
expert testimony; (3) does the doctrine of accumulated error entitle appellant to a new trial;
and (4) did the trial court commit error in denying appellant's motion for new trial.
The victim of this crime, Wesley Speake, had been driving home from work on June 17,
1974, at about 3:30 a.m., when he noticed a disabled Cadillac convertible parked in a closed
service station. The occupants, two well-dressed black couples, were attempting to remedy
the mechanical problem when Speake approached and offered assistance. The Cadillac could
not be restarted, and Speake offered to drive the individuals home.
After transporting the two women and one man to their respective residences, Speake
drove the remaining male, who remained in the back seat, to his destination. Upon arrival, the
man drew a knife, ordered Speake out of the vehicle, and demanded Speake's money. After
the man had possession of the money, he ordered Speake to walk with him to another
destination. Speake refused, re-entered his vehicle, and drove away.
As Speake drove away, his passenger door, unbeknownst to him, was ajar and
consequently he was later stopped by police officers.
officers. He then informed the officers of the preceding events and gave a description of the
individuals. The stalled automobile was subsequently located precisely where Speake had
indicated.
Shortly thereafter, police officers visited Speake's residence and exhibited several
photographs of possible suspects. Speake immediately identified appellant as the robber. The
officers cautioned Speake to take sufficient time to be sure, and after careful study, he again
positively identified appellant as the perpetrator. The appellant was in fact the registered
owner of the immobile Cadillac convertible located by the police.
An arrest warrant subsequently issued for Porter, and approximately one month following
the crime, he was found hiding under a bed in his girlfriend's apartment. The arresting officer
testified that Porter's girlfriend claimed Porter was not present but consented to a search. The
officer also testified that the bed was so low to the floor that Porter had to have had assistance
in getting under it.
During trial, Porter's defense consisted of alibi and mistaken identity. Porter's girlfriend,
his sister, and his sister's boyfriend all testified as alibi witnesses that Porter was with them
on the night of the incident. There was some discrepancy in their several versions. Porter's
sister and her boyfriend testified that after they had dinner with Porter and his girlfriend at the
home of Porter's father, the two couples went to Porter's apartment and were together until
approximately 2:00 a.m. Porter's girlfriend, however, testified that after dinner only she and
Porter returned to the apartment, watched television, then fell asleep.
The mistaken identity defense was premised on Porter's purported loan of his vehicle to a
John Jones. Although Porter himself did not testify, several witnesses testified that another
individual had been driving the Porter vehicle. One witness stated that he saw the Cadillac,
but that someone else, not Porter, was driving. The girlfriend of John Jones said that she and
Jones had used the Porter vehicle several hours prior to the robbery but that upon their return
home she fell asleep and had no information whether Jones returned the car to Porter. Yet
another witness testified that he was one of the individuals present when Speake offered his
assistance and that John Jones was the driver of the Cadillac and also the last individual to be
driven home. He stated that he did not know Jones personally but heard that was the driver's
name. Finally, the boyfriend of Porter's sister testified that Jones had admitted the robbery.
The State presented evidence indicating that Porter's sister and her boyfriend had been
recent alibi witnesses in another case, testifying that the accused in that case had been
asleep at the time of the robbery.
case, testifying that the accused in that case had been asleep at the time of the robbery. In
addition, Speake testified identifying Porter as the person who robbed him.
The defense attempted to offer the testimony of a purported expert witness to the effect
that there is little reliability associated with eyewitness identification. The trial court refused
to permit such testimony.
The jury found Freddie Lee Porter guilty as charged.
A motion for a new trial was made principally on the affidavit of a court-appointed
defense investigator who stated that he was present at a conversation in which John Jones, in
the presence of several other people, admitted committing the robbery. During an evidentiary
hearing, Jones was summoned as a witness but invoked the Fifth Amendment privilege
against self-incrimination. Defense counsel also attempted to call a polygraph examiner to
testify that Jones took a polygraph test and truthfully admitted committing the robbery.
The trial court denied the motion for new trial and entered judgment of conviction from
which Porter appeals.
1. Substantial Evidence.
Appellant contends that there was no substantial evidence upon which to base a
conviction. He argues that the defense produced witnesses who not only testified that he was
elsewhere at the approximate time of the robbery, but also that he was not in possession of
the vehicle associated with the incident. In addition, he argues there was testimony that John
Jones had admitted complicity in the robbery to others. Based upon this evidence, it is
appellant's contention that a serious miscarriage of justice would be wrought if his conviction
is permitted to stand.
[Headnotes 1-3]
In contrast to the exculpatory evidence and in addition to the other evidence of guilt, the
jury heard the testimony of the victim who positively identified the appellant as the
perpetrator. Such conflicting testimony addresses the sound discretion of the jury. Hankins v.
State, 91 Nev. 477, 538 P.2d 167 (1975); Allen v. State, 91 Nev. 78, 530 P.2d 1195 (1975);
King v. State, 87 Nev. 537, 490 P.2d 1054 (1971). Appellant acknowledges that the
testimony of the victim, standing alone, would be sufficient to support his conviction. It
follows that if this testimony considered alone is sufficient, it is no less sufficient in the
presence of internally inconsistent testimony from the defense. The jury is at liberty to reject
the defendant's version of events. Harris v. State, 88 Nev. 385, 498 P.2d 373 (1972).
[Headnotes 4, 5]
The evidence, taken as a whole, amply supports the jury's verdict. This Court, in review,
cannot assume the function of the jury to weigh the evidence. McGuire v. State, 86 Nev. 262,
468 P.2d 12 (1970). Accordingly, the conviction will not be reversed for this reason.
2. Expert Testimony.
[Headnote 6]
Appellant, at trial, attempted to offer testimony from a clinical psychologist on the matter
of eyewitness identification. The proposed testimony sought to challenge the validity of the
eyewitness identification. The trial court refused to permit such evidence on the basis that the
proffered testimony was not within a recognized field of expertise, the foundation was
inadequate, and that it would invade the province of the jury. Appellant contends that the
proposed testimony was critical to his defense and that its rejection was prejudicial error. We
disagree.
At trial, Harry Hess, the offered expert, was a clinical psychologist holding a master's
degree and Ph.D. in his field. During the foundational hearing he testified that clinical
psychology was the application and practice of experimental psychology. Experimental
psychology involves, in part, experiments in the retention and recollection of visual
impressions. Although Dr. Hess had previously qualified in district court as an expert in the
field of psychology, he had never testified as to the reliability of eyewitness identification. He
was not acquainted with the victim, nor had he ever examined the victim's retention ability.
His testimony was to consist of a review of authored works written by other persons which
concluded that eyewitness identification is unreliable. Defense counsel then intended to
propound a hypothetical question to Hess describing the circumstances of the identification in
the instant case.
Without deciding whether the subject matter of Dr. Hess' testimony would have been a
proper one for expert testimony, see, Warden v. Lischko, 90 Nev. 221, 523 P.2d 6 (1974), in
the instant case, appellant simply failed to establish a viable foundation for the elicitation of
the desired opinion, not only in terms of whether this type of expert testimony is within a
recognized field of expertise but moreover respecting the witness' competency. See, NRS
50.275. Dr. Hess, if permitted to, would have testified with reference to the matters of
retention and recollection of visual impressions. Appellant would have offered Dr.
offered Dr. Hess' opinion that, based upon Hess' readings, eyewitness accounts are not always
reliable. There was no express showing that he would have addressed himself to the
testimony of the victim with reference to Speake's retention and recollection capacity, the
effect of stress, if any, on Speake's power of perception, or other relevant considerations.
Rather, he would have testified about the unreliability of eyewitness accounts in general.
On this record, there existed a substantial risk that the potential persuasive appearance of
Hess would have had a greater influence on the jury than the evidence presented at trial,
thereby interfering with the province of the jury. United States v. Moia, 251 F.2d 255 (2nd
Cir. 1958).
In United States v. Amaral, the court stated:
The basic purpose of any proffered evidence is to facilitate the acquisition of
knowledge by the triers of fact thus enabling them to reach a final determination.
488 F.2d 1148, 1152 (9th Cir. 1973). Here, there was no indication that the testimony would
have aided the trier of fact. See, NRS 50.275.
Further, defense counsel had the responsibility, which he ably accepted, of
cross-examining Speake to inquire into the witness's opportunity and capacity for
observation, his attention and interest, and his capacity for retention and recollection. In the
instant case, the victim was not under stress until the actual robbery; he had a prior ample
opportunity to observe Porter absent stress-type conditions, Amaral, supra, and the victim
had since immediately following the offense, through his testimony, consistently and with
unmistakable certainty identified Porter as the perpetrator. Here, the evidence was substantial
and, even had we reached the issue of competent subject matter and determined that it was
proper and the witness qualified, rejection, on the instant facts, may have been harmless.
Compare, United States v. Brown, 501 F.2d 146 (1974), reversed on other grounds, 422 U.S.
225 (1975).
[Headnote 7]
The competency of expert testimony is within the sound discretion of the trial court, and
its determination, absent a manifest abuse of discretion, will not be disturbed on appeal.
Singleton v. State, 90 Nev. 216, 522 P.2d 1221 (1974). The trial judge did not err.
3. Doctrine of Accumulated Error.
Appellant contends that reference during the trial to his mug shots and the line-up
procedure improperly implied that he had a previous arrest record. This in addition to an
allegedly prejudicial closing argument by the prosecutor amounts, he argues, to
reversible error under an accumulated error doctrine.
allegedly prejudicial closing argument by the prosecutor amounts, he argues, to reversible
error under an accumulated error doctrine.
[Headnotes 8, 9]
It is without question that, absent special conditions of admissibility, reference to past
criminal history is reversible error, Walker v. Fogliani, 83 Nev. 154, 425 P.2d 794 (1967);
Marshall v. United States, 360 U.S. 310 (1959), but here appellant failed to object during trial
to the alleged impropriety of reference to the mug shots and line-up procedures. Failure to
object at trial precludes the issue on appeal. Wilson v. State, 86 Nev. 320, 468 P.2d 346
(1970).
[Headnote 10]
We now turn to appellant's claim that he was deprived of a fair trial by improper and
prejudicial prosecutorial closing argument. The prosecutor's suggestion that the defense
witnesses were a parade of perjurers and professional alibi witnesses is a reasonable
capsulization of appellant's claim that prejudicial error occurred during summation. Appellant
objected to some, but not all, of the claimed prejudicial comments. The court sustained some
and overruled the remaining, appropriately admonishing the jury. Two defense witnesses had
recently testified as alibi witnesses in another robbery prosecution in Clark County. We
cannot say that these comments were statements of a prosecutor not based upon or arising by
inference from the evidence. State v. Cyty, 50 Nev. 256, 256 P. 793 (1927). Even if,
arguendo, the remarks were considered to be improper, as to the unobjected to matter,
appellant is now precluded from raising the issue on appeal. Walker, supra, Jackson v. State,
93 Nev. 28, 559 P.2d 825 (1977); Moser v. State, 91 Nev. 809, 544 P.2d 424 (1975); Clark v.
State, 89 Nev. 392, 513 P.2d 1224 (1973). Nor do we perceive error respecting the remarks
that were objected to.
4. Denial of New Trial.
[Headnotes 11-13]
Appellant argues that a new trial should have been granted on the basis of newly
discovered evidence. NRS 176.515. The evidence consisted essentially of a purported
polygraph examination of John Jones in which he allegedly truthfully admitted the robbery
and the affidavit of a court-appointed investigator stating that Jones had admitted committing
the robbery. Not only does this newly discovered evidence fail to meet the guidelines for
granting a new trial as set forth in Oliver v. State, 85 Nev. 418, 456 P.2d 431 (1969), but the
proffered evidence, involving a polygraph examination, would be inadmissible evidence in
any subsequent re-trial.
involving a polygraph examination, would be inadmissible evidence in any subsequent
re-trial. Lischko, supra. In addition, the evidence proffered, even if material, was not newly
discovered at all but was significantly referred to during trial. The record shows that, both
before and during trial, Jones was known to the defense as a source of evidence as to the
commission of the robbery. The new evidence could have been presented at trial by the
exercise of reasonable diligence. It is therefore cumulative and corroborative, rather than new,
and not such as to render a different result probable upon re-trial. Oliver, supra. The granting
of a new trial upon grounds of newly discovered evidence is discretionary and will not be
reversed on appeal absent an abuse of discretion. Lightford v. State, 91 Nev. 482, 538 P.2d
585 (1975).
The judgment of conviction is affirmed.
Batjer, C. J., and Mowbray and Thompson, JJ., concur.
Gunderson, J., concurring:
Although I can concur in the result reached by our brother Manoukian, I must respectfully
note my belief that the above opinion lacks any acceptable rationale concerning the issue of
expert testimony.
The opinion states that appellant simply failed to establish a viable foundation for the
elicitation of the desired opinion, despite the fact that appellant's proffered expert has earned
both master's and Ph.D. degrees in clinical psychology, has extensive experience in that field,
and has often been recognized by Nevada courts as an expert for purposes of giving
testimony. Two reasons are articulated for this holding, i.e., that there is no showing [1]
whether this type of expert testimony is within a recognized field of expertise, and [2] but
moreover respecting the witness' competency.
1. The discourse following this preliminary statement does not even attempt to support the
first groundwhich is not surprising. Here, appellant's expert was prepared to cite and
discuss scientific literature concerning the expertise which has been developed through
scientific study of witnesses' capacity to report their observations with accuracy. Moreover,
legal research discloses no case excluding testimony of this kind on the ground that it is
outside a recognized field of expertise.
2. The above opinion's only attempt to justify the second ground mentioned, so far as I
can see, is the statement: There is no express showing that he [the expert] would have
addressed himself to the testimony of the victim with reference to Speake's retention and
recollection capacity, the effect of stress, if any, on Speake's power of perception, or other
relevant considerations.
stress, if any, on Speake's power of perception, or other relevant considerations. Rather, he
would have testified about the unreliability of eyewitness accounts in general. Thus, in
essence, the above opinion suggests that it somehow is improper to develop general testimony
in an area of expert knowledge, and rely upon other evidence to relate such testimony to the
case. This is contrary to both the evidence code and previous Nevada authority. See NRS
50.275; 50.285(1); Southern Pacific Co. v. Watkins, 83 Nev. 471, 435 P.2d 498 (1967);
Wallace v. State, 84 Nev. 603, 447 P.2d 30 (1968); cf. Ginnis v. Mapes Hotel Corp., 86 Nev.
408, 470 P.2d 135 (1970); Shoshone Coca-Cola v. Dolinski, 82 Nev. 439, 420 P.2d 855
(1966); L.A. & S.L.R. Co. v. Umbaugh, 61 Nev. 214, 123 P.2d 244 (1942).
3. Following such discourse, which supports neither of the legal propositions first given as
grounds for its holding, the above opinion proceeds into a discussion unrelated to either.
Some of that discourse is patently unsound. For example, I suggest this court can hardly
justify excluding expert testimony by asserting that defense counsel had the responsibility,
which he ably accepted, of cross-examining Speake. Defense counsel had no
responsibility to cross-examine Speake. His responsibility was to defend appellant in the
best manner legally available, and, if counsel's choices included the use of expert testimony,
then counsel was free to use that method of defense exclusively, or to use it in conjunction
with cross-examination. Moreover, if the court improperly forced counsel to proceed by
cross-examination only, then we can hardly defend the court's error, by noting that counsel
ably accepted the burden of attempting to impeach the witnesses solely by
cross-examination. What kind of rule should our bench and bar elicit from such a
commentary? I suggest that the only rule which can be educedi.e., that trial courts may
reject expert testimony with impunity, provided counsel unsuccessfully attempts to get the
same information before the jury by cross-examination or by some other artificeis patently
unsound.
The above opinion also vaguely asserts that, had the trial court permitted appellant's expert
to testify, there existed a substantial risk that the potential persuasive appearance of Hess
would have had a greater influence on the jury than the evidence presented at trial, thereby
interfering with the province of the jury.
In Nevada, experts may testify as to ultimate issues of fact, even though such testimony
traditionally invaded the province of the jury. See NRS 50.295; Southern Pacific, cited above,
83 Nev. at 488, 435 P.2d at 509. If the court intends to carve out an exception to this
general rule, then I believe we must likewise delineate the rationale for our decision.
carve out an exception to this general rule, then I believe we must likewise delineate the
rationale for our decision. This would prevent confusion and erroneous extension of our
holding beyond its factual setting.
4. After reading of the authorities dealing with the specific issues before us, I believe
authorities exist to support affirmance, some based on vague rationale, and some with better
logical focus. For example, some courts have said experts may not impeach eyewitness
accounts because cross-examination is a more efficient method for testing credibility. See
United States v. Amaral, 488 F.2d 1148 (9th Cir. 1973); Criglow v. State, 36 S.W.2d 400
(Ark. 1931). Another court declared that parties should not impeach witnesses by calling
other witnesses, and thereby usurp the jury's task of determining witness credibility. See
People v. Johnson, 112 Cal.Rptr. 834 (Cal.App. 1974). Providing somewhat more
enlightenment, the Georgia Supreme Court recently concluded:
Generally, expert testimony as to the credibility of a witness is admissible if the
subject matter involves organic or mental disorders, such as insanity, hallucinations,
nymphomania, retrograde amnesia, and testimony concerning physical maladies which
tend to impair mental or physical faculties. If, however, the characteristic attacked does
not involve some organic or mental disorder or some impairment of the mental or
physical faculties by injury, disease or otherwise, expert testimony is usually excluded.
Jones v. State, 208 S.E.2d 850, 853 (Ga. 1974); see also 20 ALR3d 684.
The cases just cited reject the use of expert testimony to wage a general attack on the
validity of direct eyewitness testimony. As to such a general attack, the case authority seems
to show a policy decision to avoid a battle of the experts by carving out an exception to
usual rules permitting expert testimony. In my view, such a policy decision is rational and
acceptable, and should be set forth as the basis for our opinion.
5. Finally, I note the above opinion's concluding statement concerning the expert opinion
issue, i.e., that any error on the instant facts, may have been harmless, is meaningless at
best. (Emphasis added.) I respectfully suggest that, when invoking the harmless error rule,
this court should utilize care and restraint. Error is either harmless or it is not. That an error
may be harmless should not be offered as an ambiguous apologia for uncertainty in other
rationale. Our case law and credibility will not be benefited by such non-committal,
makeweight declarations.
In view of all the foregoing, I respectfully suggest, with all due deference, that the above
opinion fails to articulate any real rationale on the expert opinion question. I fear it will
mislead more than enlighten.
____________
94 Nev. 153, 153 (1978) Consumers League v. Southwest Gas
CONSUMERS LEAGUE OF NEVADA, and KERMITT L. WATERS, Appellants, v.
SOUTHWEST GAS CORPORATION, a California Corporation; PUBLIC SERVICE
COMMISSION, STATE OF NEVADA; U.S. LIME; STAUFFER CHEMICAL COMPANY;
TITANIUM METALS CORPORATION OF AMERICA; AMERICAN POTASH; NEVADA
POWER COMPANY; PACIFIC ENGINEERING & PRODUCTION COMPANY OF
NEVADA; JOHNS-MANVILLE PRODUCT COMPANY; STATE STOVE &
MANUFACTURING COMPANY; FORT MOHAVE; CALIFORNIA PACIFIC UTILITIES
COMPANY; and KERR McGEE CHEMICAL CORPORATION, Respondents.
No. 9090
April 4, 1978 576 P.2d 737
Appeal from order granting partial summary judgment, Eighth Judicial District Court,
Clark County; Carl J. Christensen, Judge.
Appeal was taken from an order of the district court which, after ordering a gas company
to refund to its customers substantial sums of money received by it as refunds from its gas
supplier, refused a request for an award of attorney's fees to the customer's representative
from the common fund thus created. The Supreme Court, Smart, D.J., held that in the
absence of legislation specifically providing for attorney's fees in the situation, such fees
could not be awarded through application of the common fund theory or the substantial
benefit theory.
Affirmed.
Kermitt L. Waters, Las Vegas, for Appellant Consumers League of Nevada.
R. Paul Sorenson and Harry E. Claiborne, Las Vegas, for Appellant Kermitt L. Waters.
Guild, Hagen & Clark, Reno; Charles H. McCrea, Darrell L. Clark, and Constance L.
Howard, Las Vegas, for Respondent Southwest Gas Corporation.
M. Gene Matteucci, Las Vegas, for Respondent Nevada Power Company.
City, for Respondent Public Service Commission.
Laxalt, Berry & Allison, Carson City, for Respondent California Pacific Utilities
Company.
Galane & Tingey and Jones, Jones, Bell, Close & Brown, Las Vegas, for all other
Respondents.
Cromer, Barker & Michaelson, Las Vegas, Amicus Curiae.
1. Costs.
General rule is that attorney's fees may not be awarded in absence of statute, rule or contract permitting
such award.
If consumers, or any particular class of them, require additional legal representation in rate proceedings
before Public Service Commission, legislature, not courts, should provide it.
3. Public Service Commissions.
In fixing any particular rate of return for utilities, Public Service Commission operates within zone of
reasonableness; once that reasonable rate has been fixed, permitting utility to exceed it results in rates
which are unjust and unreasonable, and requiring utility to fall below it results in confiscation.
4. Gas.
Representative of consumers who, in proceedings before Public Service Commission, succeeded in
compelling gas company to pass along to its customers approximately $2,000,000 in refunds received from
its gas supplier, was not entitled to award of attorney's fee from common fund thus created; in absence of
legislation specifically providing for such fees, application of common fund theory or substantial
benefit theory would not only constitute judicial intrusion into legislative function but would tend to
undermine entire legislative scheme protecting public utilities from confiscation and protecting consumer
from unjust, unreasonable, discriminatory, or preferential rates. NRS 703.010 et seq., 703.150, 703.210,
704.010 et seq., 704.040, subd. 2, 704.100-764.130, 704.210, 704.540-704.580.
OPINION
By the Court Smart D.J.:
1

This interlocutory appeal, which is permitted by virtue of an NRCP 54{b) determination,
is from an order granting partial summary judgment in favor of Southwest Gas
Corporation.
____________________

1
The Governor, pursuant to Article 6, 4 of the Nevada Constitution, designated the honorable Stanley A.
Smart, Judge of the Third Judicial District,
NRCP 54(b) determination, is from an order granting partial summary judgment in favor of
Southwest Gas Corporation.
On January 14, 1976, the Public Service Commission ordered Southwest Gas to refund
substantial sums of money to its customers. This order was entered after hearings before the
Commission concerning the disposition of refunds the Federal Power Commission ordered
paid to Southwest Gas by its gas supplier, El Paso Natural Gas Company.
On February 3, 1976, Kermitt L. Waters filed a complaint against Southwest Gas alleging
that he had been employed in 1971 by the Consumers League of Nevada to institute
proceedings before the Commission to compel Southwest Gas to pass along to its customers
the approximate $2,000,000 in refunds received from El Paso; that his activities caused the
hearings by the Commission which resulted in the order of January 14, 1976; and that he was
entitled to an attorney's fee from the common fund thus created. The complaint was
amended and, finally, on February 25, 1976, a supplemental complaint was filed by the
Consumers League against the Commission, Southwest Gas, and various intervenors in the
proceedings before the Commission. The supplemental complaint, which requested that the
action be treated as a class action under NRCP 23 and prayed for declaratory and injunctive
relief, also sought an allowance of attorney's fees.
Subsequently, various motions were filed, including crossmotions for partial summary
judgment on behalf of appellants and Southwest Gas. Following a hearing on June 30, 1976,
the district court entered an order granting the motion of Southwest Gas for partial summary
judgment.
In asking us to reverse, appellants contend that, as a matter of law, they are entitled to a
portion of the monies to be refunded as an attorney's fee. The contention is rejected.
Southwest Gas contends our decision in City of Las Vegas v. Southwest Gas, 90 Nev. 178,
521 P.2d 1229 (1974), is dispositive of the issue. There, we affirmed an order dismissing an
action wherein attorney's fees and costs were sought by an intervenor who had successfully
opposed a rate increase application by Southwest Gas before the Public Service Commission.
Appellants seek to distinguish that case on the ground that the intervenor's action in City of
Las Vegas did not result in the creation of any fund, whereas here, the efforts of the
appellants brought into existence a substantial fund from which attorney's fees could be
allowed. The suggested distinction is not persuasive.
____________________
to sit in place of the Honorable David Zenoff, who voluntarily disqualified himself in this case.
In City of Las Vegas, attorney's fees were sought for services rendered before the
Commission which avoided the imposition of unjust and unreasonable rates on consumers. In
this case, attorney's fees are sought for services rendered before the Commission which
resulted in the refund of certain unjust and unreasonable rates already charged to consumers.
If any distinction is to be drawn between these two situations, it would seem to be that the
services rendered in City of Las Vegas were of more value and produced greater benefits than
the services rendered in the present case because there, the services avoided unjust and
unreasonable rates.
In essence, appellants argue we should depart from the rule announced in City of Las
Vegas solely because here the money for payment of fees is more readily available. This
argument does not commend itself to us as providing either a proper or an adequate basis for
such departure.
[Headnote 1]
Historically, Nevada has followed the general rule that attorney's fees may not be awarded
in the absence of a statute, rule, or contract permitting such award. See, e.g., Sun Realty v.
District Court, 91 Nev. 774, 542 P.2d 1072 (1975); City of Las Vegas v. Southwest Gas,
supra; Mariner v. Milisich, 45 Nev. 193, 200 P. 478 (1921); and Dixon v. District Court, 44
Nev. 98, 190 P. 352 (1920). Some courts have approved the so-called common fund
doctrine as an exception to this general rule; indeed, a few jurisdictions have expanded it to
include situations where a substantial benefit, either pecuniary or nonpecuniary, has been
conferred upon a class of persons by the efforts of a representative of that class, even though
no actual fund was created. See, e.g., Mills v. Electric Auto-Lite, 396 U.S. 375 (1970);
Virginia Hospital Ass'n v. Kenley, 74 F.R.D. 417 (E.D. Va. 1977); and Serrano v. Priest, 569
P.2d 1303 (Cal. 1977).
No doubt, a method could have been devised in City of Las Vegas to provide for the
payment of the requested fees had we been persuaded that such fees were otherwise
permissible under the law. However, our decision then, as now, rests upon far more
fundamental principles than the existence or non-existence of a fund.
2
Our legislature has
created a complete and comprehensive statutory scheme for the regulation of utility
rates, City of Las Vegas, supra, and has vested performance of that function in the Public
Service Commission.
____________________

2
In City of Las Vegas, appellant sought to sustain an award of fees on the basis of the common fund and
the quasi-common fund theories, not on the basis of a substantial benefit. Accordingly, it was only necessary
for us to simply note the inapplicability of the common fund theory in the absence of such a fund and to the
inapplicability of the quasi-common fund theory in the absence of the extenuating circumstances upon which
that theory is based.
Our legislature has created a complete and comprehensive statutory scheme for the
regulation of utility rates, City of Las Vegas, supra, and has vested performance of that
function in the Public Service Commission. NRS Chapters 703 and 704. The Commission is
charged with the duty of regulating the operation of utilities in conformity with the provisions
of NRS Chapter 704. NRS 703.150. The attorney general is designated as counsel for the
Commission in carrying out these duties. NRS 703.210. The Commission is granted plenary
power over utility rates, NRS 704.100 to NRS 704.130, inclusive, and NRS 704.210, subject
only to limited judicial review. NRS 704.540 to NRS 704.580, inclusive. It is unlawful for
any public utility to charge an unjust or unreasonable rate. NRS 704.040(2).
[Headnote 2]
This scheme protects the public utilities from confiscation and protects all classes of
consumers from rates which are unjust, unreasonable, discriminatory, or preferential. If
consumers, or any particular class of them, require additional legal representation in rate
proceedings before the Commission, the legislature, not this court, should provide it. This, the
legislature has declined to do.
3

[Headnote 3]
Application of the common fund theory, or the substantial benefit theory, in the
context of this case, would not only constitute judicial intrusion into a legislative function, as
we noted in City of Las Vegas, but would tend to undermine the entire legislative scheme. If
attorney's fees were charged to consumers, either by additional charges to create a fund or by
reductions in refunds ordered by the Commission, utility rates would be unjust and
unreasonable. Similarly, if such fees were deducted from rates payable to the utilities, the
rates would be confiscatory.
4

[Headnote 4]
Accordingly, we hold that in the absence of legislation specifically providing for attorney's
fees, such fees cannot be awarded to an intervenor in a proceeding before the Commission
under either the "common fund" or the " substantial benefit" theory.5
____________________

3
During the 1977 session of the legislature, at least two bills were introduced for such purpose. A.B. 602
provided for reimbursement to counties and cities of expenses incurred, including attorney's fees, in intervening
in proceedings before the Commission. It also required the Commission to establish a fund for payment of these
expenses. S.B. 460 created the office of public counsel to represent the interests of the people of this state with
respect to all matters within the jurisdiction of the [C]ommission. Neither bill was passed.

4
We realize, of course, that, in fixing any particular rate of return for utilities, the Commission operates
within a zone of reasonableness. However, once that reasonable rate has been fixed, permitting the utility to
exceed it results in rates which are unjust and unreasonable and requiring the utility to fall below it results in
confiscation.
awarded to an intervenor in a proceeding before the Commission under either the common
fund or the substantial benefit theory.
5

Affirmed.
I am persuaded that our brother Smart has ably set forth the law as it presently exists. I
therefore reluctantly concur.
However, I am also persuaded that our Legislature should consider appropriate changes in
our law. This suit marks the second time Mr. Waters has represented consumers in matters of
substantial public concern. See City of Las Vegas v. Southwest Gas, 90 Nev. 178, 521 P.2d
1229, 1230 (1974). In each instance he has provided significant services to the taxpayers of
this state, and has been unable to recover for his efforts. If the Legislature truly desires to
keep utility rates just and reasonable, see NRS 704.040(2), then it should address and
adequately resolve the question of how attorneys who protect consumers are to be paid.
____________________

5
In so holding, we are mindful of cases such as Mountain States Tel. & T. Co. v. Public Utilities Com'n., 502
P.2d 945 (Colo. 1972), which allow an attorney's fee out of refunds ordered. We simply reject such cases as not
compatible with our prior decisions and the statutes of this state.
____________
94 Nev. 158, 158 (1978) State v. Stiglitz
THE STATE OF NEVADA, Appellant, v. DIETER KARL STIGLITZ, and DAVID
LYNWOOD ARNDT, Respondents.
No. 9654
April 6, 1978 576 P.2d 746
Appeal from order dismissing information, Eighth Judicial District Court, Clark County;
Keith Hayes, Judge.
Defendants were charged with conspiracy to receive stolen property. The district court
dismissed the information because the State failed to produce an informant for interview and
State appealed. The Supreme Court, Gunderson, J., held that where the State made a
good-faith attempt to comply with the trial judge's order requiring production of the
informant, but was unable to comply because the informant had jumped bail, it was an abuse
of discretion to dismiss the charges.
Robert List, Attorney General, Carson City; and George E. Holt, District Attorney, Clark
Peter L. Flangas, Las Vegas, for Respondents.
1. Witnesses.
State need only use reasonable efforts to locate informant when ordered to produce informant by trial
court.
2. Witnesses.
Where State made good-faith attempt to comply with trial judge's order requiring production of
informant, but was unable to comply because informant had jumped bail, it was abuse of discretion to
dismiss charges.
OPINION
In the instant appeal, we reverse a district court order which dismissed an information
because the State failed to produce an informant for interview.
Respondents Stiglitz and Arndt were charged with Conspiracy to Receive Stolen Property.
See NRS 199.480. As the preliminary hearing transcript reveals, an informant introduced an
undercover police officer to Stiglitz for the purpose of selling stolen T.V. sets. In truth, the
sets had not been stolen, but merely loaned to the police in order to expose a fencing
operation. Following sale of the sets to Arndt, police seized them pursuant to a search
warrant, and arrested respondents.
After arraignment, respondents moved to compel discovery of inculpatory as well as
exculpatory evidence, seeking: (1) statements of all those interviewed by the State, whether
intended as witnesses or not; (2) all statements made by agents of the State; (3) tape
recordings and memoranda made by any person to agents of the State; (4) statements and
recordings made by respondents; (5) investigatory memoranda; (6) the criminal records of all
State witnesses; and (7) the identity of all informers, along with their production for
interview.
After a hearing, the court ordered the district attorney to answer the discovery requests in
writing. In its first answer, the State provided some of the requested information, including all
police reports, the name of the informant and his address at a Massachusetts prison, and the
informant's arrest record. However, the State initially refused to answer other interrogatories,
claiming they sought information not discoverable. After a new motion and hearing, at
which counsel drew the court's attention only to the unanswered requests for written
information, the court again ordered complete compliance.
new motion and hearing, at which counsel drew the court's attention only to the unanswered
requests for written information, the court again ordered complete compliance. Again, the
State failed to answer fully, and omitted to bring the informant from Massachusetts for
interview.
At the next hearing, the court directed the State to comply fully and bring [the informant]
back . . . because I ordered it, allowing two weeks to produce the informant or have the
information dismissed. At the final hearing, the State informed the court that efforts to locate
the informant had been fruitless, because he had jumped bail in Massachusetts. The court
thereupon dismissed the information. We find the court abused its discretion, and reinstate
the information.
There is no doubt respondents had the right to some of the requested discovery, see NRS
174.245,
1
and the State insists it complied by providing all exculpatory evidence. See Brady
v. Maryland, 373 U.S. 83 (1963). However, we focus attention solely on the informant
question, since apparently the court dismissed the information only after, and because, the
State failed in its ultimate, good faith endeavor to produce the informant for interview.
Our legislature has given the State a privilege not to disclose an informant's identity,
subject to certain qualifications. See NRS 49.335, NRS 49.355, NRS 49.365.
2
By substantial
authority, the identity of an informant need not be revealed where he merely introduces a
government agent to the defendant.
____________________

1
Upon motion of a defendant the court may order the district attorney to permit the defendant to inspect and
copy or photograph books, papers, documents, tangible objects, buildings or places, or copies or portions
thereof, which are within the possession, custody or control of the state, upon a showing of materiality to the
preparation of his defense and that the request is reasonable. Except as provided in subsection 2 of NRS 174.235
[confessions] and NRS 174.087 [alibis], this section does not authorize the discovery or of inspection of reports,
memoranda or other internal state documents made by state agents in connection with the investigation or
prosecution of the case, or of statements made by state witnesses or prospective state witnesses (other than the
defendant) to agents of the state.

2
The state or a political subdivision thereof has a privilege to refuse to disclose the identity of a person who
has furnished to a law enforcement officer information purporting to reveal the commission of a crime.
No privilege exists under NRS 49.335 . . . if the identity of the informer or his interest in the subject matter
of his communication has been disclosed by a holder of the privilege or by the informer's own action, or if the
informer appears as a witness.
If the state or a political subdivision elects not to disclose the identity of an informer and the circumstances
indicate a reasonable probability that the informer can give testimony necessary to a fair determination of the
issue of guilt or innocence, the judge shall on motion of the accused dismiss the proceedings, and he may do so
on his own motion.
merely introduces a government agent to the defendant. Such an informant has been held not
to be a material witness, because he can neither supply information constituting a defense nor
rebut a necessary element of an offense. United States v. Quinn, 540 F.2d 357 (8th Cir.
1976); United States v. Davis, 487 F.2d 1249 (5th Cir. 1973); United States v. Clark, 482
F.2d 103 (5th Cir. 1973); see also United States v. Leon, 487 F.2d 389 (9th Cir. 1973);
United States v. Humphrey, 456 F.2d 683 (5th Cir. 1972); cf. Jones v. State, 93 Nev. 287, 564
P.2d 605 (1977); Miller v. State, 86 Nev. 503, 471 P.2d 213 (1970); Adams v. State, 81 Nev.
524, 407 P.2d 169 (1965). Here, the informant merely supplied police with knowledge of
respondents' alleged fencing operation, and then introduced an undercover agent to Stiglitz.
He had no demonstrated involvement in the actual negotiation and sale of the television sets.
Therefore, it may well be, as the State contends, that the court initially erred by requiring
the State to reveal the informant's identity, and that the court compounded this error when it
ordered his production for interview. Cf. Jackson v. State, 522 P.2d 1286 (Wyo. 1974). We
need not, however, reach the question of whether the discovery order was overbroad and
erroneous in these particulars. Even if that be so, we are not ready to hold that the State would
be entitled to defy such an order. Continued defiance might be punishable for contempt. See
NRS 22.010. Moreover, our decision today should not be read as holding that intransigent
defiance, until a trial court ultimately loses patience and dismisses charges, is an appropriate
means by which to frame appellate issues concerning criminal discovery.
[Headnotes 1, 2]
The fact that the discovery order may well have been erroneous and overbroad does,
however, explain why the State delayed in complying with some of its facets. Furthermore, as
to the arguably erroneous part which required the informant's production, the prosecutor
clearly had bowed to the court's order and had attempted to comply, before the court
dismissed the proceedings. It appears, therefore, that here the prosecutor cannot be deemed
guilty of willful or contemptuous disobedience, and, even where production is properly
mandated, we think the State need only use reasonable efforts to locate the informant. See
United States v. Cervantes, 542 F.2d 773 (9th Cir. 1976).
Therefore, in these circumstances, the State having in good faith attempted to comply, we
deem it an abuse of discretion to dismiss the charges against respondents. Cf. Finkelman v.
Clover Jewelers Blvd., Inc., 91 Nev. 146
dismiss the charges against respondents. Cf. Finkelman v. Clover Jewelers Blvd., Inc., 91
Nev. 146, 532 P.2d 608 (1975).
Batjer, C. J., and Mowbray, Manoukian, and Zenoff,
3
JJ., concur.
____________________

3
6, 19; SCR 244.
____________
94 Nev. 162, 162 (1978) Mid-Century Ins. Co. v. Pavlikowski
MID-CENTURY INSURANCE COMPANY, A California Corporation, Petitioner, v. THE
HONORABLE JOSEPH S. PAVLIKOWSKI, Judge of the Eighth Judicial District Court for
the State of Nevada, in and for the County of Clark, VINCENT J. CHERUBINI and ANNA J.
CHERUBINI, Respondents.
No. 10189
April 6, 1978 576 P.2d 748
Original proceeding for writ of mandamus or, alternatively, a writ of certiorari. Eighth
Judicial District Court, Clark County; Joseph S. Pavlikowski, Judge.
Original proceeding was brought for writ of mandamus or, alternatively, a writ of certiorari
to compel the district court to annul order granting partial summary judgment. The Supreme
Court held that the order fixing insurer's liability for fire loss incurred by insureds was not a
final judgment, where issue of damages had not been tried, and order was not reviewable by
Supreme Court except by permissive appeal.
Petition denied.
Thorndal and Liles, Ltd., and Robert W. Austin, Las Vegas, for Petitioner.
James L. Buchanan, II, Las Vegas, for Respondents.
Appeal and Error.
Order granting partial summary judgment against insurer fixing its liability for fire loss incurred by
insureds was not a final judgment, where issue of damages had not been tried, and order was
not reviewable by Supreme Court except by permissive appeal.
94 Nev. 162, 163 (1978) Mid-Century Ins. Co. v. Pavlikowski
issue of damages had not been tried, and order was not reviewable by Supreme Court except by permissive
appeal. NRCP 54(b), 56(c); NRAP 3A(b).
OPINION
Per Curiam:
In this original proceeding petitioner attempts to compel the district court to annul its order
granting partial summary judgment for Cherubini and wife against petitioner Mid-Century
Insurance Company's fixing the Company's liability for fire loss incurred by the insureds
Cherubinis. The issue of damages has not been tried. NRCP 56(c). The judgment, therefore,
is not a final judgment, cf. Dzack v. Marshall, 80 Nev. 345, 393 P.2d 610 (1964), and may
not be reviewed by this Court except by permissive appeal. NRCP 54(b); NRAP 3A(b).
Proceedings dismissed.
____________
94 Nev. 163, 163 (1978) Richards v. Lindquist
DONNELL RICHARDS, Appellant, v. WILHELMINA S. LINDQUEST, RENEE L.
KENNEDY, aka RENEE L. WALDO, and CHARLES ALDABE, aka CHARLES D.
ALDABE, Respondents.
RENO ESCROW COMPANY, a Nevada Corporation, DONNELL RICHARDS, Appellants,
v. WILHELMINA S. LINDQUIST, RENEE L. KENNEDY, et al., Respondents.
WILHELMINA S. LINDQUIST and RENEE L. KENNEDY, H. DALE MURPHY, ESQ.,
HARRY MULHOLLAND, ESQ., and ROBERT O. FORT, ESQ., et al., Third-Party
Respondents.
No. 8907
April 6, 1978 576 P.2d 749
Appeal from summary judgment, Second Judicial District Court, Washoe County; John E.
Gabrielli, Judge.
In separate actions, consolidated for trial, plaintiff sought to foreclose on deed of trust
securing promissory note and to set aside transfer allegedly made to defraud creditors.
94 Nev. 163, 164 (1978) Richards v. Lindquist
aside transfer allegedly made to defraud creditors. The district court granted defendants'
motion for summary judgment and plaintiff appealed. The Supreme Court held that, in
absence of dispute in material facts in the case, the district court properly entered summary
judgment.
Affirmed.
[Rehearing denied May 17, 1978]
Donnell Richards and Paul A. Richards, Reno, and John Tom Ross, Carson City, for
Appellants.
C. Nicholas Pereos, Reno, for Respondents and Third-Party Respondents Lindquist and
Kennedy.
Laxalt, Berry & Allison, Carson City, for Third-Party Respondent Mulholland.
H. Dale Murphy, Reno, for Third-Party Respondent Murphy.
Record must be viewed in light most favorable to party appealing from summary judgment. NRCP 56.
2. Judgment.
In absence of dispute in material facts in case in which plaintiff sought to foreclose on deed of trust
securing promissory note and to set aside transfer allegedly made to defraud creditors, district court
properly entered summary judgment. NRCP 56.
OPINION
Per Curiam:
In separate actions consolidated for trial, appellant Richards sought to (1) foreclose on a
deed of trust securing a promissory note, and (2) set aside a transfer of property allegedly
made to defraud creditors. Respondents moved for and were granted summary judgment.
Appellant here contends summary judgment was not proper because numerous issues of
material fact are in dispute. Even viewing the record, as we must, in a light most favorable to
appellant, we perceive no such dispute in the material facts; accordingly, the district court
judgment is affirmed. NRCP 56; Olson v. Iacometti, 91 Nev. 241, 533 P.2d 1360 (1975).
____________
94 Nev. 165, 165 (1978) S & S Carpets v. Valley Bank of Nevada
S & S CARPETS, Appellant, v. VALLEY BANK OF NEVADA, a Corporation; FIRST
AMERICAN TITLE COMPANY OF NEVADA, a Corporation, Respondents.
No. 9424
April 6, 1978 576 P.2d 750
Appeal from judgment striking statement of lien, Second Judicial District Court, Washoe
County; James J. Guinan, Judge.
The Supreme Court held that in absence of evidence showing when county clerk actually
received statement of lien, order striking statement of lien, thereby rejecting allegation of
prospective lienor that statement was timely received by county clerk and negligently filed
late, was not error.
Affirmed.
Edmund S. Barnett, Crystal Bay, for Appellant.
Hale, Lane, Peek, Dennison and Howard, and Gregg Zive, Reno, for Respondents.
1. Mechanics' Liens.
Filing within meaning of statute providing that statement of lien is to be filed within ten days of last
publication of notice of lien, means actual delivery of paper or document in question to proper officer and
its receipt by him to be kept on file. NRS 108.239, subd. 2.
2. Mechanics' Liens.
In absence of evidence showing when county clerk actually received statement of lien, order striking
statement of lien, thereby rejecting allegation of prospective lienor that statement was timely received by
county clerk and negligently filed late, was not error. NRS 108.239, subd. 2.
On appeal from judgment striking statement of lien, contention not raised in court would not be
considered.
OPINION
Per Curiam:
In the instant case, appellant failed to file its statement of lien within the ten-day time
period specified by NRS 108.239(2).
1
Although the plaintiffs' third notice was published on
June 27, 1975, appellant's statement of lien was not filed until July 15, 1975eight days
late.
____________________

1
At the time of filing the complaint and issuing the summons, the plaintiff shall cause a notice to be
published at least once a week for 3 successive weeks, in one newspaper . . . notifying all persons holding or
claiming liens . . . on the
94 Nev. 165, 166 (1978) S & S Carpets v. Valley Bank of Nevada
on June 27, 1975, appellant's statement of lien was not filed until July 15, 1975eight days
late. Therefore, on motion of respondents, the district court entered a judgment striking the
statement, from which this appeal is taken.
1. Appellant contends his statement of lien should be deemed timely because he filed
affidavits indicating the statement was mailed on July 3, allegedly received by the Washoe
County Clerk sometime before July 7, and negligently filed late on July 15. We reject that
contention.
[Headnotes 1, 2]
Appellant mistakenly relies on the so-called mail-box rule of contract formation to
support his contention that the statement was timely filed when mailed. See, e.g., McCone v.
Eccles, 42 Nev. 451, 181 P. 134 (1919). However, NRS 108.239 contemplates filing, not
mailing. A document is not filed when it is deposited in the mails and the risk of loss or
delay in transit is on the sender. Wirtz v. Local Union 169, International Hod Carriers, Etc.,
246 F.Supp. 741, 750 (D.Nev. 1965). Filing means the actual delivery of the paper or
document in question to the proper officer and its receipt by him to be kept on file. Ibid. In
any event, the record is devoid of any evidence (other than appellant's unconfirmed belief)
showing when the clerk actually received the statement of lien. Under such circumstances, we
cannot say the district court erred in not finding that it was received before its filing on July
15, and we affirm the order striking the statement.
2

[Headnote 3]
2. Appellant also attacks the respondent's motion to strike as not being timely filed. From
the record it does not appear this contention was raised in the court below, and we therefore
decline to consider the issue on appeal. See, e.g., Nevada State Bank v. Snowden, 85 Nev. 19,
449 P.2d 254 (1969).
The decision of the district court is affirmed.
____________________
premises to file with the clerk and serve on the plaintiff and also on the defendant, . . . written statements of the
facts constituting their liens, together with the dates and amounts thereof. The statements shall be filed within 10
days of the last publication of notice.

2
No contention has been made that the trial court, as a matter of discretion, should have relieved appellant of
its default.
____________
94 Nev. 167, 167 (1978) Lloyd v. State
STANLEY LLOYD, Appellant, v. THE STATE
OF NEVADA, Respondent.
No. 9651
April 6, 1978 576 P.2d 740
Appeal from a judgment of conviction for rape and commitment to the Nevada State
Prison for a term of thirty years, Eighth Judicial District Court, Clark County; Joseph S.
Pavlikowski, Judge.
The Supreme Court held that: (1) the trial court properly rejected defendant's requested
jury instructions; (2) it was not error for the trial court to prevent defense counsel from
instructing the jury on alternative theories of law relating to rape; (3) the admission in
evidence of an enlarged photograph of the victim's injuries was not prejudicial; (4) evidence
was sufficient to support the conviction, and (5) the 30-year sentence was neither cruel nor
unusual punishment nor an abuse of discretion.
Affirmed.
Charles L. Garner, of Las Vegas, for Appellant.
Robert List, Attorney General, Carson City, George E. Holt, District Attorney, H. Leon
Simon, Chief Deputy District Attorney, and Douglas Clark, Deputy District Attorney, Clark
1. Criminal Law.
No error resulted, in rape prosecution, from trial court's rejection of defendant's requested jury
instructions where, to the extent that the instructions were not erroneous statements of law, their substance
was encompassed by instructions actually given by the court.
2. Criminal Law.
It is improper for an attorney to argue legal theories to a jury when the jury has not been instructed on
those theories.
3. Criminal Law.
In rape prosecution, trial court properly prohibited defense counsel from instructing the jury, in closing
argument, on alternative theories of law relating to rape.
4. Criminal Law.
In the absence of any claim that enlargement of color photograph of rape victim's head and neck was so
gruesome as to shock the jury and where record revealed that the jury was under no misapprehension as to
the nature of the photograph and testimony at the trial repeatedly emphasized that the photograph was a
reproduction and enlargement, enlargement was properly admitted as relevant evidence.
5. Rape.
Evidence including victim's extensive testimony to the effect that she had been physically attacked and
had been forced to submit for fear of her life was sufficient to support conviction of rape.
94 Nev. 167, 168 (1978) Lloyd v. State
6. Criminal Law.
An abuse of discretion will be found in connection with sentencing only when the record demonstrates
prejudice resulting from consideration of information or accusations founded on facts supported only by
impalpable or highly suspect evidence.
7. Criminal Law.
Recommendation of Department of Parole and Probation concerning sentencing has no binding power on
court. NRS 176.145.
8. Criminal Law.
When a sentence is within statutory limits and there was no judicial reliance on impalpable or highly
suspect evidence, Supreme Court will not interfere with the sentence.
9. Criminal Law.
A sentence that is within statutory limits does not constitute cruel and unusual punishment where the
statute fixing punishment is not unconstitutional and the sentence imposed is not disproportionate to the
crime in such a manner as to shock the conscience. U.S.C.A.Const. Amend. 8.
10. Criminal Law; Rape.
Thirty-year sentence imposed on conviction for violent rape of 17-year-old was well within the statutory
maximum and constituted neither cruel and unusual punishment nor an abuse of discretion. U.S.C.A.Const.
Amend. 8; NRS 200.363.
OPINION
Per Curiam:
Stanley Lloyd has appealed from his conviction following a jury trial on the charge of
having raped a seventeen-year-old girl. Before this court he seeks to challenge (1) the trial
court's rejection of his requested jury instructions, (2) the trial court's confinement of the
scope of his counsel's closing argument, (3) the admission into evidence of a photograph of
the victim's injuries, (4) the sufficiency of the State's evidence, and (5) the propriety of the
thirty-year sentence imposed upon him. We find Lloyd's claims to be without merit, and shall
therefore affirm the decision below.
(1) The rejected jury instructions.
[Headnote 1]
Our review of Lloyd's proferred instructions convinces us that to the extent that they are
not erroneous statements of the law in Nevada, their substance was encompassed within the
instructions actually given by the trial court. See Lawson v. State, 91 Nev. 519, 539 P.2d 116
(1975); Geary v. State, 91 Nev. 784, 544 P.2d 417 (1975).
(2) The confinement of the scope of Lloyd's counsel's closing argument.
Lloyd argues that he was denied a fair trial when the trial court refused to permit his
counsel in closing argument to instruct the jury on alternative theories of law relating to rape.
94 Nev. 167, 169 (1978) Lloyd v. State
Those theories substantially echoed those reflected in his rejected jury instructions.
[Headnotes 2, 3]
However it is improper for an attorney to argue legal theories to a jury when the jury has
not been instructed on those theories. Cosey v. State, 93 Nev. 352, 566 P.2d 83 (1977). This
line of closing argument was therefore properly proscribed.
(3) The admission of a photograph of the victim's injuries.
[Headnote 4]
Two photographs were admitted into evidence as plaintiff's Exhibits 1 and 2. Exhibit
1 is a Polaroid color photograph taken by Las Vegas Police staff of the victim's head and
neck, showing bruises around the neck area. Exhibit 2 is an enlargement of Exhibit 1.
Lloyd argues that Exhibit 2 should not have been admitted into evidence because the
coloring on the enlargement is somewhat darker than the original, depicting the bruises on the
victim's neck as more pronounced than they appear in the original. However, testimony at the
trial repeatedly emphasized that Exhibit 1 was the original and Exhibit 2 the
reproduction. Moreover, there has been no suggestion that Exhibit 2 is so gruesome as to
shock the jury. See Cutler v. State, 93 Nev. 329, 566 P.2d 809 (1977). In the absence of such
a claim and where the record reveals that the jury was under no misapprehension as to the
nature of Exhibit 2, it was properly admissible as relevant evidence. Allen v. State, 91 Nev.
78, 530 P.2d 1195 (1975).
(4) The sufficiency of the evidence.
[Headnote 5]
Lloyd took the stand in his own defense. He did not deny the consummation of the sexual
act, but rather testified that such act had occurred at the insistence of the victim. The victim
testified extensively at the trial to the effect that she had been physically attacked and had
been forced to submit for fear of her life. Her testimony was corroborated by the photographs
of her injuries. The jury was presented therefore essentially with an issue of credibility, and
its decision will be given great weight on appeal. Wheeler v. State, 91 Nev. 119, 531 P.2d
1358 (1975); Hankins v. State, 91 Nev. 477, 538 P.2d 167 (1975).
(5) The sentence.
The Department of Parole and Probation recommended a sentence of six years. Lloyd
argues that because of this recommendation, a thirty-year sentence constitutes an abuse of
discretion on the part of the trial court. However, this court held in Collins v. State, SS Nev.
16S
94 Nev. 167, 170 (1978) Lloyd v. State
in Collins v. State, 88 Nev. 168, 494 P.2d 956 (1972), that: [T]here is no requirement
imposed upon the sentencing court to set the penalty in compliance with the recommendation
of the Department of Parole and Probation. A trial court does not abuse its discretion by
imposing a sentence in excess of that suggested by the Department. 88 Nev. at 171.
[Headnote 6]
Rather, an abuse of discretion will be found only when the record demonstrates 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
(1976). Lloyd has made no allegations of improper reliance on suspect evidence. Rather, he
argues that because no new evidence, not considered by the Department of Parole and
Probation, was brought to light, the recommendation of the Department should have been
followed by the trial court
[Headnotes 7, 8]
However, the recommendation of the Department of Parole and Probation is based only
upon the normal punishment given in other jurisdictions for similar offenses. See NRS
176.145. It has no binding power on the court. Collins v. State, supra. In addition, the
sentence was well within statutory limits. See NRS 200.363. When the sentence is within
statutory limits, see State v. Lawrence, 554 P.2d 953 (Idaho 1976), and when there has been
no proof of judicial reliance upon impalpable or highly suspect evidence, see Silks v. State,
supra, this court will refrain from interference with the trial court's imposition of sentence.
[Headnotes 9, 10]
Lloyd finally argues that the sentence imposed by the trial court constitutes cruel and
unusual punishment in violation of the Eighth Amendment to the U.S. Constitution.
However, a sentence within statutory limits does not constitute cruel and unusual punishment
where the statute fixing punishment is not unconstitutional or the sentence imposed is not
disproportionate to the crime in a manner so as to be shocking to the conscience. State v.
Iaukea, 537 P.2d 724 (Haw. 1975); State v. Guthrie, 532 P.2d 862 (Ariz. 1975). Since Lloyd
does not challenge the constitutionality of NRS 200.363, and since the sentence imposed
upon him for the violent rape of a seventeen-year-old minor is well within the statutory
maximum of life imprisonment, this argument is without merit.
Affirmed.
____________
94 Nev. 171, 171 (1978) Owens v. State
JACKEY CLINTON OWENS, Appellant, v. THE
No. 9681
April 6, 1978 575 P.2d 743
Appeal from judgment of conviction, Eighth Judicial District Court, Clark County; Paul S.
Goldman, Judge.
Defendant was convicted before the district court of possession of a stolen vehicle, and he
appealed. The Supreme Court held that: (1) order granting motion in limine directing
witnesses for the State to refrain from any reference to participation or involvement in
another crime in their case-in-chief was not violated when prosecutor cross-examined
defendant concerning his whereabouts during night in question, and (2) defendant waived any
Fifth Amendment prohibitions against prosecutorial comment on his reluctant demeanor in
answering questions when he voluntarily testified in his own behalf.
Affirmed.
Morgan Harris, Public Defender, and Robert Larsen, Deputy Public Defender, Clark
1. Criminal Law.
Prosecutor's cross-examining defendant as to his whereabouts during night in question did not violate
order granting motion in limine for order directing witnesses for the State to refrain from any reference to
participation or involvement in another crime in their case-in-chief.
2. Criminal Law.
Cross-examination of defendant, charged with possession of a stolen vehicle, as to whether he went to
motel to meet two women and whether at such time he had the subject vehicle and closing comment of
prosecutor that defendant had been reluctant to tell jury about the motel and that about an hour earlier
something had happened at the motel that defendant didn't want to talk about did not constitute improper
comment on privilege against compelled self-incrimination or improper reference to other crimes;
defendant waived any Fifth Amendment prohibition against prosecutorial comment on his reluctant
demeanor in testifying when he voluntarily testified. NRS 205.273; U.S.C.A.Const. Amend. 5.
OPINION
Per Curiam:
Jackey Clinton Owens appeals his conviction for possession of a stolen vehicle (NRS
205.273), contending the State (1) violated a court order; and (2) made improper references to
another crime. We disagree.
94 Nev. 171, 172 (1978) Owens v. State
[Headnote 1]
1. At the trial's outset, appellant's counsel made a motion in limine for an order directing
witnesses for the State to refrain from any reference to participation or involvement in . . .
[another crime] in their case-in-chief. Such motion was granted. Appellant contends the
prosecutor violated the order when he was later cross-examined concerning his whereabouts
during the night in question. Clearly the motion in limine sought to bar inquiry only during
the State's case-in-chief, and the later cross-examination did not violate the court order.
[Headnote 2]
2. Appellant additionally claims the prosecution made improper comments upon his right
to not be compelled to testify against himself, through cross-examination and later
comments concerning appellant's whereabouts.
1
We think the prosecution's
cross-examination did not elicit a description of the [alleged robbery] which occurred,
Founts v. State, 87 Nev. 165, 168, 483 P.2d 654, 656 (1971); cf. Geary v. State, 91 Nev. 784,
544 P.2d 417 (1975); nor did the closing argument inform the jury about the circumstances of
another crime. Moreover, we think appellant waived any Fifth Amendment prohibitions
against prosecutorial comment upon his reluctant demeanor in answering questions when
appellant voluntarily testified in his own behalf. Cf. Caminetti v. United States, 242 U.S. 470
(1917); Dyson v. United States, 283 F.2d 636 (9th Cir. 1960); State v. Long, 506 P.2d 1269
(Utah 1973).
Since appellant's other contention also lacks merit, the judgment is affirmed.
____________________

1
On cross-examination by the State, appellant was asked the following:
Q: Where did you go after leaving your cousin's house?
A: Well, I went riding, you know, around, and I went by another liquor store.
Q: Did you go to the Cactus Motel?
A: Did I go to the Cactus Motel?
. . .
A: No.
Q: Do you know where the Cactus Motel is?
A: I have heard of the Cactus Motel.
Q: Do you know a Lyn Williams?
A: No, not actually speaking.
Q: Do you know Brenda Scott?
A: Not actually.
Q: Do you know of them?
A: Well, I have heard of them.
Q: Isn't it a fact you met both those women at the Cactus Motel at one o'clock on the night of October 20,
1976?
94 Nev. 171, 173 (1978) Owens v. State
____________________
A: I, you know, can't, you know, I refuse to answer that question on the grounds that it might, you know, has
no, you know, don't pertain to this situation.
The Court: Just answer the question, Mr. Owens.
Q: Did you meet those two women at the Cactus Motel?
A: Yes, I met those two women.
Q: And you had that automobile, didn't you, . . . ?
A: At that time, yes.
During closing argument the prosecutor stated:
I'm submitting to you he took that automobile. He had acquired a key which he thought might operate the
automobile and he drove that car away. We know one of the places he went to was the Cactus Motel. He was at
first reluctant to tell you that. At first reluctant to tell you he met two women at that motel. I don't know what the
cause of that reluctance is but he didn't want to tell you that. But I'm telling you, you can infer from that that it's
the same reluctance and same cause which is causing, which would cause him to try to ditch that automobile
because I would submit to you you need no intention
Mr. Larson: I object to that, Your Honor. There is no testimony in the record regarding any attempt to ditch
any automobile anywhere at any time. I think that's improper argument.
The Court: Very well, the objection is noted.
In rebuttal the prosecutor stated:
Something happened about an hour earlier at the Cactus Motel. Something he doesn't want to tell you about.
And that's
Mr. Larsen: Your honor, I'm going to object to this line of argument. Clearly beyond the scope of what's
permissible under the rules of evidence. There is no evidence regarding anything happening at the Cactus Motel
and continued reference is misleading.
Mr. Cremen: The witness testified first he was not there and then he said he was and then he said he didn't
want to talk about it.
The Court: Just a moment. That comment would not be appropriate, counsel.
Mr. Larsen: Thank you.
Mr. Cremen: But I would submit to you that whatever it was this defendant decided that he wanted nothing
more to do with that automobile and he was going to leave it right there where it was. He wasn't going to drive it
back.
____________
94 Nev. 173, 173 (1978) Gutenberger v. Continental Thrift
LOUIS W. GUTENBERGER and PATRICIA GUTENBERGER, Appellants, v.
CONTINENTAL THRIFT AND LOAN COMPANY, Respondent.
No. 9129
April 6, 1978 576 P.2d 745
Appeal from denial of motion to set aside default judgment. Second Judicial District
Court, Washoe County; Grant L. Bowen, Judge.
Appeal was taken from an order of the district court denying a motion to set aside a default
judgment rendered against defendants in a suit alleging nonpayment of a promissory note
secured by a security agreement.
secured by a security agreement. The Supreme Court held that the trial court abused its
discretion by refusing to set aside the default judgment where defendants evidenced repeated
good-faith efforts to make arrangements for repayment and where they timely raised
discharge in bankruptcy as an alleged meritorious defense to the action.
Reversed with instructions.
Steven M. Hess, Reno, for Appellants.
David Mathews, Reno, for Respondent.
1. Judgment.
Controversies should be resolved on their merits whenever possible.
2. Judgment.
Requirements to vacate entry of default judgment are that default must have been result of mistake,
inadvertence, surprise, or excusable neglect, and that defaulted party timely tender meritorious defense.
NRCP 60(b).
3. Judgment.
In suit alleging nonpayment of promissory note secured by security agreement, trial court abused its
discretion by refusing to set aside default judgment entered against defendants where defendants evidenced
repeated good-faith efforts to make arrangements for repayment as advised by counsel, and where
defendants timely raised discharge in bankruptcy in Utah as alleged meritorious defense to action. NRCP
60(b).
OPINION
Per Curiam:
On February 4, 1976, respondent filed suit against appellants alleging nonpayment of a
promissory note secured by a security agreement. Following service of process, no responsive
pleading was filed and respondent, after obtaining a clerk's entry of default on March 5,
subsequently moved for default judgment against appellants which was entered on March 23.
The next day, March 24, appellants filed a motion to vacate the default judgment, together
with an affidavit which suggested a meritorious defense and supporting points and
authorities. Respondent filed an opposition to this motion and the matter stood submitted to
the trial court. Approximately three months later, appellants filed additional affidavits and
points and authorities through new counsel and therein alleged as a defense the discharge of
the debt in a bankruptcy proceeding in Utah. The motion to vacate was eventually denied and
this appeal ensued.
The sole issue before us is whether the trial court abused its discretion in refusing to set
aside the default judgment. We hold it did.
[Headnotes 1, 2]
It is a firmly established policy of this Court that controversies preferably be resolved on
their merits whenever possible. Hotel Last Frontier v. Frontier Prop., 79 Nev. 150, 380 P.2d
293 (1963). The requirements to vacate entry of default judgments are set forth in part by rule
and in part by case law. The default must have been the result of mistake, inadvertence,
surprise, or excusable neglect (NRCP 60(b)), and the defaulted party must additionally timely
tender a meritorious defense. Hotel Last Frontier, supra; see also, Ute, Inc. v. Apfel, 90 Nev.
25, 518 P.2d 156 (1974).
The record is replete with evidence satisfying the requirements of both NRCP 60(b) and
our pronouncements. Appellants had permitted payments on the loan to lapse upon advice of
their Utah bankruptcy attorney that the debt had been discharged. After this suit had been
filed against them, appellants procured the opinion of Nevada counsel who informed them
that the debt was not discharged but that appellant probably could obviate the complaint's
prayer for attorney's fees and costs if some arrangements could be reached with respondent
concerning a modified repayment schedule. Further, documentation evidences that prior to
their being advised of the default judgment appellants were in the process of attempting to
negotiate a repayment plan with respondent and believed that no formal responsive pleading
was necessary. See, Minton v. Roliff, 86 Nev. 478, 471 P.2d 209 (1970).
Appellants evidenced repeated good faith efforts to make arrangements for repayment.
They were offered two different opinions as to the vitality of respondent's claim and they
were additionally advised that repayment arrangements might obviate the necessity of suit.
The good faith of appellants' reliance upon this advice, and perhaps in spite of it, indicates
that they lack the culpability which this Court considers a serious disregard of the judicial
process. Compare, Bryant v. Gibbs, 69 Nev. 167, 243 P.2d 1050 (1952). Moreover,
appellants have timely raised discharge in bankruptcy as an alleged meritorious defense to
this action. Whether such allegation is a valid defense is, of course, a matter to be determined
below.
[Headnote 3]
The trial court abused its discretion in refusing to set aside the default judgment.
The lower court's decision and order denying appellants' motion to set aside the default
judgment is reversed. BDM, Inc. v. Sageco, Inc., 549 P.2d 1147 (Hawaii 1976); Airline
Transport Carriers v. Batchelor, 227 P.2d 480 (Cal.App. 1951). We direct the district court to
enter an order setting aside both the entry of default and default judgment.
____________
94 Nev. 176, 176 (1978) Green v. State
WILLIAM ALLEN GREEN, Appellant, v. THE
No. 9832
April 7, 1978 576 P.2d 1123
Appeal from judgment of conviction by jury, Eighth Judicial District Court, Clark County;
Paul S. Goldman, Judge.
Defendant was convicted before the district court of lewdness with a minor, and he
appealed. The Supreme Court, Gunderson, J., held that permitting information to be amended
after all the evidence had been presented by replacing the words fondling the private parts of
said child with the words rolling up the shirt of said child to a point two inches below said
child's nipples was reversible error.
Mills, Galliher, Lukens & Gibson, and Lamond R. Mills, Las Vegas, for Appellant.
Gordon Richards, Deputy District Attorney, Clark County, for Respondent.
Though amendment of an information is usually within trial court's discretion, that discretion is abused if
an additional or different offense is charged or the substantial rights of the defendant are prejudiced. NRS
173.095.
2. Criminal Law; Indictment and Information.
Permitting information, which charged that defendant . . . did . . . commit a lewd . . . act with the body of
. . . a child under the age of fourteen years, by fondling the private parts of said child . . ., to be amended
after all the evidence had been presented by replacing the words fondling the private parts of said child
with the words rolling up the shirt of said child to a point two inches below said child's
nipple" was reversible error.
94 Nev. 176, 177 (1978) Green v. State
shirt of said child to a point two inches below said child's nipple was reversible error. NRS 173.095,
201.230.
OPINION
William Allen Green appeals his conviction for lewdness with a minor (NRS 201.230),
contending the district court violated his right to due process when it amended the
information after all evidence had been presented at trial. We agree.
The information upon which the charge was brought originally provided:
That William Allen Green . . . did . . . willfully, lewdly, unlawfully, and feloniously
commit a lewd or lascivious act with the body of [the alleged victim], a child under the
age of fourteen years, by fondling the private parts of said child, with the intent of
arousing, appealing to, or gratifying the lust, passions, or sexual desires of said
Defendant, or said child. (Emphasis added.)
After the defense had rested, the district court amended the information by striking the
italicized phrase and replacing it with the words: rolling up the shirt of said child to a point
two inches below said child's nipples.
[Headnotes 1, 2]
Of course, although amendment of an information is usually within the trial court's
discretion, that discretion is abused if an additional or different offense is chargedor the
substantial rights of the defendant are prejudiced. NRS 173.095; Hollander v. State, 82
Nev. 345, 418 P.2d 802 (1966). Here, the belated amendment obviously prejudiced
appellant's substantial rights, because it negated the method of defense adopted throughout
trial, and effectively directed a verdict for conviction.
The information initially charged appellant with lewdness because he allegedly had
fondled the private parts of the victim. Private parts have uniformly been defined as
genitalia and the immediate area surrounding the organs of reproduction. See, e.g., State v.
Moore, 241 P.2d 455 (Or. 1952); State v. Dennison, 435 P.2d 526 (Wash. 1967). Evidence
presented at trial established, however, that appellant did not touch the genitalia of the victim,
but at most rolled up her blouse two inches from the breast area.
94 Nev. 176, 178 (1978) Green v. State
blouse two inches from the breast area. Thus, appellant relied on extensive cross-examination
to show that he did not in fact fondle the victim's private parts. Appellant then rested without
presenting any evidence, assured that the State had not shown the act alleged to have in the
information.
In Simpson v. District Court, 88 Nev. 654, 660, 503 P.2d 1225, 1229 (1972), we held an
indictment or information must contain such description of the particular act alleged to have
been committed by the accused as will enable him properly to defend against the accusation,
and the description of the offense must be sufficiently full and complete to accord to the
accused his constitutional right to due process of law. Here, the amendment completely
changed the method by which appellant allegedly committed the criminal act. This cannot be
styled a mere clerical correction. Cf. State v. Hill, 505 P.2d 704 (Kan. 1973); Sanville v.
State, 553 P.2d 1386 (Wyo. 1976); Neal v. State, 529 P.2d 526 (Okl.Crim.App. 1974); State
v. Morgison, 486 P.2d 1115 (Wash.App. 1971). It was one of substance, which circumvented
appellant's method of defense. See State v. Armijo, 566 P.2d 1152 (N.M.App. 1977).
Conceding arguendo some ambiguity in the term private parts, such term as originally
employed would at most suggest defendant had fondled the alleged victim's breasts. Even so
liberally construed, however, the information originally gave no notice whatever of the act or
means the trial judge undertook to allege, after the trial had concluded. On its facts and
governing principles therefore, the case is much like State v. McMahan, 65 P.2d 156 (Ida.
1937), wherein a physician originally was charged with manslaughter, by means of
committing a criminal abortion resulting in death. He was convicted on a theory of
negligently occasioning death through lack of skill in treating peritonitis, and the Idaho
Supreme Court declared:
To put a man on trial without giving him, in the information, a statement of the acts
constituting the offense in ordinary and concise language, and in such manner as to
enable a person of common understanding to know what is intended', and to let him
know these facts, for the first time when his trial is in progress [or worse, after it is
over], is to deprive him of the protection the statute [requiring allegation of means] was
designed to give him and deny him due process of law in violation of . . . the
Constitution. Ibid, at 159-160; emphasis in original.
In the instant case, as in the McMahan case, defense counsel directed his efforts to
defeating the charges as originally alleged, and not to attacking evidence inconsistent with
those charges.
94 Nev. 176, 179 (1978) Green v. State
alleged, and not to attacking evidence inconsistent with those charges. The amendment,
therefore, clearly prejudiced appellant.
1

We therefore reverse and remand for a new trial upon the amended information, so that
appellant might now have adequate notice of the means by which he allegedly committed the
illegal act, and have opportunity to prepare his defense accordingly.
____________________

1
It should be mentioned that the trial judge was not insensitive to the possibility of error in granting the
prosecution's request for amendment. Accordingly, noting he might well be reversed, Judge Goldman allowed
defendant to remain on bail pending appeal.
____________
94 Nev. 179, 179 (1978) Matthews v. State
JEREMIAH PAUL MATTHEWS, Appellant, v. THE
No. 9804
April 7, 1978 576 P.2d 1125
Appeal from judgment entered on jury verdict; Eighth Judicial District Court, Clark
County; Michael J. Wendell, Judge.
The district court convicted defendant of burglary, and defendant appealed. The Supreme
Court, Thompson, J., held that: (1) evidence was sufficient to sustain conviction; (2) assigned
error concerning testimony of expert witness concerning age of defendant's fingerprints found
on items in store was not preserved for appellate review by proper objection at trial and did
not warrant reversal, and (3) instruction on flight was proper.
Affirmed.
George E. Holt, District Attorney, and H. Leon Simon, Deputy District Attorney, Clark
1. Criminal Law.
Identity is provable by height and clothing.
2. Burglary.
In burglary prosecution, in view of testimony that witness saw white male, about five-feet ten-inches tall,
of slight build, wearing dark pants and white pullover shirt run from burglary scene and in
view of evidence that defendant was apprehended near scene of crime within short
time of its perpetration, that defendant fit description of person seen fleeing from
scene, and that defendant's fingerprints were found in store on several items,
evidence was sufficient to sustain conviction.
and white pullover shirt run from burglary scene and in view of evidence that defendant was apprehended
near scene of crime within short time of its perpetration, that defendant fit description of person seen
fleeing from scene, and that defendant's fingerprints were found in store on several items, evidence was
sufficient to sustain conviction.
3. Criminal Law.
In burglary prosecution, in view of fact that defendant failed to object to expert testimony concerning age
of defendant's fingerprints found on items in store even though witness had not conducted control test,
assigned error involving such testimony was not preserved for appellate review by proper objection at trial
and admission of testimony was not reversible error.
4. Criminal Law.
Flight is relevant since it may demonstrate consciousness of guilt.
5. Criminal Law.
In burglary prosecution, trial court properly instructed jury that flight of person after commission of
crime could be considered along with other proven facts in deciding guilt or innocence and that
significance of such circumstance was for jury to determine.
OPINION
Matthews seeks review of a judgment entered on jury verdict which found him guilty of
burglary. He contends that he was not sufficiently identified as the burglar; that expert
testimony regarding the age of his fingerprints found at the crime scene should not have been
received; that error occurred when the judge instructed the jury regarding flight. For reasons
hereafter expressed, we affirm his conviction.
[Headnotes 1, 2]
1. The identifying witness saw a white male, about 5 feet 10 inches tall, of slight build,
wearing dark pants and a white pullover shirt, run from the burglary scene. He did not see that
person's face and was unable positively to identify Matthews as that person. Contrary to the
appellant's contention, this is not a fatal defect in proof. When arrested, Matthews fit the
description of the person seen fleeing from the scene. Identity is provable by height and
clothing. Mathis v. People, 448 P.2d 633 (Colo. 1968); State v. Williamson, 438 P.2d 161
(N.M. 1968). Moreover, Matthews was apprehended near the scene of the crime within a
short time of its perpetration, and his fingerprints were found in the store on several items. It
was permissible for the jury to conclude that he was the burglar.
[Headnote 3]
2. An expert gave his opinion concerning the age of Matthews' fingerprints found on
items in the store, even though he had not conducted a control test.
though he had not conducted a control test. Had proper objection been made the trial judge
presumably would have precluded such opinion. Beasley v. State, 81 Nev. 431, 404 P.2d 911
(1965). Objection was not made. Notwithstanding this fact we are asked to find reversible
error. We decline to do so. This assigned error was not preserved for appellate review by
proper objection at trial. Moss v. State, 88 Nev. 19, 492 P.2d 1307 (1972); Wilson v. State,
86 Nev. 320, 468 P.2d 346 (1970).
[Headnotes 4, 5]
3. The court instructed the jury that the flight of a person after commission of a crime
could be considered along with other proven facts in deciding guilt or innocence, and that the
significance of such circumstance was for the jury to determine. Flight is relevant since it may
demonstrate a consciousness of guilt. People v. Hill, 429 P.2d 586 (Cal. 1967). The
instruction was proper since the jury (for reasons stated under point 1) properly could find
that the intruder seen running from the store and Matthews was the same person.
Affirmed.
____________
94 Nev. 181, 181 (1978) Washington v. State
OZIE WASHINGTON, Appellant, v. THE
No. 9683
April 7, 1978 576 P.2d 1126
Appeal from judgment entered upon jury verdict; Eighth Judicial District Court, Clark
County; J. Charles Thompson, Judge.
Defendant was convicted in the district court of burglary and he appealed. The Supreme
Court, Thompson, J., held that: (1) evidence sustained conviction, and (2) police had probable
cause to arrest defendant.
Affirmed.
George E. Holt, District Attorney, H. Leon Simon, Chief Deputy District Attorney, and
Elliott Sattler, Deputy District Attorney, Clark County, for Respondent.
1. Burglary.
Evidence sustained conviction of burglary. NRS 171.124.
2. Criminal Law.
It may be reversible error for judge or prosecutor to comment upon defendant's failure to testify. Const.
art. 1, 8; U.S.C.A.Const. Amend. 5.
3. Criminal Law.
Trial judge's statement, made at conclusion of State's case-in-chief, that, after recess, we will start
testimony from the defendant was not an improper comment upon defendant's failure to testify, but was
merely a statement that the defense was about to present its case. Const. art. 1, 8; U.S.C.A.Const.
Amend. 5.
4. Arrest.
Statute restricting authority of officer to make felony arrest without warrant to offenses committed in his
presence or to instances where he has reasonable cause to believe that person arrested has committed a
felony meets Fourth Amendment command that no warrants for arrest shall issue except upon probable
cause. U.S.C.A.Const. Amends. 4, 14; NRS 171.124.
5. Arrest.
Constitutional validity of arrest without warrant for felony not committed in officer's presence depends
upon whether, at moment arrest is made, officer had probable cause to make it. U.S.C.A.Const. Amends. 4,
14; NRS 171.124.
6. Arrest.
Probable cause for arrest exists if facts and circumstances known to officer warrant prudent man in
believing that felony has been committed by person arrested. U.S.C.A.Const. Amends. 4, 14; NRS
171.124.
7. Arrest.
Circumstances short of probable cause for arrest may justify officer's stopping motorist for questioning
and, should investigation then reveal probable cause to make an arrest, officer may arrest suspect and
conduct reasonable incidental search. U.S.C.A.Const. Amends. 4, 14; NRS 171.124.
8. Arrest.
Where police heard on police radio that burglary had been committed at named place by described man
who wore tan jacket and multicolored knit hat and who drove away on named boulevard in red car and,
while driving on that boulevard, police noticed red car driven by man who fit description, police had
probable cause to stop the car to investigate and, when they noticed a tan coat and multicolored hat on seat
of car, they had probable cause to arrest driver. U.S.C.A.Const. Amends. 4, 14; NRS 171.124.
OPINION
We are asked to void the appellant's burglary conviction. He contends that the evidence of
his guilt is insufficient; that the trial judge improperly commented upon his right not to
testify; and, that his arrest was not for probable cause.
[Headnote 1]
We summarily reject his first contention, that of insufficient proof. The circumstances
were of such nature as to allow the jury conclusion of guilt, Wheeler v. State, 91 Nev. 119,
120, 531 P.2d 1350 (1975), and presented a fact determination beyond our power to disturb.
Nev. Const. art. 6, 4; Azbill v. State, 88 Nev. 240, 252, 495 P.2d 1064 (1972). Therefore,
we turn to comment upon the other claims of error.
[Headnote 2]
1. A person charged with having committed a crime shall not be compelled to be a
witness against himself. U.S. Const. amend. V; Nev. Const. art. 1, 8. Consequently, it may
be reversible error for a judge or prosecutor to comment upon a defendant's failure to testify.
Griffin v. California, 380 U.S. 609 (1965); Chapman v. California, 386 U.S. 18 (1967);
Fontaine v. California, 390 U.S. 593 (1968); Anderson v. Nelson, 390 U.S. 523 (1968); cf.
Bean v. State, 81 Nev. 25, 36, 398 P.2d 251 (1965); Fernandez v. State, 81 Nev. 276, 278,
402 P.2d 38 (1965).
[Headnote 3]
In the case at hand the judge, at the conclusion of the State's case in chief, told the jury,
among other things, that after a recess, we will start testimony from the defendant.
Obviously, such comment does not concern the defendant's failure to testify, nor does the
record suggest that it compelled the defendant to take the stand. When considered in context,
the judge was merely saying that the defense was about to present its case. This claim of error
is without substance.
[Headnote 4]
2. The Fourth Amendment to the U.S. Constitution, enforcible against the states through
the Fourteenth, Mapp v. Ohio, 367 U.S. 643 (1961), commands that no warrants for either
searches or arrests shall issue except upon probable cause. . . . NRS 171.124 suits the
constitutional standard for it restricts the authority of an officer to make a felony arrest
without a warrant to offenses committed in his presence, or to instances where he has
reasonable cause to believe that the person arrested has committed a felony.
[Headnotes 5, 6]
The constitutional validity of an arrest without a warrant for a felony not committed in the
officer's presence depends upon whether, at the moment the arrest is made, he had probable
cause to make it. Probable cause exists if the facts and circumstances known to the officer
warrant a prudent man in believing that a felony has been committed by the person
arrested.
that a felony has been committed by the person arrested. Nootenboom v. State, 82 Nev. 329,
334, 418 P.2d 490 (1966); Hinton v. State, 84 Nev. 68, 71, 436 P.2d 223 (1968).
[Headnote 7]
Moreover, we have distinguished between probable cause to stop an occupant of a car for
legitimate investigation, and probable cause to arrest him. Circumstances short of probable
cause for arrest may justify an officer stopping a motorist for questioning, and should the
investigation then reveal probable cause to make an arrest, the officer may arrest the suspect
and conduct a reasonable incidental search. Harper v. State, 84 Nev. 233, 240, 440 P.2d 893
(1968); Robertson v. State, 84 Nev. 559, 562, 445 P.2d 352 (1968); Johnson v. State, 86 Nev.
52, 53, 464 P.2d 465 (1970). With these established principles in mind, we recite the relevant
facts leading to the arrest of Washington.
[Headnote 8]
Police were informed that a burglary was committed at Karen Court by a tall, slender black
man wearing a tan jacket and a multicolored knit hat who drove away on Sahara Boulevard in
a red car. This information was broadcast by police radio. Officers driving on Sahara noticed
a red car slowing for a stop light. The driver was a slender black man. They stopped the car to
investigate, and then noticed a tan coat and multicolored hat on the seat of the car. The
officers placed the driver under arrest.
Probable cause to stop to investigate, and then to arrest is apparent. Johnson v. State,
supra. The officers knew that a felony had been committed. They were in the area where the
crime had occurred. The suspect and his car matched the description given over police radio.
Affirmed.
____________
94 Nev. 184, 184 (1978) McMichael v. State
JAMES RICHARD McMICHAEL, Appellant, v. THE
No. 9714
April 7, 1978 577 P.2d 398
Appeal from judgment of conviction for infamous crime against nature. Fourth Judicial
District Court, Elko County; Joseph O. McDaniel, Judge.
The Supreme Court, Manoukian, J., held that: (1) admission of testimony from 13-year-old
boy that he and defendant had recently engaged in similar proscribed oral copulation both
prior and subsequent to incident of oral copulation leading to defendant's arrest was not abuse
of discretion; (2) jury instructions offered by defendant, which dealt with crime of lewdness
with a child and provided that such crime was necessarily included as lesser crime within
infamous crime against nature were not justified by the evidence; (3) statute prohibiting
unnecessary delay in bringing defendant before magistrate was not violated where defendant
was arrested in California upon Nevada warrant, and remained in California jail for three days
without being brought before magistrate; (4) defendant, who made no demand to be tried by
state during his incarceration in federal correctional facility, and who was released from
federal facility at request of State, was not denied his right to speedy trial by his incarceration,
and (5) defendant was not entitled to credit against his state sentence for time served in
federal incarceration on federal charges.
Affirmed.
Horace R. Goff, State Public Defender, and J. Thomas Susich, Chief Deputy Public
Robert List, Attorney General, Carson City; and Robert C. Manley, District Attorney, Elko
1. Criminal Law.
General rule is that proof of character to evidence particular criminal conduct is inadmissible unless and
until defendant gives evidence of his good character.
2. Criminal Law.
Evidence of prior misconduct is admissible only if it is relevant for some purpose other than to show
defendant probably committed crime because he is of a criminal character. NRS 48.045, subd. 2.
3. Criminal Law.
General rule is that when evidence is sufficiently relevant it may be admitted even though it embraces
evidence of commission of another crime. NRS 48.045, subd. 2.
4. Sodomy.
Intent is element of infamous crime against nature. NRS 21.190.
5. Criminal Law.
Because of dangers of creating assumptions of guilt in minds of triers of fact, risks attendant to
compelling accused to meet collateral charges, and possible confusion of issues, exception in area of sex
crimes to general rule of inadmissibility of evidence of independent crimes to prove offense charged,
permitting such evidence to prove nature of defendant's specific emotional propensity, mandates proof of
similar offenses which are near in time to principal offense and which do not apply to mere criminal
propensities in general but rather to specific sexual proclivities; evidence should be received with
extreme caution, and if its relevancy is not clear, evidence should be excluded.
should be received with extreme caution, and if its relevancy is not clear, evidence should be excluded.
NRS 48.045, subd. 2.
6. Criminal Law.
Whenever confrontation occurs between relevancy of evidence of independent crimes offered in area of
sex crimes to prove nature of defendant's specific emotional propensity and general rule protecting
defendant against prejudice likely to follow admission of such evidence, trial court must weigh probative
value of proffered evidence against bias or prejudice likely to result. NRS 48.045, subd. 2.
7. Criminal Law.
Exception in area of sex crimes to general rule of inadmissibility of evidence of independent crimes to
prove offense charged, permitting such evidence to prove nature of defendant's specific emotional
propensity, is limited to those cases involving sexual aberration; however, this exception is not to exclusion
of usual exception to exclusionary rule. NRS 48.045, subd. 2.
8. Criminal Law.
In prosecution for committing infamous crime against nature brought against defendant charged with
orally copulating 13-year-old boy, admission into evidence of testimony from boy that he and defendant
had engaged in similar proscribed oral copulation both prior and subsequent to incident leading to
defendant's arrest was not abuse of discretion, since acts described in testimony were similar, were
committed within period immediately preceding and following instant offense, and involved sexual
aberration. NRS 48.045, subd. 2, 201.190, subd. 1(a), Stats. Nev. 1977, ch. 430.
9. Witnesses.
Refusal to permit defendant to impeach prosecution witness for bias on basis that defendant had testified
for prosecution in federal court against a relative of witness was reasonable exercise of discretion.
10. Infants.
In Nevada, by definition, acts constituting infamous crime against nature do not imply criminal
commission of lewdness with a child; crime of lewdness with a child must be proved by other acts not
amounting to infamous crime. NRS 201.190, 201.230.
Test to determine whether crime is necessarily included in offense charged is whether offense charged
cannot be committed without committing lesser offense.
12. Infants.
Jury instructions which dealt with crime of lewdness with a child were not justified by evidence in
prosecution for infamous crime against nature, in which only evidence adduced was actual penetration.
NRS 201.190, subd. 1(a), Stats. Nev. 1977, ch. 430; 201.193, 201.230.
13. Arrest.
Statute prohibiting unnecessary delay in bringing defendant before magistrate was not violated where
defendant was arrested in California upon Nevada warrant and remained in California jail for three days
without being brought before magistrate before being charged with violations of federal law and placed in
federal custody, but delay was minimal and in no way caused by State, and defendant demonstrated no
prejudice from delay. NRS 171.174, 171.178, subd. 1.
14. Criminal Law.
Defendant, who was in federal correctional facility from October 20, 1975, to March 24, 1976, who made
no demand to be tried by state during his incarceration in federal facility, who was in fact
substantially responsible for any claimed delay, and who was released from federal
custody pursuant to agreement on detainers at request of State so that he could
stand trial on state charge, was not denied his right to speedy trial by his
incarceration from arrest on October 16, 1975, to arraignment on state charge on
March 26, 1976.
his incarceration in federal facility, who was in fact substantially responsible for any claimed delay, and
who was released from federal custody pursuant to agreement on detainers at request of State so that he
could stand trial on state charge, was not denied his right to speedy trial by his incarceration from arrest on
October 16, 1975, to arraignment on state charge on March 26, 1976.
15. Criminal Law.
Statute governing giving of credit for presentence time served in jail cannot be interpreted to grant
judiciary the right to give credit for time spent in federal custody for nonstate purposes; only incarceration
pursuant to charge for which sentence is ultimately imposed can be credited against that sentence. NRS
176.055.
16. Criminal Law.
Defendant was not entitled to credit against his state sentence for time served in federal incarceration on
federal charges. NRS 176.055.
OPINION
Elko Police were notified on September 24, 1975, by a twelve-year-old male youth that
while in Lamoille Canyon, Elko County, he witnessed appellant orally copulating a young
boy. An arrest warrant issued incident thereto, and on October 16, 1975, appellant was
arrested in California on the warrant. Shortly thereafter on October 20, 1975, appellant was
taken into custody by the FBI on a federal Dyer Act charge. On January 20, 1976, Elko
authorities issued a formal request to obtain custody of appellant which was granted by the
federal authorities in March, 1976.
Trial was held on February 22-23, 1977, and the judgment of conviction of one count of
the infamous crime against nature, a felony, was entered on March 21, 1977.
1
This appeal
followed.
Appellant raises the following issues for our consideration. (1) The trial court erred in
admitting evidence of appellant's past and subsequent similar crimes and acts; (2) the trial
court erred in refusing appellant's attempt to impeach a witness; (3) the trial court erred in
refusing appellant's proffered jury instructions; (4) appellant was denied his constitutional
right to a speedy trial; and (5) appellant was not given proper credit for time served. We turn
to treat these questions.
____________________

1
NRS 201.190(1)(a), as it then read, provided in part: (1) . . . every person of full age who commits the
infamous crime against nature shall be punished: (a) . . . where such offense is committed upon the person of one
who is under the age of 18 years, by imprisonment in the state prison for life with possibility of parole. . . .
1. Admission of Similar Crimes.
During respondent's case-in-chief, the court admitted into evidence testimony of the
thirteen-year-old victim that he and appellant had recently engaged in similar proscribed oral
copulation both prior and subsequent to the incident leading to appellant's arrest. The trial
court admitted this testimony to prove intent or the absence of mistake or accident.
2
We
agree.
[Headnotes 1-4]
The general rule is that proof of character to evidence particular criminal conduct is
inadmissible unless and until the accused gives evidence of his good character. McCormick
on Evidence, 190 (2nd ed. 1972); State v. Henley, 557 P.2d 33 (Or.App. 1976); compare,
Carter v. State, 84 Nev. 592, 446 P.2d 165 (1968). The rule prohibiting proof of prior
misconduct is an application of the general rule. Such evidence is admissible only if it is
relevant for some purpose other than to show the accused probably committed the crime
because he is of a criminal character. See, Demmert v. State, 565 P.2d 155 (Alas. 1977); see
also, Theriault v. State, 92 Nev. 185, 547 P.2d 668 (1976). NRS 48.015 defines relevant
evidence as 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. The general rule is that when evidence is sufficiently relevant it may be
admitted even though it embraces evidence of the commission of another crime. Wallin v.
State, 93 Nev. 10, 558 P.2d 1143 (1977); People v. Guerrero, 548 P.2d 366 (Cal. 1976).
Appellant urges error on the premise that intent or lack of mistake was not in issue. See, 1
Wharton's Criminal Evidence, 560 (13th ed. 1972). Here, we believe intent is an element of
the crime with which appellant was charged (NRS 201.190; 193.190) and that his intention
was put in issue by the not guilty plea.
3
Overton v. State, 78 Nev. 198, 370 P.2d 677 (1962).
In our view, the evidence tends logically and by reasonable inference to establish a fact
material to the State. Guerrero, supra. Even this type evidence, to be relevant, should not be
admitted unless the acts are similar and proximate in time.
____________________

2
NRS 48.045(2) provides: Evidence of other crimes, wrongs or acts is not admissible to prove the character
of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other
purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of
mistake or accident. (Emphasis added.)

3
NRS 193.190 provides in part: In every crime or public offense there must exist a union, or joint operation
of act and intention. . . .
Moreover, in sex crimes generally a more liberal judicial attitude exists in admitting
evidence of prior and subsequent proscribed sexual conduct. See, 77 ALR2d 841. Upholding
in a prosecution for fellatio, case-in-chief testimony of boys other than those with whom
defendant was charged with having committed the acts, the court in State v. McDaniel, 298
P.2d 798 (Ariz. 1956), said:
Certain crimes today are recognized as stemming from a specific emotional
propensity for sexual aberration. The fact that in the near past one has given way to
unnatural proclivities has a direct bearing upon the ultimate issue whether in the case
being tried he is guilty of a particular unnatural act of passion. The importance of
establishing this fact far outweighs the prejudicial possibility that the jury might convict
for general rather than specific criminality. Even granting the general rule of
inadmissibility of evidence of independent crimes to prove the offense charged, many
courts recognize a limited exception in the area of sex crimes to prove the nature of the
accused's specific emotional propensity.
Id. at 802-03. Accord, State v. Miller, 564 P.2d 1246 (Ariz.App. 1977); State v. McFarlin,
517 P.2d 87 (Ariz. 1973); People v. Covert, 57 Cal.Rptr. 220 (App. 1967); compare, Allan v.
State, 92 Nev. 318, 549 P.2d 1402 (1976).
Appellant contends that liberalization of the general rule of exclusion as to him results in
undue prejudice because its probative value was substantially outweighed by the danger of
prejudice. Here, the trial court only admitted evidence of sexual conduct between the
appellant and the victim. See, People v. Stanley, 433 P.2d 913 (Cal. 1967); see also, State v.
Waites, 490 P.2d 188 (Or.App. 1971); cf. People v. Kelley, 424 P.2d 947 (Cal. 1967).
Admission of the evidence involved the trial court's discretionary determination in balancing
the prejudicial effect of proffered testimony against its probative value. NRS 48.035; see,
Brown v. State, 81 Nev. 397, 404 P.2d 428 (1965); see also, State v. Hampton, 529 P.2d 127
(Kan. 1974). The court concluded the probative value of the evidence outweighed the
prejudicial effect. Additionally, immediately after the victim was permitted to testify
concerning recent similar past and subsequent sexual acts, the trial court admonished the jury
as to the limited purpose of the admitted evidence. Further, the court gave the jury a
cautionary instruction to the same effect. Moreover, the court excluded evidence of alleged
past sexual acts between appellant and other young boys. The record indicates that the trial
court was sensitive to the possible prejudicial effect of accumulative testimony of
appellant's prior and subsequent sexual proclivities.
record indicates that the trial court was sensitive to the possible prejudicial effect of
accumulative testimony of appellant's prior and subsequent sexual proclivities.
[Headnotes 5-8]
The high degree of relevancy, less prejudice to the accused and the general difficulty of
proving such crimes are factors which have contributed to the development of this narrow
exception to the general rule. See, McFarlin, supra. Because of the dangers of creating
assumptions of guilt in the minds of the triers of fact, the risks attendant to compelling the
accused to meet collateral charges and possible confusion of the issues, this exception
mandates proof of similar offenses which are near in time to the principal offense and which
do not apply to mere criminal propensities in general but rather to specific sexual proclivities.
The evidence should be received with extreme caution, and if its relevancy is not clear, the
evidence should be excluded. Kelley, supra; Nester v. State of Nevada, 75 Nev. 41, 334 P.2d
524 (1959); State v. McFarlin, 41 Nev. 486, 172 P. 371 (1918). Whenever a confrontation
occurs between relevancy and the general rule that protects the accused against prejudice
likely to follow admission of such evidence, the trial court must, as was done in the instant
case, weigh the probative value of the proffered evidence against the bias or prejudice likely
to result. See, Stanley, supra; accord, People v. Sheets, 59 Cal.Rptr. 777 (App. 1967); State
v. Hopfe, 82 N.W.2d 681 (Minn. 1957). We do not decide whether evidence of any sex
offenses involving persons other than the complaining witness would be admissible. See,
McDaniel, supra; Bracey v. United States, 142 F.2d 85 (D.C. Cir. 1944), cert. denied, 322
U.S. 762; 2 Wigmore on Evidence, 360 (3rd ed. 1940). We note that this emotional
propensity exception is limited to those cases involving sexual aberration, but this exception
is not to the exclusion of the usual exceptions to the exclusionary rule. Miller, supra.
In the instant case, we find no abuse in the admission of the testimony, Martin v. State, 80
Nev. 307, 393 P.2d 141 (1964); State v. Nystedt, 79 Nev. 24, 377 P.2d 929 (1963), since the
acts were similar, were committed within a period immediately preceding and following the
instant offense, and involved sexual aberration.
2. Attempt to Impeach Witness.
[Headnote 9]
Appellant next contends error in the trial court's refusal to permit him to impeach a
prosecution witness for bias.
Although the record is vague, it appears appellant was attempting to show bias since
appellant had testified for the prosecution in a federal court against a relative of the witness.
On objection, the court rejected such evidence as irrelevant.
We have held that great latitude in cross-examination is allowed to test a witness's
motives, interests, animus, accuracy, and veracity. Lloyd v. State, 85 Nev. 576, 460 P.2d 111
(1969), cert. denied, 398 U.S. 932; State v. Boyle, 49 Nev. 386, 248 P. 48 (1926). In State v.
Fitch, 65 Nev. 668, 200 P.2d 991 (1948), this Court conceded that a cross-examiner would be
entitled to impeach any witness for bias or interest which may tend to color his testimony.
Rejecting appellant's contention of error, however, we stated that impeachment for bias must
be controlled by the sound discretion of the trial court. On this record, we will presume that
the trial court reasonably exercised its discretion in excluding the evidence.
3. Proffered Jury Instructions.
Appellant contends error in the trial court's refusal to give certain jury instructions. The
proffered jury instructions dealt with the crime of lewdness with a child and provided that
such crime was necessarily included as a lesser crime within the infamous crime against
nature with which appellant was charged.
[Headnote 10]
In support of this argument, appellant cites State v. Wall, 248 P.2d 222 (Idaho 1952),
which held that lewd and lascivious conduct is a necessarily included crime within the
infamous crime against nature. The Idaho statute, however, is distinguishable from the
Nevada statute in that the Nevada law expressly excepts from the crime of lewd and
lascivious conduct with a child the acts constituting the infamous crime against nature. NRS
201.230 pertaining to lewdness with a child under 14 years of age states that the crime is
committed by [a]ny person who shall willfully and lewdly commit any lewd or lascivious
act, other than acts constituting the . . . infamous crime against nature, upon or with the body
. . . of a child under the age of 14 years, with the intent of arousing, appealing to, or gratifying
the lust or passions or sexual desires of such person or of such child. . . . (Emphasis added.)
In Nevada, by definition the acts constituting the infamous crime against nature do not imply
the criminal commission of lewdness with a child. Such crime must be proved by other acts
not amounting to the infamous crime, and none was proven or, indeed, even suggested. The
only evidence adduced was actual penetration, and this act constitutes the infamous crime
against nature.4
penetration, and this act constitutes the infamous crime against nature.
4

[Headnotes 11, 12]
Appellant suggests that lewd and lascivious conduct could be inferred from the mere
circumstance of sexual penetration. We do not agree. The test announced by this Court to
determine whether a crime is necessarily included in the offense charged is whether the
offense charged cannot be committed without committing the lesser offense. Lisby v. State,
82 Nev. 183, 187, 414 P.2d 592, 594 (1966). In the instant case, there is no evidence to
indicate that any lewd or lascivious acts were performed prior to actual sexual penetration.
Such acts are not, by the Lisby test, necessarily included lesser crimes within the infamous
crime against nature. None of the proffered instructions was justified by the evidence.
4. Denial of Speedy Trial.
[Headnote 13]
Appellant contends that he was neither timely brought before a magistrate (NRS 171.174)
nor given a speedy trial, basing the former contention upon the fact that he was arrested in
California on October 16, 1975, upon the Nevada warrant, but that he remained in a
California jail until October 20, 1975, at which time he was placed in federal custody to face
the federal charge. McMichael argues that while he was in jail from October 16 to October
19, it was incumbent upon respondent to bring him before a magistrate. This contention is
wholly without merit.
Appellant was detained only three days in a California jail on the Nevada charge until
federal jurisdiction attached, at which time he was charged with violations of federal law and
placed in federal custody. The claimed delay was minimal and in no way caused by the State.
Furthermore, appellant demonstrates no prejudice. See, United States v. Bandy, 421 F.2d 646
(8th Cir. 1970); cf. Tellis v. Sheriff, 85 Nev. 557, 459 P.2d 364 (1969). The proscription in
NRS 171.178(1) against unnecessary delay in bringing an arrested person before a
magistrate was not violated. Tellis, supra; Brown v. Justice's Court, 83 Nev. 272, 428 P.2d
376 (1967).
[Headnote 14]
Similarly without merit is appellant's claim that his incarceration from the arrest on
October 16, 1975, to the Nevada arraignment on March 26, 1976, denied him his right to a
speedy trial.
____________________

4
NRS 201.193 provides: Any sexual penetration, however slight, is sufficient to complete the crime against
nature.
speedy trial. From October 20, 1975, to March 24, 1976, appellant was in a federal
correctional facility. Appellant relies on Smith v. Hooey, 393 U.S. 374 (1969), as authority
that the state must nevertheless bring to trial an individual incarcerated in a federal prison.
That case is distinguishable from the instant case. There, the federal prisoner made repeated
unsuccessful demands to be tried by the state. In the instant case, appellant made no such
demand and was in fact substantially responsible for any claimed delay. Respondent
nevertheless requested his release from federal custody pursuant to the Agreement on
Detainers in order that appellant could stand trial on the state charge. Thus the State fulfilled
its obligation to give appellant a speedy trial.
5. Credit for Time Served.
Appellant contends that he was not given proper credit for his presentence time served in
jail. The trial court gave appellant 374 days credit for jail time served from October 16, 1975,
through October 20, 1975, and from March 24, 1976, through March 31, 1977. Appellant
claims, however, that he is entitled to credit against his state sentence for time served in
federal incarceration on federal charges.
Appellant premises his claim on Anglin v. State, 90 Nev. 287, 525 P.2d 34 (1974), which
held that an accused who remains in custody because of his inability to post a bond must be
credited with the time served during such confinement. Appellant contends that he was
unable to post bond to secure his release on bail and therefore remained continuously in
custody since his arrest. He distinguishes his predicament from that of the defendant in
Dearing v. State, 90 Nev. 297, 525 P.2d 601 (1974), who after having been arrested and
subsequently released on bail was rearrested for a foreign parole violation. The Dearing court
denied credit on the first charge for time served pursuant to the second unrelated arrest
because the subsequent confinement was, in the exempting language of NRS 176.055,
pursuant to a judgment of conviction for another offense. Id. at 298, 525 P.2d at 601.
NRS 176.055 expressly exempts credit for time served pursuant to a judgment of
conviction for another offense. Appellant argues that his situation is more akin to Anglin
where the defendant was given credit for confinement because of his inability to post bond
rather than to Dearing where the defendant was released on bail, rearrested, and then not
given credit because no bail had been set on the second charge and because the statutory
exemption applied as the second confinement was pursuant to a different judgment of
conviction. The argument is not persuasive. Here, unlike the defendant in Anglin, appellant
was immediately arrested on the federal charge.
[Headnotes 15, 16]
Our statute cannot be interpreted to grant our judiciary the right to give credit for time
spent in federal custody for nonstate purposes. Only incarceration pursuant to a charge for
which sentence is ultimately imposed can be credited against that sentence. See, Anglin,
supra; Dearing, supra.
The assignments of error being without merit, the judgment of conviction is affirmed.
____________
94 Nev. 194, 194 (1978) Warm Springs Dev. Co. v. McAulay
WARM SPRINGS DEVELOPMENT COMPANY, a Nevada
Corporation, Appellant, v. W. J. McAULAY, Respondent.
No. 9148
April 7, 1978 576 P.2d 1120
Appeal from declaratory judgment affirming the term of a lease, Sixth Judicial District
Court, Humboldt County; Llewellyn A. Young, Judge.
Appeal was taken from a judgment of the district court declaring the express terms of a
mineral lease enforceable. The Supreme Court, Gunderson, J., held that where the lease
expressly allowed delay in development upon payment of rent, no covenant would be implied
to proceed diligently to develop the property within a reasonable time.
Affirmed.
Hibbs & Newton, and Margo Piscevich, Reno, for Appellant.
Vargas, Bartlett and Dixon, and Frederic R. Starich, Reno, for Respondent.
Mines and Minerals.
Where heat, fluid and mineral lease specifically provided for delay in development upon payment of rent,
covenant to proceed diligently to develop property within reasonable time would not be implied.
OPINION
Warm Springs Development Company here appeals from a judgment declaring the
express terms of a mineral lease enforceable, urging that an implied covenant should be
read into the lease, to contradict its explicit provisions.
judgment declaring the express terms of a mineral lease enforceable, urging that an implied
covenant should be read into the lease, to contradict its explicit provisions. We disagree.
On November 18, 1962, Henry Houck entered into a heat, fluid, and mineral lease with
respondent, W. J. McAulay, for 80 acres in Humboldt County. The lease was for twenty years
(until November 18, 1982), but provided for termination if McAulay failed either to drill a
well by October 18, 1963, or to pay nominal rents to defer drilling.
1

McAulay did no drilling, but paid $8 per year for the first ten years, and $20 for the
eleventh year. Then appellant Warm Springs, successor in interest to Houck, sent McAulay a
lease termination notice, and sought a declaration from the district court that McAulay has
no rights whatsoever in and to said [leased] premises by reason of [the] written agreement.
The district court held the lease valid and in full force until October 18, 1982, provided
McAulay continued to make the specified payments. On appeal, Warm Springs contends the
court should have declared the lease forfeit because McAulay breached an implied covenant,
i.e., to proceed diligently to develop the property within a reasonable time.
Many jurisdictions do indeed recognize implied covenants in oil, gas, and mineral leases;
however, the majority refuse to imply a covenant of due diligence where it would directly
contradict an express provision allowing delay in development upon payment of rent. See
Skinner v. Ajax Portland Cement Co., 197 Pac. 875 (Kan. 1921); Kachelmacher v. Laird, 110
N.E. 933 (Ohio 1915); Central States Production Corp. v. Jordan, 86 P.2d 790 (Okl. 1939);
Coats v. Brown, 301 S.W.2d 932 (Tex.Civ.App. 1957); see also Grooms v. Minton, 250 S.W.
543 (Ark. 1923); Hartman Ranch Co. v. Associated Oil Co., 73 P.2d 1163 (Cal. 1937); 2
Brown, The Law of Oil and Gas Leases, 16.02, 16-15 (2nd ed. 1973). It appears only
Kentucky and Indiana imply such a covenant where the lease contains an express drill or pay
rent clause. See Monarch Oil, Gas and Coal Co. v.
____________________

1
The lease provided in pertinent part:
If no well be commenced on said land on or before the 18 day of October, 1963, this lease shall terminate as
to both parties unless the Lessee on or before that date shall pay or tender to Lessor . . . a sum equal to 10 per
acre . . . which shall operate as a rental . . . and cover the privilege of deferring the commencement of a well for
12 months from said date. In a like manner and upon like payments or tenders the commencement of a well may
be further deferred for like periods of the same number of months successively for the second to tenth rental
years inclusive. For the eleventh to twentieth years inclusive, the rental shall be increased to the sum of 25 per
acre, . . . Lessee shall have the right to drill as many wells on the leased premises as it in its sole discretion, shall
deem are necessary for the development of the leased premises, and shall be under no obligation to drill any well
which it, in its sole discretion, does not deem to be necessary.
Gas and Coal Co. v. Richardson, 99 S.W. 668 (Ky.App. 1904), Brown, cited above; cf. New
Harmony Realty Corp. v. Superior Oil Co., 31 N.E.2d 673 (Ind. 1941); Consumers' Gas Trust
Co. v. Littler, 70 N.E. 363 (Ind. 1904). This minority approach, which seeks to prevent
speculation by lessees, appears violative of all settled interpretation and construction of
contracts, and an unjustifiable interference with the privilege and power to contract. 2
Summers, Oil and Gas, 397, 547 (1959).
Accordingly, we adopt the majority rule and refuse to imply a covenant of due diligence to
defeat the express agreement of the parties. The decision of the district court is affirmed.
____________
94 Nev. 196, 196 (1978) Lawler v. First Nat'l Bank of Nevada
H. ROGER LAWLER, Doing Business as LAWLER LAND AND CATTLE COMPANY
and LAWLER CATTLE COMPANY, Appellants, v. FIRST NATIONAL BANK OF
NEVADA, a National Banking Association, Respondent.
No. 8680
April 7, 1978 576 P.2d 1121
Appeal from judgment and order denying motion for new trial, Second Judicial District
Court, Washoe County; Grant L. Bowen, Judge.
A bank brought suit to collect on three promissory notes executed by defendant in his
individual and representative capacity. The district court entered judgment for the bank, and
defendant appealed. The Supreme Court, Gunderson, J., held, inter alia, that the trial court did
not erroneously instruct the jury on the legal effect of a renewal of a promissory note.
Affirmed.
Hale, Lane, Peek, Dennison and Howard, and J. Stephen Peek, Reno, and Gordon Rose,
Los Angeles, California, for Appellants.
Stewart & Horton, Ltd., and Richard Horton, Reno, for Respondent.
1. Bills and Notes.
In suit by bank to collect on three promissory notes, trial court acted properly in instructing jury that
maker of note who gives renewal of such note, and endorser who endorses renewal with
knowledge of defense or counterclaim against original note, waives defense or
counterclaim and may not later assert it against party to whom renewal note was
given.
note, and endorser who endorses renewal with knowledge of defense or counterclaim against original note,
waives defense or counterclaim and may not later assert it against party to whom renewal note was given.
2. Trial.
Comments of trial court in bank's suit to collect on promissory note, in context, failed to demonstrate
prejudice or misconduct.
3. Bills and Notes.
In suit by bank to collect amounts due on three promissory notes, trial court did not abuse its discretion in
awarding bank attorney fees after jury returned verdict in its favor.
OPINION
Respondent First National Bank of Nevada brought this action to collect on three
promissory notes executed by appellant H. Roger Lawler in his individual and representative
capacity. The jury returned a verdict in favor of respondent bank for $1,150,941.21, an
amount equal to the balance due on the notes. Here, appellants' principal contentions are (1)
the district court erroneously instructed the jury on the legal effect of a renewal of a
promissory note, (2) judicial misconduct deprived them of a fair trial, and (3) the district
court abused its discretion in the award of attorneys' fees. We disagree.
[Headnote 1]
1. The court instructed the jury: A maker of a note who gives renewal of a note, and an
endorser who endorses the renewal with knowledge of a defense or counterclaim against the
original notes, waives that defense or counterclaim and may not later assert it against the
party to whom the renewal note was given.
This instruction is an accurate statement of the law not only in Nevada, cf. Gordon v.
Lynch, 77 Nev. 344, 364 P.2d 889 (1961), but also in the majority of other jurisdictions.
1
Moreover, this instruction clearly satisfied the trial court's duty to explain the law of the
case, . . . and to bring into view the relations of the particular evidence adduced to the
particular issues involved.' Lewis v. Watson, 47 S.W.2d 484, 486 (N.C. 1948). American
Cas Co. v. Propane Sales & Serv., 89 Nev. 398, 401, 513 P.2d 1226, 1228 (1973).
____________________

1
See, e.g., Fitzpatrick v. Flannagan, 106 U.S. 648 (1882); E. H. Taylor, Jr., & Sons v. First Nat. Bank, 212 F.
898 (6th Cir. 1914); First Nat. Bank of Barron v. Strimling, 241 N.W.2d 478 (Minn. 1976); Hurtig v. Jones, 434
P.2d 1009 (Kan. 1967); Shields v. Schorno, 321 P.2d 905 (Wash. 1958); Jacob
[Headnote 2]
2. The comments of which appellants complain, when taken in context and read within
the more complete framework of the record, fail to demonstrate prejudice or misconduct. See
Peterson v. Silver Peak, 37 Nev. 117, 140 P. 519 (1914).
[Headnote 3]
3. The matter of attorneys' fees lies within the sound discretion of the district court and its
determination will not be disturbed absent a manifest abuse of that discretion. Brunzell v.
Golden Gate Nat'l Bank, 85 Nev. 345, 455 P.2d 31 (1969).
Here, the district court explicitly based its award upon all the facts and circumstances, the
guidelines from other authorities, and [its] own experience, as well as a finding that this was
one of the most difficult civil trials over which it had presided. Under these circumstances,
the record reveals no abuse of discretion; hence, we will not substitute our opinion for that of
the district court. See Brunzell v. Golden Gate Nat'l Bank, cited above; Sarman v. Goldwater,
Taber and Hill, 80 Nev. 536, 396 P.2d 847 (1964).
Other issues raised by appellants are without any merit. Thus, we affirm the district court
judgment and order denying motion for new trial.
Batjer, C. J., and Mowbray and Thompson, JJ., and McKibben, D. J.,
2
concur.
____________________
Trinley & Sons v. Golter, 41 A.2d 243 (N.H. 1945); Brummett v. McGowan, 24 P.2d 980 (Okla. 1933);
Holczstein v. Bessemer Trust & Savings Bank, 136 So. 409 (Ala. 1931); Sebastian County Bank v. Gann, 180
S.W. 754 (Ark. 1915); Franklin Phosphate Co. v. International Harvester Co., 57 So. 206 (Fla. 1911); Hogan v.
Brown, 37 S.E. 880 (Ga. 1901). See generally Annot., 72 A.L.R. 600 (1931).

2
Mr. Justice Manoukian voluntarily disqualified himself from participation in this matter. The Governor,
pursuant to Nev. Const. art. 6, 4, designated the Honorable Howard D. McKibben, Judge of the First Judicial
District Court, to participate in the decision upon the record, briefs, and recording of oral argument herein.
____________
94 Nev. 198, 198 (1978) Enloe v. Blain
CLYDE L. ENLOE, Appellant, v. WILLIAM BLAIN And WANDA BLAIN, dba W. E.
BLAIN WELL DRILLING COMPANY, Respondents.
No. 8965
April 17, 1978 577 P.2d 60
Appeal from judgment, First Judicial District Court, Carson City; Frank B. Gregory,
Judge.
Well driller sought monies due under a contract on ground that his employers
unjustifiably prevented completion of work.
94 Nev. 198, 199 (1978) Enloe v. Blain
that his employers unjustifiably prevented completion of work. The district court entered
judgment for employers, and driller appealed. The Supreme Court held that inference was not
warranted that employers repudiated contract so as to excuse driller from further
performance, notwithstanding claim that employers provided driller with a defective welder,
where duty was on driller to discover and report any defective machinery and record was
devoid of any evidence tending to show that employers deliberately provided a defective
welder or that they were even aware of defect until casing snapped during drilling operations.
Affirmed.
Eck & Harkins, Ltd. and Nicolaus R. Harkins, Carson City, for Appellant.
Legarza, Lee, Barengo & Doyle, and Keith L. Lee, Reno, for Respondents.
1. Contracts.
In order for a party to prevent completion, there must be acts, conduct or declarations of party evincing a
clear intention to repudiate contract and to treat it as no longer binding.
Inference was not warranted that employers repudiated contract so as to excuse well driller from further
performance, notwithstanding claim that employers provided driller with a defective welder, where duty
was on driller to discover and report defective machinery and record was devoid of any evidence tending to
show that employers deliberately provided a defective welder or that they were even aware of defect until
casing snapped during drilling operations.
An employer may have an affirmative duty to notify an employee when work is resumed on a project and
its failure to notify may constitute prevention so as to excuse further performance.
In view of evidence that plaintiff led defendants to believe he had another job and so quit project, court
could find that duty of defendants to notify plaintiffs when work resumed was excused by plaintiff's own
act of repudiation.
OPINION
Per Curiam:
Clyde L. Enloe appeals from a judgment denying his claim for monies due under a
contract, contending respondents unjustifiably prevented completion of his work. We
disagree.
Respondents employed appellant to drill wells. The district court found appellant assumed
the responsibility to complete a well before payment was due, but appellant contends he
was excused from further performance because respondents prevented completion and
thereby breached the contract.
94 Nev. 198, 200 (1978) Enloe v. Blain
well before payment was due, but appellant contends he was excused from further
performance because respondents prevented completion and thereby breached the contract.
According to appellant, prevention occurred because respondents provided him with a
defective welder, caused drilling to cease when a casing snapped, and failed to notify
appellant when well drilling operations resumed.
[Headnotes 1, 2]
In order for a party to prevent completion there must be acts, conduct, or declarations of
the party, evincing a clear intention to repudiate the contract, and to treat it as no longer
binding, . . . Claudianos v. Friedhoff, 69 Nev. 41, 46, 240 P.2d 208, 210 (1952). Here,
testimony indicated appellant had the duty to discover and report defective machinery. The
record is devoid of any evidence tending to show that respondents deliberately provided a
defective welder, or that they were even aware of the defect until after the casing snapped.
Under such circumstances, the district court was not required to infer that respondents had
repudiated the contract.
[Headnotes 3, 4]
Although an employer may have an affirmative duty to notify an employee when work is
resumed on a project, and although failure to do so may constitute prevention, cf. Claudianos,
cited above, there is evidence that appellant led respondents to believe he had another job in
Oregon, and had quit the project. Thus, the court could find respondent's duty to notify
appellant, once work resumed, was excused by appellant's own act of repudiation.
Affirmed.
1

____________________

1
The Governor designated the Honorable Paul Goldman, Judge of the Eighth Judicial District, to sit in place
of The Honorable Gordon Thompson, Justice, who was disabled. Nev. Const. art. 6, 4.
____________
94 Nev. 200, 200 (1978) Sanguinetti v. Strecker
A. FRED SANGUINETTI, Appellant, v. HERMAN F. STRECKER and F. JEAN
STRECKER, Husband and Wife, Respondents.
No. 9125
April 18, 1978 577 P.2d 404
Appeal from judgment of the Ninth Judicial District Court, Douglas County; Peter I.
Breen, Judge.
Action was brought seeking cancellation of certain deeds predicated on allegation of
fraud and also seeking compensatory and punitive damages, and defendant
counterclaimed for specific performance of alleged oral contract between the parties or,
in the alternative, damages, reasonable compensation and return of personal property.
predicated on allegation of fraud and also seeking compensatory and punitive damages, and
defendant counterclaimed for specific performance of alleged oral contract between the
parties or, in the alternative, damages, reasonable compensation and return of personal
property. The district court entered judgment against defendant and cancelled deeds in
question, and defendant appealed. The Supreme Court, Mowbray, J., held that: (1) fact finder
was entitled to conclude that defendant obtained title to property by fraud; (2) it was
permissible for court to allow jury to decide legal issues; (3) in light of detriment to plaintiffs
from new encumbrance as well as loss of potential land during period of defendant's
occupation of property, finding that $15,000 compensatory award unjustly enriched plaintiffs
was not compelled, and (4) record supported finding of oppression and fraud sufficient to
sustain award of punitive damages.
Affirmed.
Petersen & Petersen and Anthony J. Chargin, Reno, for Appellant.
Hill, Cassas & deLipkau and Thomas P. Erwin, Reno, for Respondents.
1. Fraud.
Charge of fraud must be supported by proof of false representation by defendant, knowledge or belief on
part of defendant that representation is false or that he does not have sufficient basis of information to make
it, intention to induce plaintiff to act or to refrain from acting in reliance upon misrepresentation, justifiable
reliance upon representation on part of plaintiff, and damage to plaintiff resulting from reliance.
Whether claim of fraud is made in action at law or in equity, appellate court will not disturb findings of
the court or jury where there is substantial evidence to support claim.
3. Deeds.
Where defendant was a close relative of one plaintiff, and plaintiffs had sought and obtained his advice
and assistance in financial matters over a number of years, plaintiffs were entitled to regard relationship as
one of trust and confidence and, under such circumstances, were entitled not only to an accurate description
of instrument they were signing, but also to full disclosure of intentions of defendant, whose own version of
events fully supported conclusion that plaintiffs were never informed of effects and consequences of
signing an unqualified grant deed to title company, and of their rights and effects and consequences of their
acts.
4. Deeds.
Evidence in action seeking cancellation of certain deeds was sufficient to support conclusion that
defendant, whose own version of the events fully supported conclusion that plaintiffs were never informed
of effects and consequences of signing unqualified grant deed to title company, and
whose assurances that he would handle details of title, permits and loan
arrangements, and his satisfactory handling of loan arrangements in past,
understandingly lulled plaintiffs into sense of security regarding status of title to
property justifying their reliance upon his representations, obtained title to property
by fraud.
effects and consequences of signing unqualified grant deed to title company, and whose assurances that he
would handle details of title, permits and loan arrangements, and his satisfactory handling of loan
arrangements in past, understandingly lulled plaintiffs into sense of security regarding status of title to
property justifying their reliance upon his representations, obtained title to property by fraud.
5. Jury.
Although original posture of action seeking cancellation of certain deeds undoubtedly invoked equitable
jurisdiction of the court, legal issues were also raised by plaintiffs' claim for damages and by defendants's
counterclaim upon alleged oral agreement, and thus it was permissible for the court to allow jury to decide
legal issues and to reserve for court determination all equitable issues, including equitable claim for
cancellation of deeds. NRCP 38, 39(b).
Any restitution to which defendant was entitled had to be weighed against damage to plaintiffs' interest
occasioned by his fraudulent conduct and thus, since property as returned to plaintiffs was encumbered by
deed of trust executed by defendant without concurrence of plaintiffs upon which some $94,000 remained
due at time of trial, and since plaintiffs were also entitled to rental value of property during period of
defendant's possession, decision to cancel deeds without requiring setoff against $15,000 compensatory
damages found by jury met fundamental requirement that equitable relief be granted on equitable terms.
7. Mortgages.
In view of what appeared to have been assumption of both parties that bank which held deed of trust was
without notice of fraud and thereby acquired valid deed of trust, plaintiffs would be estopped from
asserting contrary position against bank's interest in property following cancellation of certain deeds in
name of defendant to property they owned.
8. Contracts.
Defendant, who testified that consideration for transfer was only prospect of financial gain, was not
entitled to restitution for services or expenditures rendered or made pursuant to alleged oral contract after
he fraudulently acquired title to property.
Defendant's payment of note, relieving plaintiffs' property of $50,000 encumbrance, had to be weighed
against new encumbrance on property created by defendant, for which the plaintiffs were obligated in the
amount of some $94,000, as well as loss of potential rent during period of defendant's occupation of
property, and thus finding that $15,000 compensatory award unjustly enriched plaintiffs was not compelled
in action seeking to set aside deeds in name of defendant on ground of fraud.
10. Improvements.
One who holds under fraudulent deed is entitled to restitution of value of his improvements, or their cost,
whichever is less, if he made them in reasonable, good-faith belief that he held valid title to land.
Defendant's failure to secure all necessary permits, for which he had assumed responsibility, cast value of
improvements in grave doubt and, most important, his fraudulent conduct entirely deprived him of any
claim of reasonable, good-faith mistake so as to require that alleged improvements to property be thrown
into the balance in determining whether he was entitled to restitution following cancellation of deeds in his
name.
12. Estoppel.
Plaintiffs' failure to prevent defendant from expending time and funds upon project was traceable to his
assurances to them, and his willingness to do so was clearly attributable to his own belief that his fraudulent
acquisition of title to their property would provide him more than adequate financial protection, and thus
defendant, who could claim neither to have acted in good faith not to have been misled by any active
conduct of plaintiffs, was not entitled to award of damages pursuant to oral contract with plaintiffs on basis
of estoppel in face of finding of fraud.
In action seeking cancellation of certain deeds in name of defendant to property owned by plaintiffs, jury
was properly instructed as to whether it could find for plaintiffs on their claim of fraud and for his
defendant on his counterclaim and reach verdict for plaintiffs consistent with relevant facts and applicable
law; furthermore, record did not affirmatively demonstrate that defendant raised such objections at trial.
In action seeking cancellation of certain deeds in name of defendant to property owned by plaintiffs on
ground of fraud, failure to define actual malice required for punitive damages as an evil intention to do
harm, on the part of the defendant did not constitute prejudicial error since there was no reason to believe
that jury understood that malice it was to find was in any manner different from this definition; record,
moreover, sufficiently supported findings of oppression and fraud to sustain award of $25,000 punitive
damages.
15. Judgment.
Judgment notwithstanding the verdict is proper only when there is no substantial evidence to support
verdict, after all favorable inferences for party in whose favor verdict has been given are drawn.
16. Fraud.
Record in action seeking cancellation of certain deeds in name of defendant to property owned by
plaintiffs, including stipulated instruction on exact amount of encumbrance remaining on property by virtue
of loan taken out by defendant, instruction that finding of fraud on part of defendant would constitute
defense by plaintiffs against defendant's legal claims unless jury found estoppel, and testimony as to rental
value of property during period of defendant's occupation, was sufficient to support award of $15,000
compensatory damages.
OPINION
By the Court, Mowbray, J:
The respondents, Herman F. and F. Jean Strecker, commenced this action against
appellant, A. Fred Sanguinetti, seeking cancellation of certain deeds in the name of
Sanguinetti to property they owned, known as Logan Shoals Harbor, on Lake Tahoe. The
complaint was predicated on an allegation of fraud and was later amended to include a prayer
for compensatory and punitive damages. Sanguinetti counterclaimed, asking for specific
performance of an alleged oral contract between the parties or, in the alternative,
damages, reasonable compensation for services rendered, and return of his personal
property.
for specific performance of an alleged oral contract between the parties or, in the alternative,
damages, reasonable compensation for services rendered, and return of his personal property.
The case was tried to a jury. The jury found for the Streckers on their claim for damages and
against Sanguinetti on his counterclaim, and awarded the Streckers $15,000 compensatory
damages plus $25,000 punitive damages. The court entered judgment against Sanguinetti for
these amounts and canceled the deeds in question. No relief was granted Sanguinetti, who has
now appealed, asserting numerous assignments of error, which we reject as meritless.
1. The Facts.
The property that is the subject of this action contains approximately 11 acres, located at
South Lake Tahoe. The property is improved with a restaurant, a marina, a family dwelling,
and garages, together with outbuildings. The marina and restaurant are located on the portion
of the property abutting the lake, commonly known as Logan Shoals Harbor, which was
purchased by the Streckers in 1958. In 1964 the Streckers purchased the remaining portion of
the property at issue, where they lived until shortly before the hearing on this action
commenced in March 1976.
In 1969 the Streckers borrowed $50,000 from South Lake Tahoe Savings and Loan
Association to replace and improve the existing breakwater at their marina. The loan, which
was secured by a deed of trust on the Logan Shoals portion of the property, was to receive
interest payments only until its maturity date, at which time the entire principal would
become due. The Streckers failed to meet the first maturity date and received an extension of
the loan to March 1, 1972.
In late 1971, Sanguinetti, Mrs. Strecker's nephew, first became involved with the property.
He was then employed as vice president of Farmers and Merchants Bank of Linden,
California, and had frequently been of assistance in obtaining loans for the Streckers in the
past. The Streckers sought Sanguinetti's advice about the 1969 loan and about an offer to
purchase a three-quarter interest in the property. Sanguinetti advised against sale of the
property and offered his own services in its development. In addition, he promised to take
care of the note to South Lake Tahoe Savings and Loan.
The subject of the instant litigation is a series of deeds whereby Sanguinetti purportedly
acquired legal title to the entire property in question. The first deed is from the Streckers to
First Stockton Title Company, dated March 3, 1972, and recorded March 22, 1972. The
second deed, dated April 25, 1972, and recorded May 5, 1972, is from First Stockton Title
Company to Sanguinetti.
Company to Sanguinetti. A holding agreement, purportedly signed by the Streckers, was also
introduced.
1

The Streckers claimed to have signed only a document represented to them as a deed of
trust on the Logan Shoals property in the amount of approximately $50,000. The original
deed could not be found; the certified copy used at the trial contained a floating or blank
signature page that was stapled to the uninitialed descriptive and operative portions of the
deed.
Sanguinetti claimed that the deed and holding agreement had been signed by the Streckers
pursuant to an oral agreement, whereby he was to develop the property, securing permits for
and directing construction of extensive harbor improvements and a condominium
development, with profits to be shared equally. He claimed that the Streckers were fully
informed of and consented to the transfer of title to the title company and then to him. He
claimed that Mr. Strecker had urged him for some time to take title to the property, and that
he finally agreed to do so. He testified that he had at this point personal obligations in
connection with the development, including a $55,000 note secured by his personal assets
that he intended to use to pay off the South Lake Tahoe Savings and Loan encumbrance, as
well as contractual commitments for some $29,000 in supplies ordered to complete
construction of the marina and breakwater. He further testified that the transfer of title to him
was necessary to obtain a further loan of $122,000 on the property, which he was attempting
to negotiate with the First National Bank of Nevada.
Mr. Strecker admitted that he had authorized Sanguinetti to begin developing the property,
but denied any definite agreement as to profit sharing or disposition of the property. He
claimed to have assumed that any costs incurred would be satisfied out of the property. He
further alleged that Sanguinetti represented that some of the engineering and legal services
provided by others involved in the project were in return for past favors by Sanguinetti, and
that Sanguinetti had resisted his attempts to clarify the financial arrangements between the
parties.
After the transfer of title to Sanguinetti, the loan from South Lake Tahoe Savings and Loan
was paid, and a new loan from First National Bank for $122,000 was obtained, secured by a
deed of trust on the property and Sanguinetti's personal note.
____________________

1
The agreement, dated March 10, 1972, declared that First American Title Insurance Company held title to
the property in question as agent for the Streckers and was to dispose of the property as directed in writing by
Sanguinetti. The Streckers did not recall signing such an agreement, and Sanguinetti could give no explanation
for the designation of First American, rather than First Stockton Title Company, other than that E. Sanguinetti,
who signed the agreement on behalf of the title company, was an officer of both.
deed of trust on the property and Sanguinetti's personal note. Shortly thereafter, Sanguinetti
moved into the restaurant, which was temporarily without a tenant, and began to devote his
full attention to the project.
In late December 1972, the Streckers finally demanded an accounting. On January 1, 1973,
a meeting was held at which the Streckers claimed they first learned of Sanguinetti's claim to
the property. On January 3 the Streckers examined the county records and discovered the two
deeds transferring title. The Streckers filed this action the following day, seeking cancellation
of the deeds. On February 25, 1976, the Streckers filed an amended complaint seeking
damages for, among other items, the amount of additional encumbrance occasioned by the
loan from First National Bank, as well as loss of rent for the restaurant until the Streckers
resumed possession in August 1973.
Sanguinetti has appealed from the judgment in favor of the Streckers and from the lower
court's denial of his motion for a judgment notwithstanding the verdict or for a new trial.
2. The Issues.
Sanguinetti asserts numerous errors upon which he predicates his appeal.
A. Substantial Evidence to Support the Finding of Fraud.
[Headnotes 1, 2]
Sanguinetti contends that the Streckers failed to meet their burden of proof on the claim of
fraud. A charge of fraud must be supported by proof of the following elements in an action at
law:
A false representation made by the defendant, knowledge or belief on the part of the
defendant that the representation is falseor, that he has not a sufficient basis of
information to make it, an intention to induce the plaintiff to act or to refrain from
acting in reliance upon the misrepresentation, justifiable reliance upon the
representation on the part of the plaintiff in taking action or refraining from it, and
damage to the plaintiff, resulting from such reliance. . . .
Lubbe v. Barba, 91 Nev. 596, 599, 540 P.2d 115, 117 (1975). Whether the claim of fraud is
made in an action at law or in equity, the appellate court will not disturb the findings of the
court or the jury where there is substantial evidence to support the claim. Close v. Flanary, 77
Nev. 87, 360 P.2d 259 (1961). In this case there is ample evidence to support the Streckers'
claim, particularly in light of the relationship between the parties.
The Streckers claim that they signed a document represented to them by Sanguinetti as a
deed of trust. Sanguinetti testified that the title was transferred by prior arrangement . . .
because we didn't know how we were going to hold title. . . . We knew that certain
commitments had to be made, and I had made a lot of personal commitments, but what the
final decision was going to be, whether we were going to, I think, form a partnership, or how
we were going to do it at this point, was very uncertain. So, we put the property in the name
of First Stockton Title for holding.
[Headnotes 3, 4]
In light of the relationship between the parties, a finding of false representation by
Sanguinetti is supported by reasonable inferences from the testimony of either the Streckers
or Sanguinetti himself. Both the Streckers and Sanguinetti testified that they intended to
become involved in a joint venture for the development of the property; only the nature or
existence of an agreement as to compensation or disposition of the property are disputed.
Sanguinetti was a close relative of Mrs. Strecker's. The Streckers had sought and obtained his
advice and assistance in financial matters over a number of years. Under such circumstances,
the Streckers were entitled to regard the relationship as one of trust and confidence. See
Wilson v. Wilson, 23 Nev. 267, 45 P. 1009 (1896) (brothers); Schmidt v. Horton, 52 Nev.
302, 287 P. 274 (1930) (joint venturers); Stewart v. Phoenix Nat'l Bank, 64 P.2d 101 (Ariz.
1937), and Fipps v. Stidham, 50 P.2d 680 (Okla. 1935) (financial advisors). Under such
circumstances, the Streckers were entitled not only to an accurate description of the
instrument they were signing, but also to a full disclosure of Sanguinetti's intentions, Dalton
v. Dalton, 14 Nev. 419 (1880), and of their rights and the effect and consequences of their
acts, Martin v. Dixon, 49 Nev. 161, 241 P. 213 (1925). Sanguinetti's own version of the
events fully supports the conclusion that the Streckers were never informed of the effects and
consequences of signing an unqualified grant deed to the title company. Furthermore, his
description of his own concern at the time of the signing of the deed would support the
inference that his unrevealed intention at that time was to take control of the property to
protect his own interests.
Such evidence would also support the additional inferences that the misrepresentations or
concealment of material facts and information involved were made with the knowledge and
intention of Sanguinetti to induce the Streckers to sign the grant deed. His assurances to them
that he would handle the details of title, permits, and loan arrangements, and his satisfactory
handling of loan arrangements in the past, would understandably lull the Streckers into a
sense of security regarding the status of their title to the property and justify their
reliance upon Sanguinetti's representations until the conversation of January 1973.
understandably lull the Streckers into a sense of security regarding the status of their title to
the property and justify their reliance upon Sanguinetti's representations until the conversation
of January 1973. See Davidson v. Streeter, 68 Nev. 427, 234 P.2d 793 (1951).
In short, the finder of fact was entitled to weigh the Streckers' contention that Sanguinetti
obtained title to their property by fraud, against Sanguinettis contention that the Streckers
intended to part with all legal claim to their property, retaining only the financial protection
that I was going to hold the property for their best interest, for the consideration of
prospective financial gain, and to conclude that fraud was indeed the most plausible
explanation.
B. The Court's Refusal to Dismiss the Jury.
[Headnote 5]
Sanguinetti next contends that the issues were predominantly equitable, to which there was
no right to a jury trial, and that, therefore, the court erred in refusing his motions to dismiss
the jury. We do not agree.
Although the original posture of the Streckers' suit undoubtedly invoked the equitable
jurisdiction of the court, legal issues also were raised by their claim for damages and by
Sanguinetti's counterclaim upon the alleged oral agreement.
2

In these circumstances it was permissible for the court to allow a jury to decide the legal
issues, NRCP 38 and 39(b), and to reserve for court determination all equitable issues. This is
precisely what occurred. The equitable claim for cancellation of the deed was not submitted
to the jury, but was decided by the court after receiving the jury verdict on the legal issues.
C. The Court's Refusal to Award Appellant Compensation or Benefits Conferred.
[Headnote 6]
Sanguinetti contends that the court erred in failing to require the Streckers, as a condition
to the cancellation of the deeds, to compensate him for certain benefits conferred upon them.
He identifies these benefits as payment of the note to South Lake Tahoe Savings and Loan,
improvements to the breakwater and marina, obligations incurred to associates for legal and
other services, and Sanguinetti's personal services in obtaining permits and overseeing the
development.
The basic issue to be determined is whether the Streckers, by the award of the return of
their property, plus $15,000 in compensatory damages awarded by the jury, were
unjustly enriched.
____________________

2
While Sanguinetti claims that his action on the alleged contract prayed only for specific performance, the
relevant jury instruction, to which he did not object, explained that he claimed recovery of damages on the
theory of breach of contract.
the award of the return of their property, plus $15,000 in compensatory damages awarded by
the jury, were unjustly enriched. Restatement of Restitution, 1 (1937). We conclude that in
the circumstances of this case the court's decision to award the Streckers cancellation of the
deed without requiring a setoff against the jury verdict met the fundamental requirement that
equitable relief be granted on equitable terms. Robinson v. Kind, 25 Nev. 261, 62 P. 705
(1900).
[Headnote 7]
We first note that any restitution to which Sanguinetti may be entitled must be weighed
against the damages to the Streckers' interests occasioned by his fraudulent conduct. The
property as returned to the Streckers was encumbered by a deed of trust to the First National
Bank of Nevada,
3
executed by Sanguinetti without the concurrence of the Streckers, upon
which some $94,000 remained due at the time of the trial. The Streckers were also entitled to
the rental value of the property during the period of Sanguinetti's possession. Heward v.
Sutton, 75 Nev. 452, 345 P.2d 772 (1959).
[Headnote 8]
Sanguinetti first claims restitution under Morgali v. Kaupp, 70 Nev. 257, 265 P.2d 1069
(1954), in which this court held that a defrauded grantee was entitled to return of her property
and to damages in the amount of a valid encumbrance on the property for which defendant
was responsible, but that a setoff against those damages was required in the amount of the
consideration for the fraudulent transfer. The evidence in this case does not support the view
that Sanguinetti's services or expenditures constituted consideration for the fraudulent
transfer. They were rendered or made only after he had fraudulently acquired title to the
property, and his own testimony was that the consideration for the transfer was only the
prospect of financial gain. He is therefore not entitled to restitution on this ground.
Sanguinetti next claims restitution under Robinson, in which this court held that a
remand was required by, among other things, the failure of the lower court to take into
account the expenditures of a fraudulent grantee for taxes and a watchman's services in
connection with the property.
____________________

3
We note with some concern that First National Bank of Nevada was not joined as a party defendant to this
action, although it was the beneficiary under the deed of trust. See Morris v. Hanssen, 78 S.W.2d 87 (Mo. 1934).
We also note, however, that the jury was instructed, without objection, that should they find in favor of
respondents, the plaintiffs [respondents] shall be responsible for the balance of the obligation in the sum of
[$]94,308.29 as secured by a deed of trust in favor of the First National Bank of Nevada. In view of what
appears to have been the assumption of both parties, that the bank was without notice of the fraud and thereby
acquired a valid deed of trust, the Streckers would appear to be estopped from asserting a contrary position
against the bank's interest in the property. We therefore decline to exercise our prerogative under Johnson v.
Johnson, 93 Nev. 655, 572 P.2d 925 (1977), to reverse or remand on this ground.
this court held that a remand was required by, among other things, the failure of the lower
court to take into account the expenditures of a fraudulent grantee for taxes and a watchman's
services in connection with the property.
[Headnote 9]
The decision in Robinson reflects the general rule that even a fraudulent grantee is entitled
to reimbursement of necessary expenditures in preserving the property. Morris v. Hanssen,
78 S.W.2d 87, 95 (Mo. 1934). The bulk of the claims of Sanguinetti do not fall within this
category. The Streckers, not he, paid the taxes on the property during the entire period in
question. The personal services of Sanguinetti, as well as those of his associates (who
submitted their bills to him only after this litigation had begun), were not offered to preserve
the property but to pursue his grandiose scheme of development. On the other hand, his
payment of the note to South Lake Tahoe Savings and Loan does fall within the rule, Blixt v.
Janowiak, 188 N.W. 89 (Wis. 1922), and did relieve the Streckers' property of an
encumbrance amounting to some $50,000. Against this, however, must be weighed the new
encumbrance, for which the Streckers are obligated in the amount of some $94,000, as well as
the loss of potential rent during the period of Sanguinetti's occupation of the property. In light
of these detriments, the court below was not compelled to find that the $15,000 compensatory
award unjustly enriched the Streckers.
[Headnotes 10, 11]
Sanguinetti also suggests that the improvements to the property, apparently financed
primarily by the loan from First National Bank of Nevada, must be thrown into the balance as
well. This we decline to do. One who holds land under a fraudulent deed is entitled to
restitution of the value of his improvements, or their cost, whichever is least, if he made them
in the reasonable, good-faith belief that he held valid title to the land. Restatement of
Restitution, 42(1), at 167 (1937); Madrid v. Spears, 250 F.2d 51 (10th Cir. 1957).
Sanguinetti's failure to secure all of the necessary permits, for which he had assumed
responsibility, has cast the value of the improvements in grave doubt. Most important, his
fraudulent conduct entirely deprives him of any claim of reasonable, good-faith mistake.
The record suggests that Sanguinetti has been disappointed in his expectation that he
would be amply compensated out of the future profits from the land which he had
fraudulently acquired.
acquired. In effect, he asks to be insulated from the risk of loss in his fraudulent scheme. This
no court of equity is required to do.
D. Other Contentions of Error.
[Headnote 12]
Sanguinetti's argument that the jury manifestly disregarded the proper instruction of the
court by failing to award him damages, even in the face of a finding of fraud, on the basis of
estoppel, is without merit. The party who pleads an estoppel must be one who has, in good
faith, been misled to his injury. Fipps v. Stidham, 50 P.2d 680, 684 (Okla. 1935). The
Streckers' failure to prevent Sanguinetti from expending time and funds upon the project is
traceable to his assurances to them, and his willingness to do so is clearly attributable to his
own belief that his fraudulent acquisition of the title to their property would provide him
more than adequate financial protection. He can claim neither to have acted in good faith nor
to have been misled by any active conduct of the Streckers'.
[Headnote 13]
In a related assignment of error, Sanguinetti contends that the case merits reversal because
of the failure of the court to submit verdict forms to the jury permitting them to find both for
the Streckers on their claim of fraud and for him on his counterclaim. This contention is also
without merit. The jury was properly instructed on the matter and reached a verdict consistent
with the relevant facts and applicable law. Cf. Thoma v. Gasper, 89 Nev. 170, 509 P.2d 967
(1973). Furthermore, the record does not affirmatively demonstrate that appellant raised such
objections at trial. See Building Trades Council v. Thompson, 68 Nev. 384, 409, 234 P.2d
581, 591 (1951); Smith v. J.C. Penney Co., 525 P.2d 1299, 1304-1305 (Ore. 1974).
[Headnote 14]
Sanguinetti also claims that the court erred in its instruction regarding punitive damages by
failing to define the actual malice required as an evil intention to do harm, on the part of the
defendant. The argument that this constituted prejudicial error is without merit. There is no
reason to believe that the jury understood that the malice it was to find was in any manner
different from this definition. As noted by this court, legal malice is a legal fiction; it is that
form of malice which the law presumes. . . . Nevada Credit Rating Bureau, Inc. v. Williams,
88 Nev. 601, 610, 503 P.2d 9, 14 (1972). Without an instruction informing them of it, a jury
would have no reason to know of its existence.
instruction informing them of it, a jury would have no reason to know of its existence. The
record, moreover, amply supports a finding of oppression and fraud sufficient to sustain the
award of punitive damages.
[Headnotes 15, 16]
Finally, Sanguinetti contends that the trial court erred in refusing to grant his motion for a
judgment notwithstanding the verdict or a new trial on the issues of damages. Judgment
notwithstanding the verdict is proper only when there is no substantial evidence to support
the verdict, after all favorable inferences for the party in whose favor the verdict has been
given are drawn. Dudley v. Prima, 84 Nev. 549, 445 P.2d 31 (1968). In making its award of
damages, the jury was informed by a stipulated instruction of the exact amount of
encumbrance remaining on the property by virtue of the First National Bank loan. The jury
was, furthermore, instructed, without objection, that a finding of fraud on the part of
Sanguinetti would constitute a defense by the Streckers against his legal claims, unless the
jury found estoppel. There was also testimony that the rental value of the property during the
period of Sanguinetti's occupation was $800 per month. There was, therefore, ample
testimony in the record for the jury's award of $15,000 compensatory damages.
Remaining assignments of error have been reviewed and found meritless.
In conclusion, we hold that the judgment of the trial court was correct in all respects, and
we therefore affirm.
Batjer, C. J., and Thompson and Gunderson, JJ., and Hoyt, D. J.,
4
concur.
____________________

4
The Governor designated Hon. Merlyn H. Hoyt, Judge of the Seventh Judicial District, to sit in place of
Hon. Noel E. Manoukian, Justice, who voluntarily disqualified himself in this case. Nev. Const. art. 6 4.
____________
94 Nev. 212, 212 (1978) Findley v. State
ROBERT LEE FINDLEY, Appellant, v.
No. 9092
April 24, 1978 577 P.2d 867
Appeal from judgment; Fourth Judicial District Court, Elko County; Joseph O. McDaniel,
Judge.
Defendant was convicted in the district court of crime of lewdness with a child under age
of 14 years, and he appealed. The Supreme Court, Thompson, J., held that testimony of two
adult women that defendant had molested them in same way some nine years earlier was
admissible to prove intent, or absence of mistake or accident, notwithstanding that other acts
of molestation were remote in time and, for that reason, may have impeached credibility of
witnesses to some degree, where testimony was a reiteration of statements made shortly after
occurrences and, to that extent, possessed a trustworthiness which it would not have
otherwise possessed.
Affirmed.
Gunderson, J., and Batjer, C. J., dissented.
Horace R. Goff, Nevada State Public Defender, and J. Thomas Susich, Chief Deputy
Public Defender, Carson City, for Appellant.
Robert C. Manley, District Attorney, Elko County, for Respondent.
1. Criminal Law; Infants.
Intent, by reason of words of statute, is an element of crime of lewdness with a child under age of 14
years and is directly placed in issue by a not guilty plea of accused. NRS 48.045, subd. 2, 201.230, subd.
1.
2. Criminal Law.
A decision with respect to prejudice and probative value of evidence of similar acts is addressed to sound
discretion of trial court. NRS 48.045, subd. 2.
3. Criminal Law.
Testimony of two adult women that defendant had molested them in same way some nine years earlier
was admissible to prove intent, or absence of mistake or accident, in prosecution for crime of lewdness
with a child under age of 14 years, notwithstanding that other acts of molestation were remote in time and,
for that reason, may have impeached credibility of witnesses to some degree, where testimony was a
reiteration of statements made shortly after occurrences and, to that extent, possessed a trustworthiness
which it would not otherwise have possessed. NRS 48.045, subd. 2, 201.230, subd. 1.
4. Criminal Law.
Evidence showing that an accused possesses a specific emotional propensity for sexual aberration is
relevant and outweighs prejudicial possibility that a jury might convict for general rather than specific
criminality. NRS 48.045, subd. 2, 201.230, subd. 1.
OPINION
A jury convicted Robert Lee Findley of the crime of lewdness with a child under the age
of fourteen years.
lewdness with a child under the age of fourteen years. The victim, a five-year-old girl,
testified that Findley had placed his hand upon her private parts on several occasions.
Findley denied that this had occurred. During the State's case in chief, two adult women were
permitted to testify, over objection, that Findley, some nine years earlier, had molested them
in the same way. The admission of such testimony gives rise to this appeal and presents the
controlling issue for our decision.
In a sex crime case we recently have approved a trial court ruling which allowed the
complaining witness to testify to other similar acts with the defendant not remote in time to
the offense for which he was on trial. McMichael v. State, 94 Nev. 184, 577 P.2d 398 (1978).
The instant case concerns similar acts with persons other than the complaining witness which
occurred nine years earlier. Cf. Allan v. State, 92 Nev. 318, 549 P.2d 1402 (1976).
[Headnotes 1, 2]
The crime is described by NRS 201.230(1).
1
Intent, by reason of the words of the statute,
is an element of the crime and directly placed in issue by the not guilty plea of the accused.
Overton v. State, 78 Nev. 198, 205, 370 P.2d 677 (1962). The district judge received the
challenged testimony to prove intent, or the absence of mistake or accident. NRS 48.045(2).
2
He so determined to receive it after balancing prejudice and probative value, a decision
addressed to his discretion. Brown v. State, 81 Nev. 397, 400, 404 P.2d 428, 430 (1965);
McMichael v. State, supra. The jury was specifically informed as to the limited purpose of
such evidence.
[Headnote 3]
Although the other acts of molestation were remote in point of time, and may for that
reason impeach credibility to some degree, it does not destroy admissibility. Bails v. State, 92
Nev. 95, 545 P.2d 1155 (1976); Bishop v. State, 92 Nev. 510, 554 P.2d 266 (1976). The
testimony of the two adult witnesses was not their first exposition of the molestations. They
had complained to church authorities where Findley was then employed as pastor.
____________________

1
NRS 201.230(1): Any person who shall willfully and lewdly commit any lewd or lascivious act, other than
acts constituting the crime of rape a and the infamous crime against nature, upon or with the body, or any part or
member thereof, of a child under the age of 14 years, with the intent of arousing, appealing to, or gratifying the
lust or passions or sexual desires of such person or of such child, shall be punished. . . . This statute was
amended in 1977, see Stats. Nev. 1977, 867, 1632, without substantial change in content.

2
NRS 48.045(2): Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a
person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes,
such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or
accident.
as pastor. Their testimony at trial simply was a reiteration of statements made shortly after the
occurrences and, to that extent, possess a trustworthiness which, perhaps, they would not
possess if uttered for the first time nine years later.
Evidence showing that an accused possesses a specific emotional propensity for sexual
aberration is relevant, and outweighs the prejudicial possibility that a jury might convict for
general rather than specific criminality. McMichael v. State, supra; State v. McDaniel, 298
P.2d 798 (Ariz. 1956).
Affirmed.
Mowbray, J., concurs.
Manoukian, J., concurring:
I adopt those facts set forth in the majority opinion and agree with its approval of the
admission into evidence of the witnesses' statements given during the State's case in chief.
Although I concur, I recognize, in these or similar circumstances, the potential threat of a
substantial destruction or erosion of a defendant's Fifth Amendment right, namely, an
accused's right to remain silent. We were not requested to decide that issue today.
In Wallace v. State, 77 Nev. 123, 359 P.2d 749 (1961), a narcotics case, this Court held
admissible evidence of a separate offense, offered in rebuttal, to contradict the testimony of
the defendant that he had never seen marijuana. Accord, Allan v. State, 92 Nev. 318, 549 P.2d
1402 (1976). In the case before us, the evidence was offered during presentation of the State's
case in chief. This distinction does not here impress me as being material. Accord, Overton v.
State, 78 Nev. 198, 370 P.2d 677 (1962).
During trial, the appellant took the stand. He was without any prior convictions. My
awareness of trial strategy informs me that had the appellant had a significant criminal record,
he may have elected to exercise his Fifth Amendment right. This may have been the case, of
course, unless he elected to waive that right in order to respond to the referenced case-in-chief
testimony, which evidence, for the reasons expressed in the majority opinion, was held
admissible. It seems apparent, too, that an accused, with or without a record of past criminal
history, may as a trial tactic determine not to testify. An accused could well be compelled to
be a witness in his own defense when it is his right not to do so. Ibsen v. State, 83 Nev. 42,
422 P.2d 543 (1967). Further, it is not a desirable order of proof that would permit a
prosecutor, as was done here, to anticipate what an accused's defenses might be, absent the
admission of a confession, admission against interest, or the like.
Appellant had, prior to trial, attempted to explain his perverted conduct as a mistake or
accident on one occasion and as an unintentional accident on another occasion. Although
such extra-judicial statements were uttered testimonially by witnesses other than the
appellant, they were material and relevant pursuant to NRS 48.045(2), which provides:
Evidence of other crimes, wrongs or acts is not admissible to prove the character of a
person in order to show that he acted in conformity therewith. It may, however, be
admissible for other purposes, such as proof of motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of mistake or accident.
People v. Kelley, 424 P.2d 947 (Cal. 1967), would permit such testimony in these
circumstances, where the proof of defendant's intent is ambiguous, as when he admits the
acts and denies the necessary intent because of mistake or accident. 424 P.2d at 956. See
also, People v. Westek, 190 P.2d 9 (Cal. 1948); People v. Honaker, 22 Cal.Rptr. 829
(Cal.App. 1962). Appellant is within this pronouncement.
The appellant made the extra-judicial statements in the form of explanations, and in
having done so, should have been aware that the same would be presented against him in
court. This fact disposes of my Fifth Amendment concerns here.
The trial judge undertook the intermediate step of reviewing the proffered testimony out of
the presence of the jury to balance its possible prejudicial effect against its probative value,
Overton, supra; Tucker v. State, 82 Nev. 127, 412 P.2d 970 (1966); Nester v. State of
Nevada, 75 Nev. 41, 334 P.2d 524 (1959), and then carefully admonished the jury as to the
limited purpose for the introduction. The fact that the defendant took the stand in these
circumstances with full knowledge of the foregoing, coupled with the substantial evidence
supporting the guilty verdict, compels affirmance. Appellant's due process rights were duly
afforded him by the trial court.
I acknowledge that there are often compelling reasons for limiting the elicitation of such
evidence, see, McMichael v. State, 94 Nev. 184, 577 P.2d 398 (1978), but the fact that the
objected-to testimony was simply a reiteration of the statements made shortly after the
occurrences, demonstrates that none of such reasons are present here.
The judgment of conviction should be affirmed.
Gunderson J., dissenting:
My brother Batjer and I believe admission of the two women's testimony was erroneous.
We would remand for a proper trial.
In People v. Kelley, 424 P.2d 947, 956 (Cal. 1967), the California Supreme Court stated:
It is not and should not be the law, . . . that defendant's not guilty plea places his intent
in issue so that proof of sex offenses with others is always admissible. Such evidence is
admissible in cases where the proof of defendant's intent is ambiguous, as when he
admits the acts and denies the necessary intent because of mistake or accident (citations
omitted). But where the acts, if committed, indisputably show an evil intent and the
defendant does not specifically raise the issue of intent, the better reasoned cases hold
that evidence of other crimes is admissible only when they were performed with the
prosecuting witness (citation omitted), or where the offenses are not too remote and are
similar to the offense charged and are committed with persons similar to the prosecuting
witness.
Kelley is consistent with Nevada's evidence code, which specifically precludes the use of
[e]vidence of other crimes, wrongs, or acts . . . to prove the character of a person . . . to show
that he acted in conformity therewith. NRS 48.045(2). The majority indicate that the
testimony of the two witnesses, who had allegedly been molested some nine years before, was
admissible to show intent, or absence of mistake or accident. We suggest, however, that in
truth the evidence was merely used to show appellant's bad character.
Here, appellant's not guilty plea raised no issue of either intent or mistake; he took the
stand, and submitted himself to cross-examination, categorically denying the occurrence.
Although the alleged prior misconduct bore some similarity to the charged offense, it
ostensibly related to much older girls, nine years before the present incident. Under these
circumstances, other than as impermissible evidence of bad character, we fail to see what
relevance such remote acts have in demonstrating appellant's present intent or lack of
mistake. This is precisely why other courts have held that prior bad acts, too remote in time,
are inadmissible to show present intent. Cf. Freeman v. State, 486 P.2d 967 (Alaska 1971);
Kelley, cited above; Commonwealth v. Bradley, 364 A.2d 944 (Pa. Super.Ct. 1976); Hall v.
State, 528 P.2d 1117 (Okla.Crim. 1974); State v. Chapman, 168 N.E.2d 14 (Ohio App. 1959).
While the majority concede that the other acts of molestation were remote in point of
time, they apparently justify admissibility because [t]heir testimony at trial was simply a
reiteration of statements made shortly after the occurrences and, to that extent, possess a
trustworthiness which, perhaps, they would not possess if uttered for the first time nine years
later."
later. The statement completely ignores the fact that those reiterated statements were
hearsay, inadmissible at trial. See NRS 51.035. We recognize that prior consistent statements
may be used to rebut an express or implied charge of recent fabrication, NRS 51.035(2)(b),
but here appellant made no such charge.
In McMichael v. State, 94 Nev. 184, 188, 577 P.2d 398, 401, decided less than a month
ago, this court expressly stated that, this type evidence, to be relevant, should not be
admitted unless the acts are similar and proximate in time. (Emphasis added.) We noted that
the exception recognized in McMichael was a narrow one, explicitly stating:
Because of the dangers of creating assumptions of guilt in the minds of the triers of
fact, the risks attendant to compelling the accused to meet collateral charges and
possible confusion of the issues, this exception mandates proof of similar offenses
which are near in time to the principal offense and which do not apply to mere criminal
propensities in general but rather to specific sexual proclivities. The evidence should be
received with extreme caution, and if its relevancy is not clear, the evidence should be
excluded. (Emphasis added.) 94 Nev. at 190, 577 P.2d at 401.
Quite obviously, there is no way to reconcile the statements this court unanimously
endorsed in the McMichael case, which are consistent with the law elsewhere, and the court's
contrary holding today.
Batjer, C. J., concurs.
____________
94 Nev. 218, 218 (1978) Bond v. State
JESSE BOND, Jr., Appellant, v. THE STATE
No. 8821
April 24, 1978 577 P.2d 412
Appeal from judgment of conviction, Eighth Judicial District Court, Clark County; Joseph
S. Pavlikowski, Judge.
By a judgment of the district court the defendant was convicted of forcible rape with
substantial bodily harm, infamous crime against nature and battery and he appealed. The
Supreme Court held that: {1) there was substantial evidence to support verdict of guilty
of rape with substantial bodily harm, and {2) enhanced penalty statute was applicable
even though a life sentence was imposed.
94 Nev. 218, 219 (1978) Bond v. State
Supreme Court held that: (1) there was substantial evidence to support verdict of guilty of
rape with substantial bodily harm, and (2) enhanced penalty statute was applicable even
though a life sentence was imposed.
Affirmed.
Charles M. Damus, Las Vegas, for Appellant.
1. Rape.
There was substantial evidence to support jury verdict finding defendant guilty of rape with substantial
bodily harm. NRS 200.366.
2. Criminal Law.
Statute providing for enhanced penalty when person uses a firearm or deadly weapon in commission of
crime is applicable even though a life sentence is imposed. NRS 193.165.
OPINION
Per Curiam:
Jesse Bond, Jr., was convicted, by jury verdict, of (1) forcible rape with substantial bodily
harm (NRS 200.366; NRS 193.015); (2) the infamous crime against nature (NRS 201.190);
and, (3) battery (NRS 200.481). Bond's central contention in this appeal is that the evidence is
insufficient to support his conviction for rape with substantial bodily harm. Subordinately, he
argues the enhanced penalty statute is inapplicable when, as here, a life sentence has been
imposed.
[Headnote 1]
1. We reject Bond's first contention for the same reason we stated in Hankins v. State, 91
Nev. 477-478, 538 P.2d 167, 168 (1975), where we reiterated the long standing rule that
[w]here there is substantial evidence to support a verdict in a criminal case, as the record
indicates in this case, the reviewing court will not disturb the verdict nor set aside the
judgment.'
[Headnote 2]
2. We also reject Bond's contention that the enhanced penalty statute (NRS 193.165) is
inapplicable when a life sentence is imposed. That statute mandates enhancement of any
term of imprisonment prescribed by statute.
94 Nev. 218, 220 (1978) Bond v. State
of imprisonment prescribed by statute.
1
Cf. Woofter v. O'Donnell, 91 Nev. 756, 542 P.2d
1396 (1975).
Affirmed.
____________________

1
1. Any person who uses a firearm or other deadly weapon in the commission of a crime shall be punished by
imprisonment in the state prison for a term equal to and in addition to the term of imprisonment prescribed by
prescribed by statute for such crime.
2. This section does not create any separate offense but provides an additional penalty for the primary
offense, whose imposition is contingent upon the finding of the prescribed fact.
3. The provisions of this section do not apply where the use of a firearm or other deadly weapon is a
necessary element of such crime. [Emphasis added.]
____________
94 Nev. 220, 220 (1978) Franklin v. State
JOANNE HELEN FRANKLIN, Appellant, v. THE
No. 9601
April 24, 1978 577 P.2d 860
Howard W. Babcock, Judge.
Defendant was convicted in the district court of murder, and defendant appealed. The
Supreme Court, Gunderson, J., held that where prosecution did not permit accomplice to
plead guilty until after his testimony was given at preliminary hearing and trial of defendant,
such action was contrary to public policy, to due process, and to any sense of justice.
Manoukian and Mowbray, JJ., dissented.
1. Criminal Law.
Plea bargaining to obtain testimony of accomplice is not necessarily improper.
If circumstances of plea bargain would reasonably cause alleged accomplice to believe he must testify in
a particular fashion, testimony becomes tainted beyond redemption and violates the defendant's due process
rights. NRS 175.291, subd. 1.
3. Constitutional Law; Criminal Law.
Where prosecution did not permit accomplice to plead guilty until after his testimony was given at
preliminary hearing and trial of defendant charged with homicide, prosecutor's actions were contrary to
public policy, to due process and to any sense of justice. NRS 175.291, subd. 1.
4. Criminal Law.
Where accomplice had, by time of retrial, been permitted to plead guilty under plea bargain, undue
compulsion to testify in particular way had been removed and accomplice could now be given opportunity
to testify fully and fairly and to accomplish this end; therefore, appellate court would order that prior
testimony, obtained contrary to due process of law, would be inadmissible either for impeachment
purposes, for substantive evidence as a prior inconsistent statement, or in any future perjury prosecution.
NRS 175.291, subd. 1.
OPINION
On appeal, appellant Joanne Franklin (formerly Wellman) raises eleven issues, one of
which impels us to order a new trial, to-wit:
Are the due process rights of a defendant on trial offended, when the prosecutor not
only plea bargains to obtain inculpatory testimony from a purported accomplice, by
allowing him to plead guilty to a reduced charge, but also withholds the fruits of the
bargain and continues the threat of full prosecution in order to assure testimony in
accord with the prosecutor's vision of truth?
In such circumstances, we think, a defendant is denied due process of law within the meaning
of both the Nevada and the federal constitutions.
On September 24, 1972, one Roosevelt Swift murdered William A. Wellman, father of his
friend Robert Wellman, in the kitchen of the Wellman family home. Mrs. Wellman, who
apparently was watching television in another room during the death struggle, reported the
crime to the police. Following arrest, Swift entered plea negotiations. Under threat of a death
sentence, Swift ultimately recited a version of event satisfactory to the prosecution, agreeing
to testify against Mrs. Wellman. Accordingly, the prosecution agreed Swift would be charged
with second-degree murder only, receive credit for jail time served, and serve his remaining
sentence outside Nevada, in a prison near his home.
time served, and serve his remaining sentence outside Nevada, in a prison near his home.
Only following Mrs. Wellman's trial and conviction, some three years later, did the state
perform its side of the exchange. This June, after but five years total incarceration, Swift will
be eligible for parole.
In Nevada, recognizing the dangers of accomplice testimony, our Legislature has provided:
A conviction shall not be had on the testimony of an accomplice unless he is corroborated by
other evidence which in itself, and without the aid of the testimony of the accomplice, tends
to connect the defendant with the commission of the offense; and the corroboration shall not
be sufficient if it merely shows the commission of the offense or the circumstances thereof.
NRS 175.291(1). As presented at the original preliminary hearing, the State's case against
Mrs. Wellman lacked any independent inculpatory evidence whatever. Thus, in Wellman v.
Sheriff, 90 Nev. 174, 521 P.2d 365 (1974), this Court ordered the issuance of a writ of habeas
corpus, without prejudice to institution of new proceedings, due to the State's failure to show
probable cause to hold Mrs. Wellman for trial.
Subsequently, the State reinstituted charges, resulting in Mrs. Wellman's conviction and
her sentence to life in prison without possibility of parole.
1
Therefore, on this second appeal,
an enlarged record is before us, consisting not only of testimony elicited from Swift, but also
evidence the State subsequently developed in an attempt to corroborate its theory of Mrs.
Wellman's guilt.
2
[Headnote 1]
____________________

1
By the time Mrs. Wellman was sentenced on August 17, 1976, it had come to appear that Nevada's
mandatory capital punishment provisions for contract murder were constitutionally impermissible, and that the
facts asserted against her and Swift would constitute first degree murder only, with a maximum punishment of
life without possibility of parole. See Woodson v. North Carolina, 428 U.S. 280 (1976).

2
On oral argument of this appeal, the prosecutor could not explain why the evidence which the State now
contends corroborates Mrs. Wellman's guilt was not presented during her first prosecution. However, Mrs.
Wellman's counsel tendered this view:
Defense counsel: Well, nobody really, I don't think, detected these [statements] to be against the
mother when they were made. Again, this isn't a matter of record, but they interviewed everybody that
night, and the court sees glimpses of the interviews of Billy and Melissa Wellman and the defendant, all
of which were conducted on the night of the murder, all voluntarily at the police station. Now, those were
not considered at the time to be sufficiently inculpatory that anybody was arrested as a result of it. They
were not considered to be significant enough to even be introduced at the first preliminary hearing. Later,
down the line, after this case had been thrown out as violative of the accomplice corroboration rule, then
for the first time in the second preliminary hearing, come in these earlier statements and the statement of
the defendant. The prosecution didn't even think it to be of sufficient importance to introduce them at the
first preliminary hearing.
[Headnote 1]
1. Plea bargaining to obtain testimony of an accomplice is not necessarily improper.
LaPena v. State, 92 Nev. 1, 544 P.2d 1187 (1976). However, it has been held that a
defendant is denied a fair trial if the prosecution's case depends substantially upon accomplice
testimony and the accomplice is placed, either by the prosecution or the court, under a strong
compulsion to testify in a particular fashion. People v. Medina, 116 Cal.Rptr. 133, 145
(Cal.App. 1974). The accomplice witnesses in Medina had been granted immunity expressly
conditioned upon the promise that their testimony not materially or substantially change
from prior tape-recorded statements given to law enforcement officials. Ibid. at 141. Under
such an arrangement the court found the defendants had been denied any effective
cross-examination and deprived of the fundamental right to a fair trial. Ibid.
3

In so holding the California court recognized the accepted practice to permit an
accomplice witness to plea bargain only where he is willing to render a full, fair, and accurate
account of the facts out of which the charge arose. See People v. Green, 228 P.2d 867
(Cal.App.1951); Harris v. State, 15 Tex.Crim. 629 (1884); Rex v. Robinson, 70 D.L.R. 755,
30 B.C. 369 (1921); see also United States v. Ford, 99 U.S. 594 (1878); cf. State v. Quinn,
142 S.W.2d 79 (Mo. 1940). However, such testimony becomes tainted beyond redemption
where the accomplice is placed under compulsion to testify in a particular fashion in order to
receive the benefits of his plea bargain. Green, cited above, at 872.
[Headnote 2]
We agree with the Medina rationale, deciding that its application may not be limited solely
to situations where immunity is expressly conditioned on specific testimony. As a matter of
logic, if the circumstances of the plea bargain would reasonably cause the alleged accomplice
to believe he must testify in a particular fashion, then a less explicit arrangement also
violates the defendant's due process rights.4
____________________
From the record, this court cannot determine why not even a prima facie case of corroboration was presented
during the initial prosecution, if indeed the prosecutor entered his plea bargain with Swift on the basis of the
corroborative evidence now tendered. Thus, this case demonstrates the potential for injustice which is inherent
in selling an admitted felon leniency, in order to buy testimony against another person whom the Constitution
presumes innocent, but who nonetheless has been tried and found guilty in the prosecutors mind. Obviously, a
danger exists that a prosecutor may later seek to vindicate his bargain by re-structuring as corroboration facts
which, as originally and more objectively perceived in the context of events, did not seem to have such
inculpatory quality.

3
To allow prosecutors to enter such arrangements would also seem to vest them, in any given case, with
power to enter an agreement calling upon an alleged accomplice to disregard his or her oath if need be, to
avoid execution or to obtain other bargained-for penal consideration.
particular fashion, then a less explicit arrangement also violates the defendant's due process
rights.
4

In Rex v. Robinson, cited above, the British Columbia Court of Appeals stated:
It is obvious that if the witness . . . get[s] the impression from the Court that unless
he told the same story to the Court as he did to the police, he would be executed, then
his testimony was tainted beyond redemption and could not, in a legal sense, be
weighed by the jury, because the witness was no longer a free agent and there was no
standard by which his veracity could be tested or estimated. This is not merely a matter
going to the credibility of the witness, but something fundamentally deeper, viz., that by
the action of the Court itself the witness was fettered in his testimony and put in so dire
a position that the value of his evidence was not capable of appraisement, the situation
being reduced to this, essentially, that while at the outset he was adjured to give his
evidence freely and fully, yet later on he was warned that if it was not the same as he
had already told the police he would be executed. Such a warning defeated the first
object of justice, because what the witness should from first to last have understood
was that, at all hazards, he was to tell the truth then in the witness box, however false
may have been what he had said before in the police station. Ibid. at 761.
The court in Robinson merely inferred that the promised pardon depended upon the
testimony being the same as he had already told the police. Looking objectively at the facts
of the instant case, we are led to the same conclusion.
[Headnote 3]
The prosecution did not permit Swift to plead guilty until after his testimony was given at
the preliminary hearing and trial. The prosecution obviously had so little faith in Swift's
veracity, and willingness to implicate the defendant, that it felt constrained to use the plea
bargain as the fee to induce his cooperation. Under these circumstances, it cannot be
assumed that Swift's testimony was full, fair and accurate. Obviously, such tactics must be
extremely effective to elicit testimony the prosecutor desires.5 However, a "prosecutor's
primary duty is not to convict but to see that justice is done."
____________________

4
Obviously, too, no rational distinction may be drawn between the purchase and coercion of testimony as in
Medina, where full immunity was the price, as contrasted to the instant case, which involved drastic reduction of
the legally appropriate charges coupled with the threat of maximum prosecution.
prosecutor desires.
5
However, a prosecutor's primary duty is not to convict but to see that
justice is done. SCR 181(3). In our view, justice is not served where the prosecutor must
simultaneously purchase and coerce testimony in order to obtain a conviction which might
not be achieved with trustworthy evidence.
We note that [i]t is unprofessional conduct to compensate a witness . . . for giving
testimony. A.B.A. Standards on The Prosecution Function, Standard 3.2, 81 (1971). Cf.
People v. Sepeda, 136 Cal.Rptr. 119 (Cal.App. 1977). A lawyer should avoid any suggestion
calculated to induce any witness to suppress evidence or deviate from the truth. SCR 188(1).
Under our system of jurisprudence, if a defendant is to be presumed innocent, then any
procedure which commits the prosecution to a chosen theory of guilt, necessarily precludes
further inquiry into who may actually be guilty. By bargaining for specific testimony to
implicate a defendant, and withholding the benefits of the bargain until after the witness has
performed, the prosecution becomes committed to a theory quite possibly inconsistent with
the truth and the reach for truth. We deem this contrary to public policy, to due process, and
to any sense of justice.6
____________________

5
The prosecutor's purpose is not only inferable from his actions, but, in this case, apparently was candidly
acknowledged by the prosecutor himself. Defense counsel filed affidavits in support of Mrs. Wellman's motion
for new trial, reflecting that (1) Swift believed before testifying at trial that his deal depended upon his
incriminating Franklin; and (2) the prosecutor admitted he would not let Swift plead and complete his deal
until after implicating Franklin at trial because he wanted to keep a hammer over Swift. The prosecution made
no attempt to controvert these averments. Indeed, the record shows that when the court heard Mrs. Wellman's
motion for new trial, the prosecutor stated there was no need for defense counsel to call his witnesses to the
stand, conceding: I think that basically the affidavits state about what came up during the trial. . . .
The prosecution has also acknowledged that, had Swift not incriminated Mrs. Wellman, the State would have
pursued him for the maximum available penalty, rather than allowing him his agreed deal. At oral argument,
the following colloquy took place:
Prosecutor: If he testified that he did not commit the murder for another person, if he testified that he
committed the murder at his own instance, it would be an entirely different situation.
Court: And you would have pursued him for first degree murder, wouldn't you?
Prosecutor: Because under that situation he would have been culpable for first degree murder.
Court: Well under any circumstance, he would have been guilty of first degree murder, correct?
Prosecutor: That is correct. It was a question of whether we let the greater guilty party escape or
whether we find both parties guilty, which is
Court: Very well. Well, if you would contain yourself, and not give me your moral reasons, but
simply give me the answers. You are telling me that you would have pursued him for first degree murder.
Correct?
Prosecutor: Had he testified that truthfully that he killed Mr. Wellman on his own instance, yes.
this contrary to public policy, to due process, and to any sense of justice.
6

[Headnote 4]
2. The error committed by using the alleged accomplice's tainted testimony at the
former trial, however, should not preclude his testimony on retrial. Swift has now been
permitted to plead guilty. Thus, undue compulsion to testify in a particular way has been
removed. If the prosecution believes it can win a fair trial, then Swift should now be given an
opportunity to testify fully and fairly. To insure this result, we should free the witness of any
coercion other than his oath, and obviate any other possible prejudice to the defendant. To
this end, we order that Swift's prior testimony, obtained contrary to due process of law, will
be inadmissible either for impeachment purposes, for substantive evidence as a prior
inconsistent statement, or in any future perjury prosecution. This is the approach taken in
California, not to protect the witness, but to see that justice is served. See Medina, cited
above, at 151.
3. In conclusion, we note that any limitation this decision imposes upon the practice of
plea bargaining, in order to assure due process and respect for our court system, is neither
oppressive nor confining. It deprives prosecutors of no expedient they should be permitted to
employ. After all, if a prosecutor believes an alleged accomplice is telling the truth, then at
least three inducements to relate that truth at trial can be expected to remain, even though the
accomplice is first permitted to plead guilty. The first of these is the testimonial oath, backed
with sanctions for perjury, which is what legally compels candor from other witnesses. The
second is the court's contempt power. The third is hope of additional future clemency. If the
prosecution deems its prospective witness so totally untrustworthy that these conventional
inducements to truth are insufficient, then in our view the gas chamber or lengthy
imprisonment should not be brandished as an additional sanction, in order to achieve a
conviction for which there is otherwise no sufficient evidence.
____________________

6
Quite aside from due process concerns, in the manual on Nevada Criminal Justice Standards and
Goals(1977), it is recommended that a court should not accept a negotiated plea of guilty which would not
serve the public interest. Ibid., Standard 3.7(10), at 167. A plea does not serve the public interest if it: . . .
depreciates the seriousness of the defendant's activity or otherwise promotes disrespect for the criminal justice
system;. . . or would result in a conviction for an offense out of proportion to the seriousness with which the
community would evaluate the defendant's conduct upon which the charge it based. Ibid. Here, the accomplice
was given an extremely lenient sentence on a capital offense, in exchange for his testimony. It therefore may be
questioned whether any court should have accepted his negotiated plea in light of the seriousness of his admitted
crime. Of course, if the court should have rejected the plea bargain, then the prosecutor had no right to make it in
the first instance.
order to achieve a conviction for which there is otherwise no sufficient evidence.
Upon retrial of this cause, other assigned errors may well not reoccur in a comparable
factual context, and are therefore not considered.
Batjer, C. J., and Thompson, J., concur.
Manoukian, J., dissenting, with whom Mowbray, J., joins:
I am not in accord with the views expressed by the majority and cannot acquiesce in the
reversal. The effect of the majority opinion is that should the State decide to institute a third
prosecution of appellant, it must hope for the continued cooperation of accomplice Swift
within the framework of gratuitous limitations set forth by the majority proscribing the use of
his prior testimony and further expend, in my view, unnecessarily, substantial public funds in
a protracted trial in an effort to again prove appellant's guilt.
Essentially, appellant charges error premised upon the fact that Swift, the admitted slayer,
was permitted to plead to a charge of second-degree murder in exchange for testimony against
her and that such plea was permitted only after his testifying. Appellant cites People v.
Medina, 116 Cal.Rptr. 133 (Cal.App. 1974), for the proposition that such prosecutorial tactics
violate a defendant's right to due process. Medina, however, is easily distinguishable from our
facts. There the witness was granted absolute immunity on the express condition that he
testify precisely in accordance with the prior statements given to police. In that context, the
district court of appeals justifiably held that a defendant is denied a fair trial if the
prosecution's case depends substantially upon accomplice testimony and the accomplice
witness is placed, either by the prosecution or the court, under the strong compulsion to
testify in a particular fashion. Id. at 145.
In the instant case, there was no such express condition compelling specific recitation of
testimony. The majority attempt to fabricate compulsion by stating that [u]nder threat of a
death sentence, Swift ultimately recited a version of events. . . . Such speculation is without
support from the record. Appellant equally was under threat of a death sentence but instead
received life imprisonment. This Court should not attempt to gauge the length of
incarceration the Parole Commission and our correctional authorities might set for Swift. He
is potentially imprisoned for life and there exists no basis to contend that the sentences of
Franklin and Swift were so disproportionate as to shock the conscience at such violation
of due process.
that the sentences of Franklin and Swift were so disproportionate as to shock the conscience
at such violation of due process. Compare, Farmer v. Sheriff, 93 Nev. 535, 569 P.2d 939
(1977).
There is a marked distinction between compulsion to testify as instructed and a reduction
of charges conditioned upon a person's testifying fully and honestly pertaining to the facts
surrounding the crime. Examination of the cases cited by the majority finds them clearly
distinguishable on their facts. Each involved either absolute immunity or ultimate
expungement negotiated for promised testimony. See, e.g., People v. Green, 228 P.2d 867
(1951). The existence of the bargain or the expectation of leniency affects the credibility of
the testimony not its admissibility. State v. Quinn, 142 S.W.2d 79 (Mo. 1940); accord,
Darden v. United States, 405 F.2d 1054 (9th Cir. 1969); Diaz-Rosendo v. United States, 357
F.2d 124 (9th Cir. 1966); United States v. Rainone, 192 F.2d 860 (2nd Cir. 1951); People v.
Bowley, 382 P.2d 591 (Cal. 1963). The fact that [Swift] may have hoped for leniency
affected only the weight which the jury should accord his testimony. Diaz-Rosendo, supra,
357 F.2d at 130.
What occurred here is little different from a trial court deferring the imposition of sentence
after accepting a plea pending the defendant's giving the bargained-for testimony. Such court
practice has received general judicial approval. See, e.g., United States v. Vida, 370 F.2d 759
(6th Cir. 1966). Here, the full plea bargain was disclosed to the jury, emphasized on
cross-examination, argued as an issue of accomplice credibility, and ultimately the subject of
jury instructions.
1
Cf. Darden, supra; Diaz-Rosendo, supra; Minkin v. United States, 383
F.2d 427 (9th Cir. 1967); United States v. Marchese, 341 F.2d 782 (9th Cir. 1965).
I remain unimpressed in this factual context that the use of testimony offered by an
accomplice unpled and unsentenced deprives a defendant of due process. Neither am I here
disposed to establish yet another technicality in criminal procedure hitherto unknown to
Nevada criminal jurisprudence, particularly so where the sentence of the defendant and
the accomplice are not too disparate, the testimony of the accomplice is sufficiently
credible and supported by other substantial evidence.
____________________

1
Instruction No. 15 read in part: In determining whether an accomplice has been corroborated, you must
first assume the testimony of the accomplice has been removed from the case. You must then determine whether
there is any remaining evidence which tends to connect the defendant with the commission of the crime. If there
is not such independent evidence which tends to connect the defendant with the commission of the offense, the
testimony of the accomplice is not corroborated.
Instruction No. 16 read in part: Apart from the issue of corroboration, it is further the law that the testimony
of an accomplice ought to be viewed with suspicion and caution. This does not mean that you may arbitrarily
disregard such testimony, but you should give to it the weight to which you find it to be entitled after examining
it with care and caution and in the light of all the evidence in the case.
particularly so where the sentence of the defendant and the accomplice are not too disparate,
the testimony of the accomplice is sufficiently credible and supported by other substantial
evidence. This is especially true in view of what I glean from our Legislature's then intent to
treat the initiator of a contract in such willful, deliberate, premeditated, and vicious homicides
as primarily culpable.
Swift's testimony given as early as the preliminary examination and throughout all
proceedings, including the trial, was quite consistent and was a reiteration of his prior video
tape statements made to the police and at least one other person prior to his arrest. The
statements initially given to the police preceded any offer of concessions by the authorities.
2
This testimony thereby achieved a high degree of credibility.
The two young children of appellant provided corroborative evidence supporting Swift's
testimony. Not only did their testimony parallel Swift's version of the facts, but the combined
testimony of all three witnesses was markedly sharp in contrast to appellant's discrepant
statements. Appellant originally told police that someone had broken into the home, although
there was no indication of a forced entry. She stated that she had seen no one nor had she
heard any yelling or scuffling in the kitchen where her husband was murdered. Later, in the
presence of police officers, she told a neighbor that her husband was stabbed by the black
man who had been hanging around the house for several days. When questioned by police
about her statement, she denied any knowledge of the black man, although Swift's employers
testified that he received a number of phone calls after the homicide from an adult female
identifying herself as Mrs. Wellman, appellant's then name.
Her children, however, testified that on the night of the murder a black man came to the
home and talked with appellant before going into the kitchen to kill their father. The children
further testified that they heard sounds of fighting emanating from the kitchen and heard
their father calling for help from their mother.
____________________

2
During trial, the following exchange between Deputy District Attorney Koot and witness Swift occurred.
Direct Examination by Mr. Koot:
Q. And what if in fact were the negotiations entered between you and through Mr. Beatty, your attorney, and
the District Attorney's office?
A. . . .
Q. But that was done after you gave the video tape statement; was it not?
A. Yes, sir.
Q. In the video tape statement, did you relate basically what you have related to the jury today?
A. Basically, yes, sir.
Q. Now, at the time you did give that video statement to the police here in Las Vegas, had any promises been
made to you?
A. No, sir, no promises.
further testified that they heard sounds of fighting emanating from the kitchen and heard their
father calling for help from their mother. They stated that they wanted to go render assistance
to their father but that appellant held them on the couch and continued to watch television.
The children saw the black man leave through the front door and testified that their mother
then called the police. After adamant denial, appellant eventually admitted acquaintance with
Swift. Such fabricated and contradictory statements alone may constitute corroborative
evidence. People v. Santo, 273 P.2d 249 (Cal. 1954); People v. Simpson, 275 P.2d 31 (Cal.
1954).
Confronted with this substantial evidence, still, my brethren feel that appellant's right to
due process was offended. While I agree here with the majority that a court should not
accept a negotiated plea of guilty which would not serve the public interest, it seems in the
best interests of the public, however, to convict two guilty coconspirators rather than merely
one, possibly none at all. Prosecutorial etiquette, assuring that justice is done, SCR 181(3),
would demand nothing less.
In LaPena v. State, 92 Nev. 1, 6, 544 P.2d 1187, 1190 (1976), this Court held that although
the accomplice's participation in the crimes may have warranted a more serious charge than
second-degree murder, plea bargaining is permissible. Thus, grants of immunity are
generally permissible [u]ntil legislatively [or otherwise] forbidden. Id. at 6, 544 P.2d at
1190. See also, Santobello v. New York, 404 U.S. 257 (1971). This is not the case for such
prohibition. In the instant case, I observe no compulsion for rehearsed testimony effected by
negotiation and consequently find no error. I hasten to caution, however, that if circumstances
in future cases are any less cogent than those presently before the Court, I would not hesitate
to remand for new trial despite considerations of time, convenience, expense, and
unavailability of witnesses or evidence.
I would affirm the judgment of conviction.
____________
94 Nev. 230, 230 (1978) Dinitz v. Christensen
LINDA DINITZ, Petitioner, v. THE HONORABLE CARL CHRISTENSEN, DISTRICT
JUDGE, EIGHTH JUDICIAL DISTRICT COURT, Respondent.
No. 9849
April 25, 1978 577 P.2d 873
Petition to review judgment declaring a statute constitutional. Eighth Judicial District
Court, Clark County; Carl J. Christensen, Judge.
Petitioner, who had been convicted under the subsection of the vagrancy statute making it
illegal to solicit any act of prostitution, appealed. The district court affirmed. Proceeding in
certiorari was brought to review the ruling, and the Supreme Court, Manoukian, J., held that:
(1) where petitioner was convicted because she actively solicited prostitution, her conviction
was for conduct and not for status; (2) the vagrancy statute was not so vague as to violate due
process; (3) the vagrancy statute did not encourage arbitrary and erratic arrests and
convictions, and (4) because overt acts of solicitation were a precondition of arrest, the statute
met the Fourth Amendment probable cause requirement.
Proceeding dismissed and judgment below affirmed.
Gunderson, J., dissented.
Alan B. Andrews, Las Vegas, for Petitioner.
Thomas D. Beatty, Deputy District Attorney, Clark County, for Respondent.
Claim that vagrancy statute violated due process by punishing status was unavailable to defendant who
was convicted under the subsection of the statute relating to solicitation of prostitution after she actively
solicited prostitution in a hotel parking lot. NRS 207.030, subd. 1(b); U.S.C.A.Const. Amends. 4, 14.
2. Vagrancy.
There is no per se constitutional infirmity in punishing vagrants; the sole concern of the judiciary is to
assure that the definition of vagrancy not include mere status. NRS 207.030, 207.030, subd. 1(b);
3. Vagrancy.
Absent liability premised on status, the Legislature is free to exercise discretion in punishing vagrancy
defined in terms of culpable overt behavior. NRS 207.030, subd. 1(b); U.S.C.A.Const. Amends. 4, 14.
4. Criminal Law.
Subsection of vagrancy statute which provided in relevant part that every person is a vagrant who
solicits any act of prostitution was clear and unambiguous and gave a person of ordinary intelligence fair
notice as to what conduct was proscribed by law; therefore, solicitation provision of vagrancy statute was
not unconstitutionally vague. NRS 207.030, subd. 1(b); U.S.C.A.Const. Amends. 4, 14.
5. Prostitution.
The solicitation of prostitution provision of the vagrancy statute was not unconstitutional by reason of
encouraging arbitrary and erratic arrests and convictions. NRS 207.030, subd. 1(b); U.S.C.A.Const.
Amends. 4, 14.
6. Prostitution.
The legislative purpose in proscribing solicitation for prostitution is to eliminate overt solicitation
for purposes of prostitution.
to eliminate overt solicitation for purposes of prostitution. NRS 207.030, subd. 1(b); U.S.C.A.Const.
Amends. 4, 14.
7. Prostitution.
It is within the legitimate reach of the state's police power to proscribe overt solicitation for purposes of
prostitution. NRS 207.030, subd. 1(b); U.S.C.A.Const. Amends. 4, 14.
8. Arrest.
Law enforcement officers may make arrests only on probable cause. U.S.C.A.Const. Amends. 4, 14.
9. Arrest.
Overt acts of solicitation for prostitution are required as a precondition of arrest under subsection of
vagrancy statute pertaining to solicitation for prostitution and, therefore, the statute does not violate the
Fourth Amendment. NRS 207.030, subd. 1(b); U.S.C.A.Const. Amends. 4, 14.
OPINION
Petitioner offered for money to copulate orally a man in the parking lot of a Las Vegas
hotel. She was convicted pursuant to the subsection of Nevada's vagrancy statute making
illegal the solicitation of any act of prostitution and fined $25. The district court affirmed her
conviction and denied her challenge to the constitutionality of the vagrancy statute. She has
brought this proceeding in certiorari to review that ruling. The proceeding is authorized. NRS
34.020(3); City of Reno v. District Court, 83 Nev. 201, 427 P.2d 4 (1967).
Petitioner challenges the statute, NRS 207.030, on five different premises. She contends
that the statute denies due process in that it makes status a crime; is vague requiring a person
of ordinary intelligence to guess at its proscriptions; places unfettered discretion at the
disposal of law-enforcement authorities; and is overbroad, including within its scope acts
nonculpable as well as culpable. Finally, she maintains that her Fourth Amendment rights are
denied by application of the statute. We answer each claim in the negative.
[Headnote 1]
NRS 207.030 in relevant part provides: 1. Every person is a vagrant who: . . . (b) Solicits
any act of prostitution . . . 2. Every vagrant is guilty of a misdemeanor.
Petitioner was convicted under subsection l(b).
In a general constitutional challenge, petitioner, citing City of Reno, supra; Parker v.
Municipal Judge, 83 Nev. 214, 427 P.2d 642 (1967), contends that NRS 207.030(1)(b)
punishes status not behavior. In those cases, for example, simply being unemployed (Parker)
or having an evil reputation (City of Reno) would subject an individual to possible
punishment.
Reno) would subject an individual to possible punishment. Here, petitioner was convicted
because she actively solicited prostitution. The distinction is indeed one of punishment for
conduct as opposed to punishment for status and, as such, is fatal to petitioner's challenge.
[Headnotes 2, 3]
The fallacy of petitioner's logic is her premise that vagrancy is unpunishable. There is no
per se constitutional infirmity in punishing vagrants. The sole concern of the judiciary is to
assure that the definition of vagrancy not include mere status. Absent liability premised upon
status, cf. City of Reno, supra; Parker, supra; Papachristou v. City of Jacksonville, 405 U.S.
156 (1972), the legislature is free to exercise discretion in punishing vagrancy defined in
terms of culpable overt behavior.
Subordinately, the vagrancy statute is challenged on the premise that it is so vague and
overbroad so as to violate due process. The primary authority upon which petitioner relies is
Papachristou, supra. Petitioner quotes this case at length and offers it for support of her due
process and overbreadth allegations. However, the Florida ordinance in Papachristou clearly
made status a crime and is inapposite to the instant case.
[Headnote 4]
Recently, the California Supreme court, in reviewing a statute that is virtually identical to
the one in question, declared that this solicitation provision . . . is not so vague as to deny an
accused due process of law under the federal or California Constitutions. People v. Superior
Court of Alameda County, 562 P.2d 1315, 1317 (Cal. 1977). The words every person . . .
who solicits any act of prostitution are clear and unambiguous. NRS 207.030(1)(b) clearly
gives a person of ordinary intelligence fair notice that his contemplated conduct is proscribed
by law. United States v. Harriss, 347 U.S. 612 (1954). The solicitation provision of the
Nevada vagrancy statute is constitutional.
[Headnotes 5-7]
Nor do we perceive the law as encouraging arbitrary and erratic arrests and convictions.
Thornhill v. Alabama, 310 U.S. 88 (1940); Herndon v. Lowry, 301 U.S. 242 (1937). Our
interpretation is consistent with the legislative object and policy underlying the statute. The
legislative purpose in proscribing solicitation for prostitution is to eliminate this type crime.
The crime requires overt solicitation for purposes of prostitution. The dangers of harassment
and unfettered police discretion pointed out in City of Reno, supra, are not here present.
Additionally, the justification for the proscription under review is within the legitimate
reach of Nevada's police power.
within the legitimate reach of Nevada's police power. See, Fenster v. Leary, 229 N.E.2d 426
(N.Y. 1967).
[Headnotes 8, 9]
Petitioner's Fourth Amendment claim is equally without merit. Law-enforcement officers
may make arrests only on probable cause, a Fourth and Fourteenth Amendment standard
applicable to states, as well as the federal government. Mapp v. Ohio, 367 U.S. 643 (1961).
Overt acts of solicitation for prostitution as a precondition to an arrest are required under
NRS 207.030(1)(b), thereby meeting the probable cause requirement. Papachristou, supra;
City of Reno, supra.
This proceeding is dismissed and the judgment below is affirmed.
This case is one of several primarily assigned to our colleague Manoukian, for which he
recently has circulated somewhat extended authored opinionsafter having the cases
removed from our argument calendar, and submitted without a hearing. Heretofore, we have
reserved such drastically attenuated procedures for matters which were rather clearly subject
to summary disposition, and in which oral argument was unlikely to aid other members of the
court. In the past, we have not considered it appropriate to foreclose oral argument in cases
worthy of authored opinions, ostensibly issued as precedent.
Most respectfully, I submit we should adhere to our established practice. If a case indeed
may be disposed of summarily, through a brief memorandum or a per curiam opinion,
sound judicial administration dictates that we do so, thereby avoiding the confusion which
unnecessary verbiage commonly causesand thereby conserving judicial time, and space in
our legal volumes, to consider issues of novelty and moment. As stated by three of America's
most respected legal scholars, in discussing the appellate process:
The Memorandum Decision. A short form of opinion can, in many cases, serve both
of the interests involved [in a written opinion]: It can give reasons sufficient to explain
the decision, while at the same time avoiding the expenditure of undue energy or time
in trying to lay out a full exposition of the facts and the analysis in deathless legal prose
for posterityand pride.
prose for posterityand pride. Thus we recommend much more use of the short form.
1

On the other hand, if a matter indeed has value as precedentwhich presumably it must, if
it truly warrants a full authored opinionthen I believe that the Justice primarily
responsible for the case should continue to see that a bench memorandum is prepared, and
should permit the rest of the court to hear oral argument from counsel. In a court as pressed as
ours, I deem this essential to preserve some semblance of collegiate review, so that our
decisions will retain some value as precedent, rather than becoming totally one-man
opinions. If I understand them correctly, my other colleagues, who have elected to sign the
opinion submitted by our colleague Manoukian, do not disagree with these views. However,
they agreed to and did sign the above opinion, even though they acknowledged they had
reviewed neither the briefs nor the record. Nor had they reviewed the memorandum which
our colleague Manoukian acknowledged he had his law clerk prepare for his private use.
2

I do not wish to belabor what I hope the future will prove to be a passing aberration in the
procedures of this court. However, I now feel constrained at least to note my opposition to
such practices, which if need be I will hereafter document to be unacceptable appellate
methodology, by reference to scholarly authorities.
____________________

1
P. Carrington, D. Meador and M. Rosenberg, Justice on Appeal, 33 (1976). Paul Carrington is Professor of
Law at the University of Michigan; Daniel M. Meador is James Monroe Professor of Law at the University of
Virginia; Maurice Rosenberg is Harold Medina Professor of Law at Columbia University. All are highly
respected authors and authorities on judicial administration, and their joint work, just cited, was accomplished
with a grant from the National Institute of Law Enforcement and Criminal Justice. Professor Meador currently is
on leave, serving as Assistant United States Attorney General for Improvement of the Administration of
Justice. Among his other writings on the appellate process is the country's leading work on use of staff in
appellate courts, i.e., Appellate Courts: Staff and Process in the Crisis of Volume (1974), written as an appellate
justice project for the National Center for State Courts. According to Meador and his colleagues:
The essential characteristics of the memorandum decision are that it is not signed by a single author; it is
addressed to the parties, not to the public at large; and it is as short as possible, consistent with the imperatives.
Justice on Appeal, 33. In Appendix B of their joint work, Professors Carrington, Meador and Rosenberg set
forth a number of illustrations which establish that, for routine cases, memorandum or per curiam opinions
are more efficient and informative, and less costly for many reasons, than so-called authored opinions.

2
According to our colleague Manoukian, in at least one of the cases to which he denied oral argument, the
draft he ultimately prepared did not even reach the same result as his law clerk's privately submitted
memorandum. This surely indicates how dangerous it is to establish precedent in total reliance on any one
Justice.
authorities. For example, in a section of their joint work, Justice on Appeal, entitled
Curtailing Oral Argument: A MisStep, Professors Carrington, Meador and Rosenberg have
said:
As we have noted, oral argument gives important service to the imperatives of appellate
justice. Specifically, it heightens the judges' sense of personal responsibility. It provides
them with an opportunity to test their own thinking in a direct way with counsel
available to correct error. Some judges assimilate ideas more readily by oral than by
written transmission; and some ideas are more readily transmitted by oral means. Thus,
the quality of decisions is likely to be enhanced. Ibid. at 17.
The need to cope with burgeoning caseload is forcing America's courts not only to
undertake many worthwhile innovations, but also to adopt a variety of expedients many
lawyers and judges find regrettable. However, for a collegiate appellate court to reach the
point where it is deciding cases for precedent on the authority of one judgewithout its other
members reading the briefs or record, and without oral argumentI consider close to the
ultimate compromise. As burdened as we may think ourselves, we should not resort to this
practice.
Being conscientiously of the view that the procedures employed to reach an apparent
consensus are inconsistent with sound judicial administration, I cannot endorse the above
opinion. Moreover, having read the briefs and the record, it does not appear to me that the
above opinion clearly meets petitioner's principal issue.
3
____________________
____________________
____________________

3
Although the above opinion labors at some length to establish the point, petitioner has expressly conceded
that acts such as lewdness and prostitution may be made the subject of punishment. The thrust of petitioner's
central argument is: Per se criminal acts have been lumped together with non-criminal acts. In my view, if this
case warrants an authored opinion, this is so only because of petitioner's overbreadth argument, which
proceeds in part:
The statute before the Court criminalizes activities which by modern standards are innocent. Being
idle without visible means of support is one. 405 U.S. 163. Loitering or wandering upon public streets
without the permission of the owner is still another. The qualification in section (h)(without visible or
lawful business . . .) is a trap for otherwise innocent acts. 405 U.S. 164. Nightwalkers could be
condemned under NRS 207.030 for no other reason that the walker refused to identify himself and to
account for his presence when requested by any peace officer so to do.
In Lazarus v. Faircloth, 301 F.Supp. 266 (1969), a three-judge federal court declared the Florida
vagrancy statute to be void for overbreadth. Certain language of the Court is particularly apropos to the
facts herein:
____________________
In many respects, the statute reflects the historic verbiage of vagrancy laws which date back
620 years to the English Statutes of Laborers. More importantly, it mirrors the ancient philosophy of
the poor laws.' And so, in a day when terms such as serfdom' and feudalism' are proper subjects for
grade school ancient history classes, we face a penal statute which historically was designed as a
substitute for serfdom.
The Lazarus court then declared:
An adjunct of the vagueness argument and an additional vice of this statute is its obvious
overbroadness. Because of its vague language, it may be used to criminalize' conduct which is
beyond the legitimate reach of the state's police power. That is, it punishes conduct of an individual
which in no way impinges on the rights or interests of others. 301 F.Supp. at 272.
Because of its overbreadth, the entire statute was declared unconstitutional:
While there may be some valid segments to this statute, . . . they are so inextricably
intertwined with the invalid that it is impossible to separate the wheat from the chaff and to sever that
which could remain. 301 F.Supp. at 273.
As in Lazarus, there can be no saving NRS 207.030 from the constitutional hatchet. The vice of
overbreadth inherent in this statute demands that it be declared invalid.
If this overbreadth argument can be considered addressed at all by the above opinion, I respectfully submit
the treatment is so subtle that its significance may evade many, as it does the undersigned.
____________
94 Nev. 237, 237 (1978) McLemore v. State
DANNY McLEMORE, aka HOLLIS TATE, aka HOLLIS CARMICHAEL,
Appellant, v. THE STATE OF NEVADA, Respondent.
No. 9733
April 25, 1978 577 P.2d 871
Appeal from denial of motion for new trial. Eighth Judicial District Court, Clark County;
Keith C. Hayes, Judge.
Defendant was convicted in the district court of robbery and use of a deadly weapon in
commission of a crime. Defendant appealed. The Supreme Court, Manoukian, J., held that in
view of lack of evidence other than hearsay to indicate that a black man identified by a
defense investigator was in fact the black man identified by a bartender as the second man
who robbed the tavern and who was in a vehicle when its license number was taken, failure of
the bartender to identify such individual from a photographic lineup was immaterial to her
credibility in positively identifying defendant as the robber, and in view of the fact that the
bartender's testimony identifying defendant was not in any way put in doubt and since closing
argument afforded counsel appropriate means to address any claimed weaknesses in
eyewitness identification, the trial court on motion for new trial on ground of newly
discovered evidence properly refused to interfere with the province of the jury in
determining credibility of the bartender's testimony.
address any claimed weaknesses in eyewitness identification, the trial court on motion for
new trial on ground of newly discovered evidence properly refused to interfere with the
province of the jury in determining credibility of the bartender's testimony.
Affirmed.
Morgan D. Harris, Public Defender, and Herbert F. Ahlswede, Deputy Public Defender,
Douglas Clark, Deputy District Attorney, Clark County, for Respondent.
1. Criminal law.
For new trial on ground of newly discovered evidence, evidence must be newly discovered, must be
material to movant's defense, must be such that it could not with reasonable diligence have been discovered
and produced for trial, must not be cumulative, must be such as to render different result probable upon
retrial, must not attempt only to contradict former witness or impeach or discredit him, unless such witness
is so important that different result must follow, and such facts must be shown by the best evidence the case
admits.
2. Criminal Law.
In view of lack of evidence other than hearsay to indicate that black man identified by defense
investigator was in fact black man identified by bartender as second man who robbed tavern and who was
in vehicle when license number was taken, failure of bartender to identify such individual from
photographic lineup was immaterial to her credibility in positively identifying defendant as robber, and in
view of fact that bartender's testimony identifying defendant was not in any way put in doubt and since
closing argument afforded counsel appropriate means to address any claimed weaknesses in eyewitness
identification, trial court on motion for new trial on ground of newly discovered evidence properly refused
to interfere with province of jury in determining credibility of bartender's testimony. NRS 176.515,
193.165, 200.380.
OPINION
Appellant was convicted by jury of robbery and the use of a deadly weapon in the
commission of a crime. NRS 200.380 and 193.165. The culpatory evidence came from
testimony of the victim Mrs. Jerri Loback, who testified that appellant was one of the two
men who robbed the tavern where she was tending bar. She stated that appellant and another
entered the bar as customers, purchased drinks from her, then left, only to return within a half
hour to commit the robbery.
Appellant was arrested for the crime after Mrs. Loback subsequently identified him in
another bar which she was patronizing several weeks after the robbery. As the suspect left,
Mrs. Loback made note of the license number of the vehicle and called the police who later
stopped the vehicle and brought Mrs. Loback to the scene where she made a positive
identification of appellant as one of the robbers.
At trial, Mrs. Loback testified that she had recognized the other suspect during the week
immediately preceding the trial while she and her husband were patronizing a bar when the
alleged accomplice entered. She informed her husband that she was certain that the man was
in fact the second robber. Consequently, as the suspect and his companions left the bar, Mr.
Loback noted the license number of the vehicle and so informed the police.
Defense counsel requested the license number and an investigator attempted to find the
other suspect. After the trial ended, however, the defense traced the vehicle to an individual
who claimed to have loaned it to two white men and a black man who were his neighbors.
None of the individuals alleged to have been loaned the vehicle, however, could be located.
The defense obtained an order for a photographic lineup to be shown to Mrs. Loback and
which was to include a picture of the black man who defense counsel alleged was in the
vehicle the night Mrs. Loback recognized the second suspect. At this photographic lineup,
Mrs. Loback could not positively identify any picture as that of the second robber. Premised
upon this inability of the victim to identify the alleged accomplice, appellant moved for a new
trial, alleging a lack of credibility to Mrs. Loback's eyewitness identification of him as one of
the robbers. The motion was denied, and appellant now prosecutes this appeal.
The sole issue before us is whether the trial court properly denied the motion for a new
trial.
[Headnote 1]
Appellant contends that the inability of Mrs. Loback to identify the alleged accomplice is
newly discovered evidence entitling him to a new trial pursuant to NRS 176.515. This Court
has required that such newly discovered evidence comply with additional criteria. The
evidence must be (1) newly discovered, (2) material to movant's defense, (3) such that it
could not with reasonable diligence have been discovered and produced for the trial, (4) not
cumulative, (5) such as to render a different result probable upon retrial, (6) that it does not
attempt only to contradict a former witness or impeach or discredit him, unless the witness to
be impeached is so important that a different result must follow, and {7) that these facts
be shown by the best evidence the case admits.
that a different result must follow, and (7) that these facts be shown by the best evidence the
case admits. Lightford v. State, 91 Nev. 482, 538 P.2d 585 (1975); Oliver v. State, 85 Nev.
418, 456 P.2d 431 (1969).
[Headnote 2]
Here, the newly discovered evidence fails to establish its materiality to appellant's defense
nor does it indicate the probability of a different result upon retrial. There is no evidence
other than hearsay to indicate that the black man identified by the defense investigator was in
fact the black man who was identified by Mrs. Loback the week before trial as the second
robber and who was the black man in the vehicle when Mr. Loback noted the license number.
Thus, the failure of Mrs. Loback to identify this individual from a photographic lineup is
immaterial to her credibility in positively identifying the appellant as the robber.
In the instant case, appellant went to the bar in question twice the evening of the robbery,
perpetrating the offense on the second occasion. In the aggregate, the victim had in excess of
thirty minutes in which to observe appellant. The circumstances surrounding the criminal act
gave the victim a clear opportunity for observation. Here, as in Porter v. State, 94 Nev. 142,
576 P.2d at 275 (1978), the victim had since immediately following the offense, through
[her] testimony, consistently and with unmistakable certainty identified [McLemore] as the
perpetrator. Furthermore, her identification testimony was corroborated by other prosecution
testimony which described the automobile occupied by appellant as it left the scene of the
crime.
The record is devoid of any indication that the victim's identification testimony was in any
way put in doubt. Indeed, her positive identification of appellant as one of the robbers, given
with a high degree of precision, was subjected to meaningful cross and recross-examination.
Finally, we add that closing argument affords counsel an appropriate means to address any
claimed weaknesses in eyewitness identification. Compare, United States v. Barber, 442 F.2d
517 (3rd Cir. 1971).
The weight and credibility of identification testimony is solely within the province of the
jury. Wise v. State, 92 Nev. 181, 547 P.2d 314 (1976). The identification by the victim of
appellant is substantial evidence that the appellant was the person who committed the crime.
State v. Jordan, 564 P.2d 340 (Wash.App. 1977); State v. Johnson, 527 P.2d 1324
(Wash.App. 1974).
The trial court in denying the motion for new trial was properly reluctant to interfere with
the province of the jury to determine the credibility of Mrs. Loback's testimony, Wise, supra;
Watkins v. State, 93 Nev. 100, 560 P.2d 921 (1977); Wheeler v. State, 91 Nev. 119, 531 P.2d
1358 (1975); King v. State, 87 Nev. 537, 490 P.2d 1054 (1971), and did not abuse its
discretion in denying appellant's motion for new trial. Burton v. State, 84 Nev. 191, 437 P.2d
861 (1968); Pacheco v. State, 81 Nev. 639, 408 P.2d 715 (1965).
The lower court's order denying appellant's motion for new trial is affirmed.
I concur in the result.
____________
94 Nev. 241, 241 (1978) Southern Pac. Transp. Co. v. Fitzgerald
SOUTHERN PACIFIC TRANSPORTATION COMPANY, Appellant, v.
WILLIAM A. FITZGERALD, Respondent.
No. 9055
May 8, 1978 577 P.2d 1234
Appeal from a judgment entered upon jury verdict, and order denying motion for new trial,
Second Judicial District Court, Washoe County; John W. Barrett, Judge.
Plaintiff, who was injured when, while working on freight car, railroad's engine collided
with such car, brought action to recover against railroad under Federal Employers' Liability
Act. The district court rendered judgment for $493,569 for plaintiff and denied a new trial,
and railroad appealed. The Supreme Court, Gunderson, J., held that: (1) denial of motion for
continuance in order to depose expert witness was not an abuse of discretion; (2) exclusion of
evidence of job offers which railroad purportedly made to plaintiff was not reversible error,
and (3) damages for plaintiff's pain and suffering were not to be discounted to present value.
Affirmed.
[Rehearing denied June 14, 1978. See 94 Nev. 245, 579 P.2d 1251 (1978)] Vargas,
Bartlett & Dixon, Reno, for Appellant.
Vargas, Bartlett & Dixon, Reno, for Appellant.
Peter Chase Neumann, Reno, for Respondent.
1. Pretrial Procedure.
Motion for continuance is addressed to trial court's sound discretion.
In action to recover damages for personal injuries and lost wages pursuant to Federal Employers'
Liability Act, denial of defendant's motion, on eve of trial, for a continuance in order to depose expert
witness, whose identity had been disclosed one week earlier, was not an abuse of discretion. Federal
Employers' Liability Act, 1 et seq., 45 U.S.C.A 51 et seq.
3. Evidence.
Trial court has broad discretion to determine admissibility of evidence and may exclude relevant
evidence where its probative value is substantially outweighed by danger of unfair prejudice, of confusing
the issues and of misleading the jury. NRS 48.035, subd. 1.
In action by plaintiff, who was injured when, while working on freight car, railroad's engine collided with
such car, to recover against railroad under Federal Employers' Liability Act, exclusion of evidence of job
offers which railroad purportedly made to plaintiff was not reversible error, in view of fact that it was
unclear whether any bona fide offers were made or whether they related to reasonable alternative
employment for a man with plaintiff's disabilities. Federal Employers' Liability Act, 1 et seq., 45
U.S.C.A. 51 et seq.; NRS 48.035, subd. 1.
5. Damages.
Damages for the pain and suffering of plaintiff, who was injured when, while working on freight car,
railroad's engine collided with such car and who sought to recover against railroad under Federal
Employers' Liability Act, were not to be discounted to present value. Federal Employers' Liability Act, 1
et seq., 45 U.S.C.A 51 et seq.
To preserve contention for appellate review, specific objections must be made to allegedly improper
closing argument.
7. Appeal and Error; New Trial.
Decision whether to grant motion for new trial rests within sound discretion of trial court and will not be
disturbed on appeal absent probable abuse. NRCP 59(a)(7).
Contention that opposing party's counsel erred in making certain argument to jury would not be
considered on appeal where objection to such argument was first raised in motion for new trial. NRCP
59(a)(7).
Contention that trial court erred in admitting certain expert's opinion would not be considered on appeal
where appellant failed to object at trial.
OPINION
Injured when appellant Southern Pacific's engine collided with a freight car on which he
was working, respondent Fitzgerald sought damages for personal injuries and lost wages
pursuant to the Federal Employers' Liability Act.
with a freight car on which he was working, respondent Fitzgerald sought damages for
personal injuries and lost wages pursuant to the Federal Employers' Liability Act. Following a
judgment for $493,569 and an order denying a new trial, Southern Pacific has appealed,
urging that the district court erred in refusing a continuance, excluding evidence, instructing
the jury, permitting a portion of respondent's closing argument, and admitting expert opinion
evidence. These contentions all lack merit.
1. On the eve of trial, appellant moved for a continuance in order to depose an expert
witness whose identity had been disclosed one week before in supplemental answers to
interrogatories.
[Headnotes 1, 2]
Such a motion, of course, is addressed to the trial court's sound discretion, Benson v.
Benson, 66 Nev. 94, 99, 204 P.2d 316, 319 (1949), and here it appears that the court could
fairly decide appellant had adequate opportunity to depose the expert in the time left before
trial. We therefore perceive no abuse of discretion in denying the motion. Cf. Concord
Towers, Inc. v. Long, 348 A.2d 325 (Del. 1975).
2. The district court excluded evidence of job offers purportedly made by Southern
Pacific.
It has been held that a plaintiff in a personal injury action should mitigate damages for lost
wages by seeking reasonable alternative employment. McGinley v. United States, 329
F.Supp. 62 (E.D.Pa. 1971); Alexander v. Meiji Kaiun K.K., 195 F.Supp. 831 (E.D.La. 1961);
Kubista v. Romaine, 549 P.2d 491 (Wash. 1976). Likewise, authorities hold, he should accept
work he could perform. Powell v. Hellenic Lines, Ltd., 347 F.Supp. 855 (E.D.La. 1972); and
cf. Hallada v. Great Northern Railway, 69 N.W.2d 673, 685 (Minn. 1955) (reciting formula
for damage calculation in FELA litigation).
[Headnotes 3, 4]
However, a trial court has broad discretion to determine the admissibility of evidence, see
State ex rel. Department of Highways v. Nevada Aggregates, 92 Nev. 370, 376, 551 P.2d
1095, 1098 (1976), and may exclude relevant evidence where its probative value is
substantially outweighed by the danger of unfair prejudice, . . . confusion of issues or . . .
misleading the jury. NRS 48.035(1). Appellant Southern Pacific made varying
representations to the court concerning the job offers. It is unclear whether any bona fide
offers were in fact made, or whether they related to reasonable alternative employment for a
man with respondent's disabilities. Therefore, the decision to exclude the evidence did not
constitute reversible error. Cf.
Zimmerman v. Montour Railroad Company, 191 F.Supp. 433 (W.D.Pa. 1961); and Plourd v.
Southern Pacific Transportation Co., 513 P.2d 1140 (Or. 1973).
[Headnote 5]
3. The court instructed the jury not to discount damages for pain and suffering to present
value.
In our view, the instruction correctly stated the law on such damages. See Taylor v. Denver
and Rio Grande Western Railroad Company, 438 F.2d 351 (10th Cir. 1971); Ahlstrom v.
Minneapolis St. Paul & Sault Ste. M.R. Co., 68 N.W.2d 873 (Minn. 1955). Thus, the trial
court did not err by giving it, to assist the jury in its deliberations. See American Casualty Co.
v. Propane Sales and Service, 89 Nev. 398, 513 P.2d 1226 (1973).
4. Without objection from Southern Pacific's counsel, respondent's counsel made a per
diem argument to the jury concerning pain and suffering. Objection was first raised in
appellant's motion for new trial.
[Headnotes 6-8]
To preserve the contention for appellate review, specific objections must be made to
allegedly improper closing argument. Hunter v. Kenney, 422 P.2d 623, 625 (N.M. 1967); cf.
Nevada State Bank v. Snowden, 85 Nev. 19, 449 P.2d 254 (1969). In addition, NRCP
59(a)(7) provides in pertinent part that a motion for new trial may be made where there was
[e]rror in law occurring at trial and objected to by the party making the motion. The
decision to grant or deny a motion for new trial rests within the sound discretion of the trial
court and will not be disturbed on appeal absent palpable abuse. Cf. Lucey v. First National
Bank, 73 Nev. 64, 307 P.2d 774 (1957). We therefore decline to consider complaints
concerning the final argument.
[Headnote 9]
5. The trial court received expert opinion regarding respondent's future lost wages.
Again, appellant failed to object at trial; hence, we will entertain no objection on appeal.
Nevada State Bank v. Snowden, cited above.
Affirmed.
____________
94 Nev. 245, 245 (1978) Southern Pacific Transp. Co. v. Fitzgerald
SOUTHERN PACIFIC TRANSPORTATION COMPANY,
Appellant, v. WILLIAM A. FITZGERALD, Respondent.
No. 9055
June 14, 1978 579 P.2d 1251
Appeal from a judgment entered upon jury verdict, and order denying motion for new trial,
Second Judicial District Court, Washoe County; John W. Barrett, Judge.
Federal Employers' Liability Act suit was brought to recover for injuries which plaintiff
sustained when railroad engine collided with freight car on which he was working. The
District Court rendered judgment for plaintiff, and railroad appealed. The Supreme Court, 94
Nev. 241, 577 P.2d 1234 (1978), affirmed. On petition for rehearing the Supreme Court held
that where throughout trial railroad's counsel failed to tender any evidence confirming
existence of any job offer to plaintiff and did not even make an offer of proof until all
evidence had been presented, railroad could not be heard to complain of court's prior
statement that it was unclear whether any bona fide offers of employment had in fact been
made.
Rehearing denied.
Vargas, Bartlett & Dixon, Reno, for Appellant.
Peter Chase Neumann, Reno, for Respondent.
1. Trial.
An offer of proof is not a proper substitute for the tender of evidence which has never been presented
and ruled on.
Where throughout Federal Employers' Liability Act suit railroad's counsel failed to tender any evidence
concerning existence of job offers to injured employee and did not even make an offer of proof until all
evidence had been presented, railroad, on rehearing could not be heard to complain of statement of
appellate court that it was unclear whether any bona fide job offers had been made, and even if error was
committed by exclusion of job offers it was intended and fostered by counsel's representations, each time
issue arose during trial, that no offer had been made.
ORDER ON REHEARING
[Headnotes 1,2]
In its petition for rehearing appellant challenges the portion of our opinion which said: It
is unclear whether any bona fide offers [of employment] were in fact made, by Southern
Pacific to Fitzgerald.
94 Nev. 245, 246 (1978) Southern Pacific Transp. Co. v. Fitzgerald
The challenge is without merit. Southern Pacific's counsel failed throughout the trial to
tender any evidence confirming the existence of any job offer. He did not even make an offer
of proof until all the evidence had been presented. Prior to that time, he had repeatedly stated
that no definite job offer had in fact been made.
The issue initially arose in the context of a motion in limine by Fitzgerald to exclude any
reference to job offers. The court reserved ruling at that time and told appellant's attorney to
bring the matter up again during trial.
During cross-examination of respondent, appellant's counsel asked: Have you had
discussions with [Mr. Cody] concerning reemployment? Fitzgerald objected, and during
argument on the objection, appellant's counsel finally conceded: [T]here is no formal job
offer here. Thus, appellant in effect told the court that the question was irrelevant.
Later, during direct testimony of a Southern Pacific employee, their counsel again tried to
elicit testimony relating to reemployment. Fitzgerald's counsel objected, and again appellant's
counsel told the court: Mr. Cody had the opportunity to make the offer, but it does not
indicate that the offer was in fact made.
However, after testimony had been presented, without recalling any witness, appellant's
counsel made his offer of proof, which contradicted all of his prior representations to the
court. At that point, he finally indicated that a definite job offer had been made.
If appellant's counsel learned, after presentation of the evidence, that a definite job offer
had in fact been made, he merely had to recall his witness and attempt to extract such
testimony before he rested his case. An offer of proof obviously is not a proper substitute for
the tender of evidence which has never been presented and ruled upon. Apparently, counsel
made his last-ditch offer of proof for the sole purpose of attempting to save the issue for
appeal.
Moreover, if an error was indeed committed by the exclusion of the job offers, it was
obviously invited and fostered by appellant's representations to the court each time the issue
arose during trial.
Rehearing denied.
It is so ORDERED.
____________
94 Nev. 247, 247 (1978) Houston Gen. Ins. Co. v. District Court
HOUSTON GENERAL INSURANCE COMPANY and COMMERCIAL STANDARD
INSURANCE COMPANY, Petitioners, v. THE EIGHTH JUDICIAL DISTRICT COURT
OF THE STATE OF NEVADA, IN AND FOR THE COUNTY OF CLARK, And THE
HONORABLE JAMES A. BRENNAN, JUDGE, Thereof, Respondents.
No. 9700
May 10, 1978 578 P.2d 750
Petition for writ of prohibition or, in the alternative, for writ of mandate. Eighth Judicial
District Court, Clark County; James A. Brennan, Judge.
On petition for writ of prohibition or mandamus, the Supreme Court held that trial court
was well within its discretion in striking amended answer and counterclaim served without
leave of court, and was neither without or in excess of its jurisdiction, or compelled to
vacate order striking amended answer, and thus extraordinary writs of prohibition or
mandamus were not available to defendant.
Petition denied.
Leavitt and Leavitt, Las Vegas, for Petitioners.
Jolley, Urga, and Wirth, Las Vegas, for Respondents.
1. Mandamus; Prohibition.
It is not the province of extraordinary writ such as prohibition or mandamus to control the judicial
discretion of a district court.
2. Mandamus; Prohibition.
Trial court was well within its discretion in striking amended answer and counterclaim served without
leave of court, and was neither without or in excess of its jurisdiction, or compelled to vacate order
striking amended answer, and thus extraordinary writs of prohibition or mandamus were not available to
defendant. NRS. 34.160, 34.320.
OPINION
Per Curiam:
Federal National Mortgage Association and Sierra Nevada Arms, plaintiffs below,
commenced suit against petitioners upon their respective performance bond obligations as
compensated sureties for a construction company. After petitioners had filed a timely answer
and cross-claim, plaintiffs successfully moved for a partial summary judgment against them.
Pursuant to Nevada Rules of Civil Procedure, Rule 56(c), which provides in pertinent part
that a summary judgment, interlocutory in character, may be rendered on the issue of
liability alone although there is a genuine issue as to the amount of damages, the lower court
entered its order that petitioners would be liable under their bond obligations but reserved for
trial the issue of damages.
Thereafter, plaintiffs successfully sought leave of court to file an amended complaint
pursuant to NRCP 21 adding an additional defendant and claims against that defendant. The
complaint, as amended, was served upon petitioners pursuant to NRCP 5(a) but, as to them,
was identical to the original complaint. Petitioners, without leave of court, filed both an
answer and a counterclaim in response to the amended complaint. A counterclaim had not
previously been filed in this action by petitioners and the answer pleaded twenty-one
additional affirmative defenses not alleged in the original pleading.
Upon motion of the plaintiffs, the trial court ordered the amended answer and
counterclaim stricken. This petition then followed for a writ to prohibit the lower court from
preventing petitioners' filing an amended answer, or alternatively, ordering the lower court to
vacate its order striking the amended answer.
Two issues are before us. First, whether the extraordinary writs of prohibition or
mandamus are here available to petitioners. Second, whether a defendant adversely affected
by a partial summary judgment may thereafter file without leave of court a quantitatively and
qualitatively different answer to a subsequent amended complaint which affects that party in
no material manner but merely alleges additional claims against a new defendant. Since we
answer the first question in the negative, we need not and therefore do not reach the second
issue.
[Headnotes 1, 2]
Regarding the threshold issue of this Court's jurisdiction, a writ of prohibition must issue
when there is an act to be arrested which is without or in excess of the jurisdiction of the
trial judge under NRS 34.320. Ham v. District Court, 93 Nev. 409, 566 P.2d 420 (1977);
Culinary Workers v. Court, 66 Nev. 166, 207 P.2d 990 (1949). A writ of mandate must be
issued when required to compel the performance of an act which the law especially enjoins
as a duty resulting from an office under NRS 34.160. Board of Comm'rs v. Dayton Dev. Co.,
91 Nev. 71, 530 P.2d 1187 (1975); Walsh ex rel. v. Buckingham, 58 Nev. 342, 80 P.2d 910
(1938). Respecting the remedies sought by petitioners, it is not the province of an
extraordinary writ, such as prohibition or mandamus, to control the judicial discretion of a
district court.
extraordinary writ, such as prohibition or mandamus, to control the judicial discretion of a
district court. Pinana v. Dist. Ct., 75 Nev. 74, 334 P.2d 843 (1959). In the instant case, the
trial court was well within its discretion in striking the amended pleadings, as the trial judge
was neither without or in excess of his jurisdiction, or compelled to perform the requested
act as the law did not especially enjoin him to as a duty resulting from an office.
The petition for writ of prohibition or in the alternative a writ of mandate is denied.
1

____________________

1
The Chief Justice designated the Honorable David Zenoff, Chief Justice (Retired), to sit in the place of The
Honorable Gordon Thompson, Justice, who was disabled. Nev. Const. art. 6, 19; SCR 244.
____________
94 Nev. 249, 249 (1978) Smith v. Smith
EVELYN A. SMITH, Appellant, v. PAUL
HENRY SMITH, Respondent.
No. 9072
May 15, 1978 578 P.2d 319
Appeal from judgment of divorce, Eighth Judicial District Court, Clark County; Keith
Hayes, Judge.
The Supreme Court held that: (1) the trial court was entitled to find that the husband's
interest in certain corporate stock was his separate property; (2) the wife did not present
evidence sufficient to overcome the statutory presumption that rents, issues and profits of
separate property retain the same character; (3) the trial court did not err by finding that the
rents, issues and profits were also separate property, and (4) the trial court did not abuse
discretion by refusing the wife's request for $18,000 in attorney fees.
Affirmed.
Keefer, Clark & O'Reilly, Las Vegas, for Appellant.
Lionel Sawyer and Collins, Wartman and Boyd, Las Vegas, for Respondent.
1. Divorce.
Despite fact that husband managed business for party who thereafter bequeathed substantial capital stock
to husband in his name alone, in absence of any proof as to the motivation for the bequest, trial court was
not required to infer that the bequest was made in remuneration for services but was entitled to find that the
corporate stock was the husband's separate property, for purpose of dividing marital assets.
94 Nev. 249, 250 (1978) Smith v. Smith
separate property, for purpose of dividing marital assets. NRS 123.130, subd. 2.
2. Divorce.
In absence of evidence sufficient to overcome the statutory presumption that rents, issues and profits of
separate property retain the same character, fact that husband continued to work at company after he
became owner did not entitle wife to apportionment of capital stock in the company that had been
bequeathed to the husband in his name alone. NRS 123.130, subd. 2.
Where wife sought apportionment of corporate stock that had been bequeathed to husband in his name
alone, wife had to overcome the statutory presumption that rents, issues and profits of separate property
retain the same character and, in order to do so, it was her burden to prove that the husband's labor, skill
and industry actually contributed to the increase in value of his separate property. NRS 123.130, subd. 2.
In view of testimony that husband turned over active management of business that he owned to another
person and that as owner, he worked fewer than eight hours per week and did not participate in the
day-to-day operations of the business and where the business increases were primarily attributable to
tremendous economic growth in the county, trial court did not err by finding that rents, issues and profits of
capital stock bequeathed to the husband in his name alone were also separate property. NRS 123.130,
subd. 2.
5. Divorce.
In divorce proceeding, trial court did not abuse discretion in refusing to set aside the husband's separate
property for support or in awarding $1,000 per month alimony with cost of living increases.
6. Divorce.
In divorce proceeding, trial court did not abuse discretion by refusing wife's request for $18,000 in
attorney fees. NRS 125.150.
OPINION
Per Curiam:
Evelyn Smith appeals from a judgment of divorce contending the district court improperly
divided marital assets, and awarded insufficient alimony and attorney's fees. We disagree.
The Smiths were married in 1951. In 1955 respondent, Paul Smith, began work for the
Ideal Supply Company, and shortly thereafter became general manager. In 1958, the owner of
Ideal, Jack Kurtz, died, leaving 52% of the capital stock to his wife, and the balance to his
two sons. One year later, Mrs. Kurtz died and bequeathed her stock to respondent in his name
alone. The corporation thereafter retired the remaining stock, making respondent the sole
owner of the company.
[Headnote 1]
1. Appellant first contends the district court erroneously found the Ideal stock to be
respondent's separate property.
94 Nev. 249, 251 (1978) Smith v. Smith
Appellant recognizes that our statutory scheme presumes [a]ll property of the husband . . .
acquired by him . . . by gift, bequest, devise, . . . [to be] separate property. NRS 123.130(2).
However, she claims the presumption should not apply where the bequest was made in
remuneration for services rendered. Appellant mistakenly claims there are two species of
gifts: those acquired under onerous title, and those acquired under lucrative title. By
definition, onerous title is acquired where either spouse during marriage gains property
through labor or industry or other valuable consideration. DeFuniak & Vaughn, Principles
of Community Property, 62, 127 (2nd Ed. 1971) [L]ucrative title, [however,] is that
acquired through gift, succession, inheritance or the like. (Emphasis added.) Ibid at 128.
Moreover, appellant has failed to present any authority where such a title distinction has been
made when property is acquired by bequest. Cf. Ibid at 70, pp. 157-160; Scott v. Ward, 13
Cal. 458 (1859). It is also clear appellant failed to prove Mrs. Kurtz's motivation for making
the bequest. While it is true respondent managed Ideal Supply for Mrs. Kurtz, the district
court was not required to infer from such facts that the bequest was made in remuneration for
services. Therefore, the court was entitled to find the Ideal interest to be respondent's separate
property.
[Headnotes 2-4]
2. Appellant additionally contends she was entitled to apportionment of the Ideal assets,
because respondent continued to work at the company after he became owner. See Schulman
v. Schulman, 92 Nev. 707, 558 P.2d 525 (1976); Johnson v. Johnson, 89 Nev. 244, 510 P.2d
625 (1973); cf. Bean v. Bank of America, 490 P.2d 257 (Cal. 1971); Van Camp v. Van Camp,
199 P. 885 (Cal.App. 1921); Pereira v. Pereira, 103 P. 488 (Cal. 1909). However, in order to
apply the apportionment doctrine, appellant must again overcome the statutory presumption
that rents, issues, and profits of separate property retain the same character. NRS
123.130(2). It was her burden to prove that respondent's labor, skill, and industry actually
contributed to the increase in value of his separate property. Barrett v. Franke, 46 Nev. 170,
208 P. 435 (1922); see also Kelly v. Kelly, 86 Nev. 301, 468 P.2d 359 (1970). Testimony
indicated respondent turned over active management of the business to Don Johnson in 1962.
As owner, respondent worked less than eight hours a week, and did not participate in the
day-to-day operations of the business. Moreover, business increases were primarily
attributable to the tremendous growth in Clark County. Therefore, the district court made no
error by finding that the rents, issues, and profits were also separate property Cf.
94 Nev. 249, 252 (1978) Smith v. Smith
property Cf. In Re Ney's Estate, 28 Cal.Rptr. 442 (Cal.App. 1963); Cozzi v. Cozzi, 183 P.2d
739 (Cal.App. 1947).
[Headnotes 5, 6]
3. Finally, we perceive no abuse of discretion by the district court in refusing to set aside
respondent's separate property for support; in awarding $1,000 per month alimony with cost
of living increases; and in refusing appellant's request for $18,000 in attorney's fees. NRS
125.150, cf. Buchanan v. Buchanan, 90 Nev. 209, 523 P.2d 1 (1974); Fletcher v. Fletcher, 89
Nev. 540, 516 P.2d 103 (1973); Sargeant v. Sargeant, 88 Nev. 223, 495 P.2d 618 (1972).
Affirmed.
____________
94 Nev. 252, 252 (1978) Firsching v. Ferrara
In the Matter of the Estate of ROBERT
A. FIRSCHING, Deceased.
HELEN R. FIRSCHING and ALFRED S. HOWES, Ancillary Executors of the Estate of
ROBERT A. FIRSCHING, Deceased; ALFRED S. HOWES, Trustee Under the Testamentary
Trust of the Will of ROBERT A. FIRSCHING, Deceased; HELEN R. FIRSCHING,
Beneficiary Under the Testamentary Trust of the Will of ROBERT A. FIRSCHING,
Deceased, Appellants, v. KAY FERRARA, Executrix of the Estate of FRANK N.
FERRARA, Deceased, Respondent.
No. 8899
May 15, 1978 578 P.2d 321
Appeal from order sequestering estate assets, Eighth Judicial District Court, Clark County;
Keith C. Hayes, Judge.
Estate of broker brought action against estate of purchaser objecting to defendant estate's
petition for final settlement and distribution and alleging that it had contingent claim for
which allowance should be made. The district court denied final settlement and ordered
specified property sequestered as security for plaintiff's contingent claim, and defendant
appealed. The Supreme Court held that where prior action brought by estate of relator against
estate of purchaser was predicated upon contracts pursuant to which purchaser had allegedly
agreed to pay to broker one-half of all net profits derived from subject property, but broker's
estate failed to tender its contingent claim in such prior action, broker's estate was
precluded from doing so in subsequent action brought against purchaser's estate
objecting to purchaser's estate's petition for final settlement and distribution, since facts
essential to maintenance of both suits were identical.
such prior action, broker's estate was precluded from doing so in subsequent action brought
against purchaser's estate objecting to purchaser's estate's petition for final settlement and
distribution, since facts essential to maintenance of both suits were identical.
[Rehearing denied June 13, 1978]
Beckley, Singleton, DeLanoy, Jemison & Reid, Chartered, Las Vegas, for Appellants.
Gabe Hoffenberg, Las Vegas, for Respondent.
Judgment.
Where prior action brought by estate of relator against estate of purchaser was predicated upon contract
pursuant to which purchaser had allegedly agreed to pay broker one-half of all net profits derived from
subject property, but broker's estate failed to tender its contingent claimant in such prior action, broker's
estate was precluded from doing so in subsequent action brought against purchaser's estate objecting to
purchaser's estate's petition for final settlement and distribution, since facts essential to maintenance of both
suits were identical. NRS 150.250.
OPINION
Per Curiam:
This litigation between the personal representatives of Robert A. Firsching and Frank N.
Ferrara, both deceased, involves a written agreement entered into by the deceased parties on
June 19, 1963. That agreement concerned two parcels of real property in Nye County and,
after reciting the legal description of the property, provided: In consideration of a waiver of
any and all commissions by Ferrara Realty, and other services, Robert A. Firsching purchaser
and owner of above agrees to pay one half of all net profit to Frank Ferrara of Ferrara Realty.
Although no profits had yet been realized, Ferrara's Estate filed a creditor's claim in the
Firsching Estate proceedings on April 5, 1971, seeking an accounting of profits. That claim
was rejected and Ferrara's Estate subsequently brought an action for an accounting and
judgment in the amount determined to be due or, alternatively, for a constructive trust or
equitable lien to be placed upon the property in the amount determined to be due. The
Firsching Estate moved for summary judgment. The district court ordered partial summary
judgment, but stated: It would be simple to hold that Plaintiff's [Ferrara's Estate's] suit
was not yet ripe and grant Defendants [Firsching's Estate] Motion for Summary Judgment
without qualification but this may frustrate the filing and determination of claims under
the procedure for administration of estates.
It would be simple to hold that Plaintiff's [Ferrara's Estate's] suit was not yet ripe and
grant Defendants [Firsching's Estate] Motion for Summary Judgment without
qualification but this may frustrate the filing and determination of claims under the
procedure for administration of estates.
The Motion for Summary Judgment is granted save and except Plaintiff is granted
leave to file an amended complaint on or before September 9, 1974, if Plaintiff's
research and review show a valid cause of action for declaratory judgment so Plaintiff's
cause may be pursued if and when it becomes ripe. A contingent claim is contemplated
in Estate proceedings.
The Ferrara Estate failed to file an amended complaint, summary judgment was granted,
and the cause of action dismissed with prejudice. The judgment was appealed and affirmed by
this court on January 23, 1976. See Ferrara v. Firsching, 92 Nev. 38, 544 P.2d 1198 (1976).
However, before that decision was filed, the Ferrara Estate commenced the present action
by filing an objection to the Firsching Estate's petition for final settlement and distribution,
contending it had a contingent claim for which allowance should be made pursuant to NRS
150.250.
1
The district court denied final settlement and distribution as to the real property
which was the subject of the Ferrara-Firsching agreement and ordered it sequestered as
security for the Ferrara Estate's contingent claim. The Firsching Estate has appealed that order
contending the doctrine of res judicata bars the Ferrara Estate from relitigating its claim to
profits from the subject property. We agree.
In Bissell v. College Development Co., 89 Nev. 558, 561, 517 P.2d 185, 187 (1973), we
addressed the doctrine of res judicata and stated:
A judgment on the merits by a proper court will operate to bar every matter offered
and received to sustain or defeat the claim and every other matter which might with
propriety have been litigated and determined in that action in subsequent litigation
between the parties or their privies involving identical causes of action. The test of a
cause of action for res judicata purposes is the identity of facts essential to maintain
the two suits; if the facts show only one right of the plaintiff and one wrong by the
defendant involving that right there is only one cause of action.
____________________

1
1. If there is any claim not due, or any contingent or disputed claims against the estate, the amount thereof,
or such part of the same as the holder would be entitled to if the claim were due, established or absolute, must be
paid into court, and there remain, to be paid over to the holder when he becomes entitled thereto; or, if he fails to
establish his claim, to be paid over or distributed as the circumstances of the estate require.
action for res judicata purposes is the identity of facts essential to maintain the two
suits; if the facts show only one right of the plaintiff and one wrong by the defendant
involving that right there is only one cause of action.
Here, both the former and present suits are predicated upon the parties' interest in and right
to profits from the subject property. Manifestly, the facts essential to the maintenance of both
suits are identical; therefore, both suits involve but one cause of action and, accordingly, the
final judgment on the merits in the former suit bars subsequent litigation involving any matter
which was or might, with propriety, have been litigated therein. See Bissell v. College
Development Co., cited above; Tomiyasu v. Golden, 81 Nev. 140, 400 P.2d 415 (1965); Reno
Club v. Harrah et al., 70 Nev. 125, 260 P.2d 304 (1953). As the district court in the former
suit accurately perceived, the Ferrara Estate's contingent claim, cognizable under NRS
150.250, was one which should have been tendered in the former suit and the Estate, having
failed to do so, it barred from litigating this matter in the present suit. See Olson v. Iacometti,
91 Nev. 241, 533 P.2d 1360 (1975); Reno Club v. Harrah et al., cited above.
The district court order is reversed and the case remanded for proceedings consistent with
this opinion.
____________
94 Nev. 255, 255 (1978) Maxey v. State
MARVIN MAXEY, Appellant, v. THE STATE
No. 9634
May 17, 1978 578 P.2d 751
Thomas J. O'Donnell, Judge.
Defendant was convicted in the district court of robbery with use of a deadly weapon, and
he appealed. The Supreme Court held that: (1) where defendant has knowledge of judicial
misconduct, he must assert right to mistrial immediately or be deemed to have waived any
alleged error, and (2) where record contained overwhelming evidence of defendant's guilt,
any error which may have occurred by alleged improper comments by judge during voir dire
was harmless error.
Affirmed.
94 Nev. 255, 256 (1978) Maxey v. State
Morgan D. Harris, Public Defender, and Terrence M. Jackson, Deputy Public Defender,
1. Criminal Law.
Where defendant in criminal proceeding has knowledge of judicial misconduct, he must assert his right to
a mistrial immediately or be deemed to have waived any alleged error.
2. Criminal Law.
Where record contained overwhelming evidence of defendant's guilt, any error which may have occurred
by improper comment by the judge during voir dire was harmless error. NRS 178.598.
OPINION
Per Curiam:
Appellant stands convicted, by jury verdict, of robbery (NRS 200.380) with use of a
deadly weapon (NRS 193.165). His principal contention on appeal is that a hypothetical fact
situation given by the judge during voir dire as an illustration of circumstantial evidence
constituted an improper comment relative to his guilt or innocence.
[Headnotes 1, 2]
Although the alleged improper comment was made during voir dire, appellant's counsel
failed to object until after the jury was sworn and both sides had concluded their opening
statements. Where, as here, appellant has knowledge of the misconduct, he must assert his
right to a mistrial immediately or be deemed to have waived any alleged error. Cf. Scott v.
State, 88 Nev. 682, 504 P.2d 10 (1972); State v. Hartley, 22 Nev. 342, 40 P. 372 (1895);
Horne v. State, 506 S.W.2d 596 (Tex.Crim.App. 1974). Moreover, even assuming error, the
record contains overwhelming evidence of appellant's guilt and, thus, we deem any such error
harmless. NRS 178.598. See Jacobs v. State, 91 Nev. 155, 532 P.2d 1034 (1975); Shepp v.
State, 87 Nev. 179, 484 P.2d 563 (1971).
Appellant's other contentions are without merit and, accordingly, the district court
judgment is affirmed.
____________
94 Nev. 257, 257 (1978) Holt v. Nevada Industrial Comm'n
CARROLL HOLT, Appellant, v. NEVADA
INDUSTRIAL COMMISSION, Respondent.
No. 9819
May 17, 1978 578 P.2d 752
Appeal from summary judgment, First Judicial District Court, Carson City; Frank B.
Gregory, Judge.
Review was sought of denial of request for permanent partial disability benefits for
chronic obstructive pulmonary disease. The district court affirmed, and appeal was taken. The
Supreme Court held that providing benefits for temporary disability and permanent total
disability due to occupational disease while failing to provide permanent partial disability
benefits, although such benefits are awarded employees injured by accident, does not violate
equal protection.
Affirmed.
A. J. Bayer, Jr., Carson City, for Appellant.
Don Aimar, Carson City, for Respondent.
1. Constitutional Law; Workmen's Compensation.
It is not a violation of equal protection to provide temporary and permanent total disability benefits for
occupational diseases while failing to provide permanent partial disability benefits for such diseases,
although permanent partial disability benefits are awarded to employees injured by accident; since diseases
take a period of time to develop and objective manifestations exacerbate and remit as illness progresses,
such exacerbation-remission cycle, which makes it difficult to assess an anatomical percentage to be
assigned to particular disability, justifies the distinction. NRS 617.430, subd. 1, 616.605;
Contentions not raised in district court in workmen's compensation proceeding would not be considered
by Supreme Court on appeal.
OPINION
Per Curiam:
During the course of his employment for the Nevada State Highway Department, appellant
contracted chronic obstructive pulmonary disease. Appellant sought, and was granted
recovery from the Nevada Industrial Commission for medical care, and periods of temporary
total disability. However, the Commission denied appellant's request for permanent partial
disability benefits, pursuant to NRS 617.430(1).
1
Appellant subsequently petitioned the
district court for review, claiming the statute was unconstitutional and violative of the
equal protection clause of the federal constitution.
____________________

1
Every employee who is disabled or dies because of an occupational disease,
subsequently petitioned the district court for review, claiming the statute was unconstitutional
and violative of the equal protection clause of the federal constitution. The district court
determined the statute was not unconstitutional in the respect claimed. We affirm that
determination.
[Headnotes 1, 2]
NRS 617.430(1) clearly provides benefits for medical, temporary disability, permanent
total disability and death, to employees who suffer occupational disease. However, the
statute fails to provide permanent partial disability benefits. Such benefits may only be
awarded to employees injured by an accident. NRS 616.605. Appellant claims this statutory
scheme arbitrarily discriminates against employees who suffer disability through disease as
opposed to injury. We disagree.
A[n economic or regulatory] statutory discrimination will not be set aside if any state of
facts reasonably may be conceived to justify it. Koontz v. State, 90 Nev. 419, 421, 529 P.2d
211 (1974). Here, it is evident the legislature had a rational basis for denying permanent
partial disability benefits to individuals suffering from an occupational disease. Diseases take
a period of time to develop, and objective manifestations exacerbate and remit as an illness
progresses. Arguably, this exacerbation-remission cycle makes it difficult to assess the
anatomical percentage which may be assigned to a partial disability, and, therefore, we view
the legislature as justified in drawing the distinction in question. We note, since 1947 the
legislature has paid particular attention to the Occupational Disease Act through repeated
amendment, but has never seen fit to provide permanent partial disability awards for
occupational respiratory diseases. See NRS 617.300; NRS 617.325; NRS 617.430; NRS
617.460; NRS 617.470. While it may be a better practice to provide such compensation to a
diseased employee, that determination must rest with the legislature. We therefore find that
NRS 617.430(1) is not unconstitutional as claimed, cf. Denio v. Western Alloyed Steel
Castings Co., 103 N.W.2d 384 (Minn. 1960); Masich v. U.S. Smelting, Refining & Mining
Co., 191 P.2d 612 (Utah 1948); Cifolo v. General Electric Co.,
____________________
as defined in this chapter, arising out of and in the course of employment in the State of Nevada, or the
dependents, as that term is defined in chapter 616 of NRS, of an employee whose death is caused by an
occupational disease, shall, on and after July 1, 1947, be entitled to the compensation provided by chapter 616
for temporary disability, permanent total disability, or death, as the facts may warrant, subject to the
modifications mentioned in this chapter.
Electric Co., 112 N.E.2d 197 (N.Y.App. 1953), and affirm the district court's judgment.
2

____________________

2
Appellant's other contention was not raised in the lower court, and will not be considered on appeal. See.
e.g., Worthington Motors v. Crouse, 80 Nev. 147, 390 P.2d 229 (1964).
____________
94 Nev. 259, 259 (1978) Johnson v. Whipple
JUSTIN H. JOHNSON, Appellant and Cross-Respondent, v. MARCIA J. WHIPPLE,
Respondent And Cross-Appellant.
Nos. 9407 and 9757
May 17, 1978 578 P.2d 1189
Appeal from a judgment; Second Judicial District Court, Washoe County; Peter I. Breen,
Judge.
Trust beneficiary brought suit against trustee alleging breach of trustee duty in
management of inter vivos trust substantially funded from decedent's estate. The district court
entered judgment, and trustee appealed and trust beneficiary cross-appealed. The Supreme
Court held that: (1) where decedent's will was never offered for probate, court was precluded
from considering allegations of breach of trust duty in management since decedent's property
could not have passed to trust without probate, and (2) until decedent's will was proved, there
was no way to ascertain identity of any beneficiaries, and thus plaintiff had no standing to
challenge defendant's management of property in decedent's estate.
Hawkins, Rhodes, Sharp & Barbagelata and M. Craig Haase, of Reno, for Appellant and
Cross-Respondent.
Vargas, Bartlett & Dixon and Philip G. Satre, of Reno, for Respondent and
Cross-Appellant.
1. Wills.
Decedent's property cannot have passed to trust without probate.
2. Wills.
Where decedent's will was never offered for probate and since his property could not have passed to trust
without probate, no agreement would be inferred among heirs at law to suppress will and
accomplish pour-over to trust by extra-judicial means.
would be inferred among heirs at law to suppress will and accomplish pour-over to trust by extra-judicial
means.
3. Trusts.
Where decedent's will was never offered for probate, and since his property could not have passed to trust
without probate, court would not posit existence of constructive trust based on son's appointment as
executor of his father's estate.
4. Executors and Administrators.
Until decedent's will was proved, there was no way in which to ascertain identity of any beneficiaries, and
thus plaintiff had no standing to challenge executor's management of property in decedent's estate.
OPINION
Per Curiam:
This appeal concerns numerous allegations of breach of trustee duty committed by
appellant Johnson in his management of a trust substantially funded from the estate of his
father, Edgar Johnson. The action was initiated by Johnson's sister Marcia, a beneficiary of
the inter vivos trust.
[Headnotes 1, 2]
However, as conceded by both parties before this court in oral argument, Edgar's will was
never offered for probate. This failure precludes us from considering the merits of this appeal,
because Edgar's property cannot have passed to the trust without probate. In re Estate of
Zimmerman, 485 P.2d 215 (Kan. 1971); In re Campbell's Estate, 280 P.2d 686 (Wash. 1955);
Reed v. Hayward, 144 P.2d 561 (Cal. 1943); Further, we are unwilling to infer a tacit
agreement among the heirs at law to suppress the will and accomplish the pour-over by
extra-judicial means. In re Estate of Harper, 446 P.2d 738 (Kan. 1968); Estate of Horger, 358
P.2d 484 (Ore. 1960); see, NRS 136.050, 163.220-250.
[Headnotes 3, 4]
Moreover, we decline Marcia's invitation to posit the existence of a constructive trust
based on Johnson's appointment as executor of his father's estate. See, Pedroli v. Scott, 47
Nev. 313, 221 P. 241, 31 A.L.R. 841 (1923). Until Edgar's will is proved, there is no way in
which to ascertain the identity of any beneficiaries of such a creation. Reed v. Hayward,
supra. This being so, Marcia has no standing to challenge Jonhnson's management of the
property in Edgar's estate.
Because the inter vivos trust here involved remains substantially unfunded, and because
those portions of the district court order appealed from mainly concern the rights and property
erroneously thought to have passed to the trust under Edgar's will, we believe probate to be
a necessary prerequisite to a proper consideration of the issues involved in this appeal.
Edgar's will, we believe probate to be a necessary prerequisite to a proper consideration of the
issues involved in this appeal.
____________
94 Nev. 261, 261 (1978) Watson v. State
MICHAEL J. WATSON, Appellant, v. THE STATE
No. 9771
May 17, 1978 578 P.2d 753
Appeal from judgment of conviction. Eighth Judicial District Court, Clark County; Carl J.
Christensen, Judge.
Defendant was convicted in the district court of attempted burglary, and he appealed. The
Supreme Court held that: (1) there was no violation of defendant's right to counsel, and (2)
the trial court reasonably exercised its discretion in permitting a police officer to testify
regarding possible criminal uses of channellocks and socks.
Affirmed.
1. Criminal Law.
Where, before any prejudice to defendant could have resulted, a conflict between defendant and his
privately retained attorney ceased and the attorney went on to effectively protect defendant's interests, no
violation of defendant's right to counsel resulted from fact that trial court had refused to permit the
unqualified discharge of the attorney and had appointed the attorney, at public expense, to remain and
provide standby assistance for defendant, who desired to represent himself.
2. Criminal Law.
Where the trial court admonished the jury that any disagreement between itself, counsel and defendant
had no bearing on defendant's innocence or guilt and was to be disregarded, defendant was not prejudice by
the fact that the existence of a disagreement between defendant and his defense counsel was inadvertently
made known to the jury.
3. Criminal Law.
The admissibility and competency of opinion testimony, either expert or nonexpert, is largely
discretionary with the trial court.
4. Criminal Law.
It is largely discretionary with the trial court to determine what evidentiary areas mandate the use of
experts.
5. Criminal Law.
Where the testimony involved proper subject matter and was helpful to the jury and the jury was properly
instructed that it could give whatever credibility it wished to the testimony, the trial court reasonably
exercised its discretion in permitting a police officer to testify, in attempted burglary prosecution, that
channellocks are often used by burglars to break internal mechanism of door locks and that socks are often
used to cover the hands and prevent fingerprints. NRS 50.275.
OPINION
Per Curiam:
Appellant was convicted of attempted burglary. At trial, testimony was received from the
owner of the residence that two men approached her front door and rang the door bell several
times. Because the men were not familiar to her, she did not answer the door. While the men
proceeded to the backyard and attempted to gain entry into the residence through a sliding
glass door, she called the police.
Officers responding to the call saw the men running and began pursuit. One officer
testified that he apprehended one suspect immediately and apprehended the appellant Watson
later behind a bush in a neighbor's yard. The neighbor subsequently raked behind the bush
and discovered socks and channellocks which were not his. At trial, a police officer testified
that channellocks are used to break the locks on doors and that socks are frequently used in
lieu of gloves to prevent leaving latent fingerprints.
During trial, Watson attempted to discharge his privately retained counsel and to represent
himself. The trial judge repeatedly cautioned Watson against undertaking self-representation
but refused to permit the unqualified discharge of counsel. The trial court informed Watson of
his right to represent himself but appointed, at public expense, the same counsel to remain
and assist Watson. Watson was convicted by jury verdict and now appeals from the entry of
judgment.
Two issues confront us: (1) Did the trial court's action violate defendant's right to counsel,
and (2) did the trial court err in permitting testimony about the channellocks and socks?
[Headnote 1]
1. Right to counsel. Watson contends that he was prejudiced by the trial court's
reappointing the same counsel to represent him and that he was thus denied effective counsel.
Watson had privately retained the attorney but at the commencement of trial attempted to
discharge him. He stated as reasons that although the defense exhausted its peremptory
challenges, there were still several jurors he wanted excused.
challenges, there were still several jurors he wanted excused. Additionally, Watson felt that
counsel had, without Watson's consent, disclosed his proposed defense to the prosecution. In
remarks addressed to another matter outside the presence of the jury, the prosecutor
anticipated that Watson might claim as an alibi that he was at a friend's home during the
incident. Because this was apparently the defense Watson intended to present, he claimed that
his attorney must have related it to the district attorney. The prosecutor denied any such
communication and stated that it was merely an educated guess. Eventually, Watson
apologized to the court for these accusations.
Appellant cites State v. Bitz, 404 P.2d 628 (Idaho 1965), as authority that permitting the
withdrawal of defense counsel and later reappointing the same counsel constitutes reversible
error. Bitz is inapposite to our factual setting. Here, the trial court made a determination that
no adequate grounds existed for the discharge of counsel and thus denied the motion for
discharge. Counsel was then appointed by the court at public expense merely to provide
standby assistance. Watson later, before any prejudice had resulted, did, essentially because
of his inability to proceed pro se, again accepted full legal representation and his counsel
effectively conducted the defense. Thus, there was in fact no discharge of counsel and
subsequent reappointment.
The instant matter is parallel to People v. Durham, 449 P.2d 198 (Cal. 1969), where the
court refused to permit the defendant to discharge retained counsel on the first day of trial
because it would have seriously disrupted the judicial proceedings and the defendant's
disagreement with his counsel did not justify discharge. Accord, Schnepp v. State, 92 Nev.
557, 554 P.2d 1122 (1976).
The record shows that at the commencement of the trial, although there was no initial
legally cognizable disagreement between the appellant and his counsel, the conflict ceased in
time to allow him to fully discharge his duties as defense counsel. Appellant's attorney
effectively protected his client's interests by being adequately prepared, cross-examining each
of the State's witnesses, making timely objections, calling a witness, and making an able
closing argument. Our review of the record does not suggest that the trial was reduced to a
sham, farce, or pretense. Sullivan v. Warden, 91 Nev. 563, 540 P.2d 112 (1975); Jackson v.
Warden, 91 Nev. 430, 537 P.2d 473 (1975); Founts v. Warden, 89 Nev. 280, 511 P.2d 111
(1973).
[Headnote 2]
Nor was appellant prejudiced by the fact that existence of the attorney-client disagreement
was inadvertently made known to the jury.
the jury. The trial court admonished the jury that any disagreement between itself, counsel,
and defendant had no bearing on the innocence or guilt of the defendant and was to be
disregarded. Nor does a review of the record indicate that appellant was denied the effective
assistance of counsel. Weber v. State, 92 Nev. 367, 550 P.2d 779 (1976).
2. Testimony regarding channellocks and socks. Appellant objects to the testimony of a
police officer regarding possible criminal uses of channellocks and socks. He contends that it
was never determined whether the officer testified as an expert witness and that absent such
determination the jury may have been overly influenced by such nonexpert testimony given
under the guise of expertise. Cf. Crowe v. State, 84 Nev. 358, 441 P.2d 90 (1968).
[Headnotes 3, 4]
Although no express finding was made that the evidence was offered as expert testimony,
the foundational questions implied that the testimony was proffered as such. Moreover, a jury
instruction pertaining to expert testimony suggests that the testimony was expert in nature.
The admissibility and competency of opinion testimony, either expert or non-expert, is largely
discretionary with the trial court, State v. Crook, 565 P.2d 576 (Idaho 1977), as is the
determination of what evidentiary areas mandate the use of experts, State v. Knapp, 562 P.2d
704 (Ariz. 1977).
[Headnote 5]
The officer testified that channellocks are often used by burglars to break the internal
mechanism of door locks and that socks are often used in lieu of gloves to cover the hands
thereby preventing fingerprint impressions. The jury instruction properly stated that the jury
could give whatever credibility it wished to the expert opinion, Hardison v. State, 84 Nev.
125, 437 P.2d 868 (1968); People v. Clay, 38 Cal.Rptr. 431 (App. 1964), even if the expert
opinion were in fact non-expert, State v. Johnson, 536 P.2d 295 (Idaho 1975).
The testimony involved proper subject matter. NRS 50.275 authorizes expert testimony
[i]f scientific, technical or otherwise specialized knowledge will assist the trier of fact to
understand the evidence or determine a fact in issue. . . . (Emphasis supplied.) See also,
Dawson v. State, 84 Nev. 260, 439 P.2d 472 (1968). Here, the testimony would have been
helpful to the jury, indicating the possible modus operandi of burglary. People v. Jenkins, 532
P.2d 857, cert. denied, 423 U.S. 860 (Cal. 1975).
The trial court reasonably exercised its discretion in permitting the testimony.
____________
94 Nev. 265, 265 (1978) Shuman v. State
RAYMOND WALLACE SHUMAN, Appellant, v. THE
No. 8341
May 17, 1978 578 P.2d 1183
Appeal from judgment of conviction of crime of capital murder entered by jury verdict of
guilty, and from mandatory sentence of death; First Judicial District Court, Carson City;
Frank B. Gregory, Judge.
Defendant appealed, and the Supreme Court, Mowbray, J., held that: (1) statements made
by defendant's victim were properly admitted as dying declarations; (2) the statute, in effect at
the time of the murder, which made the death penalty mandatory in the case of murder
committed by a prisoner serving a life sentence without possibility of parole was
constitutional; (3) where defendant's status as a prisoner was known to the jury, the fact that
defendant wore his prison garb during his trial was not prejudicial; (4) defendant was not
denied effective assistance of counsel, and (5) the evidence was sufficient to support the
conviction.
Affirmed.
Rodlin Goff, State Public Defender, and Michael R. Griffin and J. Thomas Susich, Deputy
Public Defenders, Carson City; and Raymond Wallace Shuman, in pro. per., for Appellant.
Robert List, Attorney General, and D. G. Menchetti, Deputy Attorney General, Carson
City; Michael E. Fondi, District Attorney, Carson City, for Respondent.
1. Homicide.
Where victim had suffered third-degree burns over 90 percent of his body and, in view of the extremity of
the victim's situation, it was likely that the victim knew or strongly believed that his death was imminent
when he responded by nodding his head to county investigator's questioning, testimony that the victim
repeatedly stated [a]ll over a window and thereafter identified defendant as his assailant was properly
admitted under the dying declaration hearsay exception, in capital murder prosecution.
under the dying declaration hearsay exception, in capital murder prosecution. NRS 51.335.
2. Homicide.
The statute providing for the admission of dying declaration dispenses with the distinction between facts
and opinions. NRS 51.335.
3. Criminal Law.
The death penalty does not in itself violate the ban on cruel and unusual punishment. Const. art. 1,
6; U.S.C.A.Const. Amend. 8.
4. Criminal Law.
Statute, in effect when defendant murdered a fellow prisoner, which made the death penalty mandatory in
the case of murder committed by a person under sentence of life imprisonment without possibility of
parole, did not offend the provisions of the State or Federal Constitution prohibiting cruel and unusual
punishment. Const Art. 1, 6; U.S.C.A.Const. Amends. 8, 14; NRS 200.030.
5. Criminal Law.
Where defendant's status as a prisoner was known to jury since he was on trial for murder of a fellow
inmate, fact that defendant wore his prison garb during trial did not prejudice his right to a presumption of
innocence.
6. Criminal Law.
The standard for determining whether defendant was denied his Sixth Amendment right to effective
assistance of counsel is whether counsel's performance was such as to reduce the trial to a sham, a farce or
a pretense. U.S.C.A.Const. Amend. 6.
7. Criminal Law.
There is a presumption that counsel adequately discharged his duties and that presumption can be
overcome only by strong and convincing proof to the contrary.
8. Criminal Law.
Examination of record, in prosecution of defendant for the killing of a fellow prisoner, established that
defendant's counsel properly discharged his duties. U.S.C.A.Const. Amend. 6.
9. Homicide.
Evidence that defendant killed a fellow prisoner while defendant was serving a life sentence without
possibility of parole was sufficient to support conviction of capital murder. NRS 200.030.
OPINION
A jury found appellant, Raymond Wallace Shuman, guilty of capital murder. Shuman, who
was serving a life sentence without possibility of parole, was charged with the fatal killing of
a fellow prisoner. Under the provisions of a mandatory death sentence then in effect, Shuman
was sentenced to death. NRS 200.030 (1973) (amended 1975, 1977).
1
He has appealed,
asserting numerous assignments of error, which we reject as meritless; therefore, we
affirm.
____________________

1
NRS 200.030 then read, in pertinent part: 1. Capital murder is murder which is perpetrated by: . . . (b) A
person who is under sentence of life imprisonment without possibility of parole. . . . 5. Every person convicted
of capital murder shall be punished by death. 1973 Nev. Stats., ch. 798, 5, at 1803-04.
asserting numerous assignments of error, which we reject as meritless; therefore, we affirm.
I.
THE FACTS
On August 27, 1973, Ruben Bejarno, an inmate at the Nevada State Prison, was set afire
and burned with a flammable fluid. He was given emergency treatment at Carson-Tahoe
Hospital in Carson City and transferred to Valley Medical Center in Santa Clara, California.
He died three days later.
When he was transferred from the prison to the hospital, he said several times in the
presence of an officer, [a]ll over a window. Bejarno stated at the hospital that it was
Shuman who had set him afire. He reiterated this statement, upon questioning, at the medical
center.
Shuman and Bejarno occupied adjoining cells. Two cans containing flammable fluid, both
with Shuman's fingerprints, were found in Bejarno's cell. When Bejarno ran from his cell in
flames, Shuman was seen near Bejarno's cell making throwing motions. The State's
contention was that Shuman threw the empty cans into Bejarno's cell after he had set him
afire. Shuman's hair was singed; he suffered a severe burn on his left hand. It was also learned
that the two had been fighting, just prior to the incident, over opening a window located near
their cells.
II.
ISSUES RAISED BY COUNSEL
Shuman, through his counsel, urges reversal on the grounds (1) that the trial court erred in
admitting the dying declarations of the deceased and (2) that imposition of the death penalty
constitutes cruel and unusual punishment in violation of the eighth and fourteenth
amendments to the United States Constitution and article 1, section 6, of the Nevada
Constitution.
A. The Dying Declarations.
[Headnote 1]
1. Bejarno suffered third-degree burns over ninety percent
____________________
The current version of the statute, enacted by an Act of May 17, 1977 (1977 Nev. Stats., ch. 585, at 1541 et
seq.), provides for a separate penalty hearing by the jury or, in some circumstance, a panel of three district
judges. NRS 175.552-175.562, 177.055. The death penalty may be imposed in case of conviction of first-degree
murder only if one or more aggravating circumstances are found and any mitigating circumstances which are
found do not outweigh the aggravating circumstance or circumstances. NRS 200.030, subsection 4(a). Murder
committed by a person under sentence of imprisonment is listed as one of his body, second-of the
circumstances by which murder of the first degree may be aggravated. NRS 200.033, subsection 1.
of his body, second-degree burns over nine percent of his body, and first-degree burns over
one percent of his body. The record establishes that a person sustaining burns of this
magnitude has no chance of survival.
A correctional officer at the prison who accompanied Bejarno to the hospital emergency
room testified that Bejarno was burned very badly, was charred in many places, had blood
oozing from his legs and ankles, and had great difficulty in breathing. Predicated on these
observations, the trial court permitted, over objection, the officer to testify that Bejarno stated
repeatedly, [a]ll over a window.
In State v. Teeter, 65 Nev. 584, 200 P.2d 657 (1948), this court ruled that a lay person is
competent to testify when an injured person is conscious of impending death, providing the
witness observed the injured person, his symptoms and expressions, and the declarant's
general physical condition. Teeter supports the trial court's ruling in admitting Bejarno's
statement, [a]ll over a window, made repeatedly while en route to the hospital emergency
room.
[Headnote 2]
Shuman suggests, however, that, even so, the statements should not have been received,
because they did not include any relevant facts surrounding the actual burning; that they were
only the opinion of the declarant relating to the reason for the assault. Prior to the adoption of
NRS 51.335
2
in 1971, Nevada did not admit as dying declarations, expressions of opinion.
The authorities were split regarding what amounted to a statement of fact relating to an
injurious act and what was only an opinion. Wigmore, however, had long noted that the
fact/opinion distinction was unsound and should be abolished. See cases collected at 5 J.
Wigmore, Evidence 1434, at 282-83 (1974). The federal rule does away with this
distinction and permits dying declarations to include both the cause and the circumstances
surrounding the declarant's death. See 11 Moore's Federal Practice 804.01[11], at VIII-228
to -229 (1976). NRS 51.335, taken from example 3 of proposed federal rule 804, is broader
than the rule as finally enacted by Congress. We therefore conclude that our statute, NRS
51.335, dispenses with the fact/opinion distinction and that the decedent's statements were
properly received.
2. Bejarno, at Carson-Tahoe Hospital, identified Shuman as his assailant. Shuman claims
the testimony of the identification was inadmissible because Bejarno was not told at that time
that his injuries were fatal.
____________________

2
NRS 51.335: A statement made by a declarant while believing that his death was imminent is not
inadmissible under the hearsay rule if the declarant is unavailable as a witness.
time that his injuries were fatal. One of the attending physicians did, however, testify that he
advised Bejarno that he had small chance of survival.
Bejarno's other dying declaration was made at Valley Medical Center two days prior to his
death. Bejarno's voice was inaudible. He responded to questions, however, by nodding his
head either affirmatively or negatively. The questioning, by a county investigator, shows that
Bejarno was in full possession of his mental faculties. He identified Shuman as his assailant.
The extremity of Bejarno's situation was obvious. He was wrapped in gauze from head to
foot, immobilized in a special bed, and could not control his shaking.
In Teeter, this court said:
[I]t is not necessary for the declarant to state to anyone, expressly, that he knows or
believes he is going to die, or that death is certain or near, or to indulge in any like
expression; nor is it deemed essential that his physician, or anyone else, state to the
injured person that he will probably die as a result of his wounds, or that they employ
any similar expression. It is sufficient if the wounds are of such a nature that the usual
or probable effect upon the average person so injured would be mortal; and that such
probable mortal effect is not hidden, but, from experience in like cases, it may be
reasonably concluded that such probable effect has revealed itself upon the human
consciousness of the wounded person. . . .
Id., 65 Nev. at 628, 200 P.2d at 679 (emphasis added).
We believe that the probable effect of Bejarno's burns was sufficiently revealed to him and
that he knew or strongly believed that his death was imminent. As Professor Wigmore
observed: The circumstances of each case will show whether the requisite consciousness
existed; and it is poor policy to disturb the ruling of the trial judge upon the meaning of these
circumstances. 5 J. Wigmore, Evidence 1442 at 298-301 (1974). Therefore, we conclude
that the dying declarations were properly received.
B. The Mandatory Death Sentence.
[Headnote 3]
It is clear that the imposition of the death penalty does not, in itself, violate the eighth
amendment ban on cruel and unusual punishment. Gregg v. Georgia, 428 U.S. 153 (1976).
Nor does it violate the similar provision of the Nevada Constitution. Hinrichs v. First Judicial
Dist. Court, 71 Nev. 168, 283 P.2d 614 (1955). The question presented by this case is
whether such a sentence may constitutionally be imposed upon one already serving a life
sentence without possibility of parole, upon his conviction of the murder of his fellow
inmate, under a statute which made the imposition of the death penalty mandatory under
such circumstances.
already serving a life sentence without possibility of parole, upon his conviction of the
murder of his fellow inmate, under a statute which made the imposition of the death penalty
mandatory under such circumstances.
In 1976 the United States Supreme Court, in Gregg v. Georgia, supra, and companion
Florida and Texas cases,
3
determined that the Georgia, Florida, and Texas death penalties
were not in violation of the eighth amendment ban on cruel and unusual punishment, and
were not arbitrary and capricious, where the statutes made provision for a bifurcated hearing,
first as to guilt and then as to punishment, and where the tribunals, either judge or jury, were
required to consider both aggravating and mitigating circumstances. The Court also
determined, however, that mandatory death penalty provisions of the statutes of North
Carolina and Louisiana were invalid, because the jury had no opportunity to consider the
circumstances of the crimes or the background of the accused. Woodson v. North Carolina,
428 U.S. 280 (1976); S. Roberts v. Louisiana, 428 U.S. 325 (1976). In Woodson, Justices
Stewart, Powell, and Stevens observed that, although individual sentencing determinations
generally reflected simply enlightened policy, rather than a constitutional imperative, in
capital cases the fundamental respect for humanity underlying the eighth amendment required
consideration of the character and record of the individual offender and the circumstances of
the particular offense as a constitutionally indispensable part of the process of inflicting the
penalty of death. 428 U.S. at 304. Woodson v. North Carolina and S. Roberts v. Louisiana
were both cited by the Court one year later, as the Court ruled unconstitutional the mandatory
imposition of the death sentence under a statute requiring the death penalty for the killing of a
police officer engaged in the performance of his duties, without consideration of the character
or background of the accused. H. Roberts v. Louisiana, 431 U.S. 633 (1977).
In each of the cases in which it has ruled the mandatory imposition of the death penalty
unconstitutional, however, the Court has specifically excepted from its prohibition the
circumstances presented by the case at hand. Woodson v. North Carolina, 428 U.S. at 287, n.
7; S. Roberts v. Louisiana, 428 U.S. at 334, n. 9; H. Roberts v. Louisiana, 431 U.S. at 637, n.
5. The Court noted in S. Roberts v. Louisiana that a unique problem is presented:
Only the third category of the Louisiana first-degree murder statute, covering
intentional killing by a person serving a life sentence or by a person previously
convicted of an unrelated murder, defines the capital crime at least in significant
part in terms of the character or record of the individual offender.
____________________

3
Proffitt v. Florida, 428 U.S. 242 (1976), and Jurek v. Texas, 428 U.S. 262 (1976).
serving a life sentence or by a person previously convicted of an unrelated murder,
defines the capital crime at least in significant part in terms of the character or record of
the individual offender. Although even this narrow category does not permit the jury to
consider possible mitigating factors, a prisoner serving a life sentence presents a unique
problem that may justify such a law. [Citations omitted.]
428 U.S. at 334, n. 9.
Although the Court does not explain the unique problem, we believe it is clear. Unlike
all other situations, in which the question presented to the jury is the degree or nature of
punishment that should be imposed, the question presented in this instance, if a separate
hearing were required, would be whether any effective punishment should be imposed at all
upon a prisoner already serving a life sentence without possibility of parole. What mitigating
circumstances could be offered that would justify the result that an individual convicted of
murder should suffer no practical legal consequences for that deliberate act? It is this
circumstance that makes the case unique.
We note that this would also be the result if, as Shuman urges, we were to declare the
statute under which he was sentenced unconstitutional. We do not see fundamental respect
for humanity, Woodson v. North Carolina, 428 U.S. at 304, reflected in the conclusion that
the murder of Bejarno should be without effective legal consequences for its perpetrator. In
the absence of a clear directive from the United States Supreme Court, we decline to reach
such a result.
[Headnote 4]
Therefore, we hold that NRS 200.030(1)(b), as it was in effect when Shuman murdered
Bejarno, did not offend the provisions of the United States or the Nevada Constitutions
against cruel and unusual punishment, and therefore was constitutional.
III.
ISSUES RAISED BY SHUMAN
Shuman requested and received permission to file in proper person supplemental briefs, in
which he raised the remaining issues upon which he seeks reversal.
A. The Effect of Prison Clothes Worn at Trial.
[Headnote 5]
Shuman wore his prison garb during his trial. He claims that as a result he was prejudiced
in his right to a presumption of innocence. He was not prejudiced, for his status as a prisoner
was known to the jury.
was known to the jury. As the court said in United States ex rel. Stahl v. Henderson, 472 F.2d
556, 557 (5th Cir.), cert. denied, 411 U.S. 971 (1973), where the defendant, charged with
killing a fellow inmate, was tried in prison clothes: No prejudice can result from seeing that
which is already known. Quoted in Estelle v. Williams, 425 U.S. 501, 507 (1976).
B. The Discharge of Counsel's Duties.
[Headnotes 6, 7]
Shuman contends he was denied his sixth amendment right to effective assistance of
counsel. The standard by which such a claim may be tested is whether the effectiveness of
counsel was such as to reduce the trial to a sham, a farce, or a pretense. Bean v. State, 86 Nev.
80, 465 P.2d 133, cert. denied, 400 U.S. 844 (1970). He asserts that his counsel failed to call
witnesses who would have placed Shuman away from the scene of the crime and near a
television set in another area when Bejarno was set on fire. (His counsel did present several
witnesses who testified that Shuman was near the television set sometime before the fire.)
There is a presumption that counsel adequately discharged his duties, and that presumption
can be overcome only by strong and convincing proof to the contrary. Smithart v. State, 86
Nev. 925, 478 P.2d 576 (1970).
[Headnote 8]
A reading of the record reveals that counsel properly discharged his duties. Such was the
ruling of the trial judge in denying Shuman's motion to substitute counsel during his trial:
[I]t is my personal feeling that Mr. Aimar [Shuman's counsel] is doing an excellent job in
protecting the rights of the defendant during the prosecution's case . . . Mr. Aimar is doing an
excellent job and he is going to continue to do so. We agree.
C. Shuman's Guilt Beyond a Reasonable Doubt.
[Headnote 9]
Shuman also complains that insufficient evidence was presented to the jury to support his
conviction of capital murder. Since we have upheld the admissibility of Bejarno's dying
declarations, it would serve no purpose to specify the remaining evidence supporting the
verdict. Suffice it to say that there is sufficient evidence in the record to support each and
every material allegation of the crime and that in such a case the judgment of conviction may
not be disturbed on appeal. Wills v. State, 93 Nev. 443, 566 P.2d 1138 (1977).
D. Shuman's Representation by Counsel at Prior Proceeding.
Finally, Shuman seeks reversal because, he claims, the record does not show that he was
represented by counsel when he was convicted of the murder for which he is presently
serving a sentence of life without possibility of parole, citing Burgett v. Texas, 3S9 U.S.
109 {1977).
he was convicted of the murder for which he is presently serving a sentence of life without
possibility of parole, citing Burgett v. Texas, 389 U.S. 109 (1977).
Burgett is inapposite. There, documents admitted into evidence indicated that the
defendant was not represented by counsel. The court in Burgett said: In this case the
certified records of the Tennessee conviction on their face raise a presumption that petitioner
was denied his right to counsel in the Tennessee proceeding . . . Id. at 114.
In the case at hand, no such presumption exists, as the evidence offered by the State was
an abstract of judgment showing that Shuman was represented by counsel at the time of
imposition of sentence. There was no suggestion that Shuman was not represented by counsel
at every critical stage of the prior proceeding. Moreover, Shuman failed to object to this
evidence at the time of its admission. This court has held repeatedly that failure to object at
trial precludes raising the issue on appeal. See, e.g., Allen v. State, 91 Nev. 78, 530 P.2d 1195
(1975).
Affirmed.
4

Batjer, C. J., and Thompson and Gunderson, JJ., concur.
Zenoff, C. J. (Retired), concurs:
When I assumed duties as a trial judge in 1958, my experience had been that of a lawyer
with some criminal matters scattered in a general law practice. I felt then that the death
penalty served a purpose. Now, many years later, I do not have the same opinion.
The purposes of imposing penalties upon convicted criminals are to punish, to rehabilitate,
or to deter them and others from repeating the offenses in the future. It is questionable that the
imposition of death for a capital crime does anything more than punish the criminal for the
period of confinement until his life is taken away. The time waiting for execution may be
punishing, but once the event takes place, for him it is all over. As a worldly being he suffers
no more. So too rehabilitation in a capital case serves no purpose. The murderer will either
lose his life or his freedom; either is terminal so far as his living in a free society is
concerned.
There might be a deterrence value, but if we only knew. Statistics that the death penalty
does or does not discourage capital crime are not reliable. Public figures have been
assassinated, their executioners put to death, yet assassinations still occur.
____________________

4
6, 19.
Threat of the death penalty did not reduce airplane hi-jacking; in the long run strict security
measures at airports accomplished the purpose. Murders are still committed in the few
communities where executions have been carried out.
Public televising of executions might serve some deterring value; yet even supporters of
the death penalty shudder at the thought of watching an execution. Killing in exchange for
killing does not provide the solution to capital crime.
Life imprisonment without possibility of parole should be our maximum penalty, but the
words must mean what they say. Life without freedom is no life at all. Some prisoners prefer
death to a life in prison, but to the contrary, of course, it can be argued that life in prison has
not been significantly deterring either.
The fact remains that my oath of office requires that I uphold the laws of the State of
Nevada as those laws have been defined by the Supreme Court of the United States. Shuman
was sentenced to death under a statute that in some part was declared unconstitutional by the
United States Supreme Court but not completely. See Smith v. State, 93 Nev. 82, 560 P.2d
158 (1977). In this case, he should have been afforded the bifurcated penalty hearing; still,
since Shuman testified at his trial, the jury knew all of the circumstances of the crime. If there
was basis for mitigation, he would have gotten it. He does, therefore, fall within the unique
situation of a prisoner serving life imprisonment without possibility of parole for one killing
who has committed another.
Sentencing Shuman to the same penalty would be useless. Arguably he can be placed in
solitary confinement for the rest of his life and deprived of any other prison privileges; but
consider the incongruity of severe prison punishment being cruel and inhuman, but taking his
life is not.
I do not believe capital punishment has a place in our cultured society, but I must
reluctantly concur that the law is as stated in the majority opinion.
____________
94 Nev. 275, 275 (1978) Lied v. County of Clark
ERNST F. LIED, Appellant, v. COUNTY OF CLARK, a Political Subdivision of the State of
Nevada; MGM GRAND HOTEL, INC., a Corporation; METRO GOLDWYN MAYER,
INC., a Corporation, Respondents.
No. 8480
May 23, 1978 579 P.2d 171
Appeal from judgment dismissing complaint with prejudice, Eighth Judicial District
Court, Clark County; J. Charles Thompson, Judge.
Landowner brought action against county and others on theories of inverse condemnation
and trespass and nuisance based on vacation of portion of street. The district court dismissed
complaint with prejudice and plaintiff appealed. The Supreme Court, Torvinen, D. J., held
that: (1) in view of landowner's access to next intersecting street in both directions on one
street and his access in one direction to next intersecting street on a second street, there was
no substantial impairment of access resulting from vacation of portion of second street to
northern boundary of landowner's property and landowner was not entitled to recover on basis
of inverse condemnation; (2) plaintiff failed to show substantial and unreasonable
interference with use and enjoyment of his land so that he was not entitled to recover on
ground of nuisance; (3) plaintiff failed to show that his property had been invaded and was
not entitled to recover on basis of trespass, and (4) the vacation of the portion of the street
was not an abuse of discretion.
Affirmed.
Bell, Leavitt & Green, Chartered, Las Vegas, for Appellant.
George E. Holt, District Attorney and Thomas R. Severns, Deputy District Attorney, for
Respondent Clark County.
Lionel Sawyer Collins & Wartman, Las Vegas, for Respondents MGM Grand Hotel, Inc.
and Metro Goldwyn Mayer, Inc.
1. Eminent Domain.
Determination of substantial impairment of access must be reached as matter of law in inverse
condemnation case. Const. art. 1, 8.
2. Eminent Domain.
In view of landowner's access to next intersecting street in both directions on one street and his access in
one direction to next intersecting street on a second street, there was no substantial impairment of access,
resulting from county's vacation of portion of second street to northern boundary of landowner's property
and landowner was not entitled to recover on basis of inverse condemnation. Const. art. 1, 8.
3. Nuisance.
To sustain nuisance action, one must show that interference with use and enjoyment of land is substantial
and unreasonable.
4. Trespass.
To sustain trespass action, property right must be shown to have been invaded.
5. Counties.
Landowner was not entitled to recover from county on basis of nuisance for vacation of portion of street
extending to northern boundary of landowner's property, in absence of showing substantial and
unreasonable interference with use and enjoyment of land.
6. Trespass.
Landowner failed to show invasion of property right resulting from county's vacation of portion of street
extending to northern boundary of landowner's property; thus landowner was not entitled to recover on
ground of trespass.
7. Counties.
Evidence supported determination of board of county commissioners that public would not be materially
injured by vacation of portion of city street to northern boundary of complaining landowner's property and
board did not abuse its discretion in vacating such portion.
OPINION
By the Court, Torvinen, D. J.:
Ernst F. Lied is the owner of a parcel of real property in Clark County which is bounded
on the west by Las Vegas Boulevard South (U.S. Highway 91), and on the east by Audrie
Street. Both streets run north-south. The first street intersecting Las Vegas Boulevard and
Audrie to the north is Flamingo Road. Lied's property is separated from Flamingo Road by
the property on which the MGM Grand Hotel now stands. The illustrative sketch [p. 277]
shows the relationship of the pertinent streets and properties.
On November 29, 1971, the predecessors in interest to respondents Metro Goldwyn
Mayer, Inc., and the MGM Grand Hotel, Inc., filed a petition with the Clark County Board of
Commissioners seeking to vacate that portion of Audrie Street (hatched on sketch) extending
456.01 feet south from Flamingo Road to the northern boundary of Lied's property. The
petition was granted on February 7, 1972, conditioned upon provisions being made for fire
access, a cul-de-sac on Audrie Street, and indemnification to the county by the petitioners. An
indemnification agreement was entered into by the county and the MGM Grand Hotel, Inc.,
and the final order of vacation was approved May 8, 1972.
Lied objected to the vacation, both prior to the Board's action and by a formal claim
against the county filed on May 24, 1972.
24, 1972. The county rejected his claim and Lied filed suit on January 31, 1975. Respondents
moved for and were granted a dismissal of the action. Lied then filed an amended complaint
containing two causes of action: one for inverse condemnation and one for trespass and
nuisance. A second motion to dismiss was filed and the order which granted that motion is
the subject of this appeal.
Lied asserts, among other things, that (1) the district court erred in holding he had no
property interest in the vacated portion of Audrie Street, (2) his complaint sufficiently made
out a cause of action for trespass and nuisance, and (3) the Board of County Commissioners
abused its discretion in vacating the subject section of Audrie Street.
1. Lied contends he had a vested property right which was taken without just
compensation, thus violating the clear mandate of Nev. Const. art. 1, 8.
1
In support of his
argument,
[CHARTsee book] Lied relies heavily upon Teacher Bldg. Co. v. Las Vegas, 6S Nev. 307,
232 P.2d 119 {1951), and Breidert v. Southern Pacific Company, 394 P.2d 719 {Cal.
____________________

1
Nev. Const. art. 1, 8 provides, in pertinent part:
[P]rivate property [shall not] be taken for public use without just compensation having been first made, or
secured, . . .
Lied relies heavily upon Teacher Bldg. Co. v. Las Vegas, 68 Nev. 307, 232 P.2d 119 (1951),
and Breidert v. Southern Pacific Company, 394 P.2d 719 (Cal. 1964). In our view, these cases
are totally inapposite.
The pertinent holding in Teacher was that an abutting property owner has a vested interest
in the entire street in front of his land. Here, the portion of the street in question fronted
adjoining land and not that owned by Lied. Thus, Teacher lends no support to Lied's claim of
a vested property right. Hensler v. City of Anacortes, 248 P. 406 (Wash. 1926); Ables v.
Southern Ry. Co., 51 So. 327 (Ala. 1909).
[Headnotes 1, 2]
Even assuming Lied had a property right, Breidert fails to support Lied's claim of a taking
of that right without just compensation. There the court stated:
In summary, the rule which emerges constitutes one of substantial impairment of the
right of access. Although destruction of access to the next intersecting street in one
direction constitutes a significant factor in determining whether the landowner is
entitled to recovery, it alone cannot justify recovery in the absence of facts which
disclose a substantial impairment of access.
394 P.2d at 724. A determination of substantial impairment of access must be reached as a
matter of law. See State ex rel. Dep't Hwys. v. Linnecke, 86 Nev. 257, 260, 468 P.2d 8, 9-10
(1970), where we said:
[A]n owner is not entitled to access to his land at all points in the boundary to it and
the highway, although entire access to his property cannot be cut off. If he has free and
convenient access to his property and his means of egress and ingress are not
substantially interfered with, he has no cause for complaint.
Here, the trial court correctly found, as a matter of law, that in view of Lied's access to the
next intersecting street in both directions on Las Vegas Boulevard and his access in one
direction to the next intersecting street on Audrie Street, there was no substantial impairment.
[Headnotes 3-6]
2. Lied next argues it was error to dismiss his claim based upon nuisance and trespass.
However, in order to sustain a nuisance action, one must show that the interference with the
use and enjoyment of the land is substantial and unreasonable, Jezowski v. City of Reno, 71
Nev. 233, 286 P.2d 257 (1955); and to sustain a trespass action, a property right must be
shown to have been invaded, see Rivers v. Burbank, 13 Nev. 39S
and to sustain a trespass action, a property right must be shown to have been invaded, see
Rivers v. Burbank, 13 Nev. 398 (1878). Here, Lied has shown neither.
3. Finally, Lied contends the vacation of the street was an abuse of the Board's discretion
and its action should be overruled.
[Headnote 7]
The standard to be used by a governing body in determining the propriety of the vacation
of a street is whether the public would be materially injured by such vacation. NRS
278.480(4). The Board, by its action, concluded no material injury would occur. We believe
the record supports the Board's determination, and further, that the Board acted within the
bounds of its discretion. See Blanding v. City of Las Vegas, 52 Nev. 52, 280 P. 644 (1929);
Thomas v. Jultak, 231 P.2d 974 (Wyo. 1951). Accordingly, we perceive no reversible error.
2

____________________

2
The Governor, pursuant to Article 6, 4 of the Nevada Constitution, designated the Honorable Roy L.
Torvinen, Judge of the Second Judicial District, to sit in place of the Honorable David Zenoff, who voluntarily
disqualified himself in this case.
____________
94 Nev. 279, 279 (1978) Phillips v. Mercer
LEON R. PHILLIPS, Appellant, v. CHARLES
D. MERCER, Respondent.
No. 8988
May 23, 1978 579 P.2d 174
Appeal from judgment, Second Judicial District Court, Washoe County; Grant L. Bowen,
Judge.
Action was brought to recover for breach of agreement which, among other things,
required defendant to pay plaintiff 50 percent of net profits from any sale of lodge. The
district court entered judgment for plaintiff, and defendant appealed. The Supreme Court held
that: (1) although defendant affirmatively pled estoppel, such plea would not be construed as
serving notice on the trial court of an election of remedies defense; (2) repossession of leased
equipment was not an exclusive remedy since defendant was obligated to perform more than
just his rental obligations, and (3) claim that trial court erred by declaring final clause of the
contract enforceable could not be considered where raised for first time in appellant's
reply brief.
erred by declaring final clause of the contract enforceable could not be considered where
raised for first time in appellant's reply brief.
Affirmed.
Guild, Hagen & Clark, Ltd., and Bruce Robb, Reno, for Appellant.
Cooke, Roberts & Reese, Reno, for Respondent.
1. Election of Remedies.
Election of remedies is a defense in avoidance which must be affirmatively pleaded; where it is not
pleaded, such defense will be recognized only if it is litigated with express or implied consent. NRCP
8(c), 15(b).
2. Election of Remedies
Affirmative defense of estoppel would not be construed as serving notice of an election of remedies
defense; while the two defenses may have a similar theoretical base, each requires proof of different
elements. NRCP 8(c).
3. Contracts.
When parties to a contract prescribe a remedy, a presumption arguably exists that they intended the
remedy to be exclusive; however, use of a presumption is generally confined to cases in which the specified
remedy provided for liquidated damages in lieu of other rights normally incident to a contract.
4. Bailment.
Repossession was not exclusive remedy for breach of agreement covering rental of certain restaurant and
bar equipment and providing that in event the building was sold the lessee owner would pay lessor 50
percent of net profits; since contract provisions appeared severable, defendant was obligated to perform
more than just his rental obligation and was also required to make payment on plaintiff's notes.
5. Contracts.
A court should not interpret a contract so as to make meaningless its provisions.
Contention that district court erred by declaring final clause of contract enforceable would not be
considered on appeal where raised for first time in appellant's reply brief.
7. Bailment.
Failure of trial court to determine whether defendant breached contract by failing to make one monthly
rental payment in that he was entitled to set off amounts owed him by plaintiff, was not error where issue
was not specifically addressed at trial and, instead, defendant presented evidence to show plaintiff's alleged
breach by not supplying all items of equipment agreed to under contract and, in any event, it was
impossible to determine from the record exactly what amounts were due and owing on the relevant date.
OPINION
Per Curiam:
This appeal is from a judgment requiring appellant to pay respondent fifty percent {50%)
of the net profits to be derived from the future sale of the Sundance Lodge, and also
awarding respondent a money judgment and court costs totaling $2,912.52 over and
above appellant's counterclaims.
respondent fifty percent (50%) of the net profits to be derived from the future sale of the
Sundance Lodge, and also awarding respondent a money judgment and court costs totaling
$2,912.52 over and above appellant's counterclaims.
In 1973 respondent, Charles Mercer, leased and operated a business known as the
Sundance Lodge. Mercer also held an option to purchase the lodge from Bonanza
Laboratories, Inc. In August, 1973, Mercer granted appellant, Leon Phillips, the right to
exercise his option in exchange for an oral promise to pay Mercer 50 percent of the net
proceeds over base price of $102,000 on any future sale of the lodge. After Phillips exercised
the option, he leased the premises back to Mercer. However, Phillips refused to sign any
document acknowledging his prior promise.
In November, 1974, Mercer decided to leave the business. He was deeply in debt, and had
failed to pay his November rent. In December, 1974, Phillips began to operate the lodge.
Mercer subsequently returned to retrieve his personal property. After discussion, the parties
entered into an agreement wherein Phillips agreed to rent certain items of Mercer's property,
and to pay Mercer's debts on two notes and a contract with a supplier. The agreement also
memorialized their prior oral understanding.
1

In March, 1975, Phillips failed to pay the $1,500 rent when due, and Mercer repossessed
his equipment as provided in the contract. Mercer then brought suit to enforce the remaining
provisions of the contract, and collect damages. Phillips counterclaimed for various items
not relevant to this discussion.
____________________

1
The agreement provides:
I Leon R. Phillips agree to rent equipment [sic] to be of all bar, motel and cafe counter stools, and snow
removal blade.
Within agreement of the following stipulations: (1) Rent per year $3,000.00.
A. 1st payment March second, 3/2/75 $1,500.00.
B. Rent for 2 concective [sic] years.
C. Rent payments $1,500.00 @ 6 months from 12/17/74-12/17/76.
(2) Insurance to be carried in amount of $12,000.00
(3) Care & repair at Leon R. Phillips expense
(4) No liens, on said equipment [sic]
(5) No taxes levied on said equipment [sic].
(6) No attorney fees or court cost to be suffered by Charles D. Mercer in any event.
(7) FailureCharles D. Merce [sic] to execute [sic] repossession of all said equipment [sic].
(8) Payment of $100.00 per month to Florence Campbell for Charles D. Mercer
(9) Payment of $50.00 per mont [sic] to Mary A. Machado for Charles D. Mercer
(10) Equipment [sic] payments of $12.50 per case to be paid to Bar Services Inc. for Charles D. Mercer.
(11) In the event building is sold, or property, Charles D. Merce [sic] to receive [sic] 50% net profit of
business venture of said property know [sic] as Sundance Lodge, 9000 Mt. Rose Hwy. Reno Nevada.
A. Property and building at base price $102,000.00 plus closing cost $1,800.00
Witness 2/17/74
Vincent J. Connallo Leon R. Phillips Charles W. Mercer
counterclaimed for various items not relevant to this discussion. After considering each of the
party's claims, the district court granted judgment in favor of Mercer as set forth above.
[Headnotes 1, 2]
1. Appellant first claims Mercer's act of repossession was an election of remedies which
precluded an action for damages under the contract. We need not decide the issue. As
respondent correctly notes, election of remedies is a defense in avoidance, which must be
affirmatively pleaded. See NRCP 8(c); Second Baptist Ch. v. First Nat'l Bank, 89 Nev. 217,
510 P.2d 630 (1973). Where it is not pleaded, such a defense will be recognized only if it is
litigated with the express or implied consent of the parties. See Ibid.; NRCP 15(b). In the
instant case, from review of the record, it does not appear that such an issue was addressed by
the parties and litigated before the court in any manner which could cause us to determine it
error not to consider the issue. Moreover, assuming that the record arguably contains some
evidence suggesting an election of remedies by respondent, it is certainly not so strong as to
impel a finding of that unpleaded defense as a matter of law.
2

[Headnotes 3-5]
2. Appellant alternatively contends repossession was the exclusive remedy contemplated
by the parties. When parties to a contract prescribe a remedy, a presumption arguably exists
that the parties intended the remedy to be exclusive; however, use of such a presumption has
generally been confined to cases in which the specified remedy provided for liquidated
damages in lieu of other rights normally incident to a contract. Cf. Green v. Snodgrass, 289
P.2d 191 (Ariz. 1955); Dillard Homes, Inc. v. Carroll, 152 So.2d 738 (Fla. 1963). Here, we
think the district court was entitled to find from the evidence, and from the contract as a
whole, that repossession was not the only remedy contemplated. Provisions of the contract
appear severable. Appellant was obligated to perform more than just his rental obligation. He
was to make payment on respondent's notes, and divide 50 percent of any net profits on resale
of the Sundance Lodge. A court should not interpret a contract so as to make meaningless its
provisions. Cf. Mohr Park Manor, Inc.
____________________

2
Appellant notes that he did affirmatively plead estoppel, but we will not construe this plea as serving notice
upon the district court of an election of remedies defense. While two defenses may have a similar theoretical
base, see Modoc Mineral Oil Co. v. Cal-Vada Drilling & Exp. Co., 46 Cal. Rptr. 508 (Cal.App. 1965); Lenard
v. Edmonds, 312 P.2d 308 (Cal.App. 1957), each defense requires proof of different elements. Compare Second
Baptist, cited above (elements of an election of remedies defense) with A.L.I., Restatement of Contracts, 90
(1932) (estoppel).
v. Mohr, 83 Nev. 107, 424 P.2d 101 (1967). Extending appellant's argument to its logical
conclusion, he could effectively be relieved of his other obligations by simply defaulting on
the rent portion of the agreement. We therefore perceive no error by the district court in
allowing respondent to recover damages incident to appellant's default, the remedy of
repossession not being exclusive.
[Headnote 6]
3. Appellant additionally claims the district court erred by declaring the final clause of the
contract enforceable. This issue, raised for the first time in appellant's reply brief, will not be
considered on appeal. Blouin v. Blouin, 67 Nev. 314, 218 P.2d 937 (1950).
[Headnote 7]
4. Finally, appellant claims he did not breach the contract by failing to make the March
rental payment, because he was entitled to set-off amounts owed by respondent to him. Our
review of the record reveals, however, that this issue was not specifically addressed at trial.
Instead, appellant presented evidence to show respondent's alleged breach by not supplying
all items of equipment agreed to under the contract. In any event, it is impossible to determine
from the record exactly what amounts were due and owing by the parties on March 2, 1975.
We cannot determine whether appellant's claims on March 2 were in fact greater than his
obligations due under the contract. Therefore, we perceive no error by the district court in not
deciding the issue as now proffered. Cf. Worthington Motors v. Crouse, 80 Nev. 147, 390
P.2d 229 (1964).
Affirmed.
3

____________________

3
Mr. Justice Thompson voluntarily disqualified himself from participation in this matter. The Governor,
pursuant to Nev. Const. art. 6, 4, designated the Honorable Howard W. Babcock, Judge of the Eighth Judicial
District Court, to sit in his stead.
____________
94 Nev. 283, 283 (1978) Staten v. State Farm Mut. Auto. Ins.
PHYLLIS MAY STATEN, Appellant, v. STATE FARM MUTUAL AUTOMOBILE
INSURANCE COMPANY; and DOES I THRU X, Respondents.
No. 9133
June 7, 1978 579 P.2d 766
Appeal from summary judgment, Eighth Judicial District Court, Clark County; Paul S.
Goldman, Judge.
Motorist brought action to recover under her uninsured motorist coverage.
motorist coverage. The district court entered judgment in favor of insurer and motorist
appealed. The Supreme Court held that statute providing that, to the extent that a person is
entitled to no-fault benefits, he may not recover payments under uninsured motor vehicle
coverage precludes only a double recovery of benefits under both the no-fault and uninsured
motorist provisions and does not entitle an insured to setoff of no-fault benefits against
uninsured motorist protection.
[Rehearing denied July 12, 1978]
Bell, Young & Barney, Las Vegas, for Appellant.
Dickerson, Miles & Pico, and Charles H. Wagner, Las Vegas, for Respondents.
Insurance.
Statute providing that, to the extent that a person is entitled to basic or added reparation benefits under
the no-fault provisions, he may not recover payments under uninsured motorist coverage is intended only to
preclude a double recovery of benefits under both the no-fault and uninsured motorist provisions; the
statute does not permit an insurer to set off no-fault benefits against uninsured motorist protection; fact that
motorist had recovered for economic detriment under her no-fault coverage did not preclude her from
recovering additional amounts under her uninsured motorist coverage for additional economic and
noneconomic detriment actually suffered. NRS 690B.020, subd. 7.
OPINION
Per Curiam:
Respondent insured appellant under a policy including $50,000 personal injury (no-fault)
coverage, and $15/30,000 uninsured motorist protection. In 1974, appellant sustained serious
injuries in an automobile collision with an uninsured motorist. Respondent paid basic
reparation benefits pursuant to appellant's no-fault coverage in excess of $15,000, but refused
to pay additional claims under her uninsured motorist coverage. Appellant thereafter filed suit
to recover the full $15,000 of uninsured motorist coverage, along with additional damages for
breach of warranty and bad faith. The district court granted respondent's motion for summary
judgment, concluding: (1) respondent had a statutory right to deduct no-fault payments from
uninsured motorist coverage; and (2) did not therefore act in bad faith or breach any implied
warranty. We disagree with the lower court's statutory interpretation and reverse.
NRS 690B.020(7) provides: To the extent that a person is entitled to basic reparation
benefits under chapter 698 of NRS [no-fault], he may not recover payments under uninsured
motor vehicle coverage. (Emphasis added.) Respondent contends the Legislature intended
the above language to permit a set-off of no-fault benefits against uninsured motorist
protection. However, jurisdictions which have permitted such setoffs have done so only
where legislation permitted an explicit reduction of benefits. See, e.g., Cal. Ins. Code.
11580.2(e) (West); Or. Rev. Stat. 743.835; Monaco v. United States Fidelity and Guaranty
Co., 550 P.2d 422 (Or. 1976). Here, it appears that our Legislature intended NRS
690B.020(7) to preclude only a double recovery of benefits under both the no-fault and
uninsured motorist provisions of a policy. Cf. Royal Globe Ins. Co. v. Connolly, 389
N.Y.S.2d 207 (App.Div. 1976); Rabideau v. Aetna Cas. & Sur. Co., 388 N.Y.S.2d 719
(App.Div. 1976); Adams v. Government Emp. Ins. Co., 383 N.Y.S.2d 319 (App.Div. 1976).
Any other result would effectively negate the policy provision purchased for uninsured
motorist coverage.
Appellant received $15,000 for economic detriment under her no-fault coverage. However,
she was denied recovery under her uninsured motorist limits for additional economic and
noneconomic detriment suffered. When appellant purchased uninsured motorist protection, at
added cost to herself, she was in effect buying a separate insurance policy for the defendant
who injured her. If appellant had been injured by an insured defendant, then respondent
concedes she would have been entitled to recover benefits under her own policy, and sue for
additional recovery under the defendant's policy. It would, therefore, be illogical to deny
similar recovery to an insured who purchases such additional protection.
____________
94 Nev. 285, 285 (1978) Allen v. State
PHILIP STEVEN ALLEN, Appellant, v. THE
No. 9799
June 7, 1978 579 P.2d 771
Appeal from judgment of conviction, Eighth Judicial District Court, Clark County; J.
Charles Thompson, Judge.
Defendant was convicted in the district court of grand larceny, and he appealed. The
Supreme Court held that the trial court properly permitted the State to present rebuttal
evidence concerning other criminal conduct for the purpose of impeaching defendant's
testimony regarding his use of aliases.
94 Nev. 285, 286 (1978) Allen v. State
concerning other criminal conduct for the purpose of impeaching defendant's testimony
regarding his use of aliases.
Affirmed.
Morgan D. Harris, Public Defender, and John H. Howard, Deputy Public Defender, Clark
Witnesses.
Although defendant was impeached as to collateral matters, a grand larceny prosecution, when trial court
permitted State to introduce rebuttal evidence concerning other unrelated crimes, where the evidence was
more probative than prejudicial and where defendant had testified extensively on direct examination
regarding his use of aliases and the evidence of other criminal conduct was introduced on rebuttal to
impeach that testimony, the evidence was properly admitted. NRS 48.035, 50.085, 205.220.
OPINION
Per Curiam:
Philip Steven Allen stands convicted, by jury verdict, of grand larceny, a felony under
NRS 205.220.
1

On November 19, 1974, appellant and another took a 1968 Plymouth Road Runner
automobile from the O. M. Gann Auto Sales lot in Las Vegas, Nevada, agreeing to return it
after making a compression check of the engine. The automobile was later discovered in
appellant's possession at the time of his arrest in Van Nuys, California on January 17, 1975.
Appellant here contends admission of evidence concerning other unrelated crimes on
rebuttal was improper. We disagree.
On direct examination, appellant testified extensively regarding his use of aliases. On
rebuttal, the state introduced evidence of other criminal conduct to impeach that testimony.
Although appellant was impeached as to collateral matters, we believe [t]he impeachment
process here undoubtedly provided valuable aid to the jury in assessing [appellant's]
credibility, . . . Harris v. New York, 401 U.S. 222, 225 (1971). Cf. NRS 50.085. Thus, the
evidence was more probative than prejudicial and, therefore, was properly admitted. See NRS
48.035.
____________________

1
Every person who shall feloniously steal, take and carry away, lead or drive away the personal goods or
property of another, of the value of $100 or more shall be deemed guilty of grand larceny, and upon conviction
thereof shall be punished by imprisonment in the state prison for any term not less than 1 year nor more than 10
years, and may be further punished by a fine of not more than $5,000.
94 Nev. 285, 287 (1978) Allen v. State
We find Mr. Chief Justice Burger's rationale for admission of such evidence in Harris
pertinent to the factual posture of this case:
Every criminal defendant is privileged to testify in his own defense, or to refuse to
do so. But that privilege cannot be construed to include the right to commit perjury.
[Citations omitted.] Having voluntarily taken the stand, [appellant] was under an
obligation to speak truthfully and accurately, and the prosecution here did no more than
utilize the traditional truth-testing devices of the adversary process. Id., at 225.
Other issues raised by appellant are without merit.
Affirmed.
____________
94 Nev. 287, 287 (1978) Salazar v. Sheriff
DANIEL J. SALAZAR, Appellant, v. SHERIFF,
MINERAL COUNTY, NEVADA, Respondent.
No. 10683
June 7, 1978 579 P.2d 767
Appeal from order denying pretrial writ of habeas corpus, Fifth Judicial District Court,
Mineral County; William P. Beko, Judge.
Defendant appealed from order of the district court denying pretrial habeas corpus
challenge to information which charged that on two separate occasions he sold a controlled
substance, marijuana, in violation of statute. The Supreme Court held that: (1) with respect to
count I, where only evidence of defendant's activities on date in question was that he was
physically in a room when party to whom he allegedly sold marijuana and another person
engaged in a conversation regarding purchase and sale of marijuana, at which juncture
defendant was quoted as saying I don't want to get involved in this, whereupon he left room
and transaction was completed, recited facts were insufficient to establish probable cause that
defendant made sale of marijuana, and, accordingly, district judge should have granted habeas
corpus challenge to count I, and (2) where count II charged that defendant had delivered a
baggie of marijuana to certain individual in another county and that the following day
recipient made payment of $35 to defendant in a different county, and there was such
evidence in transcript of preliminary hearing, there was no error in district judge's
determination that defendant probably committed count II offense and in refusing
habeas corpus as to count II.
determination that defendant probably committed count II offense and in refusing habeas
corpus as to count II.
Affirmed in part, reversed in part.
Keith L. Lee, Reno, for Appellant.
Robert List, Attorney General, Carson City; Larry G. Bettis, District Attorney, and John S.
Hill, Deputy District Attorney, Mineral County, for Respondent.
1. Habeas Corpus.
Where only evidence of defendant's activities on date in question was that he was physically in a room
when party to whom he allegedly sold marijuana and another person engaged in conversation regarding
purchase and sale of marijuana, at which juncture defendant was quoted as saying I don't want to get
involved in this, whereupon he left room and transaction was completed, recited facts were insufficient to
establish probable cause that defendant made sale of marijuana and district judge accordingly should have
granted the habeas corpus challenge to information. NRS 453.161, 453.321.
2. Habeas Corpus.
Where count of information charged that defendant delivered baggie of marijuana to an individual in
certain county and that following day recipient made a payment of $35 to defendant in another county, and
where there was such evidence in transcript of preliminary examination, there was no error in district
judge's determination that defendant probably committed sale of marijuana and accordingly denying
defendant's habeas corpus challenge to information. NRS 171.030, 453.161, 453.321.
OPINION
Per Curiam:
This appeal is from a district court order denying a habeas corpus challenge to an
information which charged that on two separate occasions Daniel J. Salazar sold a controlled
substance (marijuana) in violation of NRS 453.321 and NRS 453.161.
[Headnote 1]
1. Count I of the information charges that on August 4, 1977, Salazar made a sale of
marijuana to Timothy Morgan.
The only evidence of Salazar's activities on August 4, 1977, was that he was physically in
a room when Timothy Morgan and another person engaged in a conversation regarding the
purchase and sale of a quantity of marijuana. At that juncture, Salazar was quoted as saying,
I don't want to get involved in this. He then left the room and the transaction was
completed. While it is conceivable that the recited facts might establish probable cause that
Salazar committed some transgression of the law, they are insufficient to establish probable
cause that [he] made a 'sale' [of marijuana]."
cause that [he] made a sale' [of marijuana]. Egan v. Sheriff, 88 Nev. 611, 614, 503 P.2d
16,18 (1972). Accordingly, the district judge should have granted the habeas challenge to
count I.
[Headnote 2]
2. Count II charged that Salazar had delivered a baggie of marijuana to an individual in
Sparks, Washoe County, and that the following day the recipient made a payment of $35 to
Salazar in Hawthorne, Mineral County. There is such evidence in the transcript of the
preliminary examination; thus, we perceive no error in the district judge's determination that
Salazar probably committed the count II offense. See NRS 171.030; Walker v. State, 78 Nev.
463, 376 P.2d 137 (1962). Cf. State of Nevada v. Chapman, 6 Nev. 320 (1871), and its
progeny.
The district judge's order denying habeas as to count I of the information is reversed. As to
count II, it is affirmed.
____________
94 Nev. 289, 289 (1978) Konold v. Sheriff
KENNETH WAYNE KONOLD, Appellant, v. SHERIFF,
No. 10791
June 7, 1978 579 P.2d 768
District Court, Clark County; Carl J., Christensen, Judge.
The Supreme Court held that: (1) proof that defendant exercised dominion and control
over contraband was required to support possession charge, and (2) proof that defendant, with
others, was in room in which a small quantity of marijuana residue was found in a pipe was
insufficient to support charge of possession of marijuana.
Reversed.
Peter L. Flangas, Las Vegas, for Appellant.
Robert List, Attorney General, Carson City; George E. Holt, District Attorney, Howard C.
Clark and Edward R. Kane, Deputy District Attorneys, Clark County, for Respondent.
1. Drugs and Narcotics.
Proof that defendant exercised dominion and control over contraband was required to support possession
charge.
Proof that defendant, with others, was in room in which a small quantity of marijuana residue was found
in a pipe was insufficient to support charge of possession of marijuana, where defendant did not have
actual physical possession of the pipe, there was nothing from which constructive possession might be
inferred and there was nothing to support theory of joint possession.
OPINION
Per Curiam:
Kenneth Wayne Konold, a guest in the residence of another person, was ordered to stand
trial for possession of marijuana on the basis of a small quantity of marijuana residue found
in a pipe [porcelain smoking device] seized from the room where Konold and others were
arrested.
1
There was also testimony of a pungent order in the room, however, that phrase
was neither defined nor explained.
Konold petitioned for a writ of habeas corpus contending the recited facts did not support
the charge. Habeas was denied and in this appeal Konold contends the district judge should
have granted habeas. We agree.
[Headnotes 1, 2]
Proof that Konold exercised dominion and control over the contraband was required to
support the possession charge. Glispey v. Sheriff, 89 Nev. 221, 510 P.2d 623 (1973). He did
not have actual physical possession of the pipe [contraband] and there is nothing in the record
from which we might infer constructive possession. See Doyle v. State, 82 Nev. 242, 415
P.2d 323 (1966).
Furthermore, this record is barren of facts that might support a theory of joint possession
such as existed in Maskaly v. State, 85 Nev. 111, 450 P.2d 790 (1969), and Woerner v. State,
85 Nev. 281, 453 P.2d 1004 (1969). Thus, this record cannot support the charged offense.
Without more, Konold's mere presence in the area where the narcotic is discovered or
mere association with the person who does control the drug or the property where it is
located, is insufficient to support a finding of possession. United States v. Stephenson, 474
F.2d 1353, 1355 (5th Cir. 1973). See also State v. Luchetti, 87 Nev. 343, 486 P.2d 1189
(1971), where this court held that thirteen occupants of a house did not have constructive
possession of marijuana found in plain view in the living room because there was no proof
that they had the right to control the contraband. Cf. Oxborrow v. Sheriff, 93 Nev. 321
____________________

1
Charges against the occupant of the premises and other guests are not here involved.
to control the contraband. Cf. Oxborrow v. Sheriff, 93 Nev. 321, 565 P.2d 652 (1977).
Reversed.
____________
94 Nev. 291, 291 (1978) Standard Oil Co. v. Pastorino
STANDARD OIL COMPANY OF CALIFORNIA, a Delaware Corporation, Appellant, v.
TOM PASTORINO, Eureka County Assessor, NEVADA TAX COMMISSION, and the
STATE OF NEVADA, Respondents.
No. 9202
June 7, 1978 580 P.2d 118
Appeal from declaratory judgment, Third Judicial District Court, Eureka County; Stanley
A. Smart, Judge.
Lessee under oil and gas lease of real property owned by federal bureau of land
management filed action to declare unconstitutional statute providing for taxation of real
property otherwise exempt from taxation when it is leased. The district court held statute
constitutional, and lessee appealed. The Supreme Court, Gunderson, J., held that: (1)
although a state may not directly tax real property of United States, a state may tax a lessee of
such property as long as it does not discriminate against federal lessees; (2) a state does not
violate the supremacy clause by using the full, fair market value of the land as the basis for
the assessment; (3) exempting grazing lessees from taxation does not violate equal protection,
and (4) undeveloped oil leases are not constitutionally exempt from taxation as mines and
mining claims.
Affirmed.
Vargas, Bartlett & Dixon, and Frederic R. Starich, Reno, for Appellant.
Robert List, Attorney General, James D. Salo and Marsha Claman, Deputy Attorneys
General, Carson City, for Respondents.
1. Taxation.
A state may not directly tax real property of the United States. NRS 361.157, subd. 1; U.S.C.A.Const.
art. 6, cl. 2.
2. Taxation.
Although a state may not directly tax real property of United States, it may tax a lessee of that same
federal property so long as the tax does not discriminate against federal lessees in favor of state lessees.
NRS 361.157, subd. 1; U.S.C.A.Const. art. 6, cl. 2.
3. States.
A state does not violate the supremacy clause by using the full, fair market value of federal land as basis
for taxing a nonfederal lessee. NRS 361.157, subd. 1; U.S.C.A.Const. art. 6, cl. 2.
A statute will not be broadly construed to reach an unconstitutional result.
Imposing a tax on all lessees of federal lands except for grazing lessees does not violate equal protection
in view of fact that grazers do not pay for their leases by the acre, such as do oil lessees, but pay a
separate fee for each head of cattle. NRS 361.157, subds. 1, 3(d); U.S.C.A.Const. Amend. 14, 1.
6. Taxation.
Undeveloped oil leases are not constitutionally exempt from property taxation as mines and mining
claims. Const. art. 10, 1.
7. Statutes.
Statute providing for taxation of realty, otherwise tax exempt, when it is leased does not violate
constitutional mandate that each law embraced but one subject, on ground that the property tax levied
thereunder is really a privilege and use tax. NRS 361.157; Const. art. 4, 17.
OPINION
Standard Oil Company of California here appeals a judgment declaring NRS 361.157
constitutional under both the Nevada and federal constitutions, and permitting respondent
assessor and tax commission to impose taxes pursuant to the statute. We affirm the district
court's determinations.
Standard is lessee under oil and gas leases of real property owned by the Bureau of Land
Management in Eureka County. From 1968 to 1973, the Nevada Tax Commission directed
the Eureka County Assessor to collect taxes from Standard pursuant to NRS 361.157. The
taxes were paid under protest and placed in a suspension fund, pending judicial determination
of the tax authorities' right to tax oil leases.
Standard then filed an action to declare NRS 361.157 unconstitutional, and to enjoin
respondents from taxing its leases. The parties entered a stipulation of facts, and filed
cross-motions for summary judgment. The district court granted the tax authorities' motion
for summary judgment, declaring the statute constitutional. Standard here contests that
determination, alleging four constitutional infirmities.
[Headnotes 1-3]
1. Standard first contends NRS 361.157(1) violates the supremacy clause of the federal
constitution by taxing the real property of the federal government.
property of the federal government. See U.S. Const. art. VI, par. 2.
NRS 361.157(1) provides in relevant part:
When any real estate which for any reason is exempt from taxation is leased, loaned
or otherwise made available to and used by a . . . corporation in connection with a
business conducted for profit, it is subject to taxation in the same amount and to the
same extent as though the lessee or user were the owner of the real estate.
It is well settled that a state may not directly tax real property of the United States.
Agricultural Bank v. Tax Comm'n, 392 U.S. 339 (1968); McCullouch v. Maryland, 17 U.S.
316 (1819). However, a state may tax a lessee of that same federal property so long as the tax
does not discriminate against federal lessees in favor of state lessees. Compare Moses Lake
Homes v. Grant County, 365 U.S. 744 (1961), declaring unconstitutional a Washington
statute which taxed federal lessees at full value and state lessees at 50 percent of fair market
value, with United States v. Detroit, 355 U.S. 466 (1957), holding permissible a tax on all
lessees of government property based on full value of property. Standard contends NRS
361.157(1) imposes a direct tax on federal property, urging that the tax is measured by the
full value of the land, thereby taxing both the leasehold interest and the reversionary interest
held by the government. This argument is neither supported by the evidence, nor by the law.
The record shows the assessor did not tax the full value of the land. He was required to tax
only 35 percent of capitalized rental value on competitive leases, and $2.20 per acre on
noncompetitive leases. In any event, a state does not violate the supremacy clause by using
the full, fair market value of the land as the basis for the assessment. See United States v.
Detroit, cited above at 470.
[Headnote 4]
We also reject Standard's contention that the statute requires continued taxation once the
land reverts from the lessee to the government at the expiration of the leasehold. We will not
so broadly construe the statute to reach an unconstitutional result. In our view, NRS 361.
157(1) provides for taxation only while the land is subject to a lessee's interest. The tax ceases
once it reverts to the government.
[Headnote 5]
2. Standard next claims NRS 361.157(3)(d) invidiously discriminates against certain users
of federal lands in violation of the equal protection clause of the federal constitution. See U.S.
Const. amend. XIV, 1. This claim is based on the differing treatment given to certain
classes of lessees of federal landi.e. oil lessees are taxed, while grazing lessees are
exempted from taxation.
treatment given to certain classes of lessees of federal landi.e. oil lessees are taxed, while
grazing lessees are exempted from taxation.
NRS 361.157 provides in relevant part:
1. [Leaseholds may be taxed] . . .
2. . . .
3. Subsection 1 does not apply to:
(a) . . .
(b) . . .
(c) . . .
(d) Property leased or otherwise made available to and used by a private individual,
association, corporation, . . . or a political subdivision under the provisions of the
Taylor Grazing Act or by the United States Forest service or the Bureau of Reclamation
or the United States Department of the Interior; . . .
When the statute was amended in 1967, an accompanying preamble specifically provided that
the above exemption applied only to grazing lessees: WHEREAS, The particular exceptions
provided by paragraph (d) of subsection [3] were meant to apply only to lands made available
for grazing by the named federal agencies . . . which might hold lands suitable for grazing;. .
. 1967 Nev. Stats. 154. Thus, all lessees from the federal government are subject to tax
except grazing lessees, and Standard therefore claims this violates the equal protection clause
of the federal constitution. We disagree.
While subsection 3(d) does discriminate by providing preferential treatment to grazers,
such discrimination will not necessarily violate equal protection if there is a rational basis for
the exemption. See Allied Stores of Ohio v. Bowers, 358 U.S. 522 (1959). A statute must be
upheld if any state of facts reasonably can be conceived [to] sustain it. Phillips Chemical
Company v. Dumas School District, 361 U.S. 376, 383 (1960).[T]he State's power to
classify is, indeed, extremely broad, and its discretion is limited only by constitutional rights
and by the doctrine that a classification may not be palpably arbitrary. Ibid. That a statute
may discriminate in favor of a certain class does not render it arbitrary if the discrimination is
founded upon a reasonable distinction, or difference in state policy. Allied Stores, cited
above at 528.
Here, the legislature clearly desired to protect grazing interests from onerous tax liability.
See Preamble to 1967 Nev. Stats., cited above. Grazers do not pay for their leases by the
acre, but instead must pay the Bureau of Land Management a separate fee for each head of
cattle. (The current rate is $1.51 per head per month.) Oil lessees, on the other hand, pay a
flat nominal consideration per acre for their leases.
a flat nominal consideration per acre for their leases. All this indicates the legislature has
consciously decided to give grazing interests a tax adjustment, consistent with such business
considerations as the cost of obtaining leases from the federal government, and perhaps the
fact that their activities do not permanently deplete natural resources. The statutory scheme
would therefore appear to have a rational basis, and not to violate equal protection principles.
Cf. Sproul vs. Gilbert, 359 P.2d 543 (Or. 1960).
[Headnote 6]
3. Appellant next contends oil wells and leases are unpatented mines or mining
claims which are exempt from property taxation pursuant to article 10, 1 of the Nevada
Constitution.
Article 10, 1 provides in pertinent part:
The legislature shall provide by law for a uniform and equal rate of assessment and
taxation, and shall prescribe such regulations as shall secure a just valuation for
taxation of all property, real, personal and possessory, except mines and mining claims,
when not patented, the proceeds alone of which shall be assessed and taxed, and when
patented, each patented mine shall be assessed at not less than five hundred dollars
($500), except when one hundred dollars ($100) in labor has been actually performed
on such patented mine during the year, in addition to the tax on net proceeds; . . .
Appellant insists oil wells and oil leases are mines and mining claims within the
meaning of the constitution, and should therefore be exempt from property taxation.
1
We
need not decide this issue as proffered, however, because the sole question before this court is
whether oil leases should be exempt from property taxation. We note that in 1975 the
legislature defined a mine as follows:
Mine means:
1. An area of land: {a) Where exploration is conducted to discover or delineate
minerals or mineral commodities in any deposit;
____________________

1
Authority on this point is clearly split. Some jurisdictions have held oil is a mineral, and oil wells are mines.
See Burke v. Southern Pacific Railway Co., 234 U.S. 669 (1914), citing congressional statutory scheme as the
primary basis for the above conclusion; Mid-Northern Oil Co. v. Walker, 211 P. 353 (Mont. 1922), citing
Burke; Southland Royalty Co. v. American Petroleum Corp., 378 S.W.2d 50 (Tex. 1964). See also, Opinions of
the Nevada Attorney General No. 405, 109 (1967) meaning of mine for determining the gross yield under the net
proceeds of mine act.
On the other hand, other courts have held that an oil well is not a mine. Cf. J. M. Guffey Petroleum Co. v.
Murrel, 53 So. 705 (La. 1910), oil well not a mine within the meaning of constitutional provision exempting
taxation of property used in mining operations; Carter v. Phillips, 212 P. 747 (Okl. 1923),
(a) Where exploration is conducted to discover or delineate minerals or mineral
commodities in any deposit;
(b) Where development is conducted to prepare or open any deposit of minerals or
mineral commodities other than solid fuels for extraction; or
(c) Where exploitation or extraction of minerals or mineral commodities other than
solid fuels is conducted from any deposit; . . .
3. Structures, equipment, machinery, apparatus or other property, upon the surface or
underground, used or to facilitate the work of exploring, developing or extracting
minerals or mineral commodities other than solid fuels in or from any deposit; or
4. Beneficiation plants, mills, smelters, refineries or other property used or to facilitate
the treatment or reduction of any minerals or mineral commodities, whether or not
contiguous to an area where exploitation or extraction of minerals or mineral
commodities is conducted from any deposit. (Emphasis added.) NRS 512.006.
This, we believe, articulated the fundamental understanding of the term mine previously
existing. Thus, at least until mines are created through an actual exploration or extraction,
the interests in question would be taxable as any other leasehold interest. Therefore, we
conclude such totally undeveloped oil leases are not exempted from property taxation within
the meaning of article 10, 1 of the Nevada constitution.
[Headnote 7]
4. Standard finally claims NRS 361.157 violates article 4, 17 of the Nevada Constitution
which provides in pertinent part: "Each law enacted by the Legislature shall embrace but
one subject, and matter, properly connected therewith, which subject shall be briefly
expressed in the title; . . ."
____________________
an oil well not a mine for income tax purposes; Hollingsworth v. Berry, 192 P. 763 (Kan. 1920), an oil well not
a mine under workmen's compensation coverage; Barton v. Wichita River Oil Co., 187 S.W. 1043
(Tex.Civ.App. 1916), an oil well not a mine for purposes of statutory lien.
Support for the latter view can also be found in common understanding. Webster has defined minerals as
any chemical element or compound occurring naturally as a product of inorganic process . . . ; and mine as
a pit or excavation in the earth from which ore, precious stones, coal, or other mineral substances are taken by
digging or by any of various other mining methods . . . Webster's New International Dictionary(2nd ed. 1961).
Because oil is an organic substance, it does not fall within the accepted definition of mineral. In examining the
Nevada Constitutional Debates and Proceedings (1864), it also appears the framers only made reference to
mines as they existed in 1864i.e., silver, gold, and quartz mines. Ibid. 318-386.
In oral argument, appellant mistakenly stated our decision in State v. Ellison Ranching Co., 93 Nev. 575, 571
P.2d 394 (1977), clearly established that an oil well is a mine. That issue was not considered, and the opinion
does not support appellant's claim.
part: Each law enacted by the Legislature shall embrace but one subject, and matter, properly
connected therewith, which subject shall be briefly expressed in the title; . . . Curiously,
appellant now contends the property tax levied under 361.157 is really a privilege and use tax.
None of its authority stands for the stated proposition, and courts dealing with lessee taxation
have regarded the assessment as an ad valorem property tax. Cf. United States v. State ex rel.
Beko, 88 Nev. 76, 493 P.2d 1324 (1972); Sproul, cited above. Therefore, NRS 361.157 does
not violate the above constitutional mandate. It embraces but one subjecti.e., property
taxation.
____________
94 Nev. 297, 297 (1978) Alsup v. E. T. Legg & Co.
JAMES WILLIAM ALSUP, Appellant, v. E. T. LEGG & CO., a Nevada Corporation; E. T.
LEGG & CO., a California Corporation, Respondents.
No. 9219
June 7, 1978 579 P.2d 769
Appeal from summary judgment, Eighth Judicial District Court, Clark County; Carl J.
Christensen, Judge.
Contractor's employee sued building owner-lessor to recover from injuries sustained while
performing work on billboard pursuant to contract between his employer and lessee. The
district court rendered summary judgment for owner, and workman appealed. The Supreme
Court held that absent showing that owner-lessor exercised any control over details of the
work, the owner was not insulated from possible common-law liability by the Nevada
Industrial Insurance Act.
Galatz, Earl & Biggar, Las Vegas, for Appellant.
Cromer, Barker & Michaelson, and Corby D. Arnold, Las Vegas, for Respondents.
1. Judgment.
Since property owner, sued by contractor's employee, moved for summary judgment it had burden of
proving a defense under Nevada Industrial Insurance Act to common-law liability. NRS 616.010 et seq.
Absent showing that owner-lessor had any control over details of work which sign company employee
was performing on billboard pursuant to contract between his employer and lessee to change advertising
copy, the owner was not insulated from possible common-law liability by Nevada
Industrial Insurance Act.
copy, the owner was not insulated from possible common-law liability by Nevada Industrial Insurance Act.
NRS 616.010 et seq.
OPINION
Per Curiam:
[Headnotes 1, 2]
While working for Young Electric Sign Co., James Alsup was injured falling from a
billboard owned by E. T. Legg & Co. Young had contracted with the Sahara Hotel, Legg's
lessee, to change advertising copy on the sign. Following the accident, as Young's employee,
Alsup first received benefits under the Nevada Industrial Insurance Act (NRS Chapter 616),
and later sued Legg, alleging that negligent routine maintenance had caused the accident. On
Legg's motion, the district court granted summary judgment, implicitly finding Legg an
employer within the meaning of the NIIA, and therefore insulated from common law
liability for negligence. Alsup contends this was error, because Young was working on the
sign solely at the direction of the Sahara Hotel. We determine that the district court
erroneously entered summary judgment, because a material issue of fact remains for
resolution: Did Legg exercise sufficient control to be deemed an employer under the NIIA?
This court recently delineated the test to be used in determining whether a owner will be
deemed an employer for purposes of the NIIA, and therefore protected from common law
liability. In Antonini v. Hanna Industries, 94 Nev. 12, 15, 573 P.2d 1184, 1186 (1978), we
held:
In characterizing the relationship between an owner-contractee and a worker
engaged in a particular project with respect to that owner's property, we have placed
primary emphasis upon the amount of control exercised by the contractee over the
worker. Under the general term control, several factors have been accorded
substantially equal weight in determining the existence of an employment relationship.
These include the degree of supervision exercised over the details of the work, the
source of the worker's wages, the existence of a right to hire and fire the worker, and
the extent to which the worker's activities further the general business concerns of the
alleged employer.
Appellant has alleged that he was employed by Young, whose work was controlled solely
by the Sahara Hotel. He therefore asserts Legg exercised no control over details of his work,
and as a mere owner-lessor of property, could not be insulated from possible common law
liability by the NIIA.
work, and as a mere owner-lessor of property, could not be insulated from possible common
law liability by the NIIA. Prior Nevada authority supports his contention. In Simon Service v.
Mitchell, 73 Nev. 9, 15, 307 P.2d 110, 113 (1957), we held: The owner may indeed be said
to be the person who has the work done' but, under the Nevada act, . . . the liabilities and
exemptions were intended to attach to employers of labor and not simply to owners of
property as such. Cf. Weaver v. Shell Oil Co., 91 Nev. 324, 535 P.2d 787 (1975) (owner of
property may be an employer where he retains control over project); Stolte, Inc. v. District
Court, 89 Nev. 257, 510 P.2d 870 (1973) (owner an employer who partially controlled
project details); Titanium Metals v. District Court, 76 Nev. 72, 349 P.2d 444 (1960)
(principal employer and owner protected by NIIA).
1

Legg, as movant for summary judgment, had the burden to prove a defense under the NIIA
to common law liability. Weaver, cited above; see also Daugherty v. Wabash Life Insurance
Co., 87 Nev. 32, 482 P.2d 814 (1971). The record does not demonstrate Legg's control over
the details of Alsup's work. The judgment of the district court is therefore reversed, and the
cause is remanded.
2

____________________

1
Apparently, the district court mistakenly relied on Frith v. Harrah South Shore Corp., 92 Nev. 447, 552 P.2d
337 (1976), as the basis for granting summary judgment. In Firth, the property owner, Harrah, contracted with a
construction company to build a hotel. The construction company in turn employed Frith, who was injured when
he fell from scaffolding. Frith apparently collected under the NIIA pursuant to Harrah's coverage. We note,
however, the issue of Harrah's control was not raised on appeal (apparently the parties were satisfied that Harrah
was an employer under the NIIA). Instead, Frith tried to recover additional damages under the Occupational
Safety and Health Act (NRS Chapter 618), and common law negligence. This court simply held such damages
under the O.S.H.A. and common law were precluded by the NIIA. Therefore, Frith did not deal with an
owner-lessor's insulation from liability under the NIIA, and was improperly relied on by the district court in
granting summary judgment.

2
Respondent alternatively contends that if it lacked necessary control to be an employer under the NIIA, then
summary judgment was proper because there would be no basis for maintaining a common law action against it.
We disagree. As was stated in Weaver, 91 Nev. at 328, 535 P.2d at 790: Whether any theory of liability will
prove applicable, upon a trial, we cannot discern from the record before us. However, in the absence of a clearly
established NIIA defense, we cannot justify summary judgment on the assumption that trial will show nothing to
create a jury question on a legal theory consistent with the pleadings.
____________
94 Nev. 300, 300 (1978) Reason v. Sheriff
NATHANIEL REASON, Appellant, v. SHERIFF,
No. 10755
June 8, 1978 579 P.2d 781
The Supreme Court held that, at scheduled preliminary examination, it was not the
responsibility of accused to arrange to have physical evidence of alleged crime before the
magistrate and, when prosecuting attorney was not prepared to go forward because he had not
arranged to have certain necessary physical evidence available, accused was entitled to
dismissal.
Morgan D. Harris, Public Defender, and Terrence M. Jackson, Deputy Public Defender,
Criminal Law.
At scheduled preliminary examination, it was not the responsibility of accused to arrange to have physical
evidence of alleged crime before the magistrate and, when prosecuting attorney was not prepared to go
forward because he had not arranged to have certain necessary physical evidence available, accused was
entitled to dismissal.
OPINION
Per Curiam:
Nathaniel Reason duly and timely appeared in a magistrate's court in Las Vegas for a
scheduled preliminary examination. The prosecuting attorney was not prepared to go forward
because he had not arranged to have certain necessary physical evidence available at the
hearing.
Reason's motion to dismiss was denied and the hearing was continued on the oral request
of the prosecuting attorney. Reason then petitioned for habeas corpus and has appealed from
the order denying the requested relief.
We have previously held that when a prosecuting attorney is not prepared to go forward
with a scheduled preliminary examination he may set forth reasons why he may be entitled to
a continuance by filing an affidavit pursuant to DCR 21.
94 Nev. 300, 301 (1978) Reason v. Sheriff
continuance by filing an affidavit pursuant to DCR 21. See Hill v. Sheriff, 85 Nev. 234, 452
P.2d 918 (1969). We have also held that, under certain circumstances, the prosecuting
attorney may show the reasons that may warrant a continuance by tendering sworn
testimony in lieu of the written affidavit required by Hill. Bustos v. Sheriff, 87 Nev. 622,
491 P.2d 1279 (1971).
Here, the prosecuting attorney neither filed an affidavit nor tendered sworn testimony.
Rather, he took the position that it was the responsibility of the accused to arrange to have the
physical evidence of the alleged crime before the magistrate. We decline to accept this novel
argument. Alternatively, it is suggested that Hill and Bustos are distinguishable and therefore
inapplicable because their requirements only apply when a witness fails to appear and not
when there is a failure to have the incriminating evidence brought to the hearing. The
suggested distinction is not persuasive.
Accordingly, we reverse and remand this case to the district court with instructions to
grant Nathaniel Reason's petition for the writ of habeas corpus. See McNair v. Sheriff, 89
Nev. 434, 514 P.2d 1175 (1973).
____________
94 Nev. 301, 301 (1978) Deal v. 999 Lakeshore Association
I. C. DEAL, Appellant, v. 999 LAKESHORE ASSOCIATION; DAVE KINDRED,
Individually and dba KINDRED CONSTRUCTION COMPANY, Respondents.
No. 9099
June 8, 1978 579 P.2d 775
Appeal from judgment, and denial of motions for new trial or judgment notwithstanding
the verdict, Second Judicial District Court, Washoe County; Roy L. Torvinen, Judge.
Condominium management association and owners of individual condominiums sued
developer and contractor for damages. The district court entered a judgment in favor of
plaintiff class and the defendant developer appealed. The Supreme Court, Gunderson, J., held
that: (1) the association was not a real party in interest having standing to sue but the
individual owners of condominiums were proper parties; (2) under circumstances, it was
permissible to allow suit for damages to common roof area of condominium buildings to be
maintained as a class action; (3) amendment of complaint to allege alter ego theory against
developer and his corporation related back to original pleadings, and evidence sustained
verdict in favor of class.
to original pleadings, and evidence sustained verdict in favor of class.
Affirmed.
Bradley & Drendel, Ltd., Reno, for Appellant.
Vargas, Bartlett & Dixon, and Peter Durney, Reno; and Bennie D. Ferrari, Incline
Village, for Respondents.
1. Appeal and Error; Estates.
In absence of express statutory grant to sue on behalf of owners or direct ownership interest by the
homeowner's association in a condominium unit within the development, condominium management
association did not have standing to sue as real party in interest to recover against developer and contractor
for construction defects and errors, but such defect in party did not require reversal of judgment where in
addition to association five individuals were named to represent class of which three were unit owners with
requisite standing to bring suit. NRCP 17(a), 23.
2. Parties.
Where class action suit against project developer and contractor brought by five individuals, three of
whom were condominium unit owners, sought damages primarily for roof leakage and improper drainage
and inadequate staining and testimony showed that all of the ten buildings of condominium development
had leaks and that all unit owners were assessed for repairs to the common roof area, each of the three
owners suffered damage and their claims were typical for purpose of maintaining class action. NRCP 23.
3. Parties.
Determination to allow use of a class action is a discretionary function wherein district court must
pragmatically determine whether it is better to proceed as a single action or many individual actions in
order to redress a fundamental wrong; in making determination court must not prejudice defendant's rights.
NRCP 23(a)(2), (a)(3), (b)(3).
Since there was substantial evidence to support jury verdict in class action by three individual
condominium owners against developer and contractor for damages based on negligence, defendant
developer's claim that the class action was not appropriate because of defenses concerning strict liability
and warranty were irrelevant and formed no basis for reversal.
5. Limitation of Actions.
Where original class action on behalf of condominium owners for damages because of roof leaks and
other defects was filed shortly after the first leaks occurred against developer's corporation pleadings
generally gave prior notice of fact situation from which claim for developer's personal liability arose so that
amendment of complaint to allege alter ego theory after expiration of statute of limitations was timely and
related back to original plea.
6. Pleading.
If party has notice of institution of action and is not misled to his prejudice, amendment should relate
back to original pleading.
7. Corporations.
There existed substantial evidence in class action against condominium developer for damages because of
defects in condominium construction to support jury verdicts subjecting individual developer to liability
based on alter ego doctrine.
8. Corporations.
Criteria for alter ego liability are: corporation must be influenced and governed by person asserted to be
its alter ego; existence of such unity of interest and ownership that one is inseparable from the other, and
adherence to fiction of separate entity would, under circumstances, sanction fraud or promote injustice.
Defendant condominium project developer, sued by condominium owners in class action for damages,
lacked standing to raise issue of granting of judgment notwithstanding verdict to codefendant construction
company, since defendant developer was not an aggrieved party.
10. Estates.
There was substantial evidence to support verdict in favor of class, suing condominium project
developer, determining that the auditing fees charged by developer's corporation for services in managing
association before it was turned over to homeowners and their management association were unreasonable
and unauthorized.
OPINION
Following judgments totaling $66,584, and orders denying a new trial and judgment
notwithstanding the verdict, I. C. Deal here appeals urging that the district court erred by (1)
permitting a condominium association to proceed as the real party in interest; (2) allowing
suit as a class action; (3) authorizing amendment to the pleadings; and (4) granting judgment
notwithstanding the verdict to a co-defendant. Deal additionally attacks the sufficiency of the
evidence supporting the jury's verdict. We find no reversible error, and affirm.
Deal's appeal is from a class action brought by a group of condominium owners for defects
in construction and workmanship, and for an accounting of revenues at a development in
Incline Village, Nevada. Complaint was filed in the name of 999 Lakeshore Association
(the homeowners' association administering the development), and five individuals as
representatives of the class. Ten claims for relief were initially asserted against various
defendants. However, two claims were dismissed by summary judgment; four others, severed
for separate trial. The remaining causes of action were consolidated for trial against the
owner-developer, I. C. Deal, and the contractor, Kindred Construction Company. They
involved claims for negligent construction, breach of express and implied warranties,
strict liability for defective manufacture and design of the condominiums, and failure to
account to the condominium association for certain revenues.
negligent construction, breach of express and implied warranties, strict liability for defective
manufacture and design of the condominiums, and failure to account to the condominium
association for certain revenues.
By leave of the court, 999 Lakeshore filed an amended complaint, asserting alter ego and
statutory corporate trustee theories of liability against appellant. Amendment was permitted to
proceed against Deal individually, because the corporation which built the project, Incline
Properties, Inc., had been dissolved immediately after construction was completed.
At trial the jury returned the following verdicts: (1) $59,500 against Deal for construction
defects; (2) $7,084 against Deal on the accounting claim; and (3) $42,500 against
co-defendant Kindred for construction errors. Deal and Kindred thereafter filed separate
motions for judgments notwithstanding the verdict or new trial. The district court denied
appellant's motions but entered judgment notwithstanding the verdict on behalf of Kindred.
1. Deal first contends the homeowners' association, 999 Lakeshore, lacked standing to
bring suit because it did not own any property interest, and was not damaged by the claimed
defects in construction. At least with respect to any claims for construction and design
defects, Deal's claim has merit, but does not necessitate reversal in the instant case.
[Headnote 1]
NRCP 17(a) provides: Every action shall be prosecuted in the name of the real party in
interest. In the absence of any express statutory grant to bring suit on behalf of the owners,
or a direct ownership interest by the association in a condominium within the development, a
condominium management association does not have standing to sue as a real party in
interest. See Wittington Condominium Apts., Inc. v. Braemer Corp., 313 So.2d 463 (Fla.App.
1975), see also Friendly Village Com. Ass'n v. Silva & Hill Const. Co., 107 Cal.Rptr. 123
(Cal.App. 1973). Only the owners of condominiums have standing to sue for construction or
design defects to the common areas, since they must eventually bear the costs of assessments
made by the association. Ibid. Therefore, 999 Lakeshore Association lacked standing to bring
any construction claims. However, this defect does not require the judgment to be vacated. In
addition to 999 Lakeshore Association, five individuals were named to represent the class. Of
the five, three were unit owners with requisite standing to bring suit. See Wittington, cited
above, Friendly Village, cited above. Therefore, we conclude the joinder of the individual
owners in the suit renders the standing issue without merit.1
we conclude the joinder of the individual owners in the suit renders the standing issue
without merit.
1

[Headnote 2]
2. Deal next claims there was an insufficient community of interest to permit the claims as
a class action. NRCP 23 requires a plaintiff who would institute a class action to satisfy the
preconditions of 23(a), and also show that his action is appropriate under one of the three
subdivisions of 23(b).
2
Johnson v. Travelers Insurance Company, 89 Nev. 467, 471, 515
P.2d 68, 71 (1973). Deal insists the demonstrated community of interest was insufficient for
two reasons: (a) the named representatives of the class did not have claims typical of the class
as a whole, and (b) the possible defenses varied among the class members.
(a) The suit primarily sought damages for roof leakage, improper drainage causing beach
erosion, and inadequate exterior staining.
____________________

1
Under these circumstances we need not decide whether the homeowners' association had standing to
proceed on the accounting claims.

2
NRCP 23 provides:
(a) prerequisites to a Class Action. One or more members of a class may sue or be sued as representative
parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there
are questions of law or fact common to the class, (3) the claims or defenses of the representatives parties are
typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect
the interests of the class.
(b) Class Actions Maintainable. An action may be maintained as a class action if the prerequisites of
subdivision (a) are satisfied, and in addition:
(1) the prosecution of separate actions by or against individual members of the class would create a risk of
(A) inconsistent or varying adjudications with respect to individual members of the class which would
establish incompatible standards of conduct for the party opposing the class, or
(B) adjudication with respect to individual members of the class which would as a practical matter be
dispositive of the interests of the other members not parties to the adjudications or substantially impair or
impede their ability to protect their interests; or
(2) the party opposing the class has acted or refused to act on grounds generally applicable to the class,
thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as
a whole; or
(3) the court finds that the questions of law or fact common to the members of the class predominate over any
questions affecting only individual members, and that a class action is superior to other available methods for the
fair and efficient adjudication of the controversy. The matters pertinent to the findings include: (A) the interest
of members of the class in individually controlling the prosecution or defense of separate actions; (B) the extent
and nature of any litigation concerning the controversy already commenced by or against member of the class;
(C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; (D) the
difficulties likely to be encountered in the management of a class action.
improper drainage causing beach erosion, and inadequate exterior staining. The development
consists of ten buildings with six units per building. Testimony revealed approximately 27
units had severe winter leakage problems over a number of years, primarily due to inadequate
flashings in the roof structures. Deal maintains the representatives' claims were not typical,
see NRCP 23(a)(3), because only three of the five named individual plaintiffs were owners,
and they did not have leaking roofs. However, we note that leaks occurred in every one of the
ten buildings, and that all unit owners were assessed for repairs to the common roof area.
Therefore, each of the three owners suffered damage; their claims were typical.
(b) Deal additionally attacks the class action pursuant to NRCP 23(a)(2) and 23(a)(3), by
claiming he was unable to present effectively differing defenses as to different class members.
Specifically, he insists some classmen were not entitled to claim warranty protection as they
were not in privity with appellant; the strict liability claim was not applicable to all (some
classmen were subsequent purchasers who took with notice of defects); and some classmen
were contributorily negligent. Deal therefore contends that questions of law and fact did not
predominate as questions common to the entire class action. See NRCP 23(a)(2) and 23(b)(3).
[Headnotes 3, 4]
Authority reveals, however, that the determination to use the class action is a discretionary
function wherein the district court must pragmatically determine whether it is better to
proceed as a single action, or many individual actions in order to redress a single fundamental
wrong. Cf. Johnson, cited above; Wright & Miller, Federal Practice and Procedure, Civil,
Vol. 7 1764, 613; 1763, 604; Vol. 7A 1778, 53 (1977). But in making such a
determination, the court must not prejudice the defendant's rights. Deal claims he was
prejudiced by the use of the class action procedure, but fails to demonstrate how such
prejudice occurred. The jury was instructed upon all theories of liability, but it is impossible
to discern from the record which theory of liability was used in rendering the verdict.
Accordingly, since we conclude substantial evidence exists to support the verdict based on
negligence, Deal's claimed defenses to strict liability and warranty are irrelevant.
3
See, Steele
v. Vanderslice, 367 P.2d 636 (Ariz. 1961); Clement v. State Reclamation Board, Etc., 220
P.2d 897 (Cal. 1950).
____________________

3
Nor will we agree with Deal's claim that, as a matter of law, the condominium owners were contributorily
negligent by not climbing onto the roofs and shoveling off snow before it melted and leaked into the units.
Furthermore, Deal offers no authority which would clearly indicate that it was error to
proceed with the class action under the facts presented. The district court found: Considering
the practical and economic problem of having each owner substantiate his 1/60 amount of the
claimed common damage, and considering the obligation to repair the common roofs, the
Court finds that notwithstanding the above objections it was a proper case for a class action.
Under these circumstances, we believe the district court made no error by permitting the class
action.
3. Deal next contends the alter ego theory was not timely pleaded, and the amended
complaint does not relate back so as to avoid the statute of limitations. Resolution of this
issue is dependent upon interpretation of NRCP 15(c), which provides: Whenever the claim
or defense asserted in the amended pleading arose out of the conduct, transaction, or
occurrence set forth or attempted to be set forth in the original pleading, the amendment
relates back to the date of the original pleading. Deal does not claim error in the amendment
procedure itself. Instead, he insists the alter ego theory of liability does not arise out of the
conduct, transaction, or occurrence set forth in the original pleading, and thus does not relate
back, and is barred by the statute of limitations.
[Headnotes 5, 6]
The record reveals the original complaint was filed on November 27, 1970, some two
years after the last unit in the development was sold and the first leaks occurred. The
complaint was captioned as Irving C. Deal, individually, and doing business as . . . Incline
Properties, Inc., a corporation. Although this by itself may not have notified appellant as to
the exact theory of liability upon which he ultimately was held liable, the pleadings generally
gave fair notice of the fact situation from which the claim for individual liability arose. If a
party has notice of the institution of the action, and is not misled to his prejudice, amendment
should relate back. Cf. Servatius v. United Resort Hotels, 85 Nev. 371, 455 P.2d 621 (1969);
see also 3 Moore's Federal Practice. 15.15 (1977).
[Headnotes 7, 8]
There also exists substantial evidence to support the jury's verdict subjecting Deal to
individual liability based upon the alter ego doctrine. In Frank McCleary Cattle Co. v. Sewell,
73 Nev. 279, 282, 317 P.2d 957, 959 (1957), the following criteria were delineated for the
establishment of alter ego liability:
(1) The corporation must be influenced and governed by the person asserted to be its
alter ego. (2) There must be such unity of interest and ownership that one is
inseparable from the other; and {3) The facts must be such that adherence to the
fiction of separate entity would, under the circumstances, sanction a fraud or
promote injustice. 'It is not necessary that the plaintiff prove actual fraud.
such unity of interest and ownership that one is inseparable from the other; and (3) The
facts must be such that adherence to the fiction of separate entity would, under the
circumstances, sanction a fraud or promote injustice. It is not necessary that the
plaintiff prove actual fraud. It is enough if the recognition of two entities as separate
would result in injustice.'
The record reveals Deal controlled and supervised all corporate activities of the
development corporation, Incline Properties, Inc. He intermixed his business activity with the
corporation; never held a board of directors' meeting, even though he was on the board;
capitalized the multimillion dollar corporation with $1,000; was the effective controlling
stockholder; managed the affairs of the corporation; and took all of the corporate assets after
liquidation. Testimony also reveals some purchasers of the condominiums relied on Deal's
reputation in buying their units. Under these facts the jury was justified in disregarding the
corporate entity and finding appellant the alter ego of Incline Properties, Inc.
4

[Headnote 9]
4. Deal additionally contests the district court's grant of a judgment notwithstanding the
verdict to co-defendant Kindred Construction Company. Deal lacks standing to raise this
issue on appeal, because he is not the aggrieved party. See NRAP 3A(a). The verdict affecting
Kindred for $42,500 was against him individually. Deal never made any claim for indemnity,
subrogation, or set-off against Kindred. If any party had the right to appeal the district court's
judgment setting aside the verdict, it was the homeowners who lost $42,500 by the court's
action. They are apparently content with their judgments against Deal.
[Headnote 10]
5. Finally, we conclude that the verdict on the accounting claim was supported by
substantial evidence. Testimony reveals Deal's corporation charged $6,060 for auditing
services in managing the association before it was turned over to the homeowners and 999
Lakeshore. The corporation also withheld $1,024 for rental revenues without offering valid
justification (Deal claimed it was a bookkeeping error). The jury was entitled to find that
the auditing fees were unreasonable and unauthorized, and hold Deal responsible for the
unpaid revenues.
____________________

4
Deal has also raised the identical issues with regard to amendment of the pleadings, relation back, and the
statute of limitations with regard to statutory trustee liability under NRS 78.585(1), NRS 78.590(1), and NRS
78.595. These issues need dot be decided. As noted previously, it is impossible to determine from the record the
theory upon which the jury fixed individual liability (alter ego or statutory trustee). Since the evidence supports
the verdict based upon alter ego liability, other issues are moot.
was entitled to find that the auditing fees were unreasonable and unauthorized, and hold Deal
responsible for the unpaid revenues.
The judgment of district court is therefore affirmed.
Batjer, C. J., and Mowbray and Thompson, JJ., and Fondi, D. J.,
5
concur.
____________________

5
Mr. Justice Noel Manoukian voluntarily disqualified himself and took no part in this decision. The
Governor, pursuant to Art. 6, 4 of the constitution, designated Judge Michael E. Fondi of the First Judicial
District, to sit in his stead.
____________
94 Nev. 309, 309 (1978) Warren v. Warren
SYBIL AUDREY PAGE WARREN, Appellant, v. LEWIS BROOKS WARREN, also
Known as LOU DUPONT, Respondent.
No. 9124
June 8, 1978 579 P.2d 772
Appeal from judgment, Eighth Judicial District Court, Clark County; John F. Mendoza,
Judge.
Action was brought for divorce or, in alternative, for dissolution of partnership and
declaratory relief based on theories that there was a constructive or resulting trust, that
plaintiff had property rights as a meretricious, common-law or putative spouse, that there had
been a partnership or joint venture and that plaintiff had contractual or quasi-contractual
rights to share with defendant in proceeds acquired by parties. The district court entered
judgment refusing to recognize that plaintiff had any marital or partnership rights to
defendant's property, and plaintiff appealed. The Supreme Court held that: (1) evidence
warranted finding that parties had not engaged in express or implied contract to pool funds or
to form a partnership, and (2) granting defendant leave, after one witness testified, to answer
requests for admission, which had been unanswered due to withdrawal of his attorney, did not
prejudice plaintiff.
Affirmed.
Taylor Professional Corporation, Las Vegas, for Appellant.
James E. Barfieid, Las Vegas, for Respondent.
1. Partnership.
In action for divorce or, in alternative, for dissolution of partnership and declaratory relief based on
theories that there was a constructive or resulting trust, that plaintiff had property rights as a
meretricious, common-law or putative spouse, that there had been a partnership or
joint venture and that plaintiff had contractual or quasi-contractual rights to share
with defendant in proceeds acquired by parties, evidence warranted finding that
parties had not engaged in express or implied contract to pool funds or to form a
partnership.
resulting trust, that plaintiff had property rights as a meretricious, common-law or putative spouse, that
there had been a partnership or joint venture and that plaintiff had contractual or quasi-contractual rights to
share with defendant in proceeds acquired by parties, evidence warranted finding that parties had not
engaged in express or implied contract to pool funds or to form a partnership.
2. Appeal and error.
In action for divorce or, in alternative, for dissolution of partnership and declaratory relief, granting
defendant leave, after one witness testified to answer requests for admission, which sought admission of the
law of several foreign countries and existence of common-law or putative marriage and which had been
unanswered due to withdrawal of his attorney, did not prejudice plaintiff, in light of fact that trial did not
again commence until more than one month after defendant answered requests for admission. NRCP
36(a).
OPINION
Per Curiam:
Sybil Page Warren appeals from a judgment which refused to recognize any marital or
partnership rights to respondent's property, by raising twenty issues for consideration. We
decline to consider most of appellant's issues because she has failed to cite any relevant
authority to support alleged claims of error. See, e.g., Cummings v. Tinkle, 91 Nev. 548, 539
P.2d 1213 (1975).
1
Accordingly, we find the district court made no error by (1) refusing to
grant appellant property rights as a meretricious spouse, or implied partner; and (2) granting
leave to answer requests for admissions.
Appellant's Complaint For Divorce Or In The Alternative For Dissolution Of Partnership,
And For Declaratory Relief, alleged six causes of action based upon the following theories:
constructive trust; resulting trust; property rights as a meretricious, common law, or putative
spouse; partnership; joint venture; and contractual or quasi-contractual rights to share with
respondent in proceeds acquired by the parties. Testimony at trial revealed the parties met in
1963 in Hong Kong, and became romantically involved. Both were entertainers. By May,
1964, their relationship grew until respondent proposed they work together. The parties
traveled extensively throughout the world for the next 8 1/2 years, and lived together without
engaging in any formal marriage ceremony.
The record includes often contradictory evidence concerning their financial arrangements.
Appellant insisted they agreed to pool their resources, and that respondent managed their
moneyfurnishing her with requested expense money.
____________________

1
Throughout her brief, appellant repeatedly stated an issue, made citation to the record, and then summarily
labeled items as prejudicial error without offering any relevant legal support for her arguments.
Respondent, on the other hand, stated appellant was a salaried employee, and there was no
agreement to combine funds. Their relationship eventually deteriorated, until they separated,
and appellant commenced this action to recover one-half of respondent's assets.
The district court entered judgment for respondent, making the following relevant findings
of fact:
1. The parties traveled together for . . . 8 1/2 years, never at any time holding
themselves out to be husband and wife. . . .
4. [Appellant] was an employee of the [respondent].
5. During all the time that the parties worked together, no record was kept by either
party of their earnings or expenses.
6. [The parties] never entered into any agreement to pool their income received. . . .
7. The parties each had their own bank account, each had their separate investments
and [appellant] applied monies to her own use. . . .
9. The parties never entered into a marriage ceremony.
10. [No common law or putative marriage existed]. . . .
12. The evidence did not reflect a joint partnership or a joint venture. . . .
[Headnote 1]
1. Appellant first contends she was entitled to property rights as a meretricious spouse
under the doctrine recently announced by the California Supreme Court in Marvin v. Marvin,
557 P.2d 106 (Cal. 1976). In Marvin a female plaintiff averred in her complaint that she and
actor Lee Marvin (the defendant) entered into an oral agreement that while the parties
lived together they would combine their efforts and earnings and would share equally any and
all property accumulated as a result of their efforts whether individual or combined and
further that they agreed to hold themselves out to the general public as husband and wife
and that plaintiff would further render her services as a companion, homemaker,
housekeeper and cook to . . . defendant. Ibid. at 110, 111. The plaintiff lived with the
defendant for 5 1/2 years and, she alleged, fulfilled her obligations under the agreement. At
the end of that period the defendant compelled her to leave his household but continued to
support her for an additional year and a half. Thereafter, he refused to provide further support;
she brought suit asking for declaratory relief based upon her contract and property rights, and
for constructive trust upon one-half of the property acquired during the relationship. The trial
court granted defendant's motion for judgment on the pleadings and plaintiff appealed.
trial court granted defendant's motion for judgment on the pleadings and plaintiff appealed.
The California court through Justice Tobriner concluded: (1) the property rights of a
meretricious spouse were not governed by community property principles of the California
Family Law Act; (2) [t]he courts should enforce express contracts between nonmarital
partners except to the extent that the contract is explicitly founded on the consideration of
meretricious sexual services; and (3) [i]n the absence of an express contract, the courts
should inquire into the conduct of the parties to determine whether that conduct demonstrates
an implied contract, agreement of partnership or joint venture, or some other tacit
understanding between the parties. The courts may also employ the doctrine of quantum
meruit, or equitable remedies such as constructive or resulting trusts, when warranted by the
facts of the case. Ibid. at 110.
2
See also Carlson v. Olson, 250 N.W.2d 249 (Minn. 1977).
Here, appellant urges that respondent's numerous expressions of love in correspondence
throughout their relationship, required the district court to conclude that the parties engaged
in an express or implied contract to pool funds, or an implied partnership. Thus, she insists,
as a matter of law, that she is entitled to the property rights set forth in Marvin. However, as
the trier of fact, the district court was the sole judge of the credibility of the witnesses. In
view of the conflicting evidence concerning the alleged agreement to pool funds or form a
partnership, we decline to interfere with the district court's factual determination. See. e.g.,
Ormachea v. Ormachea, 67 Nev. 273, 217 P.2d 355 (1950).
[Headnote 2]
2. Appellant additionally contends the trial court erred by segmenting the trial and
granting leave to answer requests for admissions once trial commenced.
After one out-of-state witness was heard on the first day of trial, appellant requested a
continuance to notify other witnesses. Thereafter, respondent requested, and was granted,
leave to answer requests for admissions which had been unanswered due to the prior
withdrawal of respondent's attorney. Under NRCP 36(a) a trial court has discretion to extend
the time to answer requests for admissions.
3
Appellant offers no authority to show that the
district court abused such discretion.
____________________

2
Arguably, the final holding (3) in Marvin is dictum, because the parties alleged the existence of an express
contract. See dissent by Clark, J., Ibid. at 123.

3
NRCP 36(a) provides in pertinent part:
. . . The matter is admitted unless, within 30 days after service of the request, or within such . . . longer time
as the court may allow, the party to whom the request is directed serves . . . a written answer or
objection. . . .
authority to show that the district court abused such discretion. Nor does she demonstrate
how she was prejudiced by the court's order. Cf. Creedon v. Taubman, 8 FRD 268 (N.D.Ohio
1947); Sims Motor Transportation Lines v. Foster, 293 S.W.2d 226 (Ky. 1956). The requests
for admissions asked respondent to admit the law of several foreign countries, and the
existence of a common law or putative marriage. Respondent served his reply on January 16,
1976, more than one month before trial again commenced to hear the bulk of the testimony.
Appellant made no attempt at trial to prove the foreign law of any country, and failed to
present sufficient evidence to support her claim of putative or common law marriage. Since
she had ample opportunity to prepare and present such evidence after respondent served his
reply, we find she was not prejudiced by the court's procedure. Cf. Southern Pac. Transp. Co.
v. Fitzgerald, 94 Nev. 241, 577 P.2d 1234 (1978).
Affirmed.
____________
94 Nev. 313, 313 (1978) Butler v. Butler
EVERETT W. BUTLER, Appellant, v. DEBORAH
L. BUTLER, Respondent.
No. 10406
June 8, 1978 579 P.2d 780
Appeal from order modifying divorce decree, Sixth Judicial District Court, Humboldt
County; Llewellyn A. Young, Judge.
Divorced father moved to modify the divorce decree to obtain sole custody of two minor
children. The district court granted custody to the children's mother, and the father appealed.
The Supreme Court held that the district court erred in relying solely on the tender years
doctrine in granting custody to the children's mother.
Richard J. Legarza, Winnemucca, for Appellant.
Roland W. Belanger, Lovelock, for Respondent.
Divorce.
In view of fact that the tender years doctrine is not controlling in connection with modification of child
custody, district court erred in proceeding on divorced father's motion to modify decree to obtain sole
custody of two children, in relying solely on "tender years" doctrine in granting
custody to the children's mother.
94 Nev. 313, 314 (1978) Butler v. Butler
tody of two children, in relying solely on tender years doctrine in granting custody to the children's
mother.
OPINION
Per Curiam:
In 1976, the parties obtained a divorce and were awarded joint legal custody of their two
minor children. Subsequently, appellant moved to modify the divorce decree to obtain sole
custody of the children. The district court, relying solely on the tender years doctrine
announced in Peavey v. Peavey, 85 Nev. 571, 460 P.2d 110 (1969), granted custody to
respondent.
Although appellant attacks the validity and constitutionality of Peavey, we need not, and
therefore do not, consider his contentions. In Adams v. Adams, 86 Nev. 62, 464 P.2d 458
(1970), we ruled that the standards set forth in Murphy v. Murphy, 84 Nev. 710, 447 P.2d 664
(1968), govern modification of child custody and Peavey was not controlling in such
circumstances.
Accordingly, we reverse the district court order and remand the case for proceedings
consistent with this opinion. See Murphy v. Murphy, supra.
____________
94 Nev. 314, 314 (1978) Ross v. Estate of Wells
JOHN TOM ROSS, Appellant and Cross-Respondent, v. THE ESTATE OF JOE WESLEY
WELLS, Respondent, and WESLEE WELLS SCHNEEHAGEN,
Respondent and Cross-Appellant.
No. 9066
June 9, 1978 579 P.2d 782
Appeal and cross-appeal from portion of order settling final account and decree of final
distribution; Eighth Judicial District Court, Clark County; John F. Mendoza, Judge.
The Supreme Court, Thompson, J., held that: (1) trial court did not abuse its discretion in
failing to award attorney for minor heir a fee larger than $5,000 for services of value to estate;
(2) fee of attorney for minor heir could not be charged against heir's distributive share, and (3)
where minor heir, after becoming of age, accepted attorney employed by her mother as her
attorney, such conduct was not a novation obligating heir to pay attorney the fee that heir's
mother allegedly had agreed to pay, absent evidence that heir had promised attorney or her
mother that she would assume mother's fee obligation and that mother would be
discharged therefrom.
mother that she would assume mother's fee obligation and that mother would be discharged
therefrom.
Appeal: order affirmed in part and reversed in part.
Cross-appeal: order reversed.
Robert A. Grayson, of Carson City, for Appellant and Cross-Respondent.
James E. Ordowski, of Las Vegas, for Respondent Estate of Joe Wesley Wells.
Lionel Sawyer & Collins, and Charles H. McCrea, Jr., of Reno, for Respondent and
Cross-Appellant.
1. Executors and Administrator.
Trial court did not abuse its discretion in failing to award attorney for minor heir a fee larger than $5,000
for services of value to estate where it was not certain how much time actually had been spent by attorney
in preparing his portion of 19-page brief on appeal in connection with litigation which resulted in removal
of bank as executor. NRS 150.060, subd. 5.
2. Attorney and Client; Descent and Distribution.
Fee of attorney for minor heir could not be charged against heir's distributive share, where minor heir was
not party, assignee or successor to any purported contract for fee between her mother and attorney, and
minor heir, as third-party beneficiary of alleged agreement, was not liable for any failure to pay on part of
her mother, and same rule would apply even if mother had been appointed guardian and had employed
attorney to represent minor.
3. Novation.
Where minor heir, after becoming of age, accepted attorney employed by her mother as her attorney, such
conduct was not a novation obligating heir to pay attorney the fee that heir's mother allegedly had agreed to
pay, absent evidence that heir had promised attorney or her mother that she would assume mother's fee
obligation and that mother would be discharged therefrom.
OPINION
Part of the final order settling the Estate of Joe Wells awarded attorney John Tom Ross a
$5,000 fee for services benefiting the estate, and a $25,000 fee for representing the heir,
Weslee Wells Schneehagen. The latter sum was to be paid from Weslee's distributive share.
Ross has appealed. He contends that the $5,000 award is grossly inadequate. Moreover he
urges that error occurred when the district court failed to honor a fee agreement obligating
Weslee's mother to pay him $50,000 for representing Weslee. Weslee has cross-appealed. It is
her contention that Ross' fee is not chargeable against her distributive share since he was
employed by her mother who agreed to pay his fee.
share since he was employed by her mother who agreed to pay his fee.
1. An attorney for a minor heir may be paid by the estate for services of value to the
estate.
1
The district court found that attorney Ross had performed services of benefit to the
estate and directed the estate to pay $5,000 for such services. Ross and his co-counsel, Carl
Martillaro, had participated in an appeal brought to this court by Elizabeth Wells against the
Bank of Las Vegas. That litigation resulted in the removal of the Bank of Las Vegas as
executor of the Estate of Joe Wells, and in the nullification of a purported trust.
[Headnote 1]
The records of this court reflect that Ross and Martillaro together had prepared and filed a
nineteen-page brief. Martillaro argued the appeal. Ross claims to have devoted a minimum of
250 hours to that appeal. However, he did not keep time sheets. It is not at all certain how
much time actually was spent by Ross in preparing his portion of the nineteen-page brief. In
these circumstances we do not find an abuse of discretion by the trial court in failing to award
Ross a larger fee than $5,000. Brunzell v. Golden Gate Nat'l Bank, 85 Nev. 345, 350, 455
P.2d 31 (1969). Neither do we perceive an abuse of discretion by the trial court in finding that
the only services rendered by Ross of benefit to the estate were those in connection with the
Bank of Las Vegas litigation.
[Headnote 2]
2. Joe Wells died May 18, 1967. He was survived by his wife, Elizabeth, a minor son, Joe,
and a minor daughter, Weslee. In September 1967 Elizabeth retained Carl Martillaro to
represent the minor heirs. It is asserted that Elizabeth was to pay a $100,000 fee for such
representation. Martillaro advised the court that his fee for representing the children would be
paid by Elizabeth and not by the estate. In October 1967 John Tom Ross became associated
with Martillaro to represent the minors. Ross advised the court that his authority to appear for
the children was from their mother, Elizabeth. Weslee was a minor at that time. Elizabeth was
never appointed by the court to serve as Weslee's guardian.
____________________

1
NRS 150.060(5): Attorneys for minors, absent or nonresident heirs are entitled to compensation primarily
out of the estate of the distributee so represented by him in such cases and to such extent as may be determined
by the court, but if the court finds that all or any part of the services performed by the attorney for the minors,
absent or nonresident heirs were of value to the estate as such and not of value only to the minors, absent or
nonresident heirs, then the court shall order that all or part of the attorney's fee be paid to the attorney out of the
funds of the estate and it is a general administration expense of the estate. The amount of such fees be
determined by the court.
to serve as Weslee's guardian. Neither was Ross court appointed to represent Weslee. Cf. In
re Ray's Estate, 68 Nev. 492, 500, 236 P.2d 300 (1951); NRS 136.200.
2
Indeed, Ross did not
petition for a court award of fees for his representation of Weslee. He petitioned only for an
allowance for services he rendered benefiting the estate, a matter we already have addressed.
With regard to his representation of Weslee, Ross apparently is willing to rely upon his
alleged agreement with Elizabeth for his compensation. Weslee, as well, asks that Ross be
compelled to secure compensation from Elizabeth since his authority to appear emanated
from her. His fee, she asserts, should not be charged against her distributive share of the
estate in these circumstances. We agree with this assertion.
No one is liable on a contract except a party or his assignee, or successor. Wells v. Bank of
Nevada, 90 Nev. 192, 197, 522 P.2d 1014 (1974). Weslee was not a party, assignee or
successor to any purported contract between her mother, Elizabeth, and either Martillaro or
Ross, although a third-party beneficiary of that agreement. In such capacity Weslee is not
liable for her mother's failure to pay. Neither may it successfully be asserted that Elizabeth, as
Weslee's mother, was empowered to bind Weslee to pay counsel fees. Indeed, even had
Elizabeth been appointed guardian of Weslee (which did not occur) and had employed Ross
to represent Weslee, Ross would have to look to Elizabeth for payment of his fee. Sarman v.
Goldwater, Taber and Hill, 80 Nev. 536, 396 P.2d 847 (1964).
[Headnote 3]
The court found that in February 1973 Weslee, then being of age, accepted Ross as her
attorney. It is asserted that this action was a novation obligating Weslee to pay Ross the fee
that Elizabeth allegedly had agreed to pay. The intent of all parties do cause a novation must
be clear. Zuni Constr. Co. v. Great Am. Ins. Co., 86 Nev. 364, 468 P.2d 980 (1970). There is
no evidence in the record presented to us that Weslee promised Ross or Elizabeth that she
would assume Elizabeth's fee obligation and that Elizabeth would be discharged therefrom.
All of them testified. No one indicated that such an understanding was reached.
Other claimed errors are without substance. Since it is clear that Ross advised the court
that his authority to appear for Weslee came from Elizabeth and that he would look to her for
compensation and, indeed, did not request fees for his representation of Weslee, we think
it was error for the court to award him a fee payable from Weslee's distributive share of
the estate.
____________________

2
NRS 136.200(1): Whenever a will is offered for probate and it appears there are minors, or if it appears
there are other persons interested in the estate but who reside out of the county and are unrepresented, the court
may, whether there is a contest or not, appoint an attorney for such minors or other persons.
compensation and, indeed, did not request fees for his representation of Weslee, we think it
was error for the court to award him a fee payable from Weslee's distributive share of the
estate.
The order awarding Ross a fee of $5,000 for his services benefiting the estate is affirmed.
The order awarding Ross a fee of $25,000 for his representation of Weslee to be paid out of
her distributive share of the estate is reversed.
____________
94 Nev. 318, 318 (1978) Gordon v. McKee
SAMUEL GORDON, and VALLEY BANK OF NEVADA, a State Banking Association, and
GEORGE W. FINNEY and GENE FINNEY aka GENE E. FINNEY, Appellants, v. N. T.
McKEE, T. J. McKEE and EDITH McKEE, dba E & M TRAILER RANCH and JOHN F.
DEMENY, Respondents.
No. 8891
June 12, 1978 579 P.2d 1245
Appeal from summary judgment, Eighth Judicial District Court, Clark County; Carl J.
Christensen, Judge.
A motion for summary judgment was granted in an action for declaratory relief and to
quiet title to certain realty, and an appeal was taken from the order of the district court. The
Supreme Court held that where there was no dispute in material facts, summary judgment
was proper.
Affirmed.
Deaner, Deaner & Reynolds, Las Vegas, for Appellants George W. Finney and Gene
Finney aka Gene E. Finney.
Wiener, Goldwater & Waldman, Ltd., Las Vegas, for Appellants Samuel Gordon and
Valley Bank of Nevada.
Hilbrecht, Jones, Schreck & Bybee, Las Vegas, for Respondents.
94 Nev. 318, 319 (1978) Gordon v. McKee
Judgment.
Where there was no dispute in material facts in action for declaratory relief and to quiet title to realty,
summary judgment was proper.
OPINION
Per Curiam:
This is an appeal from an order granting respondents' motion for summary judgment in an
action for declaratory relief and to quiet title to the E & M Trailer Ranch in North Las Vegas.
In support of their claim of reversible error, appellants contend summary judgment was
improper because there remain genuine issues of material fact which must be resolved. We
have reviewed the record in a light most favorable to appellants and find no dispute in the
material facts; accordingly, summary judgment was proper. Lipshie v. Tracy Investment Co.,
93 Nev. 370, 566 P.2d 819 (1977).
Affirmed.
1

____________________

1
The Governor, pursuant to Article 6, 4 of the Constitution, designated District Judge Llewellyn A. Young
to sit for Mr. Justice Mowbray, who voluntarily disqualified himself and took no part in the decision.
____________
94 Nev. 319, 319 (1978) A Minor v. Sheriff
___________, A MINOR 15 YEARS OF AGE, Appellant, v.
SHERIFF, WASHOE COUNTY, NEVADA, Respondent.
No. 10591
June 14, 1978 579 P.2d 1249
Appeal from order denying pretrial petition for writ of habeas corpus, Second Judicial
District Court, Washoe County; James J. Guinan, Judge.
Appeal was taken from an order of the district court denying a pretrial petition for writ of
habeas corpus filed on behalf of a 15-year-old defendant charged with attempted murder and
with leaving the scene of an accident. The Supreme Court held that although the district court
had jurisdiction over the defendant with respect to the charge of attempted murder, exclusive
jurisdiction with respect to the charge of leaving the scene of an accident was vested in the
juvenile division.
Affirmed in part, reversed in part, with instructions.
Donald K. Pope, Reno, for Appellant.
Robert List, Attorney General, Carson City; Larry R. Hicks, District Attorney, and Calvin
Dunlap, Deputy District Attorney, Washoe County, for Respondent.
Infants.
Although district court could assert jurisdiction over 15-year-old defendant with respect to charge of
attempted murder, exclusive jurisdiction over additional charge of leaving scene of accident was vested in
juvenile division; overruling, to extent of inconsistency, Lehman v. Warden, 87 Nev. 24, 480 P.2d 155
(1971), and its progeny. NRS 62.040, subd. 1(c)(1), 62.050, 200.010, 208.070, 484.219.
OPINION
Per Curiam:
An indictment, filed in the district court, charged the 15-year-old appellant with (1)
attempted murder (NRS 200.010; NRS 208.070), and (2) leaving the scene of an accident, a
felony (NRS 484.219).
A pretrial petition for a writ of habeas corpus contended the charges must be dismissed
because no child under the age of 16 years may be certified for treatment as an adult. . . .
The district judge considered and denied the habeas petition and in this appeal the same
argument is reasserted.
1

Appellant's central argument is that we must reverse because NRS 62.050 vests exclusive
original jurisdiction in the juvenile division on all criminal charges brought against persons
under the age of eighteen (18) years. That statute provides, in pertinent part:
If, during the pendency of a criminal or quasi-criminal charge, except a charge of murder
or attempted murder, brought against a person in any court, it is ascertained that the
person was under the age of 18 years when the alleged offense was committed, the court
shall forthwith transfer the case and record to the juvenile division. (Emphasis added.)
Thus, we see that the juvenile division has exclusive original jurisdiction of all crimes
committed by persons under eighteen (18) years of age, except for the crimes of murder and
attempted murder. NRS 62.040(1)(c)(1); NRS 62.050. Therefore, appellant's argument is
valid insofar as the charge of leaving the scene of an accident is concerned and the district
judge should have granted habeas on that charge.
____________________

1
The petition for habeas also requested that appellant be placed in a juvenile detention facility pending the
outcome of the habeas challenge. The district judge granted that request.
leaving the scene of an accident is concerned and the district judge should have granted
habeas on that charge. However, we can only conclude that appellant may be tried as an adult
in the district court on the charge of attempted murder, even though he was only fifteen (15)
years of age when the offense was allegedly committed.
Accordingly, the district court's order denying habeas as to the attempted murder charge is
affirmed. The order denying habeas as to the charge of leaving the scene of an accident is
reversed and the district court is instructed to dismiss that charge from the indictment.
2

____________________

2
Insofar as this opinion may be in conflict with Lehman v. Warden, 87 Nev. 24, 480 P.2d 155 (1971), and its
progeny, such portion of that case must be and is hereby overruled.
____________
94 Nev. 321, 321 (1978) Bongiovi v. Bongiovi
JOSEPH JOHN BONGIOVI, JR., Appellant, v.
YVONNE M. BONGIOVI, Respondent.
No. 10615
June 14, 1978 579 P.2d 1246
Appeal from order reducing arrearages to judgment, Eighth Judicial District Court, Clark
Husband appealed from order of district court granting wife's motion to reduce portion of
arrearages for alimony and community property rights to judgment. The Supreme Court held
that six-year statute of limitation commenced to run against each alimony and community
property right installment as it became due, not from date of divorce decree, and thus wife
was not barred from recovering arrearages due for installments subsequent to six-year period.
Appeal dismissed.
Manzonie & Massi, Las Vegas, for Appellant.
Lehman Professional Corp., Las Vegas, for Respondent.
1. Divorce.
Six-year statute of limitations commenced to run against each alimony installment as it became due, not
from date of divorce decree, and thus wife was not barred from recovering arrearages for installments due
subsequent to six-year period. NRS 11.190.
2. Divorce.
District court had jurisdiction to reduce alimony and community property right arrearages to judgment,
pending appeal of case, where question of arrearages was entirely collateral to and
independent from that part of case taken up by appeal, and in no way affected merits
of appeal.
94 Nev. 321, 322 (1978) Bongiovi v. Bongiovi
question of arrearages was entirely collateral to and independent from that part of case taken up by appeal,
and in no way affected merits of appeal.
3. Divorce.
Wife was not entitled to attorney fees on motion to reduce alimony and community property right
arrearages to judgment.
OPINION*
Per Curiam:
In 1971, the parties obtained a divorce, and, pursuant to the divorce decree, appellant was
to pay respondent, in partial settlement of her alimony and community property rights, $1,000
per month, commencing July 1, 1971, until the sum of $10,000 had been paid. Respondent
received no payments and, on November 29, 1977, moved the district court to reduce the
arrearages to judgment. The district court granted the motion as to $5,000 of the arrearages,
holding that recovery of the remainder was barred by the six-year limitation on actions
contained in NRS 11.190.
[Headnote 1]
1. Appellant's contention that NRS 11.190 bars recovery of the entire $10,000 is without
merit. The six-year period prescribed by that statute commenced to run against each
installment as it became due, not from the date of the divorce decree. See Brown v. Vonsild,
91 Nev. 646, 541 P.2d 528 (1975).
[Headnotes 2, 3]
2. We also reject the contention that the district court had no jurisdiction to grant the
requested relief because of a pending appeal in the case. This matter was entirely collateral to
and independent from that part of the case taken up by appeal, and in no way affected the
merits of the appeal. See Osborn v. Riley, 331 So.2d 268 (Ala. 1976); Dear v. Locke, 262
N.E.2d 27 (Ill.App. 1970); cf. East Standard M. Co. v. Devine, 59 Nev. 134, 81 P.2d 1068
(1938). As noted, we deem briefing by respondent unnecessary and oral argument
unwarranted. Under these circumstances, we deny respondent's motion for an attorney's fee to
contest the appeal. Accordingly, this appeal shall stand submitted and, in the absence of
reversible error, we ORDER this appeal dismissed.
____________________
* This opinion was filed, as an unpublished order, June 7, 1978. Because of the paucity of published authority
on the issues, we have been requested to publish the order as an opinion.
____________
94 Nev. 323, 323 (1978) Bailey v. State
MARTIN FRANK BAILEY and ROBERT KENNETH SCHOULTZ, Appellants, v. THE
No. 8246
June 14, 1978 579 P.2d 1247
Appeal from judgment of conviction, First Judicial District Court, Carson City; Frank B.
Gregory, Judge.
Defendants were convicted in the district court of burglary, and they appealed. The
Supreme Court held that: (1) defendants did not suffer a deprivation of their right to a speedy
trial; (2) defendants were not deprived of effective assistance of counsel; (3) the trial court
was not required to give defendants' proposed instruction regarding circumstantial evidence,
and (4) tools allegedly used in the perpetration of the crime were properly admitted into
evidence.
Affirmed.
Horace R. Goff, Nevada State Public Defender, and J. Thomas Susich, Deputy Public
Defender, Carson City for Appellant Bailey.
Peter Chase Neumann, and John W. Hawkins, Reno, for Appellant Schoultz.
Robert List, Attorney General, Carson City; Michael Fondi, District Attorney, and Louis
R. Doescher, Deputy District Attorney, Carson City, for Respondent.
1. Criminal Law.
Delay of 224 days between defendants' arraignment and trial on burglary charges did not violate their
Sixth Amendment right to speedy trial here delay was not inordinate due to congestion of trial calendar,
where there was no evidence that delay was intentional and where court found there was no prejudice by
delay. NRS 205.060; U.S.C.A.Const. Amend 6.
2. Criminal Law.
Evidence, in burglary prosecution, failed to indicate that defendants were deprived of effective assistance
of counsel.
3. Criminal Law.
Where proper instruction regarding reasonable doubt was given to jury, and where there was no
indication that other instructions were inadequate, court was not required to give defendants' requested
instruction regarding circumstantial evidence.
4. Criminal Law.
Tools allegedly used in perpetration of crime were properly admitted in burglary prosecution where
evidence was connected to burglary by testimony of several witnesses; fact that tools could not be
positively linked to either crime or defendants affected probative weight of evidence and
not its admissibility.
either crime or defendants affected probative weight of evidence and not its admissibility.
OPINION
Per Curiam:
Convicted by jury verdict of burglary (NRS 205.060), appellants contend we must reverse
because (1) they were denied their right to a speedy trial; (2) they were denied effective
assistance of counsel; (3) the district court erred in instructing the jury; and, (4) the district
court erred in admitting certain evidence. We disagree.
[Headnote 1]
1. Appellants argue that the 224-day period between their arraignment and trial violated
their Sixth Amendment right to a speedy trial. While long, the 224-day delay was not
inordinate due to the congestion of the trial calendar and there is no evidence that the delay
was intentional. This fact, when coupled with the finding that there was no prejudice by the
delay, leads us to the conclusion that appellants did not suffer a deprivation of their right to a
speedy trial. See Barker v. Wingo, 407 U.S. 514 (1972).
2. Appellants next contend they were denied effective assistance of counsel because the
attorneys representing them were apathetic to their cause and did not expend the time and
energies necessary to adequately prepare their defense.
In resolving this issue, our task is to measure counsel's conduct against an acceptable
standard to which counsel must adhere. See De Kaplany v. Enomoto, 540 F.2d 975 (9th Cir.
1976). Three acceptable standards were delineated in United States v. Lemon, 550 F.2d 467
(9th Cir. 1977).
1
They are: (1) whether counsel's performance was so poor and
incompetent as to make the trial a farce or mockery of justice'; (2) whether the circumstances
show a denial of fundamental fairness', and (3) whether there was a lack of effective aid in
the preparation and trial of the caselack of counsel likely to render and rendering
reasonably effective counsel.' Id. at 473.
[Headnote 2]
Regardless of which of the three acceptable standards we employ, we are unable to
conclude from the record that appellants were deprived of effective assistance of counsel. See
Greenfield v. Gunn, 556 F.2d 935 (9th Cir. 1977). Cf. Chambers v. Maroney, 399 U.S 42
(1970); United States v. Waters, 461 F.2d 24S {10th Cir.
____________________

1
See Warden v. Lischko, 90 Nev. 221, 223, 523 p.2d 6, 7 (1974), where this court said: The standard by
which such a claim is to be tested is whether the effectiveness of counsel was of such low caliber as to reduce the
trial to a sham, a farce, or a pretense.
461 F.2d 248 (10th Cir. 1972). Moreover, [i]t is presumed that counsel fully discharged his
duties, and that presumption can only be overcome by strong and convincing proof to the
contrary. Warden v. Lischko, 90 Nev. 221, 223, 523 P.2d 6, 7 (1974). The evidence in the
record fails to rebut this presumption.
Indeed, the record indicates Bailey was afforded competent and effective representation in
all phases of the proceedings, notwithstanding Bailey's refusal to cooperate in his own
defense. In addition, Bailey's counsel on appeal has, with commendable candor, conceded
that his review of the record failed to disclose any evidence to support Bailey's claim that he
was denied effective legal representation. Counsel has, nevertheless, submitted this issue
pursuant to the mandate of Anders v. California, 386 U.S. 738 (1967), and Sanchez v. State,
85 Nev. 95, 450 P.2d 793 (1969). The record also indicates Schoultz was adequately
represented by experienced counsel at both the hearing on his petition for a writ of habeas
corpus and at trial.
3. Appellants also contend it was reversible error to refuse their proposed instruction
regarding circumstantial evidence.
2

Because the convictions were based on circumstantial evidence, appellants argue the court
must specially instruct the jury that in order to convict them such evidence must not only be
consistent with guilt but also be irreconcilable with any other rational conclusion. In essence,
appellants seek to have circumstantial evidence subjected to stricter scrutiny than direct or
testimonial evidence. While some support for this special instruction can be found in other
jurisdictions, the better rule is that where the jury is properly instructed on the standards for
reasonable doubt, such an additional instruction on circumstantial evidence is confusing and
incorrect,. . . Holland v. United States, 348 U.S. 121, 139-140 (1954). Accord, United States
v. Nelson, 419 F.2d 1237 (9th Cir. 1969); Blakely v. State, 542 P.2d 857 (Wyo. 1975); State
v. Wilkins, 523 P.2d 728 (Kan. 1974); State v. Harvill, 476 P.2d 841 (Ariz. 1970). See
Vincze v. State, 86 Nev. 546, 472 P.2d 936 (1970) (involving a conviction based upon direct
and circumstantial evidence, citing Holland with approval).The rationale for this rule is
manifest:
____________________

2
Appellants' proposed instruction read:
You are not permitted to find the defendant guilty of the crime charged against him based on
circumstantial evidence unless the proved circumstances are not only consistent with the theory that the
defendant is guilty of the crime, but cannot be reconciled with any other rational conclusion and each fact
which is essential to complete a set of circumstances necessary to establish the defendant's guilt has been
proved beyond a reasonable doubt.
Also, if the evidence is susceptible of two reasonable interpretations, one of which points to the
defendant's guilt and the other to his innocence, it is your duty to adopt that interpretation which points to
the defendant's innocence, and reject the other which points to his guilt.
citing Holland with approval).The rationale for this rule is manifest:
Circumstantial evidence in this respect is intrinsically no different from testimonial
evidence. Admittedly, circumstantial evidence may in some cases point to a wholly
incorrect result. Yet this is equally true of testimonial evidence. In both instances, a jury
is asked to weigh the chances that the evidence correctly points to guilt against the
possibility of inaccuracy or ambiguous inference. In both, the jury must use its
experience with people and events in weighing the probabilities. If the jury is convinced
beyond a reasonable doubt, we can require no more.
Holland v. United States, 348 U.S. at 140.
[Headnote 3]
Here, a proper instruction regarding reasonable doubt was given to the jury and, there
being no indication that other instructions were inadequate, no additional instruction was
required, and none would have been proper. United States v. Nelson, 419 F.2d at 1241. Cf.
Vincze v. State, supra.
Headnote 4]
4. Appellants' final contention is that the district court erroneously admitted certain
physical evidence consisting of tools allegedly used in the perpetration of the crime without
requiring the prosecution to provide an adequate foundation. That evidence was connected to
the burglary by testimony of several witnesses and, thus, was properly admitted. See United
States v. Poe, 462 F.2d 195 (5th Cir. 1972); State v. Palmer, 459 P.2d 812 (Wash. App.
1969); Adcock v. State, 444 P.2d 242 (Okla. Crim. App. 1968). Cf. United States v. Natale,
526 F.2d 1160 (2d Cir. 1975). The fact that the tools could not be positively linked to either
the crime or the defendants affects the probative weight of the evidence and not its
admissibility. See Adcock v. State, supra.
Affirmed.
____________
94 Nev. 327, 327 (1978) City of Reno v. County of Washoe
THE CITY OF RENO, a Municipal Corporation, Appellant, v. COUNTY OF WASHOE, a
Legal Subdivision of the State of Nevada; CITY OF SPARKS, a Municipal Corporation;
LEGISLATIVE COMMISSION OF THE STATE OF NEVADA; and WASHOE COUNTY
AIRPORT AUTHORITY, Respondents.
No. 10354
June 14, 1978 580 P.2d 460
Appeal from a declaratory judgment upholding the constitutionality of the Washoe County
Airport Authority Act; Second Judicial District Court, Washoe County; Roy L. Torvinen,
Judge.
City of Reno sought declaration of unconstitutionality of Washoe County Airport
Authority Act, which is designed to transfer ownership and administration of the city's airport
to the Authority. The district court declared the act constitutional, and city appealed. The
Supreme Court, Mowbray, J., held that: (1) as a creature of the State, the City could not
challenge the State on the issues of taking of its property without due process or just
compensation and impairment of its contracts; (2) act did not violate constitutional preference
for general laws where such can be made applicable; (3) act did not violate constitutional
prohibition on special or local laws for assessment collection of taxes, and (4) act did not
violate constitutional prohibition on local or special laws regulating county and township
business.
Affirmed.
Gunderson, J., and Batjer, C. J., dissented.
Robert L. Van Wagoner, City Attorney, and Michael V. Roth, Assistant City Attorney,
Reno, for Appellant.
Larry R. Hicks, District Attorney, and Gary D. Armentrout, Deputy District
Attorney,Washoe County; Paul Freitag, City Attorney, Sparks; and Frank W. Daykin,
Legislative Counsel, Carson City, for Respondents.
Being a political subdivision of the State, the City of Reno could not be heard to complain that Washoe
County Airport Authority Act, which transferred ownership and administration of Reno City airport to
county airport authority, was unconstitutional as a taking of property without due process or for just
compensation and as impairing city contracts. Stats. Nev. 1977, ch. 474, 1 et seq., 4, 31; Const. art. 1,
8, 15.
2. Statutes.
Constitutional provisions on local and special legislation apply to legislation affecting political
subdivisions of the state. Const. art 4, 20, 21.
3. Statutes.
Any conflict between special and general laws must, if the general law is constitutional, be resolved in
favor of the special law. Const. art. 4, 21.
4. Statutes.
Existence of a general law covering the basic subject matter does not necessarily establish that such a law
is applicable for purpose of constitutional requirement of general, as opposed to special, laws. Const.
art. 4, 21.
5. Statutes.
The Washoe County Airport Authority Act, which is designed to transfer ownership of Reno airport to
the authority does not violate constitutional preference for general laws notwithstanding general laws
providing for municipal and county ownership and administration of airports, since among other things,
legislature expressly determined that because of special circumstances and conditions the general law could
not be made applicable. Stats. Nev. 1977, ch. 474, 1 et seq., ch. 474, 2, 1(a-c), (e-g), ch. 474, 31,
3; NRS 495.010 et seq., 495.010, subd. 1, 496.010 et seq., 496.020, subd.5.
6. Statutes.
Special statutes for levy and collection of taxes for particular local purposes do not of themselves violate
constitutional ban on local or special laws for assessment and collection of taxes for state, county and
township purposes. Const. art. 4, 20.
7. Statutes.
Although Washoe County Airport Authority Act grants authority power to levy and collect general taxes
and to fix a rate of levy, subject to county approval, such provision does not violate constitution prohibition
a special or local law for assessment and collection of taxes. Const. art. 4, 20; Stats. Nev. 1977, ch.
474, 12, 13.
8. Statutes.
Washoe County Airport Authority Act, which is designed to transfer ownership and administration of
Reno airport to the authority, does not violate constitutional prohibition on local or special laws regulating
county and township business. Stats. Nev. 1977, ch. 474, 1 et seq., 4, 31; Const. art. 4, 20.
9. Statutes.
A city is not included within scope of constitutional prohibition on enactment of local or special laws
regulating county and township business. Const. art. 4, 20; art. 8, 1.
OPINION
The City of Reno has appealed from a declaratory judgment of the district court upholding
the constitutionality of the Washoe County Airport Authority Act. We affirm.
THE FACTS
On May 12, 1977, the Legislature approved the Washoe County Airport Authority Act
(hereafter Act), 1977 Nev. Stats. ch. 474 (hereafter Ch. 474), at 968-77, designed to transfer
ownership and administration of the airport of the City of Reno (hereafter City) from the City
to the Washoe County Airport Authority, created by the Act. Ch. 474, 4, 31, at 969,
976-77.
The City claims that the Act violates the Nevada Constitution in the following particulars:
Article 1, section 8, proscribing the taking of property for public use without due process or
just compensation; article 1, section 15, forbidding any law impairing the obligation of
contracts; and article 4, sections 20 and 21, prohibiting local and special legislation.
THE ISSUES
1. The Constitutional Challenge on the Issues of Taking Property without Due Process or
Just Compensation and the Impairment of Contracts.
[Headnote 1]
The City may not challenge the State on the issues of taking property without due
process or just compensation and the impairment of its contracts. This court's holding and
rationale, as follows, in State ex rel. List v. County of Douglas, 90 Nev. 272, 280-81, 524
P.2d 1271, 1276 (1974), are controlling in the instant case:
Douglas County, as a political subdivision of the State of Nevada, may not invoke
the proscriptions of the Fourteenth Amendment in opposition to the will of its creator.
Williams v. Baltimore, 289 U.S. 36 (1933); Trenton v. New Jersey, 262 U.S. 182
(1923). It may not complain of state action on the ground that it has been deprived of
its property without due process of law. The basic principles were summarized in the
case of Hunter v. Pittsburgh, 207 U.S. 161 (1907):
It would be unnecessary and unprofitable to analyze these decisions or quote
from the opinions rendered. We think the following principles have been established
by them and have become settled doctrines of this court, to be acted upon wherever
they are applicable. Municipal corporations are political subdivisions of the State,
created as convenient agencies for exercising such of the governmental powers of
the State as may be entrusted to them. For the purpose of executing these powers
properly and efficiently they usually are given the power to acquire, hold, and
manage personal and real property.
efficiently they usually are given the power to acquire, hold, and manage personal and
real property. The number, nature and duration of the powers conferred upon these
corporations and the territory over which they shall be exercised rests in the absolute
discretion of the State. Neither their charters, nor any law conferring governmental
powers or vesting in them property to be used for governmental purposes, or
authorizing them to hold or manage such property or exempting them from taxation
upon it, constitutes a contract with the State within the meaning of the Federal
Constitution. The State, therefore, at its pleasure may modify or withdraw all such
powers, may take without compensation such property, hold it itself, or vest it in other
agencies, expand or contract the territorial area, unite the whole or a part of it with
another municipality, repeal the charter and destroy the corporation. All this may be
done, conditionally or unconditionally, with or without the consent of the citizens, or
even against their protest. In all these respects the State is supreme, and its legislative
body, conforming its action to the state constitution, may do as it will, unrestrained by
any provision of the Constitution of the United States. Although the inhabitants and
property owners may by such changes suffer inconvenience, and their property may be
lessened in value by the burden of increased taxation, or for any other reason, they have
no right by contract or otherwise in the unaltered or continued existence of the
corporation or its powers, and there is nothing in the Federal Constitution which
protects them from these injurious consequences. The power is in the State and those
who legislate for the State are alone responsible for any unjust or oppressive exercise
of it. Id. at 178-179. (Emphasis added.)
Although this court's ruling in List was focused on the fourteenth amendment to the
Federal Constitution, we hold that the same reasoning applies to the due process clause of the
Nevada Constitution, article 1, section 8.
Similarly, and relying on the High Court's pronouncement in Hunter, upon which we
predicated our ruling in List, we conclude that in the instant case the taking of the City's
property for public use does not violate the Nevada Constitution. Nor was the constitutional
proscription against the impairment of contractual obligations violated. Nev. Const. art. 1,
15. The City, created as a governmental agency for administration by the State, cannot
complain that its contracts are impaired, since its contractual rights are derived from the
State itself.1 See Alameda County v. Janssen, 106 P.2d 11, 15 {Cal.
by the State, cannot complain that its contracts are impaired, since its contractual rights are
derived from the State itself.
1
See Alameda County v. Janssen, 106 P.2d 11, 15 (Cal. 1940),
where Mr. Justice Traynor, writing for the California Supreme Court, held:
Such cancellations in no way violate the provisions of the United States and California
Constitutions prohibiting the passage of any law impairing the obligation of contracts.
These provisions do not prevent the legislature from changing the contractual rights of
its political subdivisions acting in a governmental capacity. County of Tulare v. City of
Dinuba, 188 Cal. 664, 206 P. 983; City of Trenton v. New Jersey, 262 U.S. 182, 43
S.Ct. 534, 67 L.Ed. 937, 29 A.L.R. 1471; City of Worcester v. Worcester Consol. Street
Railway Co., 196 U.S. 539, 25 S.Ct. 237, 49 L.Ed. 591. . . .
And as Mr. Justice Batjer, speaking for this court, said in Koscot Interplanetary, Inc. v.
Draney, 90 Nev. 450, 458-59, 530 P.2d 108, 113-14 (1974):
In Home Bldg. & L. Assn. v. Blaisdell, 290 U.S. 398, 442-444 (1934), the United
States Supreme Court reiterated the rule that all contracts are made subject to the
paramount authority retained by a state over contracts to safeguard the vital interest of
its people and went on to say: [T]he question is no longer merely that of one party to
a contract as against another, but of the use of reasonable means to safeguard the
economic structure upon which the good of all depends. * * * The principal of this
development is, * * * that the reservation of the reasonable exercise of the protective
power of the States is read into all contracts. * * *
We conclude, therefore, that the City, as a political subdivision of the State, may not raise
the issues of taking of property without due process of law or just compensation and the
impairment of its contracts, as against the State, its creator.
2. The Constitutional Challenge on the Issue that the Act Is a Local and Special Law.
The City also claims that the Act is unconstitutional because it is a local and special law
applicable only to the Reno airport and the cities of Reno and Sparks and the County of
Washoe. This legislation, the City suggests, violates the Nevada Constitution, article 4,
sections 20 and 21.
____________________

1
It is noted that any contractual rights of private parties involved in the Act are fully protected by the Act.
Ch. 474, 31, 1 and 2(c), at 976.
[Headnote 2]
These constitutional provisions do apply in the case at hand, and they exist for the
protection of political subdivisions of the State. Their effect is to limit the Legislature, in
certain instances, to the enactment of general, rather than special or local, laws.
A. Unconstitutionality of the Act When a General Law Is, or Can Be Made, Applicable.
Article 4, section 21, of the Nevada Constitution, provides:
In all cases . . . where a general law can be made applicable, all laws shall be general and of
uniform operation throughout the State.
[Headnotes 3-5]
The City first contends that general laws providing for municipal and county ownership
and administration of airports (NRS chs. 495, 496) are applicable, since they cover the
general subject matter to which the Act refers and in some instances directly conflict with the
provisions of the Act. (E.g., NRS 495.010, subsection 1, and 496.020, subsection 5, authorize
acquisition and control of airports by cities, while Ch. 474, section 31, paragraph 3,
specifically prohibits the exercise of such powers by the cities of Reno and Sparks.)
This contention is unsound. Any conflict between special and general laws must, if the
general law is constitutional, be resolved in favor of the special law. Ronnow v. City of Las
Vegas, 57 Nev. 332, 65 P.2d 133 (1937). The existence of a general law covering the basic
subject matter does not necessarily establish that such a law is applicable for purposes of
section 21. Washoe County Water Conserv'n Dist. v. Beemer, 56 Nev. 104, 45 P.2d 779
(1935). As Mr. Justice Hawley observed in Evans v. Job, 8 Nev. 322, 336 (1873):
If we adopt the views so earnestly contended for by appellant it would be impossible
for the legislature to pass any local or special law, because all subjects of legislation are
more or less general; and to say that when the subject of the law was general a general
law would be applicable would prohibit the legislature from passing any local or special
law.
The test of whether a general law is, or can be made, applicable, for purposes of section
21, has been articulated in various ways. In State ex rel. Clarke v. Irwin, 5 Nev. 111, 122
(1869), this court held:
A law, to be applicable in the sense in which the words are evidently used, and their
only proper sense in such connection, must answer the just purposes of the legislation;
that is, best subserve the interests of the people of the state, or such class or portion
as the particular legislation is intended to affect. . . .
is, best subserve the interests of the people of the state, or such class or portion as the
particular legislation is intended to affect. . . .
Almost 80 years later, the court observed:
This court has repeatedly upheld the constitutionality of special or local acts of the
legislature, passed, in some instances, because the general legislation existing was
insufficient to meet the peculiar needs of a particular situation, and, in other instances,
for the reason that facts and circumstances existed, in relation to a particular situation,
amounting to an emergency which required more speedy action and relief than could be
had by proceeding under the existing general law. . . .
Cauble v. Beemer, 64 Nev. 77, 96, 177 P.2d 677, 686 (1947).
In this instance, the Legislature has expressly determined that [b]ecause of special
circumstances and conditions a general law cannot be made applicable. Ch. 474, 2, 1(g),
at 968. The Legislature found that the airport originally served primarily the city residents,
but is now serving the inhabitants of a large geographical area and ever-increasing numbers
of tourists, and therefore has become a regional airport. Ch. 474, 2, 1(a),(b),(c), at 968.
The Legislature further determined that [t]he city of Reno is unable to operate the airport
effectively within the traditional framework of local government and that [d]evelopment of
the modern airport requires the expenditure of vast sums of money . . . not available to the
City of Reno. Ch. 474, 2, 1(e),(f), at 968. The Act would allow the tax burden [of the
airport] to spread over Washoe County. Ch. 474, 2, 1(g), at 968. And, finally, the Act
would accommodate the expanding urban population patterns, provide adequate funding and
establish the administrative machinery necessary to insure adequate air service to the region.
Ch. 474, 2, 1(h), at 968.
Anchoring his ruling on those legislative findings, the district judge, in his written
decision, concluded that the Act was constitutional.
2

We agree. As early as 1869, this court enunciated the rule in State ex rel. Clarke v. Irwin, 5
Nev. 111, 120 (1869):
The leading rule in regard to the judicial construction of constitutional provisions . . .
declares that in cases of doubt every possible presumption and intendment will be
made in favor of the constitutionality of the act in question, and that the courts will
only interfere in cases of clear and unquestioned violation of the fundamental law.
____________________

2
Excerpt from district judge's decision: Affording the legislative finding some weight, the Court finds that
the statute in question, Statutes of Nevada 474, 1977, is not unconstitutional for any of the reasons cited by the
City of Reno and that the statute be declared constitutional and that the Temporary Injunction should be
dissolved. (Footnote omitted.)
doubt every possible presumption and intendment will be made in favor of the
constitutionality of the act in question, and that the courts will only interfere in cases of
clear and unquestioned violation of the fundamental law. It has been repeatedly said
that the presumption is that every state statute, the objects and provisions of which are
among the acknowledged powers of legislation, is valid and constitutional, and such
presumption is not to be overcome unless the contrary is clearly demonstrated.
. . .
Later, this court, in Western Realty Co. v. City of Reno, 63 Nev. 330, 349-50, 172 P.2d
158, 167 (1946), reiterated:
Municipal administration is especially local in its nature, and local features peculiar
to a municipality naturally call for special legislation. . . .
Special legislation to meet the wants, requirements and special needs of each
municipality, rather than general laws exclusively, is consonant with the fundamental
principles and policy of local self-government and home rule, and in our judgment the
true remedy is not absolutely and sweepingly to prohibit such legislation, but to
safeguard it from legislative abuse. . . .
(quoting 1 J. Dillon, Municipal Corporations, 141, at 256 (5th ed. 1911)) (emphasis in
original).
We conclude that the Act does not offend article 4, section 21, of the Nevada Constitution.
B. The Specific Provisions of Section 20.
Finally, the City urges that the Act violates article 4, section 20, of the Nevada
Constitution, which provides: The legislature shall not pass local or special laws in any of
the following enumerated cases. . . . Among those cases are the following, which the City
suggests apply to the Act: For the assessment and collection of taxes for state, county and
township purposes and Regulating county and township business.
[Headnotes 6, 7]
i. The City's contention that the Act violates the provision of section 20 prohibiting a
special or local law for the assessment and collection of taxes is meritless. Although the Act
does grant to the Washoe County Airport Authority the power to levy and collect general
taxes, and to fix a rate of levy, subject to the approval of Washoe County (Ch. 474, 12-13,
at 971-72), such provisions have been held to encompass only a different method of either
assessment or collection than provided by the revenue laws of general application throughout
the state."
state. (Emphasis added.) Cauble v. Beemer, 64 Nev. 77, 87-88, 177 P.2d 677, 682 (1947).
The allowance of special statutes for the levy and collection of taxes for particular local
purposes has long been upheld. Gibson v. Mason, 5 Nev. 283 (1869); Thompson v. Turner,
24 Nev. 292, 53 P. 178 (1898); State ex rel. Henderson Banking Co. v. Lytton, 31 Nev. 67, 99
P. 855 (1909).
[Headnotes 8, 9]
ii. The City also contends that the Act violates the provision of section 20 prohibiting local
or special laws [r]egulating county and township business. We do not agree. It is clear that
the City's concern is with legislative intrusion into its own affairs and not with the relatively
minor involvement of Washoe County in the facilitation of the Authority's business.
3

This court has pointed out that the provision of Section 20 prohibits regulating county
business by special or local law and does not prohibit such a law merely relating to,
pertaining to, or concerning county business. Washoe County Water Conserv'n Dist. v.
Beemer, 56 Nev. 104, 117, 45 P.2d 779, 782 (1935). In Cauble v. Beemer, 64 Nev. 77, 90,
91, 177 P.2d 677, 683, 684 (1947), the court observed:
It is manifest the framers of the constitutional provision prohibiting any local or
special act regulating county business had in mind maintaining essential uniformity in
the laws enacted to govern county business in general, and its administration. [See, e.g.,
County of Clark v. City of Las Vegas, 92 Nev. 323, 550 P.2d 779 (1976).]. . . It was
not, manifestly, such an act as . . . relates and pertains to, and concerns, only a single
item, or project, of county business. . . .
The Washoe County Airport Authority Act does not regulate county business within the
meaning of this provision of section 20.
For these reasons, we conclude that the Act is constitutional and that the judgment of the
district court must be affirmed.
Thompson and Manoukian, JJ., concur.
Gunderson, J., with whom Batjer, C. J. agrees, dissenting:
____________________

3
The City itself, a municipal corporation, is not included in the scope of the prohibition. See Nev. Const. art.
8, 1; Schweiss v. First Judicial Dist. Court, 23 Nev. 226, 45 P. 289 (1896); and Styring v. City of I
respectfully dissent.Santa Ana, 147 P.2d 689 (Cal.App. 1944).
Although the Washoe County Airport Authority Act interjects Washoe County into the
ownership and administration of Reno's airport (a highly substantial business venture), our
colleagues say the Act merely relates to but does not regulate county business. With all
respect, my colleague Batjer, and I feel this declaration is not explained sufficiently so that it
can be understood and accepted. To us, it appears the legislation in question is subject to
concerns our Constitution sought to avoid, to-wit: that important local legislation should not
be adopted by legislators from elsewhere without any feeling of responsibility on their part,
thus often leading to improper combinations among the members and even to vicious
legislation that would not be permitted were it to affect the whole state. McDonald v.
Beemer, 67 Nev. 419, 426, 220 P.2d 217, 220 (1950). To us also, it appears henceforth the
involvement of other counties in airports elsewhere in Nevada will be different from, and not
uniform with, Washoe County's involvement in the business of governing the Reno Airport.
____________
94 Nev. 336, 336 (1978) Havas v. Engebregson
VICTOR HAVAS, Appellant, v. DARYL
ENGEBREGSON, Respondent.
No. 9007
June 15, 1978 580 P.2d 122
Appeal from judgment and order denying motion for new trial or to alter and amend
judgment, Eighth Judicial District Court, Clark County; Michael J. Wendell, Judge.
In an action for attorney fees, a judgment was entered in favor of the attorney in the district
court and an appeal was taken. The Supreme Court held that where evidence permitted the
district court to find that a co-defendant had given defendant money to pay the attorney for
services rendered to the co-defendant but defendant had failed to do so, judgment in favor of
attorney against the defendant alone would be sustained.
Affirmed.
Thomas F. Kummer, Las Vegas, for Appellant.
Donald R. Davidson, III, Las Vegas, for Respondent.
94 Nev. 336, 337 (1978) Havas v. Engebregson
Attorney and Client.
Where evidence permitted district court to find that co-defendant had given defendant money to pay
attorney for services rendered to co-defendant but defendant had failed to do so, judgment in favor of
attorney against the defendant alone was sustained.
OPINION
Per Curiam:
Respondent commenced this action seeking attorney's fees for legal services rendered on
behalf of Joseph Van Eykeren, appellant's co-defendant below. Havas was joined in the
action because he had allegedly promised Van Eykeren to pay his fees.
Following a trial before the district court, judgment was entered in favor of respondent
against Havas alone, the court specifically finding that Van Eykeren had given Havas the
money to pay respondent, but Havas had failed to do so.
Appellant contends the evidence adduced at trial was insufficient to sustain the judgment.
We disagree.
Where a trial court, sitting without a jury, makes a determination upon conflicting
evidence, that determination will not be disturbed on appeal where, as here, it is supported by
substantial evidence. J & J Building Contractors, Inc. v. Savage Construction, Inc., 92 Nev.
590, 555 P.2d 488, 489 (1976).
Affirmed.
1,2

____________________

1
Mr. Justice Mowbray voluntarily disqualified himself from participation in these proceedings and counsel
for the parties agreed to have this matter resolved by a four-judge court.

2
The Governor designated the Honorable Peter I. Breen, Judge of the Second Judicial District, to sit in the
place of the Honorable Gordon Thompson, Justice, who was disabled. Nev. Const. art. 6, 4.
____________
94 Nev. 337, 337 (1978) Anthony v. State of Nevada
DART ANTHONY, on Behalf of Himself and all Other Taxpayers of the Unincorporated
Town of Winchester, County of Clark, State of Nevada; and MARY HABBART, on Behalf
of Herself and all Other Taxpayers of the Unincorporated Town of Paradise, County of Clark,
State of Nevada; and MARIAN MICHAELIS, on Behalf of Herself and all Other Taxpayers
of the Unincorporated Town of Sunrise Manor, County of Clark, State of Nevada; and
DONALD R. COX, Sr., on Behalf of Himself and all other Taxpayers of the
Unincorporated Town of East Las Vegas, County of Clark, State of Nevada; Organized for
the Purpose of Suit as PEOPLE FOR INCORPORATION, Appellants, v. THE STATE OF
NEVADA; and THE CITY OF LAS VEGAS, by and through its BOARD OF CITY
COMMISSIONERS, WILLIAM H.
other Taxpayers of the Unincorporated Town of East Las Vegas, County of Clark, State of
Nevada; Organized for the Purpose of Suit as PEOPLE FOR INCORPORATION,
Appellants, v. THE STATE OF NEVADA; and THE CITY OF LAS VEGAS, by and through
its BOARD OF CITY COMMISSIONERS, WILLIAM H. BRIARE, MAYOR, PAUL J.
CHRISTENSEN, MYRON E. LEAVITT, RON LURIE, and ROY WOOFTER, Constituting
said Board; and LEGISLATIVE COMMISSION OF THE STATE OF NEVADA,
Respondents.
No. 10668
June 15, 1978 580 P.2d 939
Appeal from declaratory judgment, Eighth Judicial District Court, Clark County; James A.
Brennan, Judge.
Taxpayers brought suit challenging constitutionality of certain sections of law which
provided for enlargement of city to include a defined area conditionally subject to an
affirmative vote from both inhabitants of present city and inhabitants of area sought to be
annexed. The district court found law constitutional, and taxpayers appealed. The Supreme
Court held that: (1) certain sections of statute were unconstitutional under article of
Constitution mandating that laws shall be general and of uniform operation, but (2)
unconstitutional portion of statute was severable from constitutional portion.
Richard C. Maurer, Las Vegas, for Appellants.
Robert List, Attorney General, and Donald Klasic, Deputy Attorney General, Carson City;
Marcus H. Sloan, III, City Attorney, and Janson F. Stewart, Deputy City Attorney, Las
Vegas; Frank W. Daykin, Carson City, for Respondents.
All presumptions by judiciary are in favor of legislative enactments, and these enactments are presumed
to be constitutional; but, judiciary will not declare an act void because it disagrees with the wisdom of the
Legislature.
2. Statutes.
If a statute is special or local legislation, its constitutionality depends upon whether a general law can be
made applicable. Const. art. 4, 21.
3. Statutes.
Legislature may use population as a criteria in effecting a law which may nevertheless be deemed a
general law; however, use of population criteria must be rationally related to subject matter
and if use of population criterion creates an odious or absurd distinction, then it is
unconstitutional.
criteria must be rationally related to subject matter and if use of population criterion creates an odious or
absurd distinction, then it is unconstitutional. Const. art. 4, 21.
4. Statutes.
While Legislature may, within constitutional limits, disburse the proceeds of taxes, fees, and penalties to
various communities inequitably according to need, when legislature chooses to disburse among other
cities according to population proportion, there must be some rational basis for treating the largest city in a
particular county different from other cities. Const. art. 4, 21.
5. Statutes.
Section of statute which in essential part provided for enlargement of City of Las Vegas to include a
defined area conditionally subject to affirmative vote from both inhabitants of present city and inhabitants
of area sought to be annexed violated Article of Constitution mandating that all laws shall be general and of
uniform operation throughout the state. Stats. Nev. 1977, ch. 534, 1 et seq.; Const. art. 4, 21.
Municipalities are creatures of the Legislature.
7. Statutes.
Statute prohibiting the incorporation of any new city or territory annexed to an existing city in any county
whose population is 200,000 or more was on its face an unconstitutional special law. NRS 369.173;
Stats. Nev. 1977, ch. 534, 18; Const. art. 4, 21.
8. Statutes.
Express severability provisions in statutes are not necessarily controlling.
9. Statutes.
Where remaining sections of Act, which sections were not declared unconstitutional, provided for a vote
in incorporated area of Las Vegas and in unincorporated surrounding area to determine whether city limits
of Las Vegas would be expanded, and where each of sections that was declared unconstitutional was
designed to further a considered legislative policy related to the enlargement, but none was so
interdependent as to make enlargement impossible or even impracticable without it, remaining sections
were severable. NRS 369.173, 370.260, 377.050; Stats. Nev. 1977, ch. 534, 18, 18.5.
OPINION
Per Curiam:
In 1977, the Nevada Legislature enacted into law Chapter 534, Statutes of Nevada, which
in essential part provides for the enlargement of the City of Las Vegas to include a defined
area conditionally subject to an affirmative vote from both the inhabitants of the present city
and the inhabitants of the area sought to be annexed. Incident to this statutory purpose are
various other provisions providing in part for the distribution of specific revenues within
certain counties and prohibiting certain municipal corporations or annexations.
If the vote of the residents inhabiting both the incorporated and unincorporated area
affected by Chapter 534 is affirmative, in July of 1979 the City of Las Vegas will be
expanded to include the unincorporated townships of Winchester, Paradise, Sunrise Manor,
and East Las Vegas. Appellants, residents of those unincorporated townships, commenced
this action in the district court challenging the constitutionality of sections 1, 2, 3, and 18 of
Chapter 534. Specifically, appellants alleged that sections 1, 2, and 3 of the Act violated the
Nevada Constitution, Article 4, 21, and that section 18 violated Article 8, 8. The district
court found Chapter 534 to be constitutional and this appeal ensued.
Three issues confront us. First, are sections 1, 2, and 3 of Chapter 534 violative of the
Nevada Constitution, Article 4, 21? Second, is section 18 of Chapter 534 violative of the
Nevada Constitution, Article 8, 8? Third, are any of the enactments' provisions severable?
1. Sections 1, 2, and 3 of Chapter 534.
Appellants contend that sections 1, 2, and 3 of Chapter 534 are unconstitutional as
violating the Nevada Constitution, Article 4, 21, which reads
In all cases enumerated in the preceding section, and in all other cases where a
general law can be made applicable, all laws shall be general and of uniform operation
throughout the State.
Section 1 of Chapter 534 amends NRS 369.173 pertaining to the distribution of liquor tax
proceeds. Section 2 of the Act amends NRS 370.260 pertaining to the distribution of tax and
license fees. Section 3 of the Act amends NRS 377.050 pertaining to the distribution of all
fees, taxes, interests, and penalties imposed. The amendments to each of these statutes added
in all or in part that in
a county having a population of more than 200,000, 68.5% of the money shall be
apportioned to the largest city and the remainder among the other cities in proportion to
their respective populations.
Appellants contend that the law is principally addressed as a remedy to problems currently
confronting Clark County and that the limitation of 200,000 population, although concededly
open-ended, is but a mere subterfuge to circumvent general law restrictions. Respondents
contend that while the legislation may appear to address only the Clark County context, the
open-ended classification permits any county with the requisite population to benefit by the
statute and thus assures constitutionality.
[Headnotes 1-3]
All presumptions by the judiciary are in favor of legislative enactments, and these
enactments are presumed to be constitutional; the judiciary will not declare an act void
because it disagrees with the wisdom of the Legislature. Damus v. County of Clark, 93 Nev.
512, 569 P.2d 933 (1977). In Viale v. Foley, 76 Nev. 149, 350 P.2d 721 (1960), we held that
a law to be general need not be operative in every part of the state. If a statute is special or
local legislation, its constitutionality depends upon whether a general law can be made
applicable. Conservation District v. Beemer, 56 Nev. 104, 45 P.2d 779 (1935). Further, the
Legislature may use population as a criterion in effecting a law which may nevertheless be
deemed a general law. Damus, supra; Viale, supra. The use of a population criterion,
however, must be rationally related to the subject matter, and if the use of a population
criterion creates an odious or absurd distinction, then it is unconstitutional. State v. Donovan,
20 Nev. 75, 15 P. 783 (1887); accord, Reid v. Woofter, 88 Nev. 378, 498 P.2d 361 (1972).
By the express terms of the statute, in any county exceeding the 200,000 population the
largest city is to obtain a fixed 68.5% of all the taxes, fees, and other allocations of distributed
funds. All other cities in that county must share the remainder proportionate to their
population. Simple hypotheticals illustrate the inherent problematic nature of the legislation.
Let us assume that in a proper county, the largest city has an exact population of 50,000 while
the four next largest cities have exactly 49,999. Because its population is only greater by one,
the largest city will be allocated by law 68.5% of all the funds so distributed while the other
four cities must share equally the remaining 31.5% of the distribution. This would average
approximately 8% for each of the four cities. Thus, because their populations fell one person
short of the largest city, each of the other cities shares 8% of the allocation while the largest
city obtains the 68.5% share. Additionally, what if another qualifying county were comprised
of a number of small cities, none of which contains 68.5% of the combined population. The
challenged legislation would permit the largest of these cities to benefit without a
substantiation of population. These examples clearly demonstrate that the Legislature's intent,
though commendable, was to protect the fiscal policy of Clark County and not the financial
ability of smaller cities to provide needed services.
At the time of passage of Chapter 534, the City of Las Vegas had approximately 68.5% of
the county's population. Under the general law which antedated the challenged legislation, the
City received approximately 68.5% of the relevant revenues.
See, NRS 369.173, 370.260, and 377.050. In Damus, supra, we noted that it was probable
that Washoe County would have 200,000 inhabitants at the time of the publication of the
1980 census. If sections 1, 2, and 3 are not local laws, how could the figure of 68.5% be
justified by other counties. It is clear to us that the only purpose of the amendments is to
perpetuate the existing state of affairs in Clark County.
[Headnotes 4, 5]
Because a general law can be made applicable to this situation, sections 1, 2, and 3 of
Chapter 534 are special local legislation which statutorily assures a fixed percentage of
allocated funds for Las Vegas, while other cities within Clark County must share the
remainder in proportion to their population. Even if several counties could currently be
affected by this statute, it would remain unconstitutional. The ostensible purpose of the
challenged legislation is to distribute taxes equally between local governmental units. Yet, the
population classification bears no rational relation to that purpose. Nor is there any showing
why tax distribution should be any different in our more populous counties. While the
Legislature may, within constitutional limits, disburse the proceeds of taxes, fees, and
penalties to various communities inequitably according to need, City of Las Vegas v. Mack,
87 Nev. 105, 481 P.2d 396 (1971), when the Legislature chooses to disburse among other
cities according to population proportion, however, there must be some rational basis for
treating the largest city in a particular county different from other cities. Here, such rationality
is absent.
Section 19(3) of the questioned law further suggests that the legislation is void as special.
It provides, [I]f the requirements for the enlargement of the city are met, Sections 1 to 4,
inclusive, 10, 14, 15, 16, and 17 of this Act shall become effective on July 1, 1979. As this
section indicates, if the annexation conditions are not met, the revenue distribution provisions
will not be implemented. If the revenue allocation amendments had a reasonable relation to
the needs of the other counties, rather than imposing Clark County's fiscal policies on them,
the amendments would have had general application.
Sections 1, 2, and 3 of Chapter 534 specify rather than classify and are therefore
constitutionally impermissible. The legislation is directed at solving a problem special to Las
Vegas which could as easily be resolved by a general law.
2. Section 18.
Section 18 prohibits the incorporation of any new city or territory annexed to an existing
city in any county whose population is 200,000 or more. Contiguous territory, however, may
be annexed to an existing city upon petition of all the property owners of that territory.
be annexed to an existing city upon petition of all the property owners of that territory.
[Headnotes 6, 7]
It is clear that municipalities are creatures of the Legislature. State v. Swift, 11 Nev. 128
(1876). It is not indicated, however, why no more municipalities may incorporate in counties
with a population exceeding 200,000. Here there is a blanket prohibition on further municipal
incorporation in counties with a population exceeding 200,000, irrespective of the proximity
or lack of proximity to the larger metropolitan areas. It is significant to note that this section,
unlike section 19(3) and others, went into effect upon passage. Section 18 is on its face
unconstitutional and directly the result of the purpose of this Act which was to practically
compel the four outlying communities of Las Vegas to affirmatively vote for annexation or be
indefinitely precluded from incorporating on their own.
3. Severability.
[Headnotes 8, 9]
Having declared sections 1, 2, 3, and 18 unconstitutional, the last question to be decided is
whether the remainder is operative and sufficiently independent of the voided legislation as to
survive challenge. Section 18.5 of the Act contains an express severability clause in order that
the other sections which can be given effect might be saved. Although express severability
provisions in statutes are not necessarily controlling, County of Clark v. City of Las Vegas,
92 Nev. 323, 550 P.2d 779 (1976), severability is appropriate here, as the other sections of the
law are in aid of legislative intent. The other sections of the Act provide for a vote in the
incorporated area of Las Vegas and in the unincorporated surrounding area to determine
whether the city limits of Las Vegas will be expanded. If approved by the voters, the City of
Las Vegas may be enlarged without modification of the several tax statutes or prohibiting
incorporations or annexations within Clark County. Each of the sections that we have
declared unconstitutional was designed to further a considered legislative policy related to the
enlargement, but none is so interdependent as to make enlargement impossible or even
impracticable without it. We are unable to conclude that the Legislature would not have
passed the enlargement provisions without the tax allocation and other voided sections.
____________
94 Nev. 344, 344 (1978) Sims v. Veneman
A. B. SIMS, Appellant, v. PATRICIA C. VENEMAN and
WILLIAM A. WILSON, Respondents.
No. 8969
June 20, 1978 580 P.2d 466
Appeal from summary judgment, Second Judicial District Court, Washoe County; Roy L.
Torvinen, Judge.
Plaintiff sought damages for injuries sustained by him in motor vehicle accident involving
car driven by him and car owned and driven by defendants, respectively. The district court
granted defendants summary judgment, and plaintiff appealed. The Supreme Court held that
facts that counsel for parties negotiated a settlement of plaintiff's claim, that defendants
tendered a draft to plaintiff in amount of $4,500 which, in plain and unambiguous terms,
described nature of payment as being In Full and Final Settlement of All Claims, and that
plaintiff endorsed draft and expended portion of proceeds established accord and satisfaction,
thereby settling plaintiff's claim and precluding instant suit for damages.
Affirmed.
David Dean, Reno, for Appellant.
Wait, Shamberger, Georgeson & McQuaid, Reno, for Respondents.
1. Judgment.
Summary judgment is appropriate only where there is no genuine dispute as to any material fact and
moving party is entitled to judgment as matter of law. NRCP 56.
2. Accord and Satisfaction.
Facts that counsel for parties negotiated settlement of plaintiff's claim for damages for injuries sustained
by him in motor vehicle accident with car owned and driven by defendants respectively, that defendants
tendered a draft to plaintiff in the amount of $4,500 which, in plain and unambiguous terms, described
nature of payment as being In Full and Final Settlement of all Claims, and that plaintiff endorsed draft
and expended portion of proceeds established an accord and satisfaction, thereby settling plaintiff's claim
and precluding subsequent suit for damages.
OPINION
Per Curiam:
Appellant sought damages for injuries he sustained in a motor vehicle accident involving
the car which he was driving and that owned by respondent Wilson and driven by respondent
Veneman. Respondents moved for and were granted summary judgment.
94 Nev. 344, 345 (1978) Sims v. Veneman
mary judgment. Appellant here contends the district court erred in granting summary
judgment. We disagree.
[Headnotes 1, 2]
Summary judgment is appropriate only where there is no genuine dispute as to any
material fact and the moving party is entitled to judgment as a matter of law. See Nevada
Land & Mtge. v. Hidden Wells, 83 Nev. 501, 435 P.2d 198 (1967). Here, the undisputed facts
are that counsel for the parties negotiated a settlement of appellant's claim; respondents
tendered a draft to appellant in the amount of $4,500; the draft, in plain and unambiguous
terms, described the nature of payment as being In Full and Final Settlement of All Claims;
and, appellant endorsed the draft and expended a portion of the proceeds. These facts
establish an accord and satisfaction, as a matter of law, thereby settling appellant's claim. See
Wiggin v. Sanborn, 210 A.2d 38 (Me. 1965); Miller v. Prince Street Elevator Co., 68 P.2d
663 (N.M. 1937). Accordingly, summary judgment was proper. NRCP 56; Richards v.
Lindquist, 94 Nev. 163, 576 P.2d 749 (1978); Olson v. Iacometti, 91 Nev. 241, 533 P.2d
1360 (1975).
Affirmed.
1

____________________

1
The Governor designated James A. Brennan, Judge of the Eighth Judicial District, to sit in the place of the
Honorable Gordon Thompson, Justice, who was disabled. Nev. Const. art. 6, 4.
____________
94 Nev. 345, 345 (1978) PSC v. Continental Tel. Co.
THE PUBLIC SERVICE COMMISSION OF NEVADA, Appellant and Cross-Respondent, v.
CONTINENTAL TELEPHONE COMPANY OF CALIFORNIA, dba CONTINENTAL
TELEPHONE COMPANY OF NEVADA, Respondent and Cross-Appellant.
No. 9011
June 21, 1978 580 P.2d 467
Appeals from orders of the Public Service Commission and the First Judicial District
Court, Carson City; Frank B. Gregory, Judge.
Telephone utility applied to the Public Service Commission for certain rate increases.
After hearings, the Commission issued orders which allowed only some of the requested
increases, and the company sought judicial review. The district court overruled the
Commission on four items but upheld the Commission on the other two issues. The
Commission appealed and the company cross-appealed, and the Supreme Court held that:
{1) the Commission properly disallowed toll revenue adjustments; {2) the Commission's
order disallowing depreciation rate changes in four accounts was affirmed; {3) it was
improper for the Commission to disallow deductions of working capital from the rate
base; {4) because no explanation was offered, the Commission's order with regard to the
deduction of decreased depreciation from the rate base was presumed unreasonable; {5)
the orders disallowing reapportionment of negative depreciation reserves were affirmed,
and {6) substantial evidence supported allowing a 12.S% rate of return on common
equity.
Court held that: (1) the Commission properly disallowed toll revenue adjustments; (2) the
Commission's order disallowing depreciation rate changes in four accounts was affirmed; (3)
it was improper for the Commission to disallow deductions of working capital from the rate
base; (4) because no explanation was offered, the Commission's order with regard to the
deduction of decreased depreciation from the rate base was presumed unreasonable; (5) the
orders disallowing reapportionment of negative depreciation reserves were affirmed, and (6)
substantial evidence supported allowing a 12.8% rate of return on common equity.
Robert List, Attorney General, E. Williams Hanmer, Deputy Attorney General, Carson
City, for Appellant and Cross-Respondent.
Laub, Clark & Hall, Ltd., Reno, for Respondent and Cross-Appellant.
Courts should not interfere with the Public Service Commission's rulings or review its determinations
beyond keeping the Commission within the law and protecting constitutional rights of the public service
agencies over which control is exercised.
In reviewing orders of the Public Service Commission, court should not pass on the credibility of
witnesses or reweigh the evidence but, rather, should limit its review to determining whether the
Commission's decision was based on substantial evidence.
3. Corporations.
Though utility rates must not be confiscatory, they must provide a just and reasonable return.
The Public Service Commission is not bound to accept unrebutted expert evidence as true if such
evidence lacks credibility.
5. Telecommunications.
Though some of the Public Service Commission's justifications for disallowing toll revenue readjustment
were arguably improper, where the Commission's findings were based on many factors, including
numerous inconsistencies within telephone utility's report, the Commission properly disallowed a toll
revenue readjustment.
Order of the Public Service commission disallowing telephone utility's proposed depreciation rate
changes in four of 13 accounts was supported by the record and was affirmed.
Where the Public Service Commission did not demonstrate the availability of saved tax revenues for use
as working capital, district court properly overruled the Public Service Commission's disallowance of
working capital deductions from telephone rate base.
Public Service Commission's order was presumed unreasonable where the order contained no explanation
with regard to the deduction of decreased depreciation from telephone rate base; therefore, Commission
was properly overruled by district court. NRS 233B.125.
Where telephone utility had attempted to reallocate depreciation reserves for equipment already retired,
long before the deduction was scheduled to be taken, and where the moving of future deductions forward
into the test year may have created a false picture with regard to their expense structure, the apportionment
of negative depreciation reserves was properly disallowed.
Court should defer to the Public Service Commission's expertise in selecting between methods used by
two opposing experts for determining the proper rate of return on common equity.
Substantial evidence supported order of the Public Service Commission permitting a rate of return on
common equity at 12.8% instead of at the 14.5% which the telephone utility requested.
OPINION
Per Curiam:
In 1974, Continental Telephone applied to the Public Service Commission for rate
increases on Nevada service amounting to $1,509,715. The P.S.C. held extensive hearings
throughout the state, and on June 6, 1975 issued orders which only allowed $233,966 of the
requested increases. Continental thereupon sought judicial review of the P.S.C. orders on six
items of accounting. After oral argument, the district court overruled the P.S.C. on four items,
but upheld the commission's findings on the remaining two issues. Specifically, the court
found the commission arbitrarily and capriciously disallowed the following: (1) Continental's
adjustments which increased test year operating revenues by $532,461 due to alleged
decreases in toll revenues; (2) depreciation rate changes in four accounts; and (3) deductions
of working capital from Continental's rate base. The district court also concluded (4) the
commission improperly deducted increased depreciation from the rate base. However, the
court affirmed rulings which (5) disallowed reapportionment of negative depreciation reserve,
and (6) permitted a rate of return on common equity at 12.8% instead of the requested 14
1/2%. The P.S.C. appeals from that portion of the district court's decision which found their
actions arbitrary and capricious, and Continental cross-appeals from the orders which upheld
the remaining commission action.
[Headnotes 1-4]
The parties concede that appellate review of administrative decisions is governed by the
following standards:
(1) The district court and supreme court should not interfere with the commission's
rulings or review its determinations, further than to keep it within the law and protect
constitutional rights of the public service agencies over which control is exercised. See
No. Las Vegas v. Pub. Serv. Comm'n, 83 Nev. 278, 429 P.2d 66 (1967).
(2) The court should not pass upon the credibility of witnesses or reweigh the
evidence, but limit its review to a determination that the commission's decision is based
on substantial evidence. See No. Las Vegas, cited above; Garson v. Steamboat Canal
Co., 43 Nev. 298, 185 P. 801 (1919).
(3) Rates must not be confiscatory, and provide a just and reasonable return. But,
this court will not quarrel with the methods used in arriving at rate determinations so
long as the end result permits a just and reasonable return. See Nevada Power Co. v.
Public Serv. Comm'n, 91 Nev. 816, 544 P.2d 428 (1975); Public Serv. Comm'n v. Ely
L. & P., 80 Nev. 312, 393 P.2d 305 (1964); Bell Tel. Co. v. Pub. Ser. Comm., 70 Nev.
25, 253 P.2d 602 (1953); see also Intermountain Gas Co. v. Idaho Public Utilities
Com'n, 540 P.2d 775 (Idaho 1975).
(4) The commission is not bound to accept as true unrebutted expert evidence if such
evidence lacks credibility. See State v. Public Service Commission, 220 S.W.2d 61
(Mo. 1949); New Haven Water Co. v. Connecticut Public Utilities Comm'n., 305 A.2d
863 (Conn. 1972).
With these standards in mind, we turn then to each accounting issue to see if there was
substantial evidence to support the Public Service Commission's orders.
[Headnote 5]
1. Toll revenue adjustments disallowed by the P.S.C. Toll Revenues are generated from a
pool of funds by the various companies within the phone system for long-distance service. In
other words, phone companies get part of their revenue from rates charged for local service
(exchange), and the remaining portion from the pool of funds paid by customers for toll calls.
The amount of money drawn from the pool depends on the long-distance use by Continental's
customers. Continental did a survey of their customers during the test year 1973, and
allegedly found a decrease in toll use. Thus, Continental insisted $532,461 in revenue would
be lost in 1974 unless local exchange rates were increased.
The P.S.C. disallowed the toll readjustment, citing as its most important reasons the
speculative nature of the study, Continental's failure to provide definitive figures on the toll
settlement percentage, and the use of end-of-period rate base in determining the toll
settlement percentage factor for its various accounts. The district court found the
disallowance arbitrary and capricious solely because the P.S.C. failed to recognize the
end-of-period rate base. (The P.S.C. insisted on a quarterly breakdown.)
Arguably, some of the commission's justifications were improper. However, the findings
were based on many factors, including the numerous inconsistencies within the Continental
report. We therefore believe the P.S.C. properly disallowed the readjustment, and its order
should be upheld. The district court improperly substituted its judgment for that of the
commission.
2. Disallowance of depreciation rate changes in four of thirteen accounts. Continental
attempted to increase depreciation rates in nine accounts, and decrease such rates in four
accounts. In support of their depreciation adjustments, they presented the testimony of Mr.
Davis, an expert in depreciation. The commission allowed depreciation increases in five of
nine accounts and all four decreases, but they disallowed increases in accounts 212,
buildings; 221, central office equipment; 242.2, cable; and 244, conduit. The stated reasons
are supported by the record. First, Mr. Davis testified that three methods were available to
simulate the life of an account: the Brennan, Baughan, and Garland methods. He further
testified that different methods were used on different accounts, and the method used could
vary the useful life by as much as two years. Finally, Davis used a rounding-off method which
interjected more independent judgment into the process.
[Headnote 6]
The district court found the allowance of increases and decreases in five accounts, and the
disallowance in the remaining four, arbitrary. Such decision is again an unjustified
substitution of judgment. The record reveals the four accounts in question represented
substantial portions of the company's assets (over 44%). Extensive cross-examination
revealed how damaging the flaws in Davis' judgment would be on the final accounting with
respect to these accounts. Therefore, the original P.S.C. order is affirmed.
[Headnote 7]
3. Disallowance of working capital deductions from rate base. Here, the issue involves
whether tax accruals must be deducted from working capital.
deducted from working capital. In other words, must the company use its available saved tax
revenues as working capital. This issue was answered affirmatively in Public Serv. Comm'n
v. Ely L. & P., 80 Nev. 312, 393 P.2d 305 (1964), where we held tax accruals must be used as
working capital so long as the commission demonstrates their availability. Here, the P.S.C.
failed to make such a showing when challenged, and the district court's order overruling the
disallowance is affirmed.
[Headnote 8]
4. Deduction of increased depreciation from rate base. NRS 233B.125 requires
administrative agencies to make written findings of fact and conclusions of law to support
particular findings. Since no explanation was offered with regard to the deduction of
increased depreciation from rate base, the commission's order should be presumed
unreasonable. The district court's order overruling the P.S.C. is affirmed.
[Headnote 9]
5. Negative depreciation reserve. Here, Continental attempted to reallocate depreciation
reserves for equipment already retired, long before the deduction was scheduled to be taken.
By moving future deductions forward into the test year, Continental may have created a false
picture with regard to their expense structure. Testimony revealed there were other methods
to alleviate incorrect depreciation estimates. Therefore, the orders of the P.S.C. and district
court are affirmed.
[Headnotes 10, 11]
6. Rate of return on common equity at 12.8%. Continental's expert, Dr. Stitch, considered
14 1/2% to be the proper rate of return on common equity. Intervenor's expert, Mr. Loconto,
felt 12.8% was a more suitable rate of return. The commission accepted Mr. Loconto's figure.
In Nevada Power Co. v. Public Service Comm'n, 91 Nev. 816, 544 P.2d 428 (1975), this
court held the methods used to determine rate of return are outside the scope of judicial
inquiry. The commission's expertise in selecting between the methods used by the two
opposing experts should therefore be given deference by this court. Since the rate of return at
12.8% was supported by substantial evidence, we affirm the district court's order.
1

____________________

1
Mr. Justice Gordon Thompson voluntarily disqualified himself and took no part in this decision. The
Governor, pursuant to Art. 6, 4 of the Constitution, designated Judge Merlyn Hoyt of the Seventh Judicial
District, to sit in his stead.
____________
94 Nev. 351, 351 (1978) Creps v. State
TERRY BRUCE CREPS, Appellant, v. THE
No. 9798
June 28, 1978 581 P.2d 842
Appeal from conviction and sentence for sale of controlled substance; Second Judicial
District Court, Washoe County; Roy L. Torvinen, Judge.
The Supreme Court held that: (1) cocaine, which defendant sold to undercover agent, was
not inadmissible under Fourth Amendment; (2) grant of State's motion for continuance was
not error due to fact that affidavit in support of motion gave no address for unavailable
undercover agent and was vague in regard to probable content of agent's testimony; (3) five
and one-half-year suspended sentence, with five years of probation conditioned on payment
of fine, submission to warrantless searches and 60 days' incarceration, was not an excessive
sentence; (4) imposition of 60-day term of incarceration as condition of probation was not a
judicial intrusion into the exclusively-executive parole power, and (5) use of such term of
incarceration as condition of probation was not so inconsistent with concept of probation as
to be beyond scope of permissible conditions contemplated by Legislature in enacting
sentence scheme.
Affirmed.
John Ohlson, Jr., of Reno, for Appellant.
Larry R. Hicks, District Attorney, and John L. Conner, Deputy District Attorney, Washoe
1. Criminal Law; Searches and Seizures.
Government agent may properly pose as willing buyer to gain consensual entry into private home to
purchase narcotics, and thereafter he may use the purchase as evidence against the seller without vitiating
an otherwise lawful prosecution. U.S.C.A.Const. Amend. 4.
Government agent's misrepresentation of his identity does not render invalid the narcotics seller's consent
to agent's entry. U.S.C.A.Const. Amend. 4.
Purchase of an illegal substance after a consensual entry obtained through misrepresentation of identity
did not involve a search or a seizure of the contraband. U.S.C.A.Const. Amend. 4.
4. Criminal Law.
In proceeding in which defendant was convicted of sale of controlled substance, the cocaine, which
defendant sold to undercover agent after he entered defendant's residence with his consent
and without warrant, was not inadmissible under Fourth Amendment.
94 Nev. 351, 352 (1978) Creps v. State
entered defendant's residence with his consent and without warrant, was not inadmissible under Fourth
Amendment. U.S.C.A.Const. Amend. 4.
5. Criminal Law.
In proceeding in which defendant was convicted of sale of controlled substance, grant of motion for
continuance on ground of unavailability of undercover agent to whom the substance had been sold was not
error due to fact that affidavit in support of motion gave no address for agent and was vague in regard to
probable content of agent's testimony, in view of fact that motion and affidavit had to be prepared in short
period of time and that it did not appear that deficiencies in affidavit were of type which would prejudice
defendant or subject him to avoidable delay. DCR 21, 21(3).
Five and one-half years' suspended sentence, with five years of probation conditioned on payment of fine,
submission to warrantless searches and 60 days' incarceration, was not an excessive sentence for a sale of
controlled substance offense committed by a first offender whose conviction related to a transaction
involving an ounce of cocaine with street value of $1,800, who offered to sell 10,000 amphetamines and
who offered to do business on a regular basis.
7. Pardon and Parole.
Executive parole power comes into effect after incarceration in state prison, and not before. NRS
176.095, 213.110.
Imposition of 60-day term of incarceration in county jail as condition of probation was not a judicial
intrusion into exclusively-executive parole powers; to extent that defendant was also subject to executive
commutation power during such term of incarceration, such overlapping commutation powers were
permitted under sentencing scheme set forth in statutes and State Constitution. NRS 176.085, 176.095,
176.185, 176.185, subds. 1, 3, 176.205, 176.215, 213.010-213.100, 213.160, 213.060, 213.090,
213.107-213.290, 213.110, 213.120; Const. art. 5, 14.
9. Criminal Law.
Power to suspend sentence and grant probation springs from legislative grant rather than from inherent
powers of the court.
10. Criminal Law.
Primary enquiry, in determining range of permissible conditions of probation, is in regard to the original
and continuing legislative intent as reflected in language of the applicable legislation. NRS 176.015 et
seq.
11. Criminal Law.
Liberal interpretation is to be given to discretionary powers conferred on district court by probation
statute, and especially so in situations in which there is no danger of judicial intrusion into
exclusively-executive realms. NRS 176.015 et seq.
12. Criminal Law.
Use of 60-day term of incarceration as condition of probation was not inconsistent with concept of
probation as to be beyond scope of permissible conditions contemplated by Legislature in enacting
sentencing scheme. NRS 176.185, 176.187, 176.189, 176.205.
OPINION
Per Curiam:
Terry Creps has appealed from his conviction and sentence for the sale of a controlled
substance, alleging four errors: {1) that his motion to suppress a quantity of cocaine
purchased by an undercover police agent was improperly denied; {2) that his motion to
dismiss, based upon an allegedly improper continuance granted to the State, was
improperly denied; {3) that the trial court relied upon improper evidence in determining
the sentence to be imposed, and {4) that the trial court exceeded both its constitutional
and statutory powers when it imposed as a condition of probation a term of sixty days in
the county jail.
94 Nev. 351, 353 (1978) Creps v. State
for the sale of a controlled substance, alleging four errors: (1) that his motion to suppress a
quantity of cocaine purchased by an undercover police agent was improperly denied; (2) that
his motion to dismiss, based upon an allegedly improper continuance granted to the State,
was improperly denied; (3) that the trial court relied upon improper evidence in determining
the sentence to be imposed, and (4) that the trial court exceeded both its constitutional and
statutory powers when it imposed as a condition of probation a term of sixty days in the
county jail. For the reasons that follow, we affirm both his conviction and the validity of the
sentence imposed upon him.
1. The Motion to Suppress
Creps was arrested by officers of the Reno Police Department upon a prearranged signal
from an undercover agent to whom Creps had just sold a quantity of cocaine. This agent had
previously arranged with a third party to be introduced to Creps, met him at his residence
where an agreement to buy was struck, and returned two hours later, wired for sound, with
$1,000.00 in marked bills to consummate the sale. Creps argues that upon these facts, his
motion to suppress the purchased cocaine, based upon the absence of a warrant, was
improperly denied.
[Headnotes 1, 2]
Creps' Fourth Amendment argument must fall under the authority of Lewis v. United
States, 385 U.S. 206 (1966)
1
and its progeny. Under Lewis, a government agent may
properly pose as a willing buyer to gain consensual entry into a private home to purchase
narcotics, and thereafter use the purchase as evidence against the seller without vitiating an
otherwise lawful prosecution. United States v. Raines, 536 F.2d 796, 799 (8th Cir. 1976). An
agent's misrepresentation of his identity does not render invalid the seller's consent to the
entry. As stated in United States v. Glassel, 488 F.2d 143, 145 (9th Cir. 1973), cert. den. 416
U.S. 941 (1974):
[A]n officer may legitimately obtain an invitation into a house by misrepresenting his
identity. . . . If he is invited inside, he does not need probable cause to enter, he does not
need a warrant, and, quite obviously, he does not need to announce his authority and
purpose.
[Headnotes 3, 4]
Further, when a purchase of an illegal substance has been consummated after a consensual
entry obtained through misrepresentation of identity, there has occurred neither a search
____________________

1
Lewis v. United States, supra, was cited with approval on a related point in Crown v. Sheriff, 85 Nev. 522,
458 P.2d 357 (1969). However Crown does not deal with the particular constitutional challenge for nor a
seizure of the presented in this case.
94 Nev. 351, 354 (1978) Creps v. State
for nor a seizure of the contraband. United States v. Dono, 428 F.2d 204, 209 (2nd. Cir.),
cert. den. sub nom, Bonaguro v. United States, 400 U.S. 829 (1970). Creps willingly entered
into the transaction meaning it to be what it was, an illegal sale . . . to a willing buyer. Id.
See also, State v. Hollins, 533 S.W. 2d 231, 233 (Mo.App. 1975); State v. Leppenen, 453
P.2d 172 (Ore. 1969). The purchased cocaine was therefore not inadmissible under the Fourth
Amendment.
2. The Motion for Continuance
[Headnote 5]
Trial was originally scheduled for Monday, December 6, 1976. On Friday, December 3,
the State filed a motion for continuance, alleging the unavailability of an essential witness,
the undercover police agent. Over Creps' objection, the motion was granted. On January 3,
1977, Creps' motion to dismiss the proceedings against him, based upon the allegedly
improper grant of the State's motion for continuance, was denied.
District Court Rule 21 requires that a motion for continuance be supported by an affidavit
stating:
(a) The names of the absent witnesses and their present residences, if known.
(b) What diligence has been used to procure their attendance or their depositions,
and the causes of a failure to procure the same.
(c) What the affiant has been informed and believes will be the testimony of each of
such absent witnesses, and whether or not the same facts can be proved by other
witnesses. . . .
(d) At what time the applicant first learned that the attendance or depositions of such
absent witnesses could not be obtained.
(e) That the application is made in good faith and not for delay merely.
Under DCR 21(3), no continuance will be granted unless the affidavit upon which it is
applied for conforms to this rule
. . . .
The State's affidavit offered in support of its Dec. 3 motion for continuance is set out in
the margin below.
2
Analysis of this affidavit under DCR 21 reveals the following possible
deficiencies: {a) no address is given for the agent, although the agent's present
whereabouts is given; {b) the description of the probable content of the agent's testimony
is decidedly vague: the "events that transpired between her and Terry Creps," which only
the agent could testify to, are not set forth in detail.
____________________

2
RICHARD L. DAVENPORT, being first duly sworn, deposes and says:
1. That he is a Deputy District Attorney of Washoe County, State of Nevada, and attorney for the Plaintiff, THE
STATE OF NEVADA, in the above entitled action; 2. That the defendant has been charged with the crimes of
Sale of a Controlled Substance and Possession of a Controlled Substance, felonies, and that a jury trial is now set
for Monday, December 6, 1976 at the hour of 10:00 a.m.; 3. That ___ ___ is a crucial witness in the above
described trial and that only she can testify to those events that transpired between her and a TERRY CREPS; 4.
That your affiant received a telephone call from the said
94 Nev. 351, 355 (1978) Creps v. State
affidavit under DCR 21 reveals the following possible deficiencies: (a) no address is given for
the agent, although the agent's present whereabouts is given; (b) the description of the
probable content of the agent's testimony is decidedly vague: the events that transpired
between her and Terry Creps, which only the agent could testify to, are not set forth in detail.
In applying the requirements of DCR 21 at the appellate level, we have held that [t]here is
no presumption that good cause [for a continuance] exists . . . and the burden of showing
good cause for delay is on the prosecution. Ex Parte Morris, 78 Nev. 123, 125, 369 P.2d 456
(1962). McNair v. Sheriff, 89 Nev. 434, 436, 514 P.2d 1175 (1973). Nonetheless, we went
on in McNair to observe at 89 Nev. 438:
[O]ur aim being that criminal accusations should proceed or terminate on principles
compatible with judicial economy, fair play, and reason, we have attempted to apply
DCR 21 in the criminal realm firmly, consistently, but realistically.
In keeping with this policy of interpretation, we held in Rainsberger v. State, 76 Nev. 158,
160, 350 P.2d 995 (1960), that it is within the discretion of the trial court to grant a motion
for a continuance upon the support of an affidavit not in strict compliance with Rule 21 . . .
upon the showing that the application for continuance was made in good faith and not merely
for delay. See also, Giorgetti v. Peccole, 69 Nev. 76, 241 P.2d 199 (1952).
When viewed in the light of the chain of events leading to the filing of the motion for
continuance, the affidavit's deficiencies are clearly of the type which the trial court, acting
within the scope of its discretion under Rainsberger, might well choose to overlook. The
record reveals that the Deputy District Attorney first became aware that the agent would be
unable to travel at 1:20 p.m. on the Friday preceding a Monday 10:00 a.m. trial date. The
motion and supporting affidavit were filed one hour later, after a hurried conference in
chambers with the trial judge and Creps' attorney, during which the Deputy District Attorney
was instructed by the judge to hurry and get some papers up so we'[ll] have some sort of
written record here.
____________________
___ ___ at approximately 1:20 p.m. on December 3, 1976; 5. At this time your affiant was informed by ___ ___
of the following: A) She had entered a hospital in Little Rock, Arkansas on Monday, November 29, 1976, and
therein underwent abdominal surgery; B) That the said ___ ___ was released on Thursday, December 2, 1976
from said hospital; C) That ___ ___ was informed by her physician, DR. SELBY, that she is not to engage in
travel for a period of three to four weeks; That your affiant believes that this Motion is made for good cause and
there has never been a continuance previously in this case; and that said Motion is not made for the purposes of
delay.
94 Nev. 351, 356 (1978) Creps v. State
Upon the filing of the motion and affidavit, a hearing was held, at which the Deputy District
Attorney offered to be sworn, and orally supplemented the affidavit with a more complete
description of the agent's anticipated testimony and a description of a telephone call he had
made to the agent's doctor in Arkansas to verify the agent's condition.
Clearly, the record reveals that the Deputy District Attorney acted with all possible
dispatch. Moreover, the deviations from the dictates of DCR 21 are both explainable under
the particular circumstances of the motion and not of the type which would prejudice the
defendant or subject him to avoidable delay. The court did not err in granting this
continuance.
3. The Evidence Supporting the Sentence
[Headnote 6]
Creps was sentenced to five and one-half years in the Nevada State Prison, suspended,
probation for a period of five years conditioned upon payment of a fine, submission to
warrantless searches, and a term of incarceration of sixty days in the Washoe County Jail. The
trial judge apparently fashioned this sentence with the thought in the back of [his] mind that
Creps was heavily involved in drug traffic. Creps argues that because there was no
admissible evidence of other transactions in which he had participated and no evidence of any
other contraband at his residence, the trial judge must have relied upon impalpable or highly
suspect evidence, in violation of Silks v. State, 92 Nev. 91, 94, 545 P.2d 1159 (1976).
However there was ample evidence properly admitted at the trial for the judge to have
concluded that Creps, although a first offender, was more than a casual seller. The transaction
for which he was prosecuted involved an ounce of cocaine with a street value of $1,800 and
an offer to sell 10,000 amphetamines. Creps offered to do business on a regular basis. Upon
this evidence, we find no abuse of discretion in the trial judge's sentence. Silks v. State,
supra.
4. The validity of the 60-Day Term of Incarceration as a Condition of Probation
Under NRS 176.185(1), it is within the power of the trial court to suspend the execution
of the sentence imposed and grant probation to the convicted person as the judge thereof
deems advisable. In granting probation, the court may fix the terms and conditions thereof,
NRS 176.185(3), and is authorized to impose . . . any conditions of probation or suspension
of sentence. NRS 176.205. (Emphasis supplied.) Despite the ostensibly unlimited nature of
the power granted to the trial court to set conditions, Creps argues that a term of
incarceration in the county jail is beyond the power of the trial court to impose as a
condition of probation.3
94 Nev. 351, 357 (1978) Creps v. State
incarceration in the county jail is beyond the power of the trial court to impose as a condition
of probation.
3

Creps' challenge to the validity of the use of a short term of incarceration as a condition of
probation is essentially twofold: first, that the imposition of such a condition impermissibly
impinges upon the pardon and parole powers of the Executive Branch; and second, that even
if no such constitutional conflicts arise from the imposition, a term of incarceration is so
fundamentally inconsistent with the concept of probation as to have been beyond the scope of
permissible conditions contemplated by the Legislature in enacting the sentencing scheme
embodied in NRS Ch. 176.
a. Creps bases his executive power conflict argument on the authority of our holding in
State v. District Court, 85 Nev. 485, 457 P.2d 217 (1969). In that case, we held it to be
beyond the trial court's original sentencing power to suspend the execution of a ten-year
prison sentence and place the convicted defendant on three years probation, conditioned upon
serving two years in the Nevada State Prison. Such a sentence, we held, constituted in effect a
delayed parole, 85 Nev., supra, at 487, in derogation of the Legislature's specific allocation
of the parole power to the Executive Branch. It was also suggested in State v. District Court
that such a sentence might impinge upon the Executive's pardon power. 85 Nev., supra, at
487.
Despite the broad language of State v. District Court, supra,
4
it is clear that the power to
alleviate a sentence (probation/parole/commutation) and the power to vacate an underlying
conviction (honorable discharge from probation/pardon) are to a large extent dually
allocated by the Legislature pursuant to constitutional mandate between the Judicial and
Executive branches of state government in overlapping fashion.5 In State v. District Court
we merely held that there do exist certain situations in which the Legislature could not
have intended, because the Constitution did not permit, that the judicial and executive
commutation powers should overlap, certain situations in which the power to alleviate a
sentence is committed exclusively to one branch.
____________________

3
Even though there exists no specific authority for its use, Nevada district courts have apparently long
assumed that a term of incarceration in the county jail is within the range of permissible conditions available to
them in granting probation. In the recent study entitled Comparative Analysis of Nevada Law, Rules, and
Practice With the A.B.A. Standards of Criminal Justice, (1975), it is stated without supporting case law
authority that a sentencing judge may place a defendant upon probation conditioned upon his serving a stated
period of time up to one year in the county jail. Id., at 150.
Despite the apparent absence of any judicial doubt as to its propriety, incarceration appears to be seldom
imposed as a condition of probation in Nevada. Records of the Identification and Communication division of the
Nevada Department of Law Enforcement Assistance reveal that of the 1,293 probations granted in Nevada
district courts during the first three quarters of FY 1977-78, only fourteen were conditioned upon a term of
incarceration in the county jail.

4
In State v. District Court, we quoted with approval the following excerpt from the 1916 case Ex Parte
United States, 242 U.S. 27: [T]he right to relieve from punishment, fixed by law and ascertained according the
methods by it provided, belongs to the executive department. Despite this language, the precise holding in State
v. District Court is considerably narrower; that the granting of any relief from punishment after incarceration
in the state prison is an executive function . . . performed by the state board of parole commissioners . . . or by
the state board of pardons commissioners. 85 Nev., supra, at 488. (Emphasis supplied.)
94 Nev. 351, 358 (1978) Creps v. State
are to a large extent dually allocated by the Legislature pursuant to constitutional mandate
between the Judicial and Executive branches of state government in overlapping fashion.
5
In
State v. District Court we merely held that there do exist certain situations in which the
Legislature could not have intended, because the Constitution did not permit, that the judicial
and executive commutation powers should overlap, certain situations in which the power to
alleviate a sentence is committed exclusively to one branch. The parole power, we held in
that case, was just such an exclusively-delegated power; once a person is incarcerated in the
state prison and is subject to the power of the executive parole board, see, NRS 213.107-290,
the power to alleviate the sentence rests entirely with the executive branch.
6

[Headnote 7]
However when, as here, a convicted defendant is subjected as a condition of probation to a
term of incarceration of sixty days in the county jail, there occurs no possible conflict with the
exclusively-executive parole power such as existed in State v. District Court. First, in order to
come within the scope of the executive parole power, a person must first have served at least
one year in confinement. NRS 213.120. A term of incarceration
____________________

5
Thus at the time of his sentencing, a convicted defendant is subject both to the judicial power to commute
his sentence through probation and the executive commutation power exercised by the pardons board. See, NRS
176.185 and 213.010-100. Once on probation, he is again subject both to the judicial commutation power to
terminate probation, see, NRS 176.215, and the executive commutation power exercised through the pardons
board, see, NRS 213.010-100. Further, a fine imposed by the sentencing court may be alleviated at any time
either by the court (NRS 176.085) or by the pardons board (NRS 213.060).
The power to vacate an underlying judgment of conviction (the pardon power) is also jointly allocated
between the court (NRS 176.225, honorable discharge from probation) and the executive (NRS 213.090).
This dual allocation of commutation and pardon powers between the judicial and executive branches of state
government finds its constitutional basis in the 1950 amendment of Article 5, Section 14 of the Nevada
Constitution. See, Stats. Nev. 1947, p. 875; Stats. Nev. 1949, p. 684. Prior to 1950, theses powers were
constitutionally confined to the Governor under Article 5, Section 13, or to the Governor acting in conjunction
with the Attorney General and the Justices of the Supreme Court under Article 5, Section 14. See, State v.
Moran, 43 Nev. 150, 182 p. 927 (1919). The 1950 constitutional amendment authorized the Legislature to
confer upon the district courts authority to suspend the execution of sentences, fix the conditions for, and to
grant probation. . . .

6
The sentence imposed by the trial court in State v. District Court is not directly prohibited under the Nevada
Revised Statutes or the Nevada Constitution. See A IV. However the absence of any direct and explicit authority
for such overlapping parole and probation powers, in light of the direct authority existing in the NRS and the
Constitution for other overlapping commutation powers (see footnote 5, supra.), and in light of the direct
prohibition of post-incarceration remedial action by the court, (see, 176.183(3)) supports the conclusion in State
v. District Court that no overlap was constitutionally or statutorily intended between the judicial probation and
executive parole powers.
94 Nev. 351, 359 (1978) Creps v. State
of 60 days is thus not within those sentences the parole board has the power to touch. Further,
while former NRS 176.190 (now 176.095) and NRS 213.110 (similarly codified after its
amendment) both allowed the board of parole commissioners to grant parole to a person in
the county jail, parole may now be granted only to persons confined in the Nevada state
prison. See, Stats. Nev. 1969, Ch. 345, p. 598, A.B. 543 amending NRS 213.110. See also,
Minutes, Senate Judiciary Committee, April 9, 1969, State Archives Book 30, p. 390;
Minutes, Assembly Judiciary Committee, March 19, 1969, State Archives Book 22, p. 155.
As stated in State v. District Court, the executive parole power comes into effect after
incarceration in the state prison, and not before. 85 Nev., supra, at 488.
[Headnote 8]
We conclude, therefore, that the imposition of a term of incarceration of sixty days in the
county jail as a condition of probation does not represent a judicial intrusion into the
exclusively-executive parole power. Moreover, to the extent that Creps is also subject during
his term of incarceration to the executive commutation power under NRS 213.090, such
overlapping commutation powers are clearly contemplated under the sentencing scheme set
forth in Chapters 176 and 213 of the Nevada Revised Statutes and Article 5 of the Nevada
Constitution.
b. Creps finally argues that even if a 60-day term of conditional incarceration suffers from
no constitutional infirmity, the use of incarceration as a condition is so fundamentally
inconsistent with the concept of probation that we must conclude it to be beyond the scope of
permissible conditions contemplated by the Nevada Legislature in enacting NRS 176.185 and
176.205. He has cited us to a series of recent cases in which the courts of other states have
concluded that the condition should not be permitted unless specifically authorized by statute.
State v. Harris, 251 N.W. 2d 483 (Iowa 1977); State ex rel. St. Louis County v. Stussie, 556
S.W. 2d 186(Mo. 1977); State v. Marshall, 247 N.W. 2d 484 (S.D. 1976); State v. Nuss, 212
N.W.2d 565 (Neb. 1973); People v. Ledford, 477 P.2d 374 (Colo. 1970); State v. Van Meter,
440 P.2d 58 (Ariz.App.) rev. den. (1968); White v. Burke, 43 F.2d 329 (10th Cir. 1930). The
propriety of the use of incarceration as a condition of probation has been much debated; we
note the contrary line of cases upholding its use in the absence of statutory prohibition. State
v. Jones, 327 So.2d 18 (Fla. 1976); State ex rel. Woodbury v. District Court, 495 P.2d 1119
(Mont. 1972); Franklin v. State, 392 P.2d 552 (Idaho 1964); Tabor v. Maxwell, 194 N.E.2d
856 (Ohio 1963); Breeding v. Swenson, 60 N.W.2d 4 (Minn. 1953); U.S. ex rel.
94 Nev. 351, 360 (1978) Creps v. State
U.S. ex rel. Spellman v. Murphy, 217 F.2d 247 (7th Cir. 1954); Moore v. Patterson, 26
S.E.2d 319, 147 A.L.R. 653 (S.C. 1943).
[Headnotes 9-12]
The power to suspend sentence and grant probation springs from legislative grant rather
than from the inherent powers of the court. State v. District Court, supra; State v. Abbott, 70
S.E. 6 (S.C. 1911); but see, State v. Jones, supra. Thus the primary enquiry in determining
the range of permissible conditions under Ch. 176 must be the original and continuing
legislative intent as reflected in the language of the enacted legislation. Further, the
particularly ameliorative nature of probation statutes compels a liberal interpretation of the
discretionary powers conferred on the district courts, Franklin v. State, supra, especially
when, as here, there exists no danger of judicial intrusion into exclusively-executive realms.
See, State v. District Court, supra, at 487
7
. Our analysis of the language and background of
Ch. 176 reveals no compelling reason to conclude that the legislature intended to exclude
incarceration from the change of permissible conditions of probation.
First, the language of NRS 176.185 and 176.205, as originally enacted in 1951,
8
fails to
reveal any legislative attempt to circumscribe or define the discretionary sentencing powers
conferred on the district court. On the contrary, the legislative history of A.B. 207 reveals that
the Probation Act was amended in the Senate specifically to exclude any legislative
delineation of the options available to the district court, see Journal of the Senate, 1951, p.
343,
9
and to confer instead a broad and virtually unlimited discretion on the court to fashion
sentencing dispositions according to the needs of the particular defendant.
____________________

7
In State v. District Court, supra, we held that when there did exist a danger of interbranch jurisdictional
conflict, the statutory power [to suspend sentence] must be strictly construed. 85 Nev. at 487.

8
The district courts were first granted constitutional suspension and probation powers in 1951. Stats. Nev.
1951, ch. 320, p. 527. An earlier statute authorizing the district court to direct that . . . sentence be staid and
suspended and that the defendant be released from custody on such conditions as the court may impose until
otherwise ordered by such court (Revised Laws of Nevada, 1912, vol. 2, 7259, p. 2034) was declared
unconstitutional in State v. Moran, 43 Nev. 150, 182 p. 927 (1919). The Court held that although the statute had
been widely relied upon by Nevada district courts since its enactment, it was in direct conflict with Article 5,
14 of the Nevada Constitution, which delegated all pardon and commutation powers to the Governor acting
alone or in conjunction with the Attorney General and the Justices of the Supreme Court. 43 Nev., supra, at 153.
Article 5, 14 was amended in 1950 to authorize the Legislature to confer suspension and probation powers on
the district courts. See, Stats. Nev. 1947, p. 875; Stats. Nev. 1949, p. 684; note 5, supra.

9
As originally proposed in and passed by the Assembly, A.B. 207 permitted the court to (1) place the
defendant on probation, or (2) impose a fine applicable to the offense and also place the defendant on probation,
or (3) suspend the imposition or the execution of sentence. Journal of the Senate, 1951, p.
94 Nev. 351, 361 (1978) Creps v. State
dispositions according to the needs of the particular defendant. As enacted, A.B. 207
authorized the district court to grant such probation . . . as the judge . . . shall deem
advisable, and conferred on the court full power to fix the terms and conditions thereof.
See, NRS 176.185.
10
Further, the court is authorized to impose . . . any conditions of
probation. See, NRS 176.205. Clearly, such broad language compels no automatic exclusion
of a short term of incarceration in the county jail from the range of alternatives available to
the district court.
Moreover, we do not believe the inclusion of a term of incarceration in the county jail
within the set of permissible conditions available to the district courts under NRS 176.185
and 176.205 to run counter to any persuasive policy arguments advanced by courts in other
jurisdictions. Creps cites us to many recent cases in which the argument is made that
probation and incarceration of any sort or for any duration are fundamentally inconsistent
concepts, the latter being both
____________________
343. In White v. Burke, 43 F.2d 329 (10th Cir. 1930), former 18 U.S.C. 724, a section of the former Federal
Probation Act substantially identical to A.B. 207 in its initial form, was construed not to allow the use of
incarceration as a condition of probation. The court held that while the broad language of the first alternative
disposition, standing alone, might well be construed to allow the condition, the specific enumeration of the lesser
power to impose a fine as a condition of probation revealed a legislative intent to proscribe the more onerous
condition of incarceration.
It is altogether unlikely that Congress would expressly give the power to require the payment of a
fine and to place the defendant on probation, and leave to implication the power to require a serving of a
portion of a term of imprisonment. . . . The grant of express power to impose the lesser punishment . . .
excludes the power to impose the greater punishment . . . as a condition of probation.
43 F.2d, supra, at 330. See also, United States v. Greenhaus, 85 F.2d 116, 107 A.L.R. 630 (2nd Cir.), cert. den.
299 U.S. 596 (1936); Archer v. Snook, 10 F.2d 567 (D.C. Ga. 1926); People v. Robinson, 235 N.W. 236 (Mich.
1931). But see, U.S. ex rel. Spellman v. Murphy, 217 F.2d 247 (7th Cir. 1954); Moore v. Patterson, 26 S.E.2d
319, 147 A.L.R. 653 (S.C. 1943). The amendment of A.B. 207 to a form involving no legislative enumeration of
permissible conditions renders these cases inapplicable in the interpretation of NRS Chapter 176.
Although NRS Ch. 176 was amended in 1969 and 1975 specifically to allow for the use of narcotics tests and
restitution as conditions of probation, see, NRS 176.187, 176.189, the legislative history of NRS 176.189
reveals that it was designed only to clarify to the district courts the extent of their inherent semantically
inconsistent with the former,powers under NRS Ch. 176 to impose probationary conditions. See,
Journal of the Senate, 1975, pp. 55-56.

10
NRS 176.185(3) was amended in 1975, resulting in the deletion of the phrase shall have full power to
and the substitution therefor of the word may. See, Stats. Nev. 1975, 84. We attach no importance to this
minor change in language.
94 Nev. 351, 362 (1978) Creps v. State
semantically inconsistent with the former,
11
and antithetical to its rehabilitative goals.
12
Even discounting the factual and other peculiarities of several of these cases,
13
we remain
unconvinced by their logic.
Whatever the semantic content of the term probation may once have been,
14
it can no
longer be argued convincingly that probation necessarily involves an immediate release
from incarceration. Through statutory amendment specifically to permit the imposition of
incarceration as a condition of probation,
15
case law interpretation of statutes which, like
NRS 176.185 and 176.205, do not specifically enumerate a list of permissible conditions,16
and scholarly commentary,17 "probation" has come to signify less a necessary and
immediate release from custody than a carefully tailored program of rehabilitation,
potentially involving a short term of incarceration, judicially fashioned to suit the needs
and character of a particular convicted person.
____________________

11
Thus it is often stated that probation and confinement constitute a contradiction, State v. Harris, 251
N.W.2d 483 (Iowa 1977), and that incarceration in the county jail as a condition of probation is the passing of a
sentence, and not the suspension thereof. The fact that the court terms it a condition of probation does not render
it any less a sentence of imprisonment. State v. Van Meter, 440 P.2d 58, 64 (Ariz.App.) (rev. den. 1968). See,
Best and Birzon, Conditions of Probation: An Analysis, 51 Geo.L.J. 809, 829 (1963): Probation is based
upon the premise that the offender has been found fit to re-enter society. . . . There is simply no way to reconcile
incarceration to this premise.

12
Policy arguments most often advanced against the use of incarceration as a condition include (a) that the
shortness of the term of incarceration precludes the establishment of an institutional rehabilitative treatment plan,
(b) that local jails, in which such terms are usually served, are typically poor facilities; (c) that a short term of
incarceration has the adverse effect of separating the convicted person from the rehabilitative influences of his
family and community; and (d) that such a separation might well induce hostility on the part of the prisoner. See,
Seminar & Institute on Disparity of Sentences for the Sixth, Seventh, and Eighth Judicial Circuits, (1961) 30
F.R.D. 401, 445-459; State v. Marshall, 247 N.W.2d 484 (S.D. 1976).

13
In State ex rel. St. Louis County v. Stussie, 556 S.W.2d 186 (Mo. 1977), for example, the court construed a
long-standing statute placing no apparent limits on permissible conditions after the enactment, but before the
effective date, of a new probation statute specifically authorizing the use of incarceration as a condition. In State
v. Marshall, supra, at f.n. 12, the applicability of the probation statute exclusively to first offenders appears to
have provided the basis for the court's holding that probation was designed as an alternative to confinement.
247 N.W.2d, supra, 487.

14
The alleged contradiction between probation and any form of custodial detention appears to find its source
in U.S. v. Murray, 275 U.S. 347, 357 (1928), where the Court, in dictum, characterized probation as
amelioration of the sentence by delaying actual execution, or providing a suspension so that the stigma might be
withheld and an opportunity for repentance be granted before actual imprisonment should stain the life of the
convict. (Emphasis supplied.)

15
The federal probation statute construed in White v. Burke, supra, f.n. 9, not to permit the use of
incarceration was amended in 1958, Pub. L. No. 85-741, to permit confinement in a jail-type institution . . . for
a period not exceeding six months in connection with the grant of probation. . . . Senate Report No. 2135, 1958
U.S.C.C.A.N., v. II, p. 3841. See, 18 U.S.C. 3651. California has long permitted the imposition of up to six
months as condition of probation. See, California Penal Code, 1203.1. After State v. Van Meter, supra, f.n. 11,
the Arizona probation statute was amended to allow the imposition of up to one year as a condition of probation.
See, State v. Evans, 512 P.2d 1225 (Ariz. 1973).
94 Nev. 351, 363 (1978) Creps v. State
permissible conditions,
16
and scholarly commentary,
17
probation has come to signify less
a necessary and immediate release from custody than a carefully tailored program of
rehabilitation, potentially involving a short term of incarceration, judicially fashioned to suit
the needs and character of a particular convicted person.
Moreover, we perceive no conflict between the essentially rehabilitative goals of the
Nevada probation statutes and the use of a short term of incarceration as a condition thereof.
That a short and definite term of confinement imposed as a condition of probation may have a
substantial rehabilitative effect in certain cases has come to be widely recognized. See,
Franklin v. State, supra, 392 P.2d 361-365, concurring and dissenting opinion. Significantly,
both the A.B.A. Project on Minimum Standards for Criminal Justice; Sentencing
Alternatives and Procedures ( 2.4(a)(iii) Appr. Draft 1968) and the A.L.I. Model Penal
Code ( 6.02(3), alternative draft) specifically permit the imposition of a term of
incarceration as a term of probation. The particular advantages in preserving its availability as
a sentencing alternative are best described in one of the Workshop conclusions reached at the
Seminar & Institute on Disparity of Sentences for the Sixth, Seventh, and Eighth Judicial
Circuits, (1961), 30 F.R.D. 401, 445:
Many judges thought [conditioning probation upon a term of incarceration under 18
U.S.C. 3651] an appropriate disposition . . . because it combined the deterrent effect of
imprisonment and achieved a shock treatment' of defendants who are unaware of the
seriousness of their offense, retaining the advantages of probation where longer
incarceration would serve no useful purpose.
See also, Franklin v. State, supra, 392 P.2d at 562. We believe that a short term of
incarceration imposed as a condition of probation may in certain cases play a beneficial role
in the rehabilitation of a convicted person, and that such a condition has a useful and proper
place in the range of sentencing alternatives available to the district court under NRS 176.185
and 176.205.
Affirmed.
____________________

16
Perhaps the most comprehensive treatment of the evolution of the concept appears in the concurring and
dissenting opinion of Justice McQuade in Franklin v. State, supra, 392 P.2d at 561-565. Speaking for a majority
of the Supreme Court of Idaho on the propriety of conditional incarceration, Justice McQuade declined to
restrict the meaning of probation so that it could never encompass incarceration. While such a restriction might
have seemed reasonable twenty or thirty years ago, it is rapidly becoming apparent in this dynamic area of the
law that probation signifies the employment of any reasonable measures which may be used to effectuate the
rehabilitation of the defendant. 392 P.2d, supra. 562.

17
Best and Birzon, supra, at f.n.11; Seminar Institute, supra, f.n. 12;
94 Nev. 351, 364 (1978) Creps v. State
____________________
Herlands, When and How Should a Sentencing Judge Use Probation, Institute on Sentencing for U.S. District
Court Judges (1964) 35 F.R.D. 381, 503; Note, Judicial Review of Probation Conditions, 67 Colum.L.R. 181,
184-185 (1967).
____________
94 Nev. 364, 364 (1978) Clark v. Sheriff
CLARENCE CLARK, Appellant, v. SHERIFF,
No. 10827
June 28, 1978 580 P.2d 472
District Court, Clark County; Thomas J. O'Donnell, Judge.
The Supreme Court held that where prosecuting attorney had more than three months to
arrange for a grant of immunity to his witness, but did not do so and failed to follow proper
procedure in tendering reason for omission, preliminary examination scheduled for petitioner
should not have been continued and habeas corpus relief requested by petitioner thereafter
should have been granted.
Reversed and remanded, with instructions.
Bell, Leavitt & Green, and Thomas M. Burns, for Appellant.
Gordon C. Richards, Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
A prosecuting attorney who is not prepared to go forward with a scheduled preliminary examination may
set forth reasons why he may be entitled to a continuance by filing a written affidavit and may under certain
circumstances tender sworn testimony in lieu of an affidavit. DCR 21.
2. Criminal Law; Habeas Corpus.
Where prosecuting attorney had more than three months to arrange for a grant of immunity to his witness,
but did not do so and failed to follow proper procedure in tendering reason for omission, preliminary
examination scheduled for petitioner should not have been continued and habeas corpus relief requested by
petitioner thereafter should have been granted. DCR 21.
OPINION
Per Curiam:
On January 31, 1978, the preliminary examination of Clarence Clark was scheduled for
May 2, 1978. Clark appeared at the appointed time and the examination commenced. After a
short period of time, the magistrate, over Clark's objection, continued the examination
because the prosecuting attorney had not arranged to obtain a grant of immunity for the
prosecuting witness and was, therefore, not prepared to proceed.
94 Nev. 364, 365 (1978) Clark v. Sheriff
had not arranged to obtain a grant of immunity for the prosecuting witness and was, therefore,
not prepared to proceed.
Clark then petitioned for a writ of habeas corpus and has appealed from the order denying
the requested relief.
[Headnote 1]
We have previously held that when a prosecuting attorney is not prepared to go forward
with a scheduled preliminary examination he may set forth reasons why he may be entitled to
a continuance by filing an affidavit pursuant to DCR 21. See Hill v. Sheriff, 85 Nev. 234, 452
P.2d 918 (1969). We have also held that, under certain circumstances, the prosecuting
attorney may show the reasons that may warrant a continuance by tendering sworn
testimony in lieu of the written affidavit required by Hill. Bustos v. Sheriff, 87 Nev. 622,
491 P.2d 1279 (1971). See Reason v. Sheriff, 94 Nev. 300, 579 P.2d 781 (1978).
[Headnote 2]
Here, the prosecuting attorney neither filed an affidavit nor tendered sworn testimony.
Rather, he attempts to distinguish Hill and Bustos arguing that they are obviously
inapplicable because their requirements speak only to continuances sought by a party. The
suggested distinction is not persuasive. The prosecuting attorney had more than three (3)
months to arrange for a grant of immunity to his witness. He did not do so and he failed to
follow the proper procedure in tendering the reason for the omission. Accordingly, we reverse
and remand this case to the district court with instructions to grant Clarence Clark's petition
for the writ of habeas corpus. McNair v. Sheriff, 89 Nev. 434, 514 P.2d 1175 (1973).
____________
94 Nev. 365, 365 (1978) Pope v. Sheriff
ROY POPE aka RAYMOND POPE, Appellant, v. SHERIFF,
No. 10842
June 28, 1978 580 P.2d 124
Morgan D. Harris, Public Defender, and Michael L. Miller, Deputy Public Defender,
94 Nev. 365, 366 (1978) Pope v. Sheriff
Robert List, Attorney General, Carson City; George E. Holt, District Attorney, and Gerald
D. Waite, Deputy District Attorney, Clark County, for Respondent.
OPINION
Per Curiam:
Roy Pope appeals from a district court order which denied his petition for a writ of habeas
corpus. The identical issue Pope raises was resolved in favor of his co-defendant, Clarence
Clark in Clark v. Sheriff, 94 Nev. 364, 580 P.2d 472 (1978). For the same reasons stated in
Clark, we reverse the order of the district court with instructions to grant the petition for a
writ of habeas corpus filed by Roy Pope.
____________
94 Nev. 366, 366 (1978) State v. Hayes
THE STATE OF NEVADA, Petitioner, v. KEITH C. HAYES, DISTRICT JUDGE, EIGHTH
JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA; and
RICHARD OTTO VAN AKEN, Respondents.
No. 10664
June 28, 1978 580 P.2d 122
State instituted original proceeding in certiorari after district court granted petition for
order sealing records involving arrest and conviction of individual who had been convicted of
felony of cheating at gambling. The Supreme Court held that despite fact that individual had
been discharged from probation, statute pertaining to sealing of records of persons who have
been arrested for alleged crime but not convicted did not apply.
Writ granted.
Leon Simon, Deputy District Attorney, Clark County, for Petitioner.
Burleigh, Zervas & Harding, Chtd., Las Vegas, for Respondents.
Criminal Law.
Statute providing that person who has been arrested for alleged criminal conduct may petition for order
sealing all records involving his arrest and conviction where charges were dismissed or person was
acquitted of charge pertains only to sealing of records of persons who have been
arrested for an alleged crime but not convicted, and statute does not apply to
individuals who have been convicted, even if individual has been discharged from
probation.
94 Nev. 366, 367 (1978) State v. Hayes
charge pertains only to sealing of records of persons who have been arrested for an alleged crime but not
convicted, and statute does not apply to individuals who have been convicted, even if individual has been
discharged from probation. NRS 179.245, 179.245, subd. 1, 179.255, 179.255, subd. 1.
OPINION
Per Curiam:
On October 17, 1972, Richard Otto Van Aken was found guilty, by jury verdict, of
cheating at gambling. He was sentenced, placed on probation, and, on March 20, 1975, given
an honorable discharge from probation pursuant to NRS 176.225.
1
On February 3, 1978,
Van Aken petitioned, pursuant to NRS 179.255, for an order sealing all records involving his
arrest and conviction. The district court subsequently granted the petition and the state his
instituted this original proceeding in certiorari, contending that the district court exceeded its
jurisdiction by sealing the records. It argues NRS 179.255 is not applicable where one has
been convicted of a crime.
2
We agree.
By its express terms, NRS 179.255 pertains only to the sealing of records of persons who
have been arrested for an alleged crime, but not convicted. However, where, as here, a person
has been convicted of a crime, NRS 179.245 governs the sealing of records.
3
The mere fact
that one convicted of a crime has been discharged from probation does not alter this
conclusion.
____________________

1
1. Every defendant who:
(a) Has fulfilled the conditions of his probation for the entire period thereof; or
(b) Is recommended for earlier discharge by the chief parole and probation officer; or
(c) Has demonstrated his fitness for honorable discharge but because of economic hardship, verified by a
parole and probation officer, has been unable to make restitution as ordered by the court, may at any time
thereafter be permitted by the court to withdraw his plea of guilty or nolo contendere and enter a plea of not
guilty; or, if he has been convicted after a plea of not guilty, the court may set aside the verdict of guilty; and in
either case, the court shall thereupon dismiss the indictment or information against such defendant, who shall
thereafter be released from all penalties and disabilities resulting from the offense or crime of which he has been
convicted.

2
1. A person who has been arrested for alleged criminal conduct, where the charges were dismissed or such
person was acquitted of the charge, may after 30 days from the date the charges were dismissed or from the date
of the acquittal petition the court in and for the county where such arrest was made for the sealing of all records
relating to the arrest. (Emphasis added.)

3
1. A person who has been convicted of any felony may, after 15 years from the date of his conviction or, if
he is imprisoned, from the date of his release from actual custody, a person who has been convicted of a gross
misdemeanor may, after 10 years from the date of his conviction or release from custody, and a person who has
been convicted of a misdemeanor may, after 5
94 Nev. 366, 368 (1978) State v. Hayes
been discharged from probation does not alter this conclusion. See People v. Sharman, 95
Cal. Rptr. 134 (Cal.App. 1971). Cf. Patt v. Nevada State Bd. of Accountancy, 93 Nev. 548,
571 P.2d 105 (1977).
Therefore, since the time requirements delineated in NRS 179.245 have not expired, the
district court exceeded its jurisdiction by sealing Van Aken's records. Accordingly, the
petition for the extraordinary writ is granted.
____________________
years from the date of his conviction or release from custody, petition the court in which the conviction was
obtained for the sealing of all records relating to such conviction. (Emphasis added.)
____________
94 Nev. 368, 368 (1978) Renard v. State
MICHAEL FRANK RENARD, Appellant, v. THE
No. 9831
June 28, 1978 580 P.2d 470
Appeal from judgment and sentence, order denying bail pending appeal, and order denying
rehearing and reconsideration of sentence, Eighth Judicial District Court, Clark County; Carl
J. Christensen, Judge.
Following his entry of guilty plea to amended information charging him with attempted
coercion, defendant was sentenced by the district court to three years' imprisonment, and he
appealed. The Supreme Court held that where sentence was within statutory limits and there
was no proof of judicial reliance upon impalpable or highly suspect evidence, the Supreme
Court would refrain from interference with trial court's imposition of sentence.
Affirmed.
[Rehearing denied November 13, 1978]
Patrick R. Doyle, R. Paul Sorenson, and Martin W. Becker, Las Vegas, for Appellant.
1. Criminal Law.
District court is vested with wide discretion regarding sentencing and probation. NRS 207.190,
208.070.
2. Criminal Law.
Where three-year sentence imposed on defendant convicted of attempted coercion was within statutory
limits and there was no proof of judicial reliance upon impalpable or highly suspect
evidence, the Supreme Court would refrain from interference with trial court's
imposition of sentence.
judicial reliance upon impalpable or highly suspect evidence, the Supreme Court would refrain from
interference with trial court's imposition of sentence. NRS 207.190, 208.070.
3. Criminal Law.
Fact that three-year sentence imposed on defendant convicted of attempted coercion, which was within
statutory limits, exceeded sentence recommended by Department of Parole and Probation was of no
consequence with respect to sentence's validity. NRS 207.190, 208.070.
OPINION
Per Curiam:
Appellant plead guilty to an amended information charging him with attempted coercion
(NRS 207.190; NRS 208.070).
1
He was subsequently sentenced to three (3) years in the
Nevada State Prison and now contends the district court abused its discretion in denying
probation and imposing the maximum sentence. We disagree.
[Headnotes 1-3]
The district court is vested with wide discretion regarding sentencing and probation. See
Cook v. State, 77 Nev. 83, 359 P.2d 483 (1961). Where, as here, the sentence is within
statutory limits, [citation omitted], and . . . there has been no proof of judicial reliance upon
impalpable or highly suspect evidence,' [citation omitted], this court will refrain from
interference with the trial court's imposition of sentence. Lloyd v. State, 94 Nev. 167, 170
____________________

1
1. It is unlawful for any person, with intent to compel another to do or abstain from doing a act which such
other person has a right to do or abstain from doing, to:
(a) Use violence or inflict upon such other person or any of his family, or upon his property, or threaten such
violence or injury; or
(b) Deprive such person of any tool, implement or clothing, or hinder him in the use thereof; or
(c) Attempt to intimidate such person by threats or force.
2. Any person who violates the provisions of subsection 1 shall be punished:
(a) Where physical force or the immediate threat of such force is used, by imprisonment in the state prison
for not less than 1 year nor more than 6 years.
An act done with intent to commit a crime, and tending but failing to accomplish it, is an attempt to commit
that crime; and every person who attempts to commit a crime, unless otherwise prescribed by statute, shall be
punished as follows:
1. If the crime attempted is punishable by death or life imprisonment, the person convicted of the attempt
shall be punished by imprisonment in the state prison for not more than 20 years.
2. In every other case he shall be punished by imprisonment in such manner as may be prescribed for the
commission of the completed offense, for not more than half the longest term, or by a fine of not more than half
the largest sum, prescribed upon conviction for the commission of the offense attempted, or by both such fine
and imprisonment. . . .
State, 94 Nev. 167, 170, 576 P.2d 740, 742 (1978). Accord, Silks v. State, 92 Nev. 91, 545
P.2d 1159 (1976). The fact that the sentence imposed by the court exceeded the sentence
recommended by the Department of Parole and Probation is of no consequence.
McCullough v. State, 94 Nev. 51, 52, 574 P.2d 585 (1978). Accord, Lloyd v. State, supra.
Other issues raised by appellant are without merit.
Affirmed.
____________
94 Nev. 370, 370 (1978) Baymon v. State
EDDIE LEE BAYMON, Appellant, v. STATE
No. 9810
June 28, 1978 580 P.2d 943
Appeal from judgment of conviction for possession of a controlled substance and from
imposition of sentence as an habitual criminal; First Judicial District Court, Carson City;
Frank B. Gregory, Judge.
The Supreme Court held that: (1) defendant, who made no attempt to explain his failure to
object to sufficiency of the evidence presented by the State, could not object for first time on
appeal that State failed to make required affirmative showing that defendant was represented
by counsel or validly waived his right to counsel in prior felony proceedings; (2) no error
occurred in trial court's reliance on presentence report and (3) there was no constitutional
infirmity in application of habitual offender statute.
Affirmed.
Horace R. Goff, Nevada State Public Defender, and J. Thomas Susich, Chief Deputy
Public Defender, for Appellant.
Robert List, Attorney General, and Patrick J. Mullen, Deputy Attorney General, for
Respondent.
1. Criminal Law.
Habitual offender statute does not constitute new and distinct criminal charge but rather provides simply
for enhancement of penalty for underlying offense. NRS 207.010.
2. Criminal Law.
Defendant, who made no attempt to explain his failure to object below to sufficiency of evidence
presented by the State, could not raise objection for first time on appeal that State failed to make required
affirmative showing that he was represented by counsel or validity waived his right
to counsel in prior felony proceedings relied on for enhancement under habitual
offender statute.
affirmative showing that he was represented by counsel or validity waived his right to counsel in prior
felony proceedings relied on for enhancement under habitual offender statute. NRS 207.010.
3. Criminal Law.
Where defendant and his counsel were provided with copy of report prior to sentencing hearing and his
counsel told court that they had reviewed it and factually defendant had brought to counsel's attention no
correction, no error occurred in trial court's reliance on presentence report which allegedly contained
information that was not referable to an official record.
4. Criminal Law.
Imposition of enhanced penalty of life sentence pursuant to habitual offender statute upon defendant, who
was convicted of possession of marijuana and whose past felonies included first degree murder, robbery
and burglary, did not constitute cruel and unusual punishment. U.S.C.A.Const. Amend. 8; NRS 207.010.
OPINION
Per Curiam:
Eddie Lee Baymon has appealed from his conviction for possession of a controlled
substance, marijuana, and from the imposition upon him of a life sentence pursuant to
Nevada's habitual offender enhancement statute. NRS 207.010. He was arrested following a
pat-down search at the Nevada State Prison, where he is serving a sentence of life without
possibility of parole for first degree murder.
[Headnote 1]
Baymon first argues that his conviction
1
under NRS 207.010, the habitual offender
statute, must fall because the evidence offered by the State at trial did not affirmatively
establish that each of his prior convictions resulted from judicial proceedings at which he was
represented by counsel, or at which his right to representation was validly waived.
In Hamlet v. State, 85 Nev. 385, 455 P.2d 915 (1969), we held in accordance with the rule
announced in Burgett v. Texas, 389 U.S. 109 (1967), that when the State seeks by
introduction of prior convictions to invoke the habitual offender enhancement statute, there
must be an affirmative showing that the defendant was represented by counsel or that he
validly waived his right to counsel in the prior felony proceedings. See also, Burns v. State,
88 Nev. 215, 495 P.2d 602 (1972). It is
____________________

1
It is clear that NRS 207.010 does not constitute a new and distinct criminal charge, but rather provides
simply for an enhancement of the penalty for the underlying offense. See, McGarry v. Fogliani, 370 F.2d 42 (9th
Cir. 1966); Hollander v. Warden, 86 Nev. 369, 468 P.2d 990 (1970); Atteberry v. State, 84 Nev. 213, 438 P.2d
789 (1968). See gen. United States v. Stewart, 531 F.2d 326 (6th Cir. 1976), cert. den. 96 undisputed that
there exists no affirmative S.Ct. 2629.
undisputed that there exists no affirmative evidence in the record that Baymon was
represented by counsel either at his 1967 conviction for burglary in Las Vegas or at his 1973
convictions for murder, robbery and burglary in Reno.
[Headnote 2]
However, a survey of the trial and sentencing transcripts reveals that neither Baymon nor
his counsel offered any objection to the trial court's reliance upon the records of prior
convictions to sustain the enhancement under NRS 207.010. In Thomas v. State, 93 Nev. 565,
571 P.2d 113 (1977), we held that an unexcused failure to object in the trial court to the
State's failure to make an affirmative showing of the validity of the prior convictions relied
upon to enhance a penalty under NRS 207.010 precluded the raising of this objection for the
first time on appeal. Since Baymon has made no attempt to explain his failure to object below
to the sufficiency of the evidence presented by the State, the holding in Thomas v. State,
supra, is directly applicable in this case. See also, Jiminez v. Estelle, 557 F.2d 506 (5th Cir.
1977), sustaining the validity of the Texas contemporaneous objection rule.
[Headnote 3]
Baymon next argues that reversible error occurred when the trial court relied upon a
pre-sentence report, compiled by the Department of Parole and Probation, which contained
information that is not referable to an official record. Under the standards enunciated in
Silks v. State, 92 Nev. 91, 545 P.2d 1159 (1976), reliance on a pre-sentence report will be
considered improper only when that report is shown to contain impalpable or highly suspect
evidence. 92 Nev. at 94. A short review of the record reveals not only that Baymon and his
counsel were provided with a copy of the report prior to the sentencing hearing, but that
Baymon's counsel told the Court, [W]e have reviewed it [and] factually he has brought to
my attention no correction. No error occurred in the trial court's reliance on the report.
[Headnote 4]
Baymon's final argument, that the imposition of the enhanced penalty constitutes cruel and
unusual punishment under the Eighth Amendment to the United States Constitution, also is
without merit. In Lloyd v. State, 94 Nev. 167, 576 P.2d 740 (1978), we held that a sentence
within statutory limits does not constitute cruel and unusual punishment when the statute
fixing the punishment is not unconstitutional, or the sentence actually imposed is not so
grossly disproportionate to the crime committed as to shock the conscience. See also, State v.
Guthrie, 532 P.2d S62 {Ariz. 1975), Capuchino v. Estelle, 506 F.2d 440 {5th Cir.
v. Guthrie, 532 P.2d 862 (Ariz. 1975), Capuchino v. Estelle, 506 F.2d 440 (5th Cir. 1975).
In Capuchino v. Estelle, supra, the court upheld against a similar constitutional attack on
an enhanced penalty of life imprisonment under the habitual offender statute applicable in
Texas, imposed by the trial court after conviction for possession of narcotics paraphernalia.
The court held that the offenses to be considered in assessing the cruelty of the enhanced
penalty included past felonies as well as the felony involved in the present conviction. These
past felonies in Capuchino included assault with intent to commit murder, burglary, and a
federal narcotics conviction. 506 F.2d at 442. Baymon's past felonies include first degree
murder, robbery and burglary. We see no constitutional infirmity in the application of the
habitual offender enhancement statute in this case.
Affirmed.
____________
94 Nev. 373, 373 (1978) Spinella v. B-Neva Inc.
THOMAS B. SPINELLA; UNITED STATES FIDELITY & GUARANTY COMPANY, a
Maryland Corporation, Appellants, v. B-NEVA INC., a Nevada Corporation; NEVADA
ALLIED INDUSTRIES, INC., a Nevada Corporation, Respondents.
No. 8912
June 28, 1978 580 P.2d 945
Appeal from judgment, Second Judicial District Court, Washoe County; John W. Barrett,
Judge.
Owner and its predecessor in interest sought damages from contractor and corporation that
executed a performance and payment bond for breach of construction contract. The district
court entered judgment in favor of plaintiffs, and defendants appealed. The Supreme Court
held that: (1) district court did not err in awarding damages pursuant to liquidated damages
clause; (2) liquidated damages clause did not preclude recovery of actual damages for other
items to which liquidated provision did not apply; (3) record contained ample evidence to
support quantum of damages awarded and thus award would not be disturbed on appeal, and
(4) trial court did not commit reversible error in failing to sua sponte declare mistrial
following death of defendants' trial counsel after presentation of evidence but prior to final
argument to court.
Affirmed.
Charles E. Springer, Ltd., Reno, for Appellants.
Thornton, Stephens, Atkins & Kellison, Reno, for Respondents.
1. Damages.
In owner's action against contractor and corporation which executed a performance and payment bond to
recover damages for breach of construction contract, district court did not err in awarding damages
pursuant to liquidated damages clause, which provided that time was of essence, that in event construction
of work was not completed within time specified, owner could retain from compensation otherwise to be
paid contractor $200 per day for each day thereafter that work remained uncompleted, and that said sum
was not a penalty, but rather, stipulated damage that owner would sustain in event of default by contractor
to complete work within stipulated time.
2. Damages.
Plain and unambiguous language of liquidated damages clause in construction contract, providing that
time was of essence, that if construction was not completed within specified time, owner could retain from
compensation otherwise to be paid contractor $260 per day for each day thereafter that work remained
uncompleted, and that said sum was not a penalty, but rather stipulated damage that owner would sustain in
event of default by contractor to complete work within stipulated time, manifested intent that liquidated
damages compensate only for delay in performance and did not preclude recovery of actual damages
resulting from contractor's defective workmanship.
3. Damages.
In action against contractor and corporation that executed a performance and payment bond to recover
damages for breach of construction contract, under which contractor was to furnish labor and materials
required to pave and place drainage improvements on shopping center parking lot owned by plaintiff,
record contained ample evidence to support quantum of damages awarded plaintiff and thus award would
not be disturbed on appeal.
In action against contractor and corporation that executed performance and payment bond to recover
damages for breach of construction contract, trial court did not commit reversible error in failing to sua
sponte declare a mistrial following death of defendants' trial counsel after presentation of evidence but
prior to final argument to court, where counsel at no time moved for either a mistrial or a new trial in
district court, defendants failed to cite relevant authority, and defendants' case was not prejudiced by their
counsel's death, which was followed by grant of continuance to allow for appointment of new counsel.
OPINION
Per Curiam:
Respondents sought damages from appellants for breach of contract. A trial without jury
resulted in judgment in favor of respondents. Appellants contend the district court erred in (1)
interpreting and applying a liquidated damages clause; {2) computing damages; and, {3)
failing to order a new trial.
interpreting and applying a liquidated damages clause; (2) computing damages; and, (3)
failing to order a new trial. We disagree.
On June 4, 1971, appellant Spinella entered into a construction contract with respondent
B-Neva, Inc., respondent Nevada Allied Industries, Inc.'s predecessor in interest. The contract
provided for Spinella to furnish the labor and materials required to pave and place drainage
improvements on a parking lot owned by B-Neva, Inc. at the Round Hill Village Shopping
Center in Zephyr Cove, Nevada. In consideration for the work, B-Neva was to pay Spinella
$42,435.20. The contract also provided for appellant United States Fidelity & Guaranty
Company to execute a performance and payment bond in the amount of the contract price, to
be paid in event of Spinella's default.
Spinella failed to complete the work by the date agreed upon in the contract and,
moreover, the work which had been completed was defective. Spinella was unsuccessful in
his attempts to repair the defects and finally, on October 27, 1972, was requested by B-Neva
to cease further work on the project. Nevada Allied Industries, Inc. subsequently acquired the
Round Hill Village Shopping Center from B-Neva and, on August 20, 1973, contracted with
another construction company to have the defects repaired and the job completed in
accordance with the specifications of the original contract.
1. The SpinellaB-Neva contract contained a liquidated damages clause which provided:
It is mutually agreed between the parties hereto that time is the essence of this
Contract, and in the event the construction of the work is not completed within the time
herein specified, it is agreed that from the compensation otherwise to be paid to the
CONTRACTOR, the OWNER may retain the sum of Two Hundred ($200.00) per day
for each day thereafter, Sundays and holidays included, that the work remains
uncompleted. This sum is not a penalty, being the stipulated damage the OWNER will
have sustained in event of default by the CONTRACTOR to complete the work within
the stipulated time.
The district court specifically found this clause valid and enforceable and applied the clause
in awarding liquidated damages.
[Headnote 1]
Appellant contends the clause was invalid and should not have been applied because
liquidated damages provisions are not applicable where, as here, the contractor abandons
performance.
not applicable where, as here, the contractor abandons performance. We need not decide this
issue as the record fails to indicate that appellant Spinella abandoned performance. To the
contrary, Spinella made numerous unsuccessful attempts to repair his defective workmanship
and finally, on October 27, 1972, was given written notification to suspend reconstruction
work. Under these circumstances, we are unable to conclude the district court erred in
awarding damages pursuant to the liquidated damages clause.
[Headnote 2]
Appellant contends, alternatively, that if the liquidated damages clause is valid, it provides
the sole measure of damages available to respondents. The language of the clause refutes this
contention. Indeed, the plain and unambiguous language manifests an intent that liquidated
damages compensate only for delay in performance. See Oregon, State Highway Com'n v. De
Long Corporation, 495 P.2d 1215 (Or.App. 1972). Accordingly, the clause does not preclude
the recovery of actual damages for other items to which the liquidated provision does not
apply. . . . Lawson v. Durant, 518 P.2d 549, 551 (Kan. 1974). Thus, actual damages resulting
from Spinella's defective workmanship were properly awarded.
[Headnote 3]
2. Appellants next argue the record fails to support the quantum of damages awarded. In
our view, the record contains ample evidence to support the award and, thus, it will not be
disturbed. See Sanguinetti v. Strecker, 94 Nev. 200, 577 P.2d 404 (1978); Thompson v.
Herrmann, 91 Nev. 63, 530 P.2d 1183 (1975); Lyon v. Walker Boudwin Constr. Co., 88 Nev.
646, 503 P.2d 1219 (1972).
[Headnote 4]
3. Finally, appellants contend the court erred in failing to sua sponte declare a mistrial
following the death of their trial counsel. The death occurred after the evidence had been
presented, but prior to final argument to the court. A continuance was granted to allow for
appointment of new counsel, Charles E. Springer, Esq., who argued appellants' case and
prosecuted this appeal. At no time did counsel move for either a mistrial or a new trial in the
district court. This fact, when coupled with appellants' failure to cite relevant authority for
their novel contention and our finding that appellants' case was not prejudiced by the death of
their original trial counsel, leads to our conclusion that there was no reversible error.
Other issues raised by appellants are without merit.
Affirmed.
____________
94 Nev. 377, 377 (1978) Nicoladze v. First Nat'l Bank of Nev.
GEORGE G. NICOLADZE, Appellant, v. FIRST
NATIONAL BANK OF NEVADA, Respondent.
No. 9136
June 28, 1978 580 P.2d 1391
Appeal from order adding judgment debtor, Second Judicial District Court, Washoe
County; Grant L. Bowen, Judge.
After entry of a judgment, the creditor filed a motion to add a nonparty as a judgment
debtor on the theory that he was the after ego of defendant corporation. The district court
granted the motion. The nonparty added as judgment debtor appealed. The Supreme Court,
McKibben, D.J., held that the district court improperly granted the motion without
conducting a hearing on the matter or making any findings.
Hawkins, Rhodes, Sharp & Barbagelata, Reno, for Appellant.
Stewart & Horton, Ltd., Reno, for Respondent.
Fundamental due process requires that person against whom claim is asserted in judicial proceeding have
opportunity to be heard and present his defenses.
2. Corporations.
Where creditor filed motion to add nonparty as judgment debtor on theory that he was alter ego of
defendant corporation, district court improperly granted motion without conducting hearing on matter or
making any findings.
OPINION
By the Court, McKibben, D. J.:
1

[Headnotes 1, 2]
Subsequent to the entry of judgment in an action to which appellant George G. Nicoladze
was not a party, respondent First National Bank filed a motion to add him as a judgment
debtor on the theory that he was the alter ego of defendant corporation Lawler Cattle
Company.
2
Without conducting a hearing on the matter or making any findings, the
district court granted the motion.
____________________

1
Mr. Justice Manoukian voluntarily disqualified himself and took no part in this decision. The Governor,
pursuant to Art. 6, 4 of the Constitution, designated District Judge Howard D. McKibben to sit in his stead.

2
We affirmed the underlying judgment in Lawler v. First Nat'l Bank of Nevada, 94 Nev. 196, 576 P.2d 1121
(1978).
94 Nev. 377, 378 (1978) Nicoladze v. First Nat'l Bank of Nev.
hearing on the matter or making any findings, the district court granted the motion. We agree
with appellant that such action was improper.
Fundamental due process requires that a person against whom a claim is asserted in a
judicial proceeding have an opportunity to be heard and present his defenses. Clark Co.
Sports Enterprises v. Kaighn, 93 Nev. 395, 566 P.2d 411 (1977). While we upheld an
analogous circumstance of adding a judgment debtor in McCleary Cattle Co. v. Sewell, 73
Nev. 279, 317 P.2d 957 (1957), there such action followed a hearing wherein the district
court found that the added party was the alter ego of the defendant. Here, no hearing was held
to enable appellant to controvert the alter ego allegation and, from the record, we are unable
to discern what factual basis the district court relied upon in holding appellant liable.
Accordingly, the order of the district court is reversed, and the matter is remanded for
further proceedings consistent with this opinion.
____________
94 Nev. 378, 378 (1978) Stewart v. State
SHIRLEY JEAN STEWART, Appellant, v. THE
No. 9869
June 28, 1978 580 P.2d 473
Appeal from judgment of conviction, Eighth Judicial District Court, Clark County; John F.
Mendoza, Judge.
Defendant was convicted in the district court of attempted murder, and she appealed. The
Supreme Court held that defendant was not denied a fair trial because of prosecutorial
misconduct where record showed that before defendant had opportunity to answer allegedly
improper question, her counsel objected, objection was sustained, and prosecutor did not
pursue line of questioning.
Affirmed.
Morgan D. Harris, Public Defender, and Kirk B. Lenhard, Deputy Public Defender, Clark
County for Appellant.
1. Homicide.
Evidence, although conflicting, was sufficient to support conviction of attempted murder. NRS
200.010, 208.070.
2. Criminal Law.
In prosecution for attempted murder, defendant was not denied fair trial because of prosecutorial
misconduct where record showed that before defendant had opportunity to answer allegedly improper
question, her counsel objected, objection was sustained, and prosecutor did not pursue line of questioning.
NRS 200.010, 208.070.
OPINION
Per Curiam:
Convicted, by jury verdict, of attempted murder (NRS 200.010; NRS 208.070),
1
appellant
here contends (1) the evidence was insufficient to sustain her conviction, and (2) she was
denied a fair trial because of prosecutorial misconduct. We disagree.
[Headnote 1]
1. Although defense witnesses testified that appellant had shot the victim in self defense,
the jury chose to believe the prosecution witnesses' testimony that appellant had threatened
the victim and then shot him without provocation. We have previously held that where there
is conflicting testimony presented, it is for the jury to determine what weight and credibility
to give to the testimony. Hankins v. State, 91 Nev. 477, 538 P.2d 167, 168 (1975). Accord,
Lloyd v. State, 94 Nev. 167, 576 P.2d 740 (1978); Porter v. State, 94 Nev. 142, 576 P.2d 275
(1978). Where, as here, there is substantial evidence to support the jury's verdict, it will not
be disturbed on appeal. Cunningham v. State, 94 Nev. 128, 575 P.2d 936 (1978); Sanders v.
State, 90 Nev. 433, 529 P.2d 206 (1974).
[Headnote 2]
2. Appellant argues she was denied a fair trial through improper questioning by the
prosecutor. On direct examination, appellant testified that she had been convicted of felony
manslaughter in 1970. On cross-examination, the prosecutor attempted to delve further into
appellant's prior conviction. Before appellant had an opportunity to answer an allegedly
improper question, her counsel objected and the objection was sustained.
____________________

1
Murder is the unlawful killing of a human being, with malice aforethought, either express or implied. The
unlawful killing may be effected by any of the various means by which death may be occasioned.
An act done with intent to commit a crime, and tending but failing to accomplish it, is an attempt to commit
that crime. . . .
allegedly improper question, her counsel objected and the objection was sustained. The
prosecutor did not pursue the line of questioning. Under these circumstances, we fail to
perceive either prejudice or reversible error. See State v. Worth, 537 P.2d 191 (Kan. 1975);
Lister v. State, 528 P.2d 1126 (Okla.Crim.App. 1974). Cf. Fairman v. State, 83 Nev. 287, 429
P.2d 63 (1967).
Affirmed.
____________
94 Nev. 380, 380 (1978) Hunter v. Manhan
JOHN J. HUNTER, Jr., Executor of the Estate of Viola E. Hunter, Deceased, Appellant and
Cross-Respondent, v. DOROTHY HUNTER MANHAN,
Respondent and Cross-Appellant.
No. 9215
June 28, 1978 580 P.2d 474
Appeals from judgment establishing value of interests of beneficiaries; Fourth Judicial
District Court, Elko County; Joseph O. McDaniel, Judge.
Appeal and cross-appeal were taken from judgment of the district court establishing value
of interests of beneficiaries. The Supreme Court, Thompson, J., held that: (1) word
absolutely within provision of testamentary trust that upon expiration of trust, interest of
beneficiary was to be distributed to her absolutely, meant that only upon termination of trust
beneficiary was to receive trust corpus free of trust in sole ownership and was not meant to
preclude court from diminishing beneficiary's interest by monthly payments she had received
from trust, and (2) clause in will wherein testatrix directed that all taxes, whether real or
personal, imposed on estate, including all inheritance or transfer taxes, be paid out of estate
by executors was to be construed as meaning that all taxes imposed on estate were to be paid
out of estate and, hence, was not to be read as prohibiting, but as requiring proration among
all beneficiaries of tax on gifts made to one beneficiary in contemplation of death.
In each instance, judgment reversed.
Woodburn, Wedge, Blakey, Folsom and Hug, of Reno, for Appellant and
Cross-Respondent.
Wilson, Wilson and Barrows, Ltd., of Elko, for Respondent and Cross-Appellant.
1. Wills.
Allowances from testamentary trusts wherein expenses attendant upon trust estate were to be paid from
trust income or principal if necessary, after which trustee was to pay beneficiary monthly sum designated,
with source of such payments being trust, should have been debited against trust account and, thereafter,
value of beneficiary's interest therein should have been reduced accordingly.
2. Wills.
Word absolutely, within provision of testamentary trust that upon expiration of trust, interest of
beneficiary was to be distributed to her absolutely, meant that only upon termination of trust beneficiary
was to receive trust corpus free of trust in sole ownership and was not meant to preclude court from
diminishing beneficiary's interest by monthly payments she had received from trust.
3. Internal Revenue.
Purpose of the federal estate tax apportionment law is equitably to prorate the payment of federal estate
tax among most persons interested in estate subject to tax. NRS 150.290-150.390, 150.300,
150.310.
4. Internal Revenue.
Clause in will wherein testatrix directed that all taxes, whether real or personal, imposed on estate,
including all inheritance or transfer taxes, be paid out of estate by executors was to be construed as
meaning that all taxes imposed on estate were to be paid out of estate and, hence, was not to be read as
prohibiting, but as requiring proration among all beneficiaries of tax on gifts made to one beneficiary in
contemplation of death. NRS 150.290-150.390, 150.300, 150.310.
OPINION
The value of the interest of the beneficiary of a testamentary trust upon termination, and
federal estate tax apportionment are the issues tendered by this appeal and cross-appeal.
The matter is before us on an agreed statement. NRAP 10(e). Viola Hunter died testate on
July 6, 1964. Her son John (Jack) was appointed executor. Jack and Viola's daughter,
Dorothy, were the only beneficiaries. Jack was given Viola's residence and automobile. The
residue of the estate was divided between Jack and Dorothy. Jack was given 60 percent
thereof in fee, and 40 percent as trustee of a testamentary spendthrift trust established for the
benefit of Dorothy.
The trust was for a term of 10 years. Jack, as trustee, was to pay Dorothy $200 a month
during that term. Upon termination of the trust Dorothy's interest was to be distributed to her
absolutely. The court found the value of that interest to be $140,828.29. It did not deduct the
monthly payments to Dorothy totalling $20,852.00.
1
Jack contends that Dorothy's interest
should be reduced by that amount and that the district court erred in failing to do so.
____________________

1
Jack should have paid Dorothy $24,000 during the trust term. His debt for the difference is acknowledged
and is not in issue.
should be reduced by that amount and that the district court erred in failing to do so. This is
the issue tendered by Jack's appeal.
Dorothy's cross-appeal asserts that the court erred when it refused to increase the value of
her interest by $3,471.00. It is her contention that the federal estate tax should have been
apportioned pursuant to NRS 150.310 so that the tax on a gift in contemplation of death made
by Viola to Jack would be prorated among those interested in the estate, namely Jack and
Dorothy.
1. The appeal.
[Headnote 1]
Relevant provisions of the testamentary trust are quoted in the footnote.
2
Expenses
attendant upon the trust estate were first to be paid from trust income, or principal if
necessary, after which the trustee was to pay Dorothy the monthly sum designated. The
source of such monthly payments was the trust. Those allowances had to be debited against
some account. Since the source of the payments was the trust, and the sole beneficiary of the
trust was Dorothy, the trust account should be debited and the value of Dorothy's interest
accordingly reduced.
[Headnote 2]
In concluding otherwise, the district court relied upon the language of paragraph F. that
upon expiration of the trust the interest of my said daughter, Dorothy Hunter Manhan, shall
be distributed to her absolutely. For some reason, the word absolutely appears to have
caused the court to decline to diminish Dorothy's interest by the monthly payments she had
received from the trust. The language of paragraph F. does not concern the manner in which
Dorothy's interest is to be valued.
____________________

2
D. From the gross income received or derived from the trust estate, or from the principal thereof if that be
necessary, there shall be first paid and discharged all taxes and assessments and all costs, charges and expenses
incurred in the care, administration, distribution and protection of the trust estate and its defense against any
legal or equitable attack by any person both during and after probate administration of my estate, including
reasonable compensation for the services of my trustee hereunder.
E. After the payment and deduction of all expenses attendant upon the execution of the trust estate, my
trustee shall pay to my daughter, DOROTHY HUNTER MANHAN, the sum of two hundred dollars ($200.00)
per month as long as my estate is indebted in an amount in excess of $50,000.00 for the period of ten (10) years
from the date of my death. If the indebtedness of my said estate has been reduced to $50,000.00 or less, then I
direct my son, John J. Hunter, Jr., as trustee, to pay to my daughter, Dorothy Hunter Manhan, the sum of Four
Hundred dollars ($400.00) per month.
F. That upon the expiration of said trust ten years from the date of my death, the interest of my said
daughter, DOROTHY HUNTER MANHAN, shall be distributed to her absolutely.
The word absolutely as used in that paragraph means only that upon termination of the trust
Dorothy was to receive the trust corpus free of trust in sole ownership.
We reverse that part of the judgment below setting the value of the interest of Dorothy
Manhan at $140,828.29, and direct that the judgment be amended to reduce that value by
$20,852.00 representing the monthly payments received by Dorothy as beneficiary of the
testamentary trust.
2. The cross-appeal.
NRS 150.290-150.390 inclusive is the Federal Estate Tax Apportionment Law. Section
150.310 provides that the federal estate tax shall be equitably prorated over the gross estate,
that is, the entire taxable estate, unless the testator otherwise directs in his will. Gross estate
is defined as all property included for federal estate tax purposes in determining the federal
estate tax pursuant to the federal estate tax law. And, a person interested in the estate is
declared to be any person who receives or is the beneficiary of any property pursuant to a
transfer which is subject to a tax imposed by any federal estate tax law, now existing or
hereafter enacted. NRS 150.300.
[Headnote 3]
Before adoption of the Apportionment Law the federal estate tax was a charge solely upon
the probate estate. The evident purpose of the Apportionment Law is equitably to prorate the
payment of the federal estate tax among those persons interested in the estate subject to that
tax. This is the public policy of Nevada subject only to the expressed will of the testator to the
contrary. Hill v. Nevada National Bank, 92 Nev. 32, 545 P.2d 293 (1976).
The district court read Viola's will to provide that the federal estate tax not be apportioned.
The relevant clause of her will: I hereby direct that all taxes, whether real or personal,
imposed upon my estate, including all inheritance or transfer taxes imposed by the laws of
any state or by the United States upon any devise or legacy made by me hereunder, shall be
paid out of my estate by my executors hereinafter named, before any division of my estate or
distribution thereof shall be made.
Viola made a gift to Jack in contemplation of death. If the tax thereon is prorated pursuant
to statute, Dorothy's interest will be increased by $3,471.00. Such proration must occur unless
the quoted clause of the will is an express direction not to prorate.
The district court read that clause as an express direction not to prorate. It appears to have
relied upon the phrase including all inheritance or transfer taxes imposed . . . upon any
devise or legacy made by me hereunder. . . . Since the gift to Jack was not a "device or
legacy made by me hereunder" the court concluded that tax apportionment was
precluded.
not a device or legacy made by me hereunder the court concluded that tax apportionment
was precluded.
In our view, the district court erred in its interpretation of the clause. The phrase relied
upon is not limiting in effect. The phrase begins with the words including all, and imposes
no limitation on the inclusion of other types of estate taxes.
[Headnote 4]
The clause does not prohibit proration. We read the clause to mean all taxes . . . imposed
on my estate . . . shall be paid out of my estate. The definition of estate includes the
inter-vivos transfer to Jack, and the apportionment law directs proration of the tax. We,
therefore, reverse the district court's ruling on this issue.
____________
94 Nev. 384, 384 (1978) Molever v. Burton
IRVING M. MOLEVER and H. L. DERRICKSON, Individually and Doing Business as
White Shield Nutrition Centers, Appellants, v. A. W. BURTON and DAWN BURTON,
Respondents.
No. 9306
June 28, 1978 580 P.2d 124
Appeal from order denying motion to set aside default judgment; Eighth Judicial District
Court, Clark County; John F. Mendoza, Judge.
Default judgment restored sellers to the ownership and possession of a health food store
business and ordered the payment of damages, attorney fees and costs. The district court
denied buyers' motion to set aside entry of default and default judgment, and buyers appealed.
The Supreme Court held that: (1) it was permissible for court to conclude that buyers were
not entitled to relief for mistake, inadvertence, surprise or excusable neglect, and (2)
contention not tendered to district court by buyers was not considered on appeal.
Affirmed.
[Rehearing denied August 25, 1978]
Lionel Sawyer & Collins, of Las Vegas, for Appellants.
Pursel & Pursel, Ltd., of Las Vegas, for Respondents.
94 Nev. 384, 385 (1978) Molever v. Burton
1. Judgment.
Where fact conflicts which emerged from reading of documents in support of and in opposition to motion
to set aside entry of default judgment were resolved against defendants, it was permissible for court to
conclude that defendants were not entitled to relief for mistake, inadvertence, surprise or excusable neglect.
NRCP 60(b)(1).
Contention that award of damages was improper, which was not tendered to district court by party whose
burden it was to present it, was not considered on appeal.
OPINION
Per Curiam:
We are requested to review a discretionary ruling of the district court denying defendants'
motion to set aside entry of default and default judgment. That judgment restored plaintiffs to
the ownership and possession of a health food store business, and ordered the payment of
damages, attorney's fees and costs.
[Headnote 1]
The fact-conflicts which emerge from a reading of the documents in support of and in
opposition to the motion were resolved against the defendants. Consequently, it was
permissible for the court to conclude that the defendants were not entitled to relief for
mistake, inadvertence, surprise or excusable neglect. NRCP 60(b)(1); Intermountain Lumber
v. Glens Falls, 83 Nev. 126, 424 P.2d 884 (1967).
1

[Headnote 2]
The defendants-appellants appeared to contend, alternatively, that the award of damages
was improper in light of the rule approved in Kitchin v. Mori, 84 Nev. 181, 437 P.2d 865
(1968). They claim that as buyers of the health food store their payments upon the purchase
price exceeded any damages sustained by plaintiffs-respondents, and that the
plaintiffs-respondents were unjustly enriched by the judgment awarding damages. That
contention was not tendered to the district court by the defendants-appellants whose burden it
was to present it. Kitchin v. Mori, supra.
Affirmed.
____________________

1
Counsel for appellants in this appeal were not their counsel when default was entered and judgment taken.
94 Nev. 386, 386 (1978) Page v. State
BEVERLY ANN PAGE, Appellant, v. THE
No. 10250
June 28, 1978 580 P.2d 477
Appeal from judgment of conviction. Eighth Judicial District Court, Clark County; Paul S.
Goldman, Judge.
Defendant was convicted in the district court of burglary, and he appealed. The Supreme
Court held that giving of additional instruction on definition of reasonable doubt, beyond that
provided by statute, is disapproved, but doing so in the instant case did not constitute
prejudicial error.
Affirmed.
Morgan D. Harris, Public Defender and R. Michael Gardner, Deputy Public Defender,
Criminal Law.
Giving of additional instruction on definition of reasonable doubt, beyond that provided by statute, is
disapproved, but doing so in the instant case did not constitute prejudicial error. NRS 175.211.
OPINION
Per Curiam:
Appellant was convicted of burglary, a felony. NRS 205.060. Following closing
arguments, in addition to giving the jury the statutory instruction on reasonable doubt, the
trial judge gave an instruction in contrast to a statute precluding any other definition of
reasonable doubt than that contained in the statute.
1
On appeal Appellant asserts this
constitutes reversible error. Here, we find the claim to be without substance.
____________________

1
NRS 175.211 provides that:
(1) A reasonable doubt is one based on reason. It is not mere possible doubt, but is such a doubt as
would govern or control a person in the more weighty affairs of life. If the minds of the jurors, after the
entire comparison and consideration of all the evidence, are in such a condition that they can say they feel
an abiding conviction of the truth of the charge, there is not a reasonable doubt. Doubt to be reasonable
must be actual and substantial, not mere possibility or speculation.
(2) No other definition of reasonable doubt shall be given by the court to juries in criminal actions in
this state. (Emphasis supplied.)
94 Nev. 386, 387 (1978) Page v. State
In the instant case, the additional jury instruction read:
It is not necessary that the defendant's guilt should be established beyond any doubt
or to an absolute certainty, but instead thereof that the defendant's guilt must be
established beyond a reasonable doubt as hereinafter defined.
In Tucker v. State, 92 Nev. 486, 553 P.2d 951 (1976), this Court stated:
[w]hile we disapprove this practice, because we believe the reasonable doubt statute
speaks for itself, this court has previously permitted such additional instructions that
merely clarify the statutory instruction. . . . Here, we do not believe this district court's
attempted clarification could have misled the jury concerning its duties in this case.
Id. at 490, 553 P.2d at 953-54. In accord, Jackson v. State, 93 Nev. 28, 572 P.2d 927 (1977).
As in Tucker and Jackson, supra, we reiterate our disapproval of the lower courts' giving
of the additional instruction. However, in doing so, it did not commit prejudicial error.
The judgment is affirmed.
____________
94 Nev. 387, 387 (1978) Dahlgren v. First Nat'l Bank of Nev.
LEONE MARION DAHLGREN, Appellant, v.
FIRST NATIONAL BANK OF NEVADA, Respondent.
No. 9146
June 28, 1978 580 P.2d 478
Appeal from decision and order entered in the Eighth Judicial District Court, Clark
County; Keith C. Hayes, Judge.
Trustee petitioned court to admit handwritten instrument dated and signed by deceased
trustor to probate as a holographic will, and trustor's niece contested petition. The district
court determined that handwritten instrument was a holographic will, and niece appealed. The
Supreme Court, Manoukian, J., held that: (1) since title to trustor's condominium, which
under terms of trust agreement was to pass to named beneficiary upon trustor's death, was
never given to trustee before trustor's death, condominium did not become part of trust estate,
and (2) handwritten instrument dated and signed by trustor and tendered to trustee, indicating
that along with condominium, trustor wished person named as beneficiary in trust to have
certain chattel property, did not qualify as holographic will, and, consequently, properties
mentioned therein were to be distributed in accordance with laws governing intestacy.
trust to have certain chattel property, did not qualify as holographic will, and, consequently,
properties mentioned therein were to be distributed in accordance with laws governing
intestacy.
Reversed.
Mowbray and Gunderson, JJ., dissented.
Albright & McGimsey, and William H. Stoddard, Las Vegas, for Appellant.
Foley Brothers, Las Vegas, for Respondent.
1. Trusts.
Where title to trustor's condominium, which under terms of trust agreement was to be distributed to
named beneficiary upon trustor's death, was not given trustee before trustor's death, condominium did not
become a part of trust estate.
2. Wills.
Standard for interpretation of a will is intention of testator, determined by meaning of words used.
3. Wills.
For instrument to qualify as a will, it must demonstrate testamentary intent.
4. Wills.
Handwritten instrument, dated and signed by trustor and tendered to trustee shortly after establishment of
trust that provided for distribution of trustor's condominium to a named beneficiary upon trustor's death,
reading To whom it may concern, Along with my apt. mentioned in the trust fund, I would like person
named as beneficiary in trust to have certain chattel property, did not qualify as a holographic will and
consequently, properties mentioned therein, including condominium which did not become part of trust
estate because it was not deeded to trustee before trustor's death, were to be distributed in accordance with
laws governing intestacy.
OPINION
During her lifetime, Julia Mae Carlin, as trustor, entered into a trust agreement with First
National Bank of Nevada, as trustee. A provision of the trust provided that upon the death of
trustor, her condominium together with a cash sum was to be distributed to Mamie Gilson.
Shortly after establishing the trust, Julia, through her attorneys, tendered to the trustee a
dated and signed hand-written instrument indicating that along with the condominium
decedent wished Gilson to have certain chattel property. Because title to the condominium
was never given to the trustee before Julia's death, it could not be distributed according to
her instructions.
before Julia's death, it could not be distributed according to her instructions. The Bank,
however, petitioned the court below to admit the hand-written instrument to probate as a
holographic will. Appellant, decedent's niece, contested that petition.
Following trial, the lower court ordered all trust assets, except the condominium
distributed pursuant to the trust agreement.
1
Subsequently, the court determined the
hand-written instrument to be a holographic will and ordered respondent to execute a deed
transferring the condominium to Gilson.
2
Appellant appeals that decision and order.
The sole issue confronting us is whether the trial court erred in finding the hand-written
instrument to be a holographic will.
The principal focus of this case involves the sufficiency of decedent's testamentary intent.
The hand-written instrument containing both date and signature read: To whom it may
concern, Along with my apt. mentioned in the trust fund, I would like Maymie Gilson to have
all my personal effects, furniture and belongings.
Appellant contends that this instrument evidences insufficient testamentary intent or, in the
alternative, any intent is specifically addressed to the chattel property only and the
condominium must thus pass through intestacy. Respondent argues that the instrument
adequately incorporates by reference the trust agreement and that the necessary testamentary
intent is supplied by the trust instrument. Appellant's contention has substantial merit, and we
are constrained to summarily disagree with respondent's argument.
The trust agreement was created to provide income to the decedent during her lifetime and
to dispose of the trust res at her death. The instrument in part provided that:
FIFTH: Upon the death of the trustor, the trust estate shall be administered subject
to the following terms and conditions: .
____________________

1
The trust assets consisted of personal properties, including currency and diversified stocks, but the trust
made no reference to personal effects, furniture, or belongings.

2
1. A holographic will is one that is entirely written, dated and signed by the hand of the testator himself. It is
subject to no other form, and may be made in or out of this state and need not be witnessed.
2. Every person of sound mind, over the age of 18 years, including married women, may, by last holographic
will, dispose of all of his or her estate, real or personal, the same being chargeable with the payment of the
testator's debts.
3. Such wills shall be valid and have full effect for the purpose for which they are intended.
. . .
(c) The Trustee shall make the following distributions:
. . .
10. To Mamie Gilson, trustor's condominium apartment. . . .
[Headnote 1]
There is no evidence whatsoever that decedent intended the trust to be anything other than
an inter vivos document. However, the record is clear, and the court so found, that at no time
was the condominium ever deeded to respondent, and it therefore did not become a part of the
trust estate. See, Long v. Long, 252 S.W.2d 235 (Tex.App. 1952). The court did find,
however, that the hand-written instrument was holographic in nature and that since it made
reference to the trust that that was sufficient to unequivocably evidence decedent's intent that
the condominium pass on her death to Gilson.
[Headnote 2]
The standard for the interpretation of a will is the intention of the testator, Soady v. First
National Bank, 82 Nev. 97, 411 P.2d 482 (1966); In re Hartung's Estate, 39 Nev. 200, 155 P.
353 (1916); In re Hartung, 40 Nev. 262, 160 P. 782 (1916), determined by the meaning of the
words used. Soady, supra; Jones v. First Nat. Bank, 72 Nev. 121, 296 P.2d 295 (1956).
The court stated in In re Button's Estate, 287 P. 964, 967 (Cal. 1930), that:
In order for a document to be the last will and testament of a deceased person, it
must, in addition to meeting all other legal requirements, clearly show that the decedent
intended it to take effect only after his death. . . .
The court further stated, quoting from Estate of Spitzer, 237 P. 739, 742 (Cal. 1925) that:
It is undoubtedly the general rule enunciated by the leading case of Habergham v.
Vincent, 2 Ves. Jr. 231, and oft repeated, that the true test of the character of an
instrument is not the testator's realization that it is a will, but his intention to create a
revocable disposition of his property to accrue and take effect only upon his death and
passing no present interest.
[Headnote 3]
For an instrument to qualify as a will it must demonstrate testamentary intent. In Hooker v.
Barton, 284 P.2d 708, 710 (Okla. 1955), the court stated:
We have long been committed to the rule that where an instrument is tendered to
probate as an holographic will, it must be plainly apparent that it was the intention of
the deceased that the paper should stand for her last will and testament, and an
instrument should be denied Probate unless such intention is plainly apparent.
must be plainly apparent that it was the intention of the deceased that the paper should
stand for her last will and testament, and an instrument should be denied Probate unless
such intention is plainly apparent.
[Headnote 4]
In the instant case, the holographic document does not reflect that it is a will or that the
properties therein mentioned were to pass upon death. The document expresses only a wish.
The decision and order of the lower court is reversed and the properties mentioned in the
proffered holographic document shall be distributed in accordance with the laws governing
intestacy.
Mowbray, J., dissenting, with whom Gunderson, J., joins:
Respectfully, I dissent.
In order to qualify as a will, any document so offered must be shown to have been
executed with the intent to make a will, or what we term in the law, anumus testandi. The
Supreme Court of California has described the requirement as follows:
In order for a document to be the last will and testament of a deceased person, it must,
in addition to meeting all the legal requirements, [1] clearly show that the decedent
intended it to take effect only after his death, and it must [2] satisfactorily appear
therefrom that the decedent intended by the very paper itself to make a disposition of
his property in favor of the party claiming thereunder. . . .
In re Button's Estate, 287 P. 964, 967 (Cal. 1930). Such intent, if left in doubt by the form of
expression used in the instrument, is to be determined by considering the instrument in light
of the circumstances surrounding its execution. In re Augestad's Estate, 106 P.2d 1087 (Mont.
1940); In re Spitzer's Estate, 237 P. 739 (Cal. 1924): 1 Page on the Law of Wills 5.6, at 173
(Bowe-Parker rev. ed. 1960).
In the case at hand, the trial court found that the instrument in question expresses
testamentary intent. The court's determination must be upheld if it is supported by
substantial evidence. In re Bristol's Estate, 143 P.2d 689 (Cal. 1943); In re Estate of Webber,
551 P.2d 1339 (Idaho 1976); In re Ingram's Estate, 307 P.2d 903 (Utah 1957). If more than
one inference is supported by the evidence, the reviewing court [shall] not substitute its
deductions for those of the trial court. In re Schultz' Estate, 353 P.2d 921, 924 (Cal. 1960).
It also should be kept in mind that:
The requirement of animus testandi does not mean that the word "will" or
"testament" must be used in the transaction. . . .
the word will or testament must be used in the transaction. . . . The test is . . . what
its legal effect is in view of its intended nature and of the real intention of the maker as
deduced from the instrument and from all the facts and circumstances. . . .
1 Page, supra 5.6, at 173.
I believe that the trial court's determination is supported by substantial evidence, and
therefore I would uphold that determination. The instrument, on its face, demonstrates an
intent to make a disposition of decedent's property by the paper itself, in favor of the
claimant. The use of the phrase, I would like Maymie Gilson to have . . ., though not the
phrase her attorney might have chosen, is plain indication of such intent. The test is whether
or not the testator intends, by his language, to control the disposition of his property. If he
does, the words in question are testamentary, and the instrument is his will, no matter in how
mild a form this intention is expressed.
1 Page, supra 5.19, at 211.
Furthermore, the document is addressed To whom it may concern, and treats only the
decedent's intention regarding the disposition of the specified property. Courts have found
sufficient present intent in other cases involving the much closer question presented by
similar expressions in letters to relatives or friends. E.g., In re Van Voast's Estate, 266 P.2d
377 (Mont. 1954); In re Spitzer's Estate, 237 P. 739 (Cal. 1925). The expression here was not
contained in a casual letter, nor was its simply found among decedent's effects; it was
transmitted, through her attorneys, to the officers of her trust. In light of these circumstances,
I find it difficult to believe that decedent intended to express only a wish, rather than an
intention to dispose of her property as indicated in the instrument.
The intent of decedent to have the disposition take effect only after her death is indicated
by the phrase, [a]long with my apt. mentioned in the trust fund. Appellant does not contend
that there is any question regarding the trust to which the instrument refers. While the
revocable trust agreement called for management of decedent's property during her lifetime, it
also contained a paragraph specifically providing for the disposition of her properties after
her death, and it was only in this paragraph that decedent's apartment was mentioned.
Other courts have had no difficulty finding intent to dispose of property after death from
surrounding circumstances, including reference to other documents, rather than from the
express language of the instrument offered as a will. E.g., In re Button's Estate, supra
(surrounding circumstances); In re Spitzer's Estate, supra (language of enclosed deeds).
Similarly, in this case, the trial court was entitled to refer to the explicit language of the
trust agreement to aid it in the interpretation of the instrument offered for probate.
this case, the trial court was entitled to refer to the explicit language of the trust agreement to
aid it in the interpretation of the instrument offered for probate.
I believe, therefore, that the determination of the trial court, that the instrument in question
expressed sufficient testamentary intent, is supported by substantial evidence. Consequently, I
would affirm.
____________
94 Nev. 393, 393 (1978) Brown v. State
GEORGE ALEXANDER BROWN, Appellant, v. THE
No. 9985
June 29, 1978 580 P.2d 947
Appeal from judgment of conviction. Eighth Judicial District Court, Clark County; Paul S.
Goldman, Judge.
Defendant was convicted before the district court of the sale of a credit card belonging to
another, and he appealed. The Supreme Court, Manoukian, J., held that: (1) court properly
refused to compel disclosure of identity of a second undercover officer in connection with
claimed entrapment argument; (2) predisposition precluded an entrapment defense; (3)
defendant's right of confrontation was not violated by court's refusal to compel disclosure of
actual home address of undercover agent who testified at trial, and (4) whether allegedly
objectionable tactics of law enforcement officers had violated fundamental fairness shocking
to universal sense of justice was matter of law within province of court alone which could
properly conclude that such violation did not occur, and thus defendant was not prejudiced by
denial to argue the allegedly outrageous police practices.
Affirmed.
Morgan D. Harris, Clark County Public Defender, and Herbert F. Ahlswede, Deputy
Public Defender, Las Vegas, for Appellant.
Leon Simon, Chief Deputy District Attorney, Clark County, for Respondent.
1. Witnesses.
In prosecution for sale of a credit card belonging to another, court properly refused to compel disclosure
of identity of a second undercover officer in connection with claimed entrapment argument, since offense
in question involved defendant's own independent return to undercover fencing
operation, undercover officers had no involvement with such incident and there was
no showing that testimony of absent officer and officer who did testify would be
disparate.
94 Nev. 393, 394 (1978) Brown v. State
question involved defendant's own independent return to undercover fencing operation, undercover officers
had no involvement with such incident and there was no showing that testimony of absent officer and
officer who did testify would be disparate.
2. Criminal Law.
Predisposition precluded an entrapment defense, where defendant had subsequently revisited an
undercover fencing operation on his own initiative to sell credit card belonging to another and defendant,
after a prior initial contact with undercover officers, never saw such officers again.
3. Criminal Law.
Defendant's right of confrontation was not violated by court's refusal to compel disclosure of actual home
address of undercover agent who testified at trial, where officer fully described his involvement in
undercover operation, had been extensively cross-examined and sufficient reason was given for
nondisclosure thereby allowing trial judge to make an informed ruling and defendant had adequate pretrial
opportunity to investigate undercover officer's background, including his employment record, but failed to
do so. U.S.C.A.Const. Amends. 6, 14.
4. Criminal Law.
In prosecution for sale of a credit card belonging to another, refusal of defendant's offered instruction
defining offense was properly refused, since instructions given properly covered subject matter of offered
instruction. NRS 205.710.
5. Criminal Law.
Whether allegedly objectionable tactics of law enforcement officers had violated fundamental fairness
shocking to universal sense of justice was matter of law within province of court alone which could
properly conclude that such violation did not occur, and thus defendant was not prejudiced by denial of
permission to argue allegedly outrageous police practices in prosecution for sale of a credit card
belonging to another. NRS 205.710.
OPINION
In 1976 the Las Vegas Metropolitan Police Department, in conjunction with the federal
government, established an undercover fabricated fencing operation code-named
Operation Switch. The operation procedure consisted of undercover police officers
introducing burglars and thieves to Switch as a fence for stolen goods. On September 2, 1976,
officer Max Huggins and another undercover officer entered a bar and conversed with one
another loudly enough to be overheard by others concerning the failure of a fictitious friend to
appear. Appellant Brown approached the undercover officer and was eventually informed that
the friend was to sell some stolen items to a fence in return for a small commission. Appellant
offered to sell the goods to the fence for them.
94 Nev. 393, 395 (1978) Brown v. State
offered to sell the goods to the fence for them. The two undercover officers and Brown then
went to the building where Operation Switch was being conducted. The officers gave Brown
numerous credit cards and a shotgun to sell to the fence.
Approximately one week later, Brown returned alone and on his own accord to Switch to
sell some recently stolen credit cards. This subsequent transaction provided the basis for the
instant criminal proceeding. Brown was not charged with theft of the cards but rather with the
sale of a credit card belonging to another. NRS 205.710.
During trial, the defense attempted to obtain the home address of undercover officer Max
Huggins and the name of the other undercover officer. The trial court refused to permit
disclosure of the other officer's identity, and after defense counsel had stated he had no offer
of proof as to why the address of officer Huggins was necessary, the trial court refused to
order production of this information, as well.
The defense proffered certain instructions on the theory of entrapment, but the trial court
determined that defense unavailable and refused to give those instructions. Following jury
verdict, judgment of conviction was entered and this appeal ensues.
The issues before us are whether the trial court erred in refusing (1) to order the disclosure
of identity and home address of an undercover officer; (2) to instruct the jury regarding the
law of entrapment; (3) to order disclosure of the home address of the undercover officer who
testified; (4) an instruction offered by appellant regarding purchases or sales of credit cards
belonging to another and in failing to permit defense counsel the opportunity to argue alleged
outrageous police practices to the jury?
1. and 2. Disclosure of undercover officer's identity; requested jury instruction on
entrapment.
Appellant Brown contends he was entrapped. Brown testified that when the two Operation
Switch undercover officers approached him, he had no predisposition to commit any crime
nor did he even know what was meant by a fence. In contrast, Officer Huggins testified that
Brown admitted he was then stealing and fencing stolen goods and stated that Switch was the
finest fencing operation he had ever seen. Incidental to his entrapment argument, Brown
claims he is entitled to disclosure of the other undercover officer's identity. He claims that
because of the discrepancy in trial testimony, the identity of the undercover officer, the only
other party to the conversation, is necessary to afford appellant a fair trial.
94 Nev. 393, 396 (1978) Brown v. State
[Headnote 1]
Appellant analogizes the situation to that regarding the identity of an informant and cites
Roviaro v. United States, 353 U.S. 53 (1957), and Miller v. State, 86 Nev. 503, 471 P.2d 213
(1970), as authority. These cases have no application to our factual setting. In Roviaro, the
informant was actively present at the transaction for which the defendant was charged for the
crime. Further, not only here was the undercover officer not an informant, but he was not a
material witness to the crime with which appellant is charged. Miller, supra. The transaction
for which appellant stands accused involved his own independent return to Operation Switch
to fence stolen credit cards. The undercover officers had no involvement with this later
incident which provoked Brown's arrest and subsequent conviction; Officer Huggins was
available and testified; there was no showing that the testimony of the two officers would be
disparate, and the officer, indeed both of them, were only peripherally involved in the
criminal transaction charged. See, People v. Marquez, 546 P.2d 482 (Colo. 1976). Moreover,
our review of Officer Huggins' testimony makes it doubtful that the unidentified officer's
testimony would be relevant and helpful to appellant's defense. The question is one that
requires a balancing of the public interest in protecting the flow of criminal intelligence
information against the accused's right to prepare his defense, taking into consideration the
crime charged, possible defenses, the significance of the proffered testimony, and other
relevant factors. Roviaro, supra.
We are not persuaded that the trial court's refusal to compel disclosure of the officer's
identity was error.
[Headnote 2]
The undercover officer could not be called in an attempt to establish an entrapment
defense because no entrapment occurred. Appellant himself testified that he subsequently
revisited Operation Switch on his own initiative to sell credit cards belonging to another and
that after the initial contact he never saw the undercover officers again. This evidence of
predisposition precludes an entrapment defense. United States v. Alexander, 495 F.2d 552
(2nd Cir. 1974). The fact that the government affords the opportunity or facility for the
commission of an offense charged does not constitute entrapment. See, Lightford v. State, 91
Nev. 482, 538 P.2d 585 (1975); United States v. Russell, 411 U.S. 423 (1973); Sherman v.
United States, 356 U.S. 369 (1958); Sorrells v. United States, 287 U.S. 435 (1932). Had
appellant been arrested and charged in connection with his initial transaction at Operation
Switch, a causal connection would have been shown, entrapment would have been an
arguable issue, and the need for the disclosed identity reasonably compelling.
94 Nev. 393, 397 (1978) Brown v. State
connection would have been shown, entrapment would have been an arguable issue, and the
need for the disclosed identity reasonably compelling. Here, however, Brown was charged for
his own independent activity, and the undercover officer was not a material witness. Cf. Jones
v. State, 93 Nev. 178, 564 P.2d 605 (1977). Relative to appellant's claim of entitlement to
entrapment instructions, it is axiomatic that the defendant in a criminal case is entitled to
have the court instruct the jury about his theory of defense, if there is evidence to support it.
Barger v. State, 81 Nev. 548, 550-51, 407 P.2d 584, 585 (1965). (Emphasis added.) Accord,
Wyatt v. State, 77 Nev. 490, 367 P.2d 104 (1961). Appellant returned to Switch in his own
car and sold recently stolen credit cards that he obtained in some unknown way. Here, there is
no evidence at all to indicate that police entrapped Brown to return to Operation Switch.
There was no error.
3. Disclosure of testifying witness's address.
Appellant attempted to ascertain the home address of Officer Huggins, the undercover
officer who testified at trial. The proffered motive for the request was to enable appellant to
investigate the witness's background for possible impeachment. The court inquired whether
Brown had an offer of proof to indicate why the officer's home address was necessary and
when the defense stated it had no offer, the court refused to permit disclosure.
In Pointer v. Texas, 380 U.S. 400, 403 (1965), the Supreme Court held that the Sixth
Amendment right of an accused to confront the witnesses against him is a fundamental right
. . . made obligatory on the states by the Fourteenth Amendment. We query whether
appellant was denied that right.
Brown cites Smith v. Illinois, 390 U.S. 129 (1968) and Alford v. United States, 282 U.S.
687 (1931), for the proposition that a defendant is entitled to know the address of a
prosecution witness. However, we interpret Smith and Alford as protecting an accused's right
to a meaningful cross-examination, not as establishing a per se requirement of disclosure. The
court in United States v. Harris, 501 F.2d 1, 9 (9th Cir. 1974), recognized that
in some instances the trial court could legitimately permit the witness not to disclose his
residence. If the answer may subject the witness to harassment, humiliation, or danger,
then non disclosure of the witness' home address may be justifiable.
There is ample authority holding that an undercover law enforcement officer need not
divulge his residence. United States v. Alston, 460 F.2d 4S {5th Cir. 1972); People v.
Pleasant, 244 N.W.2d 464 {Mich.
94 Nev. 393, 398 (1978) Brown v. State
States v. Alston, 460 F.2d 48 (5th Cir. 1972); People v. Pleasant, 244 N.W.2d 464 (Mich.
App. 1976).
In Smith, supra, a narcotics case, a prosecution informer refused to reveal both his home
address and true name. Confronted with not only this absence of information, but further the
fact that the witness was unemployed, the defense was denied the right to reasonably explore
the witness's circumstances for purposes of discrediting the testimony in chief. There, as here,
the witness was essential to the prosecution's case. Alford, supra, bears a close similarity to
Smith, magnified by the fact that there the witness in question might himself have been
incarcerated at the time of trial. In those cases, the right of confrontation guaranteed by the
Sixth Amendment was significantly impaired.
[Headnote 3]
In the instant case, the witness testified that he was an undercover police officer, working
as such at the time of trial, gave his full name and city of residence, gave his employment
history in law enforcement in reasonable detail, and fully described his involvement in
Operation Switch. The only element of his status that Officer Huggins did not disclose was
his actual home address. Further, he was extensively cross-examined by appellant. Finally,
sufficient reason was given for nondisclosure, thereby allowing the trial judge to make an
informed ruling. See, Alston, supra. Here, the appellant had adequate pre-trial opportunity to
investigate the undercover officer's background, including his employment record, and failed
to do so.
The court in Alston, supra, stated that
[i]t is significant here that [the witness] is an agent, not an informer. In almost every
other case of this ilk, the witness whose address is requested is merely an informer, one
who is under absolutely no obligation to provide information and who is subject to no
official supervision. . . .[T]here appears to be less need to require a home address for an
identified agent . . . than there might be for a witness whose motive or background
might be subject to considerably less supervision and correspondingly greater doubt.
460 F.2d at 53. Appellant's right of confrontation was not violated.
4. Refusal of jury instruction and denial of argument pertaining to alleged
outrageous police practices.
The trial court rejected the following jury instruction offered by appellant. "Any person,
except the issuer, who sells a credit card, or any person who buys a credit card from a
person other than the issuer is guilty of the crime of sale or purchase of a credit card."
94 Nev. 393, 399 (1978) Brown v. State
by appellant. Any person, except the issuer, who sells a credit card, or any person who buys
a credit card from a person other than the issuer is guilty of the crime of sale or purchase of a
credit card. Appellant wanted to indicate that the undercover officers themselves engaged in
illegal activity when they purchased and sold the regularly issued credit card. Brown argued
that the credit cards were not props but rather legitimate credit cards, the purchase and sale of
which even by police officers in the course of their duties constitutes a crime.
[Headnote 4]
The trial court did not err in refusing appellant's proffered instruction. That instruction,
reproduced above, was very similar to instruction number five which was given to the jury.
1
Both instructions were virtually identical to the proscription of the statute, NRS 205.710,
which reads: Any person, except the issuer, who sells a credit card, or any person who buys
a credit card from a person other than the issuer is guilty of a gross misdemeanor. A refusal
to give a proffered jury instruction is not error if the instructions given properly cover the
subject matter of the offered instruction. Cranford v. State, 76 Nev. 113, 349 P.2d 1051
(1960). The trial court committed no error.
[Headnote 5]
Appellant next claims prejudice in that he was denied an opportunity to argue the allegedly
outrageous police practices to the jury. He claims that because no statutory exemption is
provided to permit law enforcement officers to engage In this form of transaction there exists
no immunity and that the behavior then becomes outrageous police practices. Russell,
supra, suggests that some tactics by law enforcement officers may be so outrageous that they
in effect deny due process. See, also, United States v. Spivey, 508 F.2d 146 (10th Cir. 1975),
cert. denied, 421 U.S. 949. Whether such tactics violate fundamental fairness, shocking to
the universal sense of justice is a matter of law within the province of the court alone and the
trial court could, as here, properly conclude that such violation did not occur. Russell, supra,
411 U.S. at 432; Sparkman v. State, 88 Nev. 680, 504 P.2d 8 (1972).
____________________

1
Instruction number five read as follows: Any person, other than the issuer of the credit card, who sells the
credit card, is guilty of the a crime of Sale of a Credit Card.
____________
94 Nev. 400, 400 (1978) Mangeris v. Gordon
JILLEEN MANGERIS, Individually and as Guardian ad litem of TIMOTHY MANGERIS,
TERRY MANGERIS and TRACY MANGERIS, Minors, Appellants, v. TERRY GORDON,
Doing Business as VELVET TOUCH MASSAGE SALON; JUDY McWHIRTER; VELVET
TOUCH, INC., a Nevada Corporation; HOWARD SENOR, Doing Business as VELVET
TOUCH MASSAGE SALON, DOES I and II, Respondents.
No. 9154
July 3, 1978 580 P.2d 481
Appeal from order granting motion to dismiss, Eighth Judicial District Court, Clark
County; Carl J. Christensen, Judge.
Widow of murder victim, a taxicab driver, brought wrongful death action against various
defendants, including operators of massage parlor, alleging that operators had negligently
failed to report to the victim or to the local police department certain criminal activities and
that, as a direct and proximate result of the alleged negligence, the victim was murdered. The
district court dismissed the complaint on the ground that it did not allege facts sufficient to
establish a duty to warn concerning the suspected criminal conduct. The widow appealed, and
the Supreme Court held that even assuming a special relationship existed between operators
and the taxicab driver, the facts alleged were not sufficient to create a reasonably foreseeable
risk that the driver would be murdered and, therefore, operators had no duty to warn driver of
the suspected criminal propensities of his murderer.
Affirmed.
Galatz, Earl & Biggar, and Michael Kaplan, Las Vegas, for Appellants.
Embry, Shaner & Lang, Ltd., Las Vegas, for Respondent Terry Gordon, doing business as
Velvet Touch Massage Salon.
George Spizzirri, Las Vegas, for Respondent Judy McWhirter.
Cromer, Barker & Michaelson, Las Vegas, for Respondent Howard Senor, doing business
as Velvet Touch Massage Salon, and Velvet Touch, Inc.
1. Negligence.
An indispensable predicate to tort liability founded on negligence is existence of a duty of care owed by
the alleged wrongdoer to the person injured.
2. Negligence.
Though, under common law, a person generally owes no duty to control the dangerous conduct of another
or to warn those endangered by such conduct, an exception to that rule exists in cases where defendant
bears some special relationship to the dangerous person or to the potential victim; in such circumstances,
the defendant is impressed with a duty to warn foreseeable victims of foreseeable harm.
3. Negligence.
Even assuming the existence of a special relationship between operators of massage parlor and taxicab
driver who brought passenger to massage parlor and later picked him up, where facts alleged were not
sufficient to create a foreseeable risk that taxicab passenger would murder taxicab driver at a remote time
and distant location, operators of massage parlor had no duty to warn the taxicab driver of his passenger's
prospective criminal conduct notwithstanding their alleged knowledge that passenger had committed
violent acts and was a fugitive.
4. Compounding Offenses; Torts.
Neither the common law nor the compounding crimes statute requires a citizen to report a crime; mere
silence is insufficient to establish civil liability to crime victim for failure to warn victim or to inform police
of criminal conduct. NRS 199.290.
OPINION
Per Curiam:
Appellants sought damages for the wrongful death of John Mangeris, allegedly caused by
respondent's negligent conduct. Respondents, pursuant to NRCP 12(b), moved to dismiss
appellants' complaint on the ground it failed to state a cause of action. The district court
grated the requested motion and appellants here contend that dismissal was improper. We
disagree.
On December 16, 1974, John Mangeris, a taxi driver for the Whittlesea Cab Company in
Las Vegas, drove his passenger, Danny Brimmage, to respondent Velvet Touch Massage
Salon. Later the same evening, Mangeris returned to the salon and picked up Brimmage to
transport him to another location. Sometime thereafter, Brimmage murdered Mangeris.
1

On August 28, 1975, Mangeris' wife, individually and as guardian ad litem for her three
children, commenced this action seeking damages for loss of the services, comfort, support,
and companionship of John Mangeris.
Appellants' third amended complaint alleged, in pertinent part:
X
That on or about December 16, 1974, the Decedent, JOHN MANGERIS, was upon the
premises of the VELVET
____________________

1
The criminal proceedings which arose from these events are reported in Brimmage v. State, 93 Nev. 434,
567 P.2d 54 (1977).
TOUCH MASSAGE SALON at the invitation of and for a business benefit to the
defendants, and each of them.
XI
That at the above stated time and place, defendants and each of them, learned that a
patron by the name of DANIEL RAY BRIMMAGE had committed violent criminal
acts and was a fugitive from the law.
XII
That on or about December 16, 1974, the defendants, their employees or servants,
negligently failed to report to JOHN MANGERIS or the Las Vegas Metropolitan Police
Department admitted and suspected [sic] criminal activities of one Daniel Ray
Brimmage and said defendants has [sic] reason to fear or be aware that Daniel Ray
Brimmage was dangerous to other persons.
XIII
That as a direct and proximate result of the aforesaid negligence of the defendants, and
each of them, the decedent, JOHN MANGERIS, was attacked by Daniel Ray
Brimmage and was caused to suffer severe and grievous personal injuries which
directly and proximately resulted in his death, all of which occurred after the deceased
took Daniel Ray Brimmage from the Velvet Touch Massage Salon to another location.
Respondents moved for, and were granted, an order dismissing the complaint on the
ground it failed to allege facts sufficient, as a matter of law, to establish that respondents had
a duty to warn either Mangeris or the Las Vegas Metropolitan Police Department of
Brimmage's criminal conduct.
1. In urging us to reverse, appellants contend that a special relationship which existed
between Mangeris and respondents impressed respondents with a duty to warn Mangeris of
Brimmage's criminal conduct.
[Headnotes 1-3]
An indispensable predicate to tort liability founded upon negligence is the existence of a
duty of care owed by the alleged wrongdoer to the person injured. See Turney v. Sullivan, 89
Nev. 554, 516 P.2d 738 (1973). Under the common law, as a general rule, one person owed
no duty to control the dangerous conduct of another, nor to warn those endangered by such
conduct. See Tarasoff v. Regents of University of California, 551 P.2d 334 (Cal. 1976);
Rest.2d, Torts (1965) 314. However, the common law has carved out an exception to this
rule in cases where the defendant bears some special relationship to the dangerous person or
to the potential victim. See Tarasoff v. Regents of University of California, supra; Rest.2d,
Torts {1965) 314A, 315.
(1965) 314A, 315. In such circumstances, the defendant is impressed with a duty to warn
foreseeable victims of foreseeable harm. Cf. Thomas v. Bokelman, 86 Nev. 10, 462 P.2d
1020 (1970); Tarasoff v. Regents of University of California, supra. Applying these
principles to the present case, we are unable to conclude that respondents had a duty to warn
Mangeris of potential harm. Indeed, even assuming a special relationship existed, an issue
which we need not and, therefore, do not here decide, a reasonable person would not, from
the facts alleged, foresee a risk that Brimmage would murder Mangeris at a remote time and
distant location. Absent the foreseeability of such a risk, respondents had no duty to warn
Mangeris of Brimmage's criminal conduct. Cf. Thomas v. Bokelman, supra; Dillon v. Legg,
441 P.2d 912 (Cal. 1968). See generally, Annot., 10 A.L.R.3d 619 (1966).
[Headnote 4]
2. Appellants, relying on a compounding crimes theory, also allege respondents breached
a duty to inform the police of Brimmage's criminal conduct. However, neither the common
law nor our compounding crimes statute requires a citizen to report a crime; mere silence is
insufficient to establish liability. See NRS 199.290; Lancey v. United States, 356 F.2d 407
(9th Cir. 1966); Commonwealth v. Lopes, 61 N.E.2d 849 (Mass. 1945); Cf. NRS 195.030;
State v. Michaud, 114 A.2d 352 (Me. 1955); People v. Vath, 347 N.E.2d 813 (Ill.App. 1976).
Accordingly, we perceive no error in the district court decision and the order of dismissal
is affirmed.
2

____________________

2
6, 19; SCR 244.
____________
94 Nev. 403, 403 (1978) Rush v. Nevada Industrial Commission
RALPH O. RUSH and MARY RUSH, Appellants, v. NEVADA INDUSTRIAL
COMMISSION; JOHN REISER; DONALD BREIGHNER; RICHARD PETTY;
JOHN DOES I-X, INDIVIDUALS, Respondents.
No. 9058
July 3, 1978 580 P.2d 952
Appeal from judgment of dismissal. First Judicial District Court, Carson City; Frank B.
Gregory, Judge.
Industrial Insurance Act claimant brought negligence action against Nevada Industrial
Commission alleging that Commission's tardiness in authorizing specialized treatment
proximately caused eventual loss of his eye and praying for punitive damages.
damages. The district court entered judgment granting Commission's motion to dismiss, and
claimant appealed. The Supreme Court, Manoukian, J., held that: (1) claimant was not
precluded from pursuing his action against Commission, that is, Commission was not
insulated through Act, since Nevada's statutory scheme did not expressly equate Commission
with employer and afford concomitant protection from suit; (2) under circumstances, remand
was necessary to determine whether Commission members and its employees were insulated
from suit by virtue of doctrine of sovereign immunity, and (3) applicable statute precluded
recovery of punitive damages against any of Commission members and its employees.
Affirmed in part; reversed in part; and remanded for further proceedings.
John T. Coffin, Reno, for Appellants.
Riley Beckett, Carson City, for Respondents.
1. Workman's Compensation.
Nevada Industrial Insurance Act claimant was not precluded from pursuing negligence action against
Nevada Industrial Commission alleging that Commission's tardiness in authorizing specialized treatment
proximately caused eventual loss of his eye, that is, Commission was not insulated through Act, since
Nevada's statutory scheme did not expressly equate Commission with employer and afford concomitant
protection from suit. NRS 616.010 et seq., 616.560.
2. Statutes.
A statute will not be construed as taking away common-law right existing at time of its enactment unless
that result is imperatively required.
In negligence action brought by Industrial Insurance Act claimant against Nevada Industrial Commission
alleging that Commission's tardiness in authorizing specialized treatment proximately caused eventual loss
of his eye, remand was necessary to determine whether commission members and its employees were
insulated from suit by virtue of doctrine of sovereign immunity, inasmuch as trial court, in summarily
adjudicating sovereign immunity issue, confused procedurally motion to dismiss with motion for summary
judgment. NRS 41.032; NRCP 41(b), 56.
4. Damages; Pleading.
In negligence action brought by Industrial Insurance Act claimant against Nevada Industrial Commission
alleging that commissioner's tardiness in authorizing specialized treatment proximately caused eventual
loss of his eye and praying for punitive damages upon alleging that commissioners were guilty of fraud
and oppression and that their behavior was characterized by fraud, malice, and oppression, no error
occurred in striking causes of action alleging fraudulent behavior, because allegations of fraud had not
been stated
of fraud had not been stated with required particularly; more fundamentally, applicable statute precluded
recovery of punitive damages against any of commissioners. NRCP 9(b); NRS 41.035, subd. 1.
OPINION
On August 3, 1973, appellant, Ralph O. Rush, while employed as a mechanic, got metal
shavings in his eye. Through his employer a claim was filed with the Nevada Industrial
Commission, and appellant was sent to a Reno ophthalmologist. After several months of
examination and treatment, the doctor informed the NIC on October 23 that he was able to
detect a retinal detachment and that because no facilities for treatment existed in Reno,
appellant would have to be referred to a larger medical center.
It was then the position of the NIC that it would not pay for such further treatment unless it
was demonstrated that the medical condition was caused by the metal shavings involved in
the industrial accident. In response to a request four months later, after further examination
revealed that vision in the left eye could not be saved, an operation was performed to remove
the eye and fit appellant with a prosthetic device.
On September 5, 1975, appellants filed suit for negligence, alleging that the tardiness of
respondents in authorizing the specialized treatment proximately caused the eventual loss of
appellant's eye. Respondents successfully moved to dismiss the complaint and this appeal
ensued.
There are three issues before us: (1) Is a claimant under The Nevada Industrial Insurance
Act precluded from pursuing a negligence action against the Nevada Industrial Commission;
(2) are the actions of the NIC and its employees within the protection of governmental
immunity; and (3) did the trial court err in striking causes of action alleging fraudulent
behavior?
1. Suit against the NIC.
[Headnote 1]
Below, appellants attempted to recover damages in a common law negligence action
against the NIC in addition to receiving a NIC compensation award for disability. They cite
NRS 616.560 as authority that actions may be maintained against "some person, other than
the employer or a person in the same employ."
against some person, other than the employer or a person in the same employ. Appellants
then contend that the NIC satisfies neither description and is thus a permissible defendant in a
suit which alleges that negligent delay in authorization for specialized treatment resulted in
the loss of his eyesight. We agree.
Appellant cites Nelson v. Union Wire Rope Corporation, 199 N.W.2d 769 (Ill. 1964);
Fabricius v. Montgomery Elevator Company, 121 N.W.2d 361 (Iowa 1963); and Mays v.
Liberty Mutual Insurance Company, 323 F.2d 174 (3rd Cir. 1963), for the proposition that a
workman's compensation insurance carrier is distinguished from the workman's employer and
thus a permissible defendant in a subsequent trial.
In Nelson, supra, although the Illinois Supreme Court interpreted Florida law to find a
carrier was subject to suit, a Florida court subsequently rejected that analysis and interpreted
the statute to confer immunity. Carroll v. Zurich Insurance Company, 286 S.2d 21 (Fla.App.
1973). After the Fabricius and Mays decisions, the respective legislatures amended the
statutes to expressly grant immunity to carriers. See, Iowa Acts 1965 (61 G.A.) Ch. 107, 14
(repealed); Pa. Stat. Ann., Title 77, 501 (supp. 1967). See also, Modjeski v. Atwell, Vogel
& Sterling, Inc., 309 F.Supp. 199 (D. Minn. 1969), and Brown v. Travelers Insurance
Company, 254 A.2d 27 (Pa. 1969).
Thus, in those cases, when immunity has not been expressly given by statute, such
immunity was subsequently provided either through judicial interpretation or statutory
amendment. We believe the better rule to be not an equation of the NIC with the employer
but rather that the third party referred to in NRS 616.560 is one other than the employer and a
co-employee, thus making the NIC a permissive defendant. Mager v. United Hospitals of
Newark, 212 A.2d 664 (N.J. 1965). In Nevada, unlike New Jersey, the carrier is the
Commission itself, but we are unpersuaded by this distinction, as the complaint here is not
based upon the employer-employee relationship. See, Szydlowski v. General Motors Corp.,
229 N.W. 2d 365 (Mich. 1975). Here, since Nevada's statutory scheme does not expressly
equate the NIC with the employer and afford the concomitant protection from suit, we hold
that respondents are not insulated through Chapter 616, the Nevada Industrial Insurance Act.
Had the Nevada Legislature contemplated that the Nevada Industrial Commission stand in
the place and stead of the employer in administering workman' s compensation benefits in
this factual context and further contemplated employers rely solely on the NIC as a means of
fulfilling their liabilities or responsibilities to employees, its intention would have been plain
and unambiguous.
plain and unambiguous. Compare, Public Service Commission of Nevada v. District Court,
94 Nev. 42, 574 P.2d 272 (1978); Schoonover v. Caudill, 337 P.2d 402 (N.M. 1959).
Although the contention is persuasive, this should be made to the legislature and not this
Court.
[Headnote 2]
A statute will not be construed as taking away a common law right existing at the time of
its enactment unless that result is imperatively required, Fabricius, supra, 121 N.W.2d at
352, and we conclude our Legislature has not made such imperatively required in this
instance.
2. Sovereign Immunity.
[Headnote 3]
Are the NIC members and its employees insulated from suit by virtue of the doctrine of
sovereign immunity? We find no necessity to discuss NRS 41.032
1
since it is apparent to
this Court that the trial court summarily adjudicated the sovereign immunity issue and in
doing so confused procedurally a motion to dismiss, NRCP 41(b), with a motion for summary
judgment, NRCP 56. We find it appropriate to remand this issue and matter to the district
court for further proceedings.
3. Striking Causes of Action.
[Headnote 4]
Appellants alleged causes of action for punitive damages against respondents. The counts
alleged that respondents were guilty of fraud and oppression and that their behavior was
characterized by fraud, malice, and oppression. Upon these allegations, appellants pray for
exemplary damages.
The trial court dismissed both causes of action because the allegations of fraud had not
been stated with particularity, a requirement of NRCP 9(b). While we concur with the trial
court's conclusion, more fundamentally, we are constrained to cite NRS 41.035(1)
2
which
here precludes the recovery of exemplary or punitive damages against any of the respondents.
____________________

1
NRS 41.032 provides in part that no action may be brought against any state agency or its employees based
on the performance or failure to perform a discretionary duty.

2
NRS 41.035 provides that
(1) An award for damages in an action sounding in tort brought under NRS 41.031 or against a present or
former officer or employee of the state or any political subdivision or any state legislator or former state
legislator arising out of an act or omission within the scope of his public duties or employment may not
exceed the sum of $35,000, exclusive of interest computed from the date of judgment, to or for the
benefit of any claimant. An award may not include any amount as exemplary or punitive damages.
(Emphasis supplied.)
Affirmed in part; reversed in part; and, remanded for further proceedings consistent
herewith.
Batjer, C. J., and Mowbray and Gunderson, JJ., and Hoyt, D. J.,
3
concur.
____________________

3
The Governor designated Hon. Merlyn H. Hoyt, Judge of the 7th Judicial district, to sit in place of Hon.
Gordon Thompson, Justice, who was disabled. Nev. Const. art. 6 4.
____________
94 Nev. 408, 408 (1978) Meller v. State
KENNETH JAMES MELLER, Appellant, v.
No. 9111
July 5, 1978 581 P.2d 3
Appeal from judgment and sentence, Ninth Judicial District Court, Douglas County; Noel
E. Manoukian, Judge.
Defendant was convicted before the district court of robbery and murder, and he appealed.
The Supreme Court held that mandatory death penalty for the murder of a police officer
acting in his official capacity was unconstitutional, in view of fact that statute did not allow
for consideration of particularized mitigating factors, and therefore, sentence of death
imposed upon defendant convicted of such crime would be vacated, and defendant would be
sentenced to life imprisonment without possibility of parole.
Affirmed, as modified.
Horace R. Goff, Nevada State Public Defender, and J. Thomas Susich, Deputy Public
Robert List, Attorney General, Carson City; Steve McMorris, District Attorney, Douglas
Homicide.
Mandatory death penalty for the murder of a police officer acting in his official capacity was
unconstitutional, in view of fact that statute did not allow for consideration of particularized mitigating
factors, and therefore, sentence of death imposed upon defendant convicted of such crime would be
vacated, and defendant would be sentenced to life imprisonment without possibility of parole. NRS
200.030, subd. 1(a).
OPINION
Per Curiam:
Appellant was convicted, by jury verdict, of robbery of the Nevada National Bank at
Zephyr Cove, Nevada {NRS 200.3S0) and murder of a Nevada Highway Patrolman on
October 14, 1975 {NRS 200.010; NRS 200.030).
Nevada National Bank at Zephyr Cove, Nevada (NRS 200.380) and murder of a Nevada
Highway Patrolman on October 14, 1975 (NRS 200.010; NRS 200.030). He was
subsequently sentenced to death pursuant to NRS 200.030(1)(a) and NRS 200.030(5), which
provide for a mandatory death penalty for the murder of a peace officer acting in his official
capacity.
1
Appellant contends NRS 200.030(5), as applied to NRS 200.030(1)(a), is
unconstitutional. We agree.
The U.S. Supreme Court recently annulled a similar statutory provision, stating: [I]t is
essential that the capital-sentencing decision allow for consideration of whatever mitigating
circumstances may be relevant to either the particular offender or the particular offense.
[Footnote omitted.] Because the . . . statute does not allow for consideration of particularized
mitigating factors, it is unconstitutional. Roberts v. Louisiana, 431 U.S. 633, 637 (1977). Cf.
Smith v. State, 93 Nev. 82, 560 P.2d 158 (1977).
In our view, Roberts is controlling and dispositive of the present appeal. As in Roberts,
Meller was convicted of murdering a police officer who, at the time of his death, was engaged
in the performance of his lawful duties. Similarly, Meller was tried, convicted, and sentenced
under a death penalty statute which failed to provide for consideration of mitigating factors.
2

Accordingly, pursuant to the mandate of Roberts, appellant's sentence of death must be,
and is hereby, vacated. The penalty imposed upon appellant is life imprisonment without
possibility of parole.3 See Smith v. State, supra.
____________________

1
In 1975, and at all times relevant to these proceedings, NRS 200.030(1)(a) provided, in pertinent part:
Capital murder is murder which is perpetrated by:
(a) Killing a peace officer . . . :
(1) While such officer . . . is acting in his official capacity . . . ; and
(2) With knowledge that the victim is or was a peace officer. . . .
In 1975, and at all times relevant to these proceedings, NRS 260.030(5) provided:
Every person convicted of capital murder shall be punished by death.
These sections of NRS 200.030 were amended by 1977 Nev. Stats. ch. 585.

2
Compare NRS 200.030(1)(a), supra note 1, with La.Rev. Stat. Ann. 14:30, which, before amended,
provided, in pertinent part:
First degree murder is the killing of a human being:
. . . .
(2) When the offender has a specific intent to kill, or to inflict great bodily harm upon, a . . . peace officer
who was engaged in the performance of his lawful duties. . . .
. . . .
Whoever commits the crime of first degree murder shall be punished by death.
penalty imposed upon appellant is life imprisonment without possibility of parole.
3
See
Smith v. State, supra.
Ancillary claims of error are without merit and, accordingly, the district court judgment is
affirmed, as modified.
4

____________________

3
We are cognizant of the sentencing procedures recently approved by the U.S. Supreme Court in Dobbert v.
Florida, 432 U.S. 282 (1977). However, because the present case is factually distinguishable from Dobbert, we
find those procedures inapposite. See State v. Rodgers, 242 S.E.2d 215 (S.C. 1978), where the South Carolina
Supreme Court also declined to apply Dobbert to a factual situation similar to that involved here.

4
The Governor, pursuant to Nev. Const. art. 6, 4, designated the Honorable Llewellyn A. Young, Judge of
the Sixth Judicial District, to sit in place of The Honorable Noel E. Manoukian, Justice, who voluntarily
disqualified himself in this case.
____________
94 Nev. 410, 410 (1978) Bishop v. Warden
STEPHEN BISHOP, Appellant, v. WARDEN, NEVADA
STATE PRISON, Respondent.
No. 10210
July 12, 1978 581 P.2d 4
Appeal from order denying post-conviction relief; First Judicial District Court, Carson
City; Howard D. McKibben, Judge.
The district court convicted defendant, upon guilty plea, of robbery, and defendant
appealed. The Supreme Court, Thompson, J., held that: (1) in the absence of reasonable doubt
as to defendant's competency, trial court was not required by statute to appoint two physicians
to examine defendant, and (2) defendant waived objection to alleged plea bargain violation by
failing to make objection to sentencing judge.
Affirmed.
Horace R. Goff, State Public Defender, and Robert B. Walker, Jr., Deputy State Public
Defender, for Appellant.
1. Mental Health.
In the absence of reasonable doubt as to defendant's competency, court need not follow statutory
procedure relating to appointment of physicians to examine defendant to determine sanity. NRS
178.405, 178.415.
2. Criminal Law.
Where objection to alleged plea bargain violation was not made to sentencing judge, defendant waived
such objection.
OPINION
At issue is whether Bishop's plea of guilty to robbery should be set aside. His challenge is
twofold. First, he contends that the court was obliged to determine his sanity in accordance
with NRS 178.415, and that its failure to do so nullifies his conviction. Second, he argues that
the prosecutor did not honor a plea bargain agreement, thereby invalidating his conviction.
Neither contention has merit.
1. . . . if doubt shall arise as to the sanity of the defendant, the court shall suspend the
trial of the indictment or information . . . until the question of sanity is determined. NRS
178.405. In such circumstances, the court is obliged to appoint two physicians, one of whom
is a psychiatrist or otherwise specially qualified, to examine the defendant and to report their
findings at a hearing in open court. NRS 178.415.
[Headnote 1]
The court need not follow NRS 178.415 to determine sanity in the absence of a reasonable
doubt as to the defendant's competency. Warden, Nevada State Prison v. Conner, 93 Nev.
209, 562 P.2d 483 (1977); Kelly v. State, 93 Nev. 154, 561 P.2d 449 (1977); Langley v. State,
84 Nev. 295, 439 P.2d 986 (1968).
When arraigned, Bishop's counsel moved for a psychiatric examination because of past
drinking habits. There was no information of substance presented to the court to suggest that
Bishop was insane or incompetent. Nonetheless, the court did have Bishop examined by the
senior psychiatrist at the Nevada Mental Health Institute who reported that Bishop was
competent to stand trial. Since the record does not reflect that the court entertained a
reasonable doubt as to Bishop's sanity, it was not obliged to follow the procedure designated
in NRS 178.415. Warden, Nevada State Prison v. Conner, supra. Indeed, on the record before
it, the court would have been justified in denying counsel's motion for a psychiatric
examination based on the vague allegations that Bishop's past drinking habits may have
damaged him mentally. Cf. Hollander v. State, 82 Nev. 345, 418 P.2d 802 (1966), where we
held that it was not an abuse of discretion to deny a request for a psychiatric examination
where the only evidence relating to the defendant's competency was an Army discharge
for psychoneurosis about 20 years earlier.
psychiatric examination where the only evidence relating to the defendant's competency was
an Army discharge for psychoneurosis about 20 years earlier. This claimed error lacks merit.
[Headnote 2]
2. Neither does the record reflect a violation of the terms of the plea bargain. However, we
particularly note that an objection to the alleged plea bargain violation was not made to the
sentencing judge. Absent such timely objection there is a waiver.
In a different context, concerning proof of prior convictions to establish the defendant as a
habitual criminal, we have adopted the contemporaneous objection rule. Thomas v. State, 93
Nev. 565, 571 P.2d 113 (1977); Bayman v. State, 94 Nev. 370, 580 P.2d 943 (1978). We now
approve its application to an assertion that a prosecutor has violated the terms of a plea
bargain. Objection must timely be made to the sentencing judge, as a precondition to later
review.
Affirmed.
____________
94 Nev. 412, 412 (1978) Sherman v. Warden
JAMES VEARL SHERMAN, Appellant, v. WARDEN,
NEVADA STATE PRISON, Respondent.
No. 10378
July 12, 1978 581 P.2d 1278
Appeal from order denying habeas corpus; First Judicial District Court, Carson City;
Michael E. Fondi, Judge.
Petitioner appealed from order of the district court denying his petition for writ of habeas
corpus, alleging that court was without jurisdiction to revoke his probation. The Supreme
Court held that it is the initial act of pretermination arrest which vests jurisdiction in the
district court to revoke probation, not fortuitous fact that proceedings are subsequently
concluded before expiration of original term; thus, where probationer is arrested before
termination of probation, district court has jurisdiction to revoke probation even though
probation revocation proceeding and final revocation occur after probation term has expired.
Affirmed.
Samuel S. Wardle, of Carson City, for Appellant.
Robert List, Attorney General, and D. G. Menchetti, Deputy Attorney General, for
Respondent.
1. Criminal Law.
Power of trial court to terminate, modify, or revoke probation flows directly from statutory grant, and
must be exercised within time and upon terms indicated by statute. NRS 176.215.
2. Criminal Law.
It is the initial act of pretermination arrest which vests jurisdiction in district court to revoke probation,
not fortuitous fact that proceedings are subsequently concluded before expiration of original term; thus,
where probationer is arrested before termination of probation, district court has jurisdiction to revoke
probation even though probation revocation proceeding and final revocation occur after probationary term
has expired. NRS 176.215.
OPINION
Per Curiam:
James Vearl Sherman has appealed from the district court's denial of his petition for writ
of habeas corpus, alleging that the court was without jurisdiction to revoke his probation.
While on probation Sherman was arrested pursuant to a warrant, and charged with violation
of the terms of his probation. Before a probation hearing was held some fifty-three days later,
the term of probation expired. Sherman argues that this expiration deprived the district court
of jurisdiction to hear the revocation. We agree with the district court that jurisdiction was not
lost.
[Headnote 1]
The power of the trial court to terminate, modify, or revoke probation flows directly
from statutory grant, and must be exercised within the time and upon the terms indicated by
the statute. Keller v. Superior Court in & for Cty. of Maricopa, 524 P.2d 956 (Ariz.App.
1974); In re Griffin, 431 P.2d 625 (Cal. 1967). While NRS 176.215, as that statute read at the
time of the proceedings below,
1
clearly requires that a warrant be issued and the probationer
be arrested during probation, there exists no requirement in the statute that the probation
revocation hearing be held prior to the expiration of the pronounced term of probation.
____________________

1
Prior to its amendment in 1977, NRS 176.215 read, in pertinent part:
2. At any time during probation . . . the court may issue a warrant for violating any of the conditions of
probation . . . and cause the defendant to be arrested. . . . 3. . . . . The court retaining jurisdiction shall cause the
defendant to be brought before it, and may continue or revoke the probation . . . and may cause the sentence
imposed to be executed. This statute was amended in 1977, see, Stats. Nev., 1977, 814.
revocation hearing be held prior to the expiration of the pronounced term of probation. In
each of the cases arising in other jurisdictions cited to us by the appellant, the applicable
revocation statute has specifically required that the revocation, rather than the arrest, take
place prior to the expiration of the term of probation. See, Keller v. Superior Court in & for
Cty. of Maricopa, supra; In re Griffin, supra; Pina v. State, 410 P.2d 658 (Ariz. 1966).
In the absence of specific statutory direction, we decline to construe NRS 176.215 as it
existed prior to amendment to deprive the district court of jurisdiction over a probation
revocation proceeding merely because the final revocation occurs after the probation term has
expired. Such a construction would only result in a defacto reduction in the pronounced term
of probation, Keller v. Superior Court in & for Cty. of Maricopa, supra, 524 P.2d at 958,
since a revocation procedure involving careful attention to the probationer' s procedural due
process rights, see, Morrissey v. Brewer, 408 U.S. 471 (1971), will of necessity extend over
more than a few days. Moreover, our adoption of the construction contended for by the
appellant would only give the probationer arrested somewhat near the end of his term every
incentive to delay his revocation proceedings as much as possible through the use of dilatory
procedural tactics, in an attempt to reach and pass the termination date of his original
probation term and retroactively deprive the court of jurisdiction over him.
[Headnote 2]
As we read former NRS 176.215, it is the initial act of pretermination arrest which vests
jurisdiction in the district court to revoke probation, not the fortuitous fact that the
proceedings are subsequently concluded before the expiration of the original term.
Affirmed.
____________
94 Nev. 415, 415 (1978) Wright v. State
EDDIE DEAN WRIGHT, Appellant, v.
No. 9987
July 12, 1978 581 P.2d 442
Appeal from judgments of conviction for kidnaping and robbery; Eighth Judicial District
Court, Clark County; Carl J. Christensen, Judge.
Defendants were convicted in the district court of three counts of robbery with use of a
deadly weapon and three counts of kidnaping with use of a deadly weapon, and they
appealed. The Supreme Court, Thompson, J., held that: (1) if movement of victim is
incidental to robbery and does not substantially increase risk of harm over and above that
necessarily present in crime of robbery itself, it would be unreasonable to believe that
Legislature intended a double punishment, but if movement of victim results in increased
danger over and above that present in crime of robbery itself, a kidnaping charge may also lie,
and (2) convictions for kidnaping were subject to being set aside where, with respect to
movement and detention of victim, movement appeared to have been incidental to robbery
and without an increase in danger to victims and detention was only for short period of time
necessary to consummate robbery.
Robbery convictions affirmed; kidnaping convictions reversed.
Morgan D. Harris, Public Defender, and R. Michael Gardner, Deputy Public Defender,
Robert List, Attorney General; George E. Holt, District Attorney, H. Leon Simon and
Gordon C. Richards, Deputy District Attorneys, Clark County, for Respondent.
1. Kidnaping.
Statute making a person guilty of kidnaping in the first degree if he willfully seizes, confines, inveigles,
entices, decoys, abducts, conceals, kidnaps or carries away any individual human being by any means
whatsoever for purpose of committing robbery is broad in its sweep and, as such, encompasses an ordinary
robbery in the course of which the victim happens to be moved from one room to another. NRS 200.310.
2. Criminal Law.
If movement of victim is incidental to robbery and does not substantially increase risk of harm over and
above that necessarily present in crime of robbery itself, it would be unreasonable to believe that
Legislature intended a double punishment, but if movement of victim results in increased danger over and
above that present in crime of robbery, a kidnaping charge may also lie. NRS 200.310, 200.380.
3. Kidnaping.
Convictions for kidnaping were subject to being set aside where, with respect to movement and detention
of victims during course of robbery, movement appeared to have been incidental to robbery and without an
increase in danger to victims and detention was only for short period of time necessary to consummate
robbery. NRS 200.310, 200.380.
OPINION
This appeal is from judgments entered upon jury verdicts finding Eddie Dean Wright
guilty on three counts of robbery with the use of a deadly weapon (NRS 200.380; NRS
193.165), and three counts of kidnaping with the use of a deadly weapon (NRS 200.310(1);
NRS 193.165),
1
for which he has been sentenced to serve respectively three terms of 30
years on the robbery charges and three terms of life with the possibility of parole on the
kidnaping charges. All sentences are to run concurrently.
Shortly after midnight on February 11, 1977, three young black males entered the lobby of
the Ambassador Motel in Las Vegas. One of them, Wright, pulled a revolver on the night
clerk, while another drew on the night auditor. After emptying the cash register behind the
counter the two victims were told to walk to a back office, a distance of 20 to 40 feet. The
night auditor subsequently was taken back to the lobby to open the safe. Upon his return to
the back office he and the clerk were told to lie face down on the floor where they were taped
hand and foot. A motel guest who had entered the lobby also was taken to the back office and
taped. The victims were threatened while lying on the floor. The robbers then left. The
episode lasted three to five minutes.
1. The appellant contends that the kidnaping involved a contemporaneous robbery and
should not be considered a separate crime citing People v. Levy, 204 N.E.2d 842 (N.Y.
1965), and People v. Daniels, 459 P.2d 225 (Cal. 1969). In Levy the court noted that it was
common in robbery to confine a victim at gunpoint, or bind and detain him, or move him to
another room. The court then concluded that it was unlikely that the legislature intended for
the offender to be guilty of kidnaping even though that crime could be found by a literal
application of the words of the kidnaping statute.
____________________

1
NRS 193.165 provides a greater punishment when one uses a firearm or other deadly weapon in committing
a crime. The statute is constitutional. Woofter v. O'Donnell, 91 Nev. 756, 542 P.2d 1396 (1975).
In Daniels the court ruled that if the movements of the victim are incidental to the
commission of the robbery and do not substantially increase the risk of harm over and above
that necessarily present in the crime of robbery itself, the kidnaping conviction cannot stand.
Kidnaping and robbery are separate and distinct crimes. Lovell v. State, 92 Nev. 128, 546
P.2d 1301 (1976); Eckert v. Sheriff, 92 Nev. 719, 557 P.2d 1150 (1976). However, when the
crimes are committed contemporaneously, we must determine whether the legislature
intended that the offender be punished for both, or whether its intention was that he be
punished only for robbery.
2
Cases elsewhere are not in harmony. Annot., 43 A.L.R.3d 699
(1972).
Our kidnaping statute, NRS 200.310, provides, among other things, that a person who
shall willfully seize, confine, inveigle, entice, decoy, abduct, conceal, kidnap or carry away
any individual human being by any means whatsoever . . . for the purpose of committing . . .
robbery . . . shall be deemed guilty of kidnaping in the first degree. The penalty therefor,
when no substantial bodily harm is sustained by the victim, is life with the possibility of
parole. NRS 200.320(2).
[Headnotes 1, 2]
The statute is broad in its sweep. Literally applied, it would encompass an ordinary
robbery in the course of which the victim happens to be moved from one room to another.
Indeed, under a literal reading of NRS 200.310, it is difficult to conceive how any robbery
could be accomplished without committing the crime of kidnap: the forcible taking
necessary to commit robbery under NRS 200.380 necessarily involves some form of
confinement under NRS 200.310. The penalty for robbery, however, is significantly less
severe than that imposed for kidnaping.
3
If, indeed, the movement of the victim is incidental
to the robbery and does not substantially increase the risk of harm over and above that
necessarily present in the crime of robbery itself, it would be unreasonable to believe that the
legislature intended a double punishment. People v. Daniel, supra; cf. Stalley v. State, 91
Nev. 671, 541 P.2d 658 (1975). Within this context, we approve the reasoning of People v.
Daniels.
____________________

2
Stalley v. State, 91 Nev. 671, 541 P.2d 658 (1975), concerned the crimes of kidnaping and rape. The People
v. Levy, supra, and People v. Daniels, supra, cases were discussed but found inapposite since the rape and
kidnaping were not contemporaneous in the sense expressed in Levy, nor could it be asserted that the risk of
harm to the victim was not increased, contrary for the circumstances existing in Daniels.

3
The penalty for robbery is imprisonment for not less than 1 nor more than 15 years, which may be increased
when a firearm or other deadly weapon is used. NRS 200.380(2); NRS 193.165.
context, we approve the reasoning of People v. Daniels. On the other hand, if the movement
of the victim results in increased danger over and above that present in the crime of robbery
itself, a kidnaping charge also may lie.
[Headnote 3]
In the case at hand the movement of the victims appears to have been incidental to the
robbery and without an increase in danger to them. Their detention was only for the short
period of time necessary to consummate the robbery. In these circumstances, the convictions
for kidnaping must be set aside. People v. Ross, 81 Cal.Rptr. 296 (Cal.App. 1969).
2. Other assigned errors have been considered and are rejected for lack of merit.
____________
94 Nev. 418, 418 (1978) Keddie v. Beneficial Insurance, Inc.
RAYMOND KEDDIE, Appellant, v. BENEFICIAL INSURANCE, INC., a Nevada
Corporation, and JERRY McDONALD, Respondents.
No. 9004
July 12, 1978 580 P.2d 955
Appeal from judgment of the Eighth Judicial District Court, Clark County; J. Charles
Thompson, Judge.
Insurance applicant commenced action to recover damages from insurance company and
insurance agent for their alleged negligent failure to procure insurance coverage for
applicant's commercial fishing boat which was destroyed by fire. The district court entered
judgment for defendants, and plaintiff appealed. The Supreme Court, Thompson, J., held that
had insurance policy been issued pursuant to plaintiff's application for yacht insurance, such
policy would not have covered loss incurred and consequently there was no basis for liability
of either defendant.
Affirmed.
Richard H. Bryan, Las Vegas, for Appellant.
Cromer, Barker & Michaelson and Walter R. Cannon, Las Vegas, for Respondents.
1. Insurance.
Once agreement to procure insurance has been reached, insurance agent is obliged to use reasonable
diligence to place insurance and to seasonably notify client if he is unable to do so; however, agreement to
procure must be one for a policy of insurance which would have covered loss incurred.
2. Insurance.
If insurance policy had been issued applicant pursuant to his application for yacht insurance, which was
applicable only to vessels not used for commercial purposes, such policy would not have covered loss by
fire of applicant's commercial fishing boat, and consequently, neither insurance company nor insurance
agent were liable to applicant for their alleged negligent failure to procure insurance coverage.
OPINION
Raymond Keddie commenced this action to recover damages from Beneficial Insurance
and its employee, McDonald, for their negligent failure to procure insurance coverage for his
commercial fishing boat which was destroyed by fire. The trial court entered judgment for the
defendants. The findings of fact reflect that court's belief that the plaintiff did not prove the
existence of an oral contract to procure insurance which would have covered the loss. We
affirm that determination.
Keddie, a resident of Las Vegas, owned a thirty-two-foot, steel hulled, gas powered vessel
moored in or operating from Bristol Bay, Alaska. From 1964 to 1967 he had used the boat for
commercial fishing. In the Spring of 1970, Keddie contacted McDonald about insurance for
that boat. He wished to purchase transportation coverage from Alaska by freighter to Seattle
or Los Angeles, and then possibly overland to Lake Mead. He did not request commercial
fishing coverage for the Summer of 1970, nor did he advise McDonald that the vessel was a
commercial fishing boat.
McDonald contacted an insurance broker in San Francisco who responded by letter
advising that additional information would be required before the application could be
processed. An insurance application was enclosed with the letter. That application was
forwarded to Keddie who filled it out and returned it. The application was for Yacht
Insurance applicable only to vessels not used for commercial purposes. Indeed, the
application did not include certain items of equipment which would indicate a commercial
use of the vessel.
Upon receipt of the completed application, the San Francisco broker quoted a yearly rate to
McDonald who in turn advised Keddie.
advised Keddie. Keddie rejected this quotation since he preferred six months coverage to that
of a year and asked McDonald to obtain a six-month quote. McDonald attempted to do so.
Meanwhile, Keddie left Las Vegas for Alaska advising McDonald that any correspondence
should be sent to his, Keddie's, Las Vegas post office box. From there it would be forwarded
by a friend to Keddie in Naknek, Alaska.
By letter of May 25, 1970, the San Francisco broker notified McDonald that it would not
write a six months policy. On June 2, 1970, by letter, McDonald notified Keddie of that fact.
The letter was forwarded to Alaska where it remained unclaimed until it was returned to Las
Vegas in August 1970. Beneficial Insurance never issued a policy to Keddie.
On July 6, 1970, while engaged in commercial fishing off Bristol Bay, Alaska, the vessel
caught fire and was completely destroyed.
[Headnotes 1, 2]
1. Once an agreement to procure insurance has been reached the insurance agent is
obliged to use reasonable diligence to place the insurance and seasonably to notify the client
if he is unable to do so. Havas v. Carter, 89 Nev. 497, 515 P.2d 397 (1973).
1
The agreement
to procure, however, must be one for a policy of insurance which would have covered the loss
incurred. Pacific Dredging Company v. Hurley, 397 P.2d 819 (Wash. 1964). Had an
insurance policy been issued pursuant to Keddie's application for Yacht Insurance, such
policy would not have covered the loss incurred. Consequently, there is no basis for liability
of either Beneficial Insurance or McDonald to Keddie.
2. As an alternative basis for its judgment, the trial court concluded that Keddie could not
have obtained an enforceable policy of marine insurance because he failed to disclose all facts
material to the risk. Pacific Queen Fisheries v. Symes, 307 F.2d 700 (9th Cir. 1962);
Gulfstream Cargo, Ltd. v. Reliance Ins. Co., 409 F.2d 974 (5th Cir. 1969); cf. Stecker v.
American Home Fire Assur. Co., 84 N.E.2d 797 (N.Y. 1949). We need not consider this
alternative basis for the judgment.
Affirmed.
Mowbray and Manoukian, JJ., concur.
____________________

1
In Havas v. Carter, supra, the trial court found that the insurance agent was not liable since he had made
reasonable efforts to procure the insurance and seasonably had notified the client of the company's rejection. In
the case at hand no finding was made on this point, and we need not address it.
Batjer C. J. with whom Gunderson, J., agrees, concurring.
I concur in the result reached by my brothers, but for a substantially different and more
fundamental reason.
The majority opinion is predicated upon a distinction between a yacht insurance policy and
an insurance policy covering commercial fishing boats. I believe consideration of this
distinction is premature because there was no policy of insurance in effect at the time of the
loss and, thus, any such distinction is irrelevant to determination of this case.
An insurance policy is a contract (McGregor v. Inter-Ocean Insurance Company, 292 P.2d
1054 (Wash. 1956); Employers' Liability Assur. Corporation v. Frost, 62 P.2d 320 (Ariz.
1936)) and, like all other contracts, requires a manifestation of mutual assent in the form of
an offer by one party and acceptance thereof by the other (John Hancock Mutual Life
Insurance Co. v. Dietlin, 199 A.2d 311 (R.I. 1964); Mallard v. Hardware Indemnity Ins. Co.,
216 S.W.2d 263 (Tex.Civ.App. 1948)), agreement or meeting of the minds of the parties as to
all essential elements (Roscoe v. Bankers Life Ins. Co. of Nebraska, 526 P.2d 1080
(Ariz.App. 1974); American Nat. Ins. Co. v. Brawner, 93 S.W.2d 450 (Tex.Civ.App. 1936)),
including the period of risk (Hartford Fire Ins. Co. v. Wade, 257 P.2d 1064 (Okla. 1953)).
Here, appellant contacted McDonald, Obus's agent, seeking a quotation on available rates;
Obus quoted annual rates which McDonald communicated to appellant.
Appellant, ostensibly not interested in one-year coverage, inquired about six-month
coverage. Obus then notified appellant that only one-year coverage was available. Appellant's
boat was destroyed by fire before this last communication was received.
An acceptance contemplates a meeting of the minds as to the essential terms of the
contract and acceptance of the same terms contained in the offer. Linnastruth v. Mutual Ben.
H. & Accident Ass'n, 137 P.2d 833 (Cal. 1943). If this acceptance modifies or alters any of
the essential terms, such acceptance constitutes a counter-offer which must then be accepted
by the other party in order to create an enforceable contract of insurance. American Casualty
Co. of Reading, Pa., v. Ricas, 22 A.2d 484 (Md.App. 1941); Jacobson v. Mutual Life
Insurance Co. of New York, 271 F.2d 620 (7th Cir. 1959); Metropolitan Life Ins. Co. v.
Whitler, 172 F.2d 631 (7th Cir. 1949); Lincoln Liberty Life Insurance Company v. Martinez,
299 P.2d 507 {Colo.
(Colo. 1956); Morford v. California Western States Life Ins. Co., 113 P.2d 629 (Ore. 1941);
Simmons v. State Farm Mut. Automobile Ins. Co., 11 So.2d 703 (La.App. 1942). See
generally Couch on Insurance 2d 7:17, 7:20.
Here, appellant, in essence, applied for a six-month policy of insurance which was rejected
by Obus's counter-offer of a one-year policy. This counter-offer was never accepted and, thus,
no contract was formed. Accordingly, there was no policy of insurance covering the boat at
the time it was destroyed and, for this reason, the district court judgment should be affirmed.
____________
94 Nev. 422, 422 (1978) Briano v. State
JOHN E. BRIANO, aka RAUL E. GOMEZ, Appellant, v.
No. 9952
July 12, 1978 581 P.2d 5
Appeal from judgment of Eighth Judicial District Court, Clark County; Michael J.
Wendell, Judge.
Defendant was convicted before the district court of first degree murder, and he appealed.
The Supreme Court held that evidence in prosecution brought against defendant who was
charged with killing victim who died as result of hemorrhaging into trachea and larynx
following heavy blows to his neck, who admitted threatening to kill victim on previous
occasion, who admitted that he inflicted brutal beating upon victim and that beating
continued after victim gagged and asked for help, and who attempted to conceal entire
beating incident, and victim's death, from police, supported verdict finding defendant guilty
of first degree murder.
Affirmed.
Thomas L. Pursel, Las Vegas, for Appellant.
1. Criminal Law.
Jury verdict of first degree murder will not be disturbed so long as there is substantial evidence in the
record upon which verdict could legally be based. NRS 260.030, subd. 1(a).
2. Homicide.
In order to make a case of murder in the first degree, state must prove that a design to kill was distinctly
and rationally formed in mind of perpetrator, at or before time fatal blows were struck; state need not prove
motive, nor does it matter how short a time existed between formation of design to kill and killing itself.
NRS 200.030, subd. 1(a).
3. Homicide.
Circumstantial evidence which may be taken into account with respect to determination whether homicide
was premeditated and deliberated, and which may provide substantial evidence required for finding of
murder in the first degree, includes evidence of prior threats against decedent by defendant, sequence of
evidence which leads to death of victim, including probable manner in which injuries were inflicted, and
conduct of defendant after incident. NRS 200.030, subd. 1(a).
4. Homicide.
Evidence in homicide prosecution brought against defendant who was charged with killing victim who
died as result of hemorrhaging into trachea and larynx following heavy blows to his neck, who admitted
threatening to kill victim on previous occasion, who admitted that he inflicted brutal beating upon victim
and that beating continued after victim gagged and asked for help, and who attempted to conceal entire
beating incident, and victim's death, from police, supported verdict finding defendant guilty of first degree
murder. NRS 200.030, subd. 1(a).
OPINION
Per Curiam:
A jury found appellant John E. Briano guilty of murder in the first degree. Judgment of
conviction was entered, and he was sentenced to life imprisonment without possibility of
parole. The sole issue presented on this appeal is whether there was substantial evidence in
the record to support the jury's finding that the murder was willful, deliberate and
premeditated. NRS 200.030, subsection 1(a).
1. Russell Bridges, the victim, was the middle-aged manager of the Gold Key Motel in
Las Vegas. Bridges and Briano, a twenty-three year old ex-marine, met through mutual
acquaintances and became roommates at Bridges's apartment, sharing the rent. Briano had
lived there for approximately three weeks before the murder occurred. On the night of the
murder, Briano borrowed Bridges's car to go downtown to look for a friend. He was
unsuccessful, but did run into Dennis Webb, with whom he returned to the apartment at
approximately 2 a.m.
Briano related this account, received in evidence at trial, of the events which resulted in
Bridges's death:
Then I entered the door of the apartment and I told my friend to go ahead and sit
down on the couch. So I went to Bridges and Bridges says how come you were out so
late?
went to Bridges and Bridges says how come you were out so late? And he sat up on the
couch or bed and I said I don't know. He just took a swing at me and he hit the lamp
stand and knocked down the lamp. And I hit him on the throat with my hands apart.
And he hit the wall. And he hollered help. I took another swing with my hands in a fist,
hit him on the throat again and he just gotI felt he was gagging already. He hit my
chest with his head and then I saw Dennis coming over. He kicked him on the side. We
threw Russ back on the bed and I hit him twice over the neck. And all of a sudden he
started gagging and bleeding a lot. I grabbed for his neck to turn him over to see what I
could do. And I couldn't see anything that I could do. I went to sit down and I went to
the bathroom to wash my hands because they were with blood. I came back and sat
down. I didn't know what to do. So then a couple of minutes later the door knocked. It
was a police officer and I acted like nothing happened. I didn't know anything about it.
Briano admitted striking Bridges a good ten times on the throat, neck, and sides, and
holding Bridges by the throat to prevent him from getting up.
The police officer to whom Briano referred testified that when he arrived at the scene,
Briano stated that the noise in the apartment was the result of his stumbling into a lamp in the
darkened apartment and his call for assistance. Briano explained the bloodstains on his shirt
were the result of a nosebleed. When the officer observed the covered body of Bridges lying
on a couch, Briano claimed that it was the person who rented the apartment, who was
sleeping.
The pathologist called by the state testified that death resulted from hemorrhaging into the
trachea and larynx, which had been fractured by heavy blows to the neck. He further testified
that there was some evidence of an attempt at manual strangulation.
Briano, testifying in his own behalf, stated that he and Bridges had previously quarreled
over his use of Bridges's car. He further admitted saying to Bridges one of these days I will
kill him [Bridges].
The jury, having been instructed on the crimes of first and second degree murder,
voluntary and involuntary manslaughter, returned a verdict of first degree murder.
[Headnote 1]
2. The question of premeditation is always one of fact for the jury, and each case is
governed by its own circumstances.
State v. Loveless, 62 Nev. 312, 326, 150 P.2d 1015, 1021 (1944). Appellant's argument that
the direct evidence is also consistent with a verdict of second degree murder ignores the
proper function of this court on appellate review. See Wheeler v. State, 91 Nev. 119, 531 P.2d
1358 (1975). It is settled law in this state that a jury verdict of first degree murder will not be
disturbed so long as there is substantial evidence in the record upon which the verdict could
legally be based. State v. Boudreau, 67 Nev. 36, 214 P.2d 135 (1950).
[Headnote 2]
In order to make a case of murder in the first degree, the state must prove that a design to
kill was distinctly and rationally formed in the mind of the perpetrator, at or before the time
the fatal blows were struck. State v. Boudreau, supra; State v. Ah Mook, 12 Nev. 369 (1877).
The state need not prove motive. State v. Plunkett, 62 Nev. 265, 149 P.2d 101 (1944). Nor
does it matter how short a time existed between the formation of the design to kill and the
killing itself. State v. Loveless, supra; State v. Acosta, 49 Nev. 184, 242 P. 316 (1926); State
v. Millain, 3 Nev. 409 (1867).
[Headnotes 3, 4]
Evidence of premeditation and deliberation is seldom direct. Circumstantial evidence
which may be taken into account, and provide the substantial evidence required, includes
evidence of prior threats against decedent by the defendant, State v. Gambetta, 66 Nev. 317,
208 P.2d 1059 (1949), Peoples v. State, 83 Nev. 115, 423 P.2d 883 (1967); the sequence of
events which leads to the death of the victim, including the probable manner in which injuries
were inflicted, State v. Sala, 63 Nev. 270, 169 P.2d 524 (1946), State v. Plunkett, supra; and
the conduct of the defendant after the incident, State v. Hall, 54 Nev. 213, 13 P.2d 624
(1932), State v. Sala, supra, State v. Gambetta, supra.
In this case there was ample evidence in all three categories upon which the jury could
reasonably have based a inference that Briano's murder of Bridges was deliberate and
premeditated. Briano admitted threatening to kill Bridges on a previous occasion. The jury
was not required to believe his explanation that the threat was idle. Briano's own account of
the murder indicates that he inflicted a brutal beating upon the decedent, and that it continued
after Bridges was gagging and asking for help. Resumption of the beating of the helpless
victim constitutes, in itself, substantial evidence in support or the jury' s verdict. See State v.
Sala, supra; State v. Faust, 118 S.E.2d 769 (N.C. 1961); State v. Wilson, 142 P.2d 680 (Or.
1943). Finally, there was the attempt by Briano to conceal the entire incident, and the
death of the victim, from the police.
there was the attempt by Briano to conceal the entire incident, and the death of the victim,
from the police.
In light of all these circumstances, we conclude that the evidence was legally sufficient to
warrant the jury's determination that Briano's murder of Bridges was deliberate and
premeditated.
____________
94 Nev. 426, 426 (1978) Schneider v. Biglieri
LYLE D. SCHNEIDER, PETER J. JOUFLAS, and S J Corp., a Nevada Corporation,
Appellants, v. CLYDE BIGLIERI, Doing Business as WASHOE REALTY, Respondent.
No. 9312
July 12, 1978 581 P.2d 8
Appeal from judgment; Second Judicial District Court, Washoe County; John E. Gabrielli,
Judge.
Broker brought action against building owners to recover commission. The district court
entered judgment in favor of the broker and the owners appealed. The Supreme Court held
that evidence was sufficient to sustain finding that considerable efforts expended by the
broker pursuant to an oral contract with the building owners entitled him to his commissions
for leases ultimately consummated between the building owners and those with whom the
broker had been negotiating.
Affirmed.
Hale, Lane, Peek, Dennison and Howard, and Robert D. Spitzer, of Reno, for Appellants.
McDonald, Carano, Wilson, Bergin & Bible, and John J. Frankovich, of Reno, for
Respondent.
1. Brokers.
If a real estate broker has been a procuring or inducing cause of a sale or lease, he is entitled to his
commission.
2. Brokers.
Evidence that broker entered into oral lease with building owner to procure leases for the building, that
the broker entered into a series of negotiations with the State Superintendent of Buildings and Grounds,
that the owners of the building thereafter took over negotiations, that the state superintendent continued to
be active in all negotiations, although the heads of individual agencies whose relocation was under
consideration also took part, and that leases were eventually entered into which contained terms
substantially identical to those agreed upon in the initial negotiations between the broker and
the superintendent sustained finding that the broker was entitled to a commission
from the building owners.
negotiations between the broker and the superintendent sustained finding that the broker was entitled to a
commission from the building owners.
OPINION
Per Curiam:
The sole issue on this appeal is whether the trial court had before it sufficient evidence to
conclude as it did that respondent Biglieri, a licensed real estate broker, was the procuring
cause of a series of leases in the Capitol Plaza office development in Carson City.
In late 1972, Biglieri entered into an oral contract with appellants Schneider and Jouflas,
as S J Corp., under which Biglieri was to procure lessees for an office development then
under construction in Carson City.
1
Seeing the various agencies of the state government as
ideal potential lessees, Biglieri then entered into a series of negotiations with the
Superintendent of Buildings and Grounds. Under Nevada law, this officer has the exclusive
authority to lease and equip office rooms outside of state buildings. NRS 331.110.
After some five months of meetings and telephone calls between Biglieri and the
Superintendent and his staff, appellants Schneider and Jouflas, with the permission of
Biglieri, took over negotiations. These negotiations now included the directors of the various
agencies whose relocation to the Capitol Plaza Development was under consideration.
Between May 1973 and May 1974, the leases providing the basis for this appeal were
consummated. All these leases contained terms substantially identical to those agreed upon in
the initial negotiations between Biglieri and the Superintendent.
[Headnote 1]
If a real estate broker has been a procuring or inducing, cause of a sale or lease, he is
entitled to his agreed commission, irrespective of who makes the actual sale [or lease] or
terms thereof. Bartsas Realty, Inc. v. Leverton, 82 Nev. 6, 409 P.2d 627 (1966); Close v.
Redelius, 67 Nev. 158, 215 P.2d 659 (1950). In defining what will constitute procuring
cause, we have required that the broker demonstrate conduct that is more than merely
trifling, Bartsas Realty, Inc. v. Leverton, supra, 82 Nev. at 9. In non-exclusive [brokerage]
situations, merely introducing the eventual purchaser [lessee] is not enough. Id.
____________________

1
The validity of this contract is not in issue on this appeal.
The appellants sought to establish at trial that although the Superintendent of Buildings
and Grounds is the sole state officer statutorily empowered to lease outside space, in reality it
is the directors of the various agencies who seek out, negotiate, and consummate the outside
leases. They thus sought to prove that Biglieri's admitted efforts in negotiating with the
Superintendent and his staff had been meaningless.
[Headnote 2]
However, the testimony at the trial established that, whatever the role of the various
agency directors in the consummation of the Capitol Plaza leases, the Superintendent of
Buildings and Grounds and his staff were significantly involved at each stage of negotiations,
in fact signed all the leases, and possessed the power, exercised in one situation, to refuse an
agency request for permission to relocate outside the state system. This being so, we think
that the trial court was justified in concluding that the considerable efforts expended by
Biglieri in his negotiations with the Superintendent's office entitled him to his commissions
for the leases ultimately consummated with the various agencies of the state. Havas v. Carter,
89 Nev. 497, 515 P.2d 397 (1973); Allen v. Webb, 87 Nev. 261, 485 P.2d 677 (1971).
Affirmed.
____________
94 Nev. 428, 428 (1978) Bakerink v. Orthopaedic Associates, Ltd.
CLAYTON E. BAKERINK, Appellant, v. ORTHOPAEDIC ASSOCIATES, LTD.; and
RALPH J. LITTON, M.D., Individually and as Agent, Servant, and/or Employee of
ORTHOPAEDIC ASSOCIATES, LTD., Respondents.
No. 9230
July 12, 1978 581 P.2d 9
Appeal from judgment of Eighth Judicial District Court, Clark County; Carl J.
Christensen, Judge.
In a medical malpractice action against a surgeon, summary judgment was granted to the
surgeon by the district court and the patient appealed. The Supreme Court, Mowbray, J., held
that: (1) where treatment and care had met the applicable standard of care, there was no
liability on the surgeon's part regardless of causation of injury, and (2) the trial court was not
shown to have abused its discretion in granting summary judgment where the patient
made no attempt to identify in his affidavit what facts might be obtained, in addition to
records, depositions and affidavits already on file, that were essential to justify his
opposition to the motion, despite his contention that he wanted amended interrogatories
answered and depositions taken.
shown to have abused its discretion in granting summary judgment where the patient made no
attempt to identify in his affidavit what facts might be obtained, in addition to records,
depositions and affidavits already on file, that were essential to justify his opposition to the
motion, despite his contention that he wanted amended interrogatories answered and
depositions taken.
Affirmed.
C. A. Jack Nelson, Chartered, Las Vegas, for Appellant.
Beckley, Singleton, DeLanoy, Jemison & Reid, Chartered, Las Vegas, for Respondents.
1. Physicians and Surgeons.
Where treatment and care administered by physician had met applicable standard of care, there was no
medical malpractice liability on his part regardless of causation of injury. NRS 41A.100, subd. 1.
Trial court was not shown to have abused its discretion in granting summary judgment where opposing
party made no attempt to identify in his affidavit what facts might be obtained, in addition to records,
depositions and affidavits already on file, that were essential to justify his opposition, despite his
contention that he wanted amended interrogatories answered and depositions taken. NRCP 56(f).
OPINION
Appellant Clayton E. Bakerink brought this malpractice action against Ralph J. Litton,
M.D., and the other named respondents seeking damages resulting from surgery performed by
Dr. Litton on appellant's foot. Respondents filed a motion for summary judgment which the
district judge granted, dismissing the complaint. We affirm.
1. The complaint was predicated upon a report by Dr. Walter Bigford which had
suggested that the surgery performed by Dr. Litton caused injury to the lateral plantar nerve in
appellant's foot. However, when Dr. Bigford's deposition was taken sometime after the
complaint had been filed, he frankly admitted that his initial report, when made, was in error
in that the surgery performed by Dr. Litton was done on the opposite side of the foot from the
injured nerve.
Respondents' motion for summary judgment was based primarily on the affidavit of Ivan
Mindlin, M.D., and was supported by various depositions, including Dr. Bigford's and
hospital records. Dr. Mindlin's affidavit sets forth the bases for his familiarity with the
general standard of care of the practice of medicine in Las Vegas, where this surgery
occurred, his review of the depositions and answers to interrogatories on file in the case,
and his opinion that defendants' care and treatment of appellant was "well within the
best standards of medical care for an orthopaedic surgeon, and more specifically, well
within the standards of medical care practiced in the community of Las Vegas, County of
Clark, State of Nevada" during the relevant time period.
hospital records. Dr. Mindlin's affidavit sets forth the bases for his familiarity with the general
standard of care of the practice of medicine in Las Vegas, where this surgery occurred, his
review of the depositions and answers to interrogatories on file in the case, and his opinion
that defendants' care and treatment of appellant was well within the best standards of
medical care for an orthopaedic surgeon, and more specifically, well within the standards of
medical care practiced in the community of Las Vegas, County of Clark, State of Nevada
during the relevant time period.
Appellant filed nothing in response to the motion challenging the credibility of Dr.
Mindlin's affidavit or any of the depositions or records filed in support thereof.
Instead, appellant did submit an affidavit suggesting that the motion was prematurely
filed in view of respondents' failure to respond to certain amended interrogatories, submitted
after respondents' motion. The basis for appellant-affiant's opposition to the motion for
summary judgment was described as his wish to have the aforesaid amended Interrogatories
answered by said Defendants and to take Defendants' depositions so that affiant can obtain
further additional independent medical evaluation based on Defendants' answers and the other
voluminous medical data in this file, although over two years had elapsed since the
complaint was filed.
Appellant contends that the district court erred in (1) granting summary judgment when a
genuine issue of fact existed as to the causation of appellant's injuries, and (2) granting
respondents' motion despite his affidavit, submitted pursuant to NRCP 56(f). These
contentions are completely meritless.
[Headnote 1]
2. Respondents moved for summary judgment on the ground that they had breached no
duty to appellant. This was supported by the accompanying affidavit of Dr. Mindlin,
concluding that appellant's treatment and care had met the applicable standard of care.
Appellant submitted no affidavit or other document, outside the general allegations of his
pleadings, to contradict this competent opinion. In such circumstances, summary judgment
for respondents in a medical malpractice action is appropriate, whatever the state of the
evidence as to causation of the injury. Lockart v. Maclean, 77 Nev. 210, 361 P.2d 670 (1961);
see Foreman v. Ver Brugghen, 81 Nev. 86, 398 P.2d 993 (1965); and NRS 41A.100(1);
NRCP 56(e).
[Headnote 2]
3. Rule 56(f), NRCP, provides that a court may, in its discretion, refuse a application for
summary judgment or order a continuance, [s]hould it appear from the affidavits of a party
opposing the motion that he cannot for reasons stated present by affidavit facts essential to
justify his opposition. . . . There is nothing in the record before this court which would
support a finding that the district court abused its discretion in this instance. Appellant made
no attempt to identify in his affidavit what facts might be obtained, in addition to the records,
depositions, and affidavits already on file, that were essential to justify his opposition.
Rule 56(f) is not a shield that can be raised to block a motion for summary
judgment without even the slightest showing by the opposing party that his opposition
is meritorious. A party invoking its protections must do so in good faith by
affirmatively demonstrating why he cannot respond to a movant's affidavits as
otherwise required by Rule 56(e) and how postponement of a ruling on the motion will
enable him, by discovery or other means, to rebut the movant's showing of the absence
of a genuine issue of fact. Where, as here, a party fails to carry his burden under Rule
56(f), postponement of a ruling on a motion for summary judgment is unjustified.
Willmar Poultry Co. v. Morton-Norwich Products, 520 F.2d 289, 297 (8th Cir. 1975), cert.
denied, 424 U.S. 915 (1975). In these circumstances, the district judge did not abuse his
discretion in granting respondents' motion for summary judgment. See School Board of
Okaloosa County v. Richardson, 332 F.Supp. 1263 (N.D.Fla. 1971); Traill v. Felder, 330
F.Supp. 560 (D.Alas. 1971); Reaves v. Westinghouse Elec. Corp., 430 F.Supp. 623 (E.D.Wis.
1977); 6 J. Moore, Federal Practice 56.24, at 56-1428, 56-1432 (2d ed. 1976).
The trial court order granting respondents' motion for summary judgment, and dismissing
appellant's complaint with prejudice, is affirmed.
Batjer, C. J., and Thompson, Gunderson, and Manoukian, JJ., concur.
____________
94 Nev. 432, 432 (1978) Concannon v. Winship
MICHELLE CONCANNON and SANDRA HOLIDAY, Appellant, v. BETTY JO WINSHIP,
Executrix of the Estate of Anne B. Vonovick, Respondent.
No. 9210
July 12, 1978 581 P.2d 11
Appeal from judgment setting forth instructions to executrix; Eighth Judicial District
Court, Clark County; Keith C. Hayes, Judge.
Appeal was taken from an order of the district court granting probate instructions. The
Supreme Court held that: (1) it was amount of funds bequeathed to each legatee, rather than
particular source from which funds were paid, that was of prime importance to testatrix; (2)
testatrix' mistaken belief as to continued existence of several accounts listed should therefore
not serve to frustrate her obvious intent, and (3) it was clear intent of testatrix to distribute
under terms of will all funds available and to revoke any tentative trusts inconsistent with her
testamentary directions.
Reversed.
R. Paul Sorenson and Martin Becker, of Las Vegas, for Appellant Concannon.
William R. Devlin, of Las Vegas, for Appellant Holiday.
Charles E. Thompson, of Las Vegas, for Respondent.
1. Wills.
When issue concerns construction of terms of will, appellate court is not bound by interpretation
accorded instrument by trial court but is free to undertake independent appraisal of, and to construe for
itself, terms of will.
2. Wills.
Primary aim in construing terms of testamentary document is to give effect, to extent consistent with law
and public policy, to intentions of testator.
3. Wills.
Under will, it was amount of funds bequeathed to each legatee, rather than particular source from which
those funds were paid, that was of prime importance to testatrix; legacies were demonstrative and not
specific and, to extent that each bequest was tied to a specific account, that account was meant only to be
primary rather than exclusive source, and thus testatrix' mistaken belief as to continued existence of several
of accounts listed in will should not serve to frustrate her obvious intent that each legatee receive
designated bequest.
4. Trusts; Wills.
Where total funds available in all accounts actually existing at time testatrix drafted her will was for all
intents and purposes identical to total funds bequeathed under terms of will, it was clear intent of testatrix
to distribute under terms of will all funds available to her, and to revoke any tentative trusts inconsistent
with her testamentary directions.
OPINION
Per Curiam:
This is an appeal from a district court order granting probate instructions. See, NRS
155.190(9).
Anne Vonovick died in Las Vegas on September 16, 1975, of a lingering and debilitating
illness. On September 5, 1975, some eleven days before her death, she executed the will
whose construction is the subject of this action. In this will, she purported to distribute among
nine legatees various securities and debentures, as well as the funds contained in six
time-certificate accounts and one savings account in several Nevada and California banks.
After inventory of the estate, it was found that substantial discrepancies existed between the
various accounts listed and bequeathed in the will and the accounts actually owned by the
decedent at the time she drafted her will. Specifically, four of the accounts listed in the will
had been closed four to five months before, one account listed in the will contained nearly six
times the funds it was described in the will as containing, and six new accounts not listed in
the will had been opened. In addition, two of the closed accounts whose proceeds were
bequeathed in the will to various legatees were actually held in revocable trusts for other
legatees. Likewise, one of the six accounts not listed in the will was held in revocable trust
for one of the legatees. Nonetheless, the total amount bequeathed under the terms of the will
was substantially identical to the total amount contained in the accounts actually existing at
the time the decedent drafted her will and at the time of her death eleven days later.
Construing the will to reflect the decedent's intent that the individual accounts described in
the will be characterized as specific legacies, the district court concluded that there existed
latent ambiguities in the will. After tracing the funds through various accounts and giving
effect to several of the Totten trusts created in the five months preceding the drafting of the
will, the trial court then arrived at a distribution scheme at substantial variance with the
scheme outlined in Anne Vonovick's will: several of the legatees received many times the
dollar amount bequeathed them under the terms of the will, Executrix Betty Jo Winship's
share was reduced by approximately 40 percent, and Appellant Michelle Concannon,
bequeathed $6,292.23 under the terms of the will, received nothing.
will: several of the legatees received many times the dollar amount bequeathed them under
the terms of the will, Executrix Betty Jo Winship's share was reduced by approximately 40
percent, and Appellant Michelle Concannon, bequeathed $6,292.23 under the terms of the
will, received nothing.
[Headnote 1]
When the issue concerns the construction of the terms of a will, an appellate court is not
bound by the interpretation accorded the instrument by the trial court. Hunter v. Manhan, 94
Nev. 380, 580 P.2d 474 (1978); Soady v. First National Bank, 82 Nev. 97, 411 P.2d 482
(1966); Sharp v. First Nat. Bk., 75 Nev. 355, 343 P.2d 572 (1959); cf., Cord v. Neuhoff, 94
Nev. 21, 573 P.2d 1170 (1978). Rather, we are free to undertake an independent appraisal of
and construe for ourselves the terms of the will.
[Headnotes 2, 3]
Our primary aim in construing the terms of a testamentary document must be to give
effect, to the extent consistent with law and public policy, to the intentions of the testator.
Hunter v. Manhan, supra; Sharp v. First Nat. Bk., supra; Tsirikos v. Hatton, 61 Nev. 78, 116
P.2d 189 (1941). Clearly, the decedent in drafting her will had no intention of bequeathing
nonexisting funds in nonexistent accounts. Rather, as we read this will, it was the amount of
funds bequeathed to each of the legatees, rather than the particular source from which those
funds were paid, that was of prime importance to the testatrix. The legacies were
demonstrative, not specific: to the extent that each bequest was tied to a specific account, that
account was meant only to be the primary rather than the exclusive source. In re Boice's
Estate, 307 P.2d 324, 64 A.L.R.2d 773 (Ore. 1953); In re Kuhr's Estate, 120 N.Y.S.2d 729
(Sur.Ct. 1950); In re Kingsley's Will, 67 N.Y.S.2d 464 (Sur.Ct. 1946); In re Cline's Estate,
155 P.2d 390 (Cal.App. 1945); In re Dietemann's Estate, 119 P.2d 611 (Colo. 1941). The
testatrix's mistaken beliefs as to the continued existence of several of the accounts listed in
her will should not serve, therefore, to frustrate her obvious intent that each of the legatees
named in the will receive the amount bequeathed under its terms.
[Headnote 4]
Further, we disagree with the district court's conclusion that those Totten or tentative trusts
existing at the time the will was drafted are not part of the estate. A tentative trust of a
savings deposit in a bank can be revoked by the depositor at any time during his lifetime, by a
manifestation of his intention to revoke the trust.
to revoke the trust. No particular formalities are necessary to manifest such an intention.
Brucks v. Home Federal Sav. & Loan Ass'n, 228 P.2d 545, 548-549 (Cal. 1951). As stated
above, the total funds available in all accounts actually existing at the time Anne Vonovick
drafted her will was for all intents and purposes identical to the total funds bequeathed under
the terms of the will. This being so, we think it was the clear intent of the testatrix to
distribute under the terms of the will all the funds available to her, and to revoke any tentative
trust inconsistent with her testamentary directions.
Reversed.
____________
94 Nev. 435, 435 (1978) Woods v. State
BOBBY LEE WOODS, Appellant, v. THE
No. 9954
July 12, 1978 581 P.2d 444
Appeal from judgment of conviction, Eighth Judicial District Court, Clark County; J.
Defendant was convicted in the district court of two counts of robbery and use of deadly
weapon in commission of a crime, and he appealed. The Supreme Court, Gunderson, J., held
that: (1) defendant was not denied right to speedy trial; (2) where two separate victims were
robbed, court properly enhanced penalties on each robbery; (3) State was not required to
prove that firearms used during robbery were deadly weapons for purposes of statute
enhancing penalties for use of firearm or deadly weapon in commission of crime, and (4)
where record eliminated any doubt of guilt of defendant, remark by prosecutor in closing
argument regarding sawed-off shotgun displayed to jury, even if misconduct, did not
contribute to jury verdict.
Affirmed.
Alan R. Johns, Las Vegas, for Appellant.
Robert List, Attorney General, Carson City, and George Holt, District Attorney, Clark
1. Criminal Law.
Defendant who requested 20 continuances in order to petition for habeas relief and to prepare for trial
could not complain that his right to speedy trial was denied by 11-month delay between arraignment and
trial on two charges of robbery and use of deadly weapon in commission of crime. NRS 34.380, subd.
1(c)(1), 34.375, subd. 1.
94 Nev. 435, 436 (1978) Woods v. State
2. Criminal Law.
Where two separate property interests were invaded and two separate victims robbed, court properly
enhanced penalties on each robbery count for use of a deadly weapon. NRS 193.165, subd. 1.
3. Criminal Law.
Where defendant convicted of two counts of robbery failed to cite relevant authority to support
contention that trial court erroneously admitted evidence relating to attempted escape after apprehension,
such issue would not be considered by Supreme Court on appeal.
4. Criminal Law.
Where defendant charged with robbery failed to request any limiting or clarifying jury instruction
concerning evidence of attempted escape after apprehension, issue of whether admission of such evidence
was error was not properly preserved for appellate review.
5. Criminal Law.
State was not required to prove that firearms used during robbery were deadly weapons for purposes of
statute enhancing penalty for use of firearm or other deadly weapon in commission of crime. NRS
193.165.
6. Criminal Law.
Where record in prosecution for robbery eliminated any doubt of guilt of defendant, remark by
prosecutor in closing argument regarding sawed-off shotgun displayed to jury, even if misconduct, did not
contribute to jury verdict.
OPINION
Bobby Lee Woods appeals his conviction on two counts of robbery, and use of a deadly
weapon in the commission of a crime, contending the district court erred by (1) denying his
right to a speedy trial, (2) enhancing penalties on each robbery count, and (3) admitting
evidence of flight. Woods also challenges (4) the sufficiency of evidence to sustain the
verdict, and (5) alleged prosecutorial misconduct during closing argument. Finding no
reversible error, we affirm.
[Headnote 1]
1. While Woods claims his right to speedy trial was denied by an eleven-month delay
between arraignment and trial, the record reveals he requested twenty continuances in order to
petition this court for habeas relief, and to prepare for trial. Where an accused is responsible
for the delay of trial beyond the 60-day limit, he may not complain.' Oberle v. Fogliani, 82
Nev. 428, 430, 420 P.2d 251, 252 (1966). Randolph v. Sheriff, 93 Nev. 532, 534, 569 P.2d
408, 410 (1977). Moreover, we have recently upheld the statutory scheme which required
appellant to waive his right to speedy trial in order to seek habeas relief. See NRS
34.380(1)(c)(1) repealed, 1977 Nev. Stats. 768, 1350, 1352; NRS 34.375{1) Grego v. Sheriff,
94 Nev. 4S
94 Nev. 435, 437 (1978) Woods v. State
1352; NRS 34.375(1) Grego v. Sheriff, 94 Nev. 48, 574 P.2d 275; Randolph, cited above.
[Headnote 2]
2. The thrust of Woods' contention concerning enhanced penalties on each robbery count,
for use of a deadly weapon, is that more than one such sentence is prohibited when
enhancement results from the commission of a single act.
1
Woods relies on precedent from
California wherein, it has been held: if all the charged offenses are incident to one objective
and effectively comprise an indivisible transaction, then [additional penalties for use of a
deadly weapon] may be invoked only once and not in accordance with the number of
victims. In Re Culbreth, 551 P.2d 23, 25 (Cal.1976); see also People v. Johnson, 112
Cal.Rptr. 834 (Cal.App. 1974) (under California's firearm enhancement statute, there may be
only one enhancement for use of a firearm even though defendant committed three crimes
during a liquor store holdup.)
We note, however, that our statutory scheme differs significantly from the California plan,
and we are therefore compelled to reject such reasoning. The California Legislature has
specifically prohibited multiple sentences based upon a single transaction. See Cal. Pen. Code
654 (West 1970). Our legislature thus far has not adopted such a prohibition.
2
Cf. State v.
Kendall, 561 P.2d 935 (N.M.App.1977).
Moreover, under the California statutory scheme, the enhanced penalty increases with
successive convictions. See Ibid at 943; Cal. Pen. Code 12022.5 (West 1970). NRS
193.165(1) is worded differently; enhancement is required whenever a firearm or other
deadly weapon is used in the commission of a crime. The length of such sentence shall be
equal to the term for the underlying crime. Ibid.
If [a] statute punish[es] for use' of a firearm in committing a [crime], the punishment is
to be applied for each [crime] committed by using a firearm. Kendall, cited above, at 943.
The only limitation imposed is to discern whether or not there is truly only one offense. The
test to be applied . . . is whether each [underlying] count requires proof of an additional fact
which the other does not."
____________________

1
Any person who uses a firearm or other deadly weapon in the commission of a crime shall be punished by
imprisonment in the state prison for a term equal to and in addition to the term of imprisonment prescribed by
prescribed by statute.

2
Nor does our legislation permit enhancement where the use of a deadly weapon is an element of the crime.
NRS 193.165(3). Cal.Pen. Code 12022.5 mandates enhancement even in those cases where the use of a
weapon is an element of the offense.
94 Nev. 435, 438 (1978) Woods v. State
which the other does not. Woofter v. O'Donnell, 91 Nev. 756, 760, 542 P.2d 1396 1399
(1975). A defendant may not bootstrap himself into avoidance of additional penalties by
claiming that the series of divisible acts, each of which had been committed with a separate
identifiable intent and objective, composed an indivisible transaction. Morrell v. State, 93
Nev. 449, 451, 567 P.2d 60, 61 (1977), citing In Re Culbreth, cited above, at 25.
3

Here, using the Woofter test it is apparent that district court made no error in enhancing
Woods' sentence for each robbery count. The record reveals two young men entered the Sloan
Service and Bar, and ordered drinks. The bartender identified Woods as one of them. The two
subsequently displayed guns, and bound the bartender and another employee, Hubert
Hardesty, in the men's room. They then took Hardesty's wallet. Afterwards, the assailants
returned to the bar area and took approximately $1,500 from the bar's cash boxes. It is clear
under these facts that two robberies occurredtwo separate property interests were invaded;
two separate victims robbed. The court therefore properly sentenced Woods.
[Headnotes 3, 4]
3. Woods next contends the court erroneously admitted evidence relating to an attempted
escape after his apprehension. This issue will not be considered because appellant has failed
to cite relevant authority to support the contention. See, e.g., Franklin v. State, 89 Nev. 382,
513 P.2d 1252 (1973). Moreover, Woods failed to request any limiting or clarifying
instruction concerning this evidence, and did not properly preserve the issue for appellate
review. See, e.g., Walker v. State, 89 Nev. 568, 516 P.2d 739 (1973).
[Headnote 5]
4. Woods next claims NRS 193.165 (cited above at fn. 1) required the State to prove that
the firearms used during the robbery were deadly weapons. This issue has been previously
dealt with in Stalley v. State, 91 Nev. 671, 676, 541 P.2d 658, 661-662 (1975), wherein we
held:
By the words firearm or other deadly weapon, the legislature has declared that a
firearm is a deadly weapon within the contemplation of the statute. Proof of its deadly
capabilities is not required. To require such proof would frustrate the legislative
purpose to deter crime by providing a greater penalty when a firearm is used in the
commission of a public offense.
____________________

3
We are in agreement with the California Supreme Court only as to this statement. The Culbreth opinion
actually reached an opposite result.
94 Nev. 435, 439 (1978) Woods v. State
[Headnote 6]
5. Finally, Woods insists the prosecutor committed grievous misconduct during closing
argument by displaying a sawed-off shotgun, and commenting thereon. During trial the
victims differed in their descriptions of the guns used in the robbery. Mr. Hardesty felt that
the State's exhibit (a sawed-off shotgun) was not one of the weapons used; Mr. Virginis could
not be sure.
4
During closing argument the prosecutor displayed the weapon and stated:
Now, this is not the gun probably that was used in the robbery because Mr. Hardesty
said that he's certain that it was a double-barrelled shotgun. It probably looked like a
cannon when it was stuck in his face. Mr. Virginis says this looks like the gun, and you
are to decide what weight to give it, but the reason he says it looks like the gun is
because it's sawed-off just like the shotgun. Again that gives us an insight into the
defendant's personality. What do we use this for? Do we put this on our mantle? Do we
go hunting with this? What's it used for? Well, I submit, ladies and gentlemen, that this
weapon is used for exactly what he used it for on February 23rd, or a similar weapon,
and that is to commit robberies. (Emphasis added.)
Woods contends the above remarks mandate a new trial, because the prosecutor apparently
believed the gun displayed was not the same one used in the robbery. This issue need not be
considered. [T]o entitle a defendant to have improper remarks of counsel considered on
appeal, objections must be made to them at the time, and the court must be required to rule
upon the objection, to admonish counsel, and instruct the jury. Moser v. State, 91 Nev. 809,
814, 544 P.2d 424, 427 (1975); State v. Hunter, 48 Nev. 358, 232 P.778 (1925). Here, Woods
objected to the comment, but did not request an admonition, or jury instruction. Moreover,
even if we assume that the comment was misconduct by the prosecutor, since the record
eliminates any doubt of the guilt of the accused, it seems clear that the offensive remark did
not contribute to the jury verdict.
5
Pacheco v. State, 82 Nev. 172, 180, 414 P.2d 100, 103
(1966); see also Harris v. State, 90 Nev. 172, 521 P.2d 367 (1974).
Affirmed.
____________________

4
The shotgun was seized when the police apprehended Woods.

5
We note in this regard that Woods' fingerprints were also found on the cash boxes by the police.
____________
94 Nev. 440, 440 (1978) Sorenson v. Pavlikowski
R. PAUL SORENSON, Petitioner, v. JOSEPH S. PAVLIKOWSKI, Judge of Department III,
in the Eighth Judicial District Court of the State of Nevada, In and For
the County of Clark, Respondent.
No. 10240
July 12, 1978 581 P.2d 851
Petition for mandamus to direct entry of summary judgment. Eighth Judicial District
Court, Clark County; Joseph S. Pavlikowski, Judge.
Suit for professional malpractice was filed against attorney who represented husband in
uncontested divorce action. The district court denied attorney's motion for summary judgment
based on statute of limitations, and he filed petition for mandamus to direct entry of summary
judgment. The Supreme Court, Manoukian, J., held that: (1) jurisdictionally, petitioner was
properly before the Supreme Court; (2) cause of action for legal malpractice sounding in tort
accrues when a client both sustains damage and discovers or should discover his cause of
action; (3) instant suit sounded in tort for interference with intangible property interests, but,
there being no statute of limitations expressly governing actions to redress wrongs to this type
of intangible property interest, controlling statute was four-year limitations applicable to
action upon a contract, obligation or liability not founded upon an instrument in writing, and
(4) suit was not barred by four-year limitations.
Petition denied.
Batjer, C. J., dissented.
Patrick R. Doyle, Las Vegas, for Petitioner.
Thorndal & Liles, Ltd., and Leland Eugene Backus, Las Vegas, for Respondent.
1. Mandamus.
Jurisdictionally, petitioner, who filed petition for mandamus to direct entry of summary judgment, in suit
against him for professional malpractice, was properly before the Supreme Court. NRAP 3A(b)(5).
No appeal can be taken from denial of summary judgment.
3. Mandamus.
Denial of summary judgment is reviewable by proceedings in mandanus. NRAP 3A(b)(5).
4. Torts.
Elements of a cause of action in tort for professional negligence are: (1) duty of professional to use such
skill, prudence, and diligence as other members of his profession commonly possess and
exercise; {2) breach of that duty; {3) a proximate causal connection between
negligent conduct and resulting injury, and {4) actual loss or damage resulting from
professional's negligence.
members of his profession commonly possess and exercise; (2) breach of that duty; (3) a proximate causal
connection between negligent conduct and resulting injury, and (4) actual loss or damage resulting from
professional's negligence.
Cause of action for legal malpractice sounding in tort accrues when a client both sustains damage and
discovers or should discover his cause of action.
If theory of recovery in professional malpractice suit rested upon breach of written contract, six-year
limitations began to run at moment of breach. NRS 11.190, subd. 1(b)
Professional malpractice suit against attorney who represented husband in uncontested divorce
proceeding, based on attorney's failure to incorporate one-year time limitation on alimony payments in
divorce complaint, hearing or decree, in accordance with terms of settlement agreement, and to insert
language permitting court to retain jurisdiction to modify alimony provision, thereby obligating husband to
pay alimony indefinitely, sounded in tort for interference with intangible property interests, but there being
no statute of limitations expressly governing actions to redress wrong to this type of intangible property
interest, applicable statute was four-year limitations for action upon a contract, obligation or liability not
founded upon an instrument in writing. NRS 11.190, subd. 2(c).
Professional malpractice suit against attorney who represented husband in uncontested divorce
proceeding, based on attorney's failure to incorporate one-year time limitation on alimony payments in
divorce complaint, hearing or decree, in accordance with terms of settlement agreement, and to insert
language permitting court to retain jurisdiction to modify alimony provision, thereby obligating husband to
pay alimony indefinitely, was not barred by four-year limitations, even though brought more than four
years after entry of divorce decree and husband's discovery of error shortly thereafter, at which time he
brought error to attorney's attention, where suit was filed less than four years after husband discovered that
attorney had failed to correct error when he was denied credit because of alimony arrearages and judgment
of arrearages was entered against him. NRS 11.190, subd. 2(c).
OPINION
This is a suit for professional malpractice. The petitioner was the attorney in an
uncontested divorce action in which the parties had previously agreed to the terms of a
settlement. One term of the agreement was that the husband, Thomas N. Griswold, the
unnamed real party in interest in the instant matter, was to pay $3,600 in alimony over the
course of one year.
Petitioner attorney, however, failed to incorporate the time limitation in either the divorce
complaint, hearing, or decree and further failed to insert language permitting the court to
retain jurisdiction to modify the alimony provision.
and further failed to insert language permitting the court to retain jurisdiction to modify the
alimony provision. Several days after he received a copy of the divorce decree Griswold
brought to petitioner's attention the error regarding the time limitation. Petitioner stated he
would correct the oversight but never did.
Griswold paid the $3,600 alimony for one year pursuant to the agreement. He made no
further payments and his former wife demanded none. On approximately June 1, 1973,
Griswold attempted to purchase a home, and following a routine credit check he was
informed that by the terms of the divorce decree he was liable for payments of $300 per
month indefinitely. Griswold immediately contacted petitioner Sorenson concerning the
failure to correct the divorce decree. Thereafter, Sorenson, without notice to Griswold's
former wife, moved to obtain an amended divorce decree which was entered on June 27,
1973. In October of 1974, upon being informed of the amendment, Griswold's former wife
successfully moved to set aside the amended decree, the district court holding that the court
had no jurisdiction to modify the alimony provision of the divorce decree. Judgment was
entered against Griswold for over $21,000 in arrearages, together with attorney's fees and
costs. Griswold subsequently settled that judgment with his former wife for $16,000, and on
May 20, 1976, he initiated the instant suit against Sorenson.
In the court below Sorenson contended that any action was barred by the statute of
limitations and moved for summary judgment. The court denied the motion and this petition
for mandamus ensued.
The main question before us is whether the trial court erred in denying petitioner's motion
for summary judgment.
[Headnotes 1-3]
Jurisdictionally, petitioner is properly before this Court. There can be no appeal taken from
denial of summary judgments. Smith v. Hamilton, 70 Nev. 212, 265 P.2d 214 (1953). The
denial of summary judgment is reviewable by proceedings in mandamus. Laakonen v. District
Court, 91 Nev. 506, 538 P.2d 574 (1975); NRAP 3A(b)(5).
Petitioner contends that summary judgment in his behalf is mandated because the action is
barred by the statute of limitations. He premises his contention on the fact that the divorce
decree was entered on December 11, 1968, and the complaint against him filed on May 20,
1976. His argument is that Griswold both had discovered the error on or about the date the
divorce decree was filed and that Griswold was obligated by the terms of the decree to pay
alimony indefinitely and thus was damaged at that time.
terms of the decree to pay alimony indefinitely and thus was damaged at that time. Griswold
argues, however, that while he in fact brought the error in the decree to Sorenson's attention,
he did not discover Sorenson's failure to correct the error until approximately June 1, 1973
and suffered no damage until the adverse court judgment on October 21, 1975.
[Headnotes 4, 5]
The elements of a cause of action in tort for professional negligence are: (1) the duty of the
professional to use such skill, prudence, and diligence as other members of his profession
commonly possess and exercise; (2) the breach of that duty; (3) a proximate causal
connection between the negligent conduct and the resulting injury, and (4) actual loss or
damage resulting from the professional's negligence. Prosser Law of Torts, 30 at 143 (4th
ed. 1971); Budd v. Nixen, 491 P.2d 433 (Cal. 1971). The rule followed in many jurisdictions
is that the statute of limitations begins to run from the time of the occurrence of the neglect or
omission complained of, based upon the lawyer's breach of his duty to exercise a reasonable
degree of skill in conducting his client's business. See, Annot. 18 ALR3d 978. We believe
that a fairer rule, which we now adopt, has developed in California which will have the effect
in most cases of avoiding the pitfall for the unwary. The Code of Professional Responsibility
demands no less of the Bar.
1

In Neel v. Magana, Olney, Levy, Cathcart & Gelfand, 491 P.2d 421 (Cal. 1971), the
California Supreme Court noted that causes of action for legal malpractice sound both in
contracts and torts. While an action for breach of contract is subject to a statute of limitations
commencing immediately upon commission of acts constituting the breach, an action for
negligence does not accrue until the client discovers, or should discover, the facts
establishing the elements of his cause of action. Id. at 433. The court further stated that
[m]alpractice in the legal field usually causes damage to intangible property interests. Id. at
424.
In the companion case of Budd, supra, the California Supreme Court further refined the
applicability of the statute of limitations in legal malpractice cases sounding in tort. There the
Court held that a cause of action in tort does not accrue until the client both sustains damage,
and discovers, or should discover, his cause of action."
____________________

1
Canon 6, American Bar Association Code of Professional Responsibility, reads a lawyer should represent a
client competently. It is adopted in Nevada by Rule 203, Supreme Court Rules. Additionally, Disciplinary Rule
6-101(A)(3), American Bar Association Code of Professional Responsibility, reads: (A) A lawyer shall not: (3)
Neglect a legal matter entrusted to him.
discover, his cause of action. (Emphasis supplied.) 491 P.2d at 438. Such prerequisites to the
triggering of a statute of limitations in a legal malpractice case are reasonable since the
attorney is versed in substantive, as well as procedural, law, and the client has the right to rely
upon his expertise.
2

The instant case, therefore, involves determining the actual date of any appreciable
damage and discovery of those damages, and the application of the appropriate statute of
limitations. See, Annot. 18 ALR3d 978.
[Headnotes 6-8]
The applicable statute of limitations, of course, generally depends upon whether the cause
of action imposing liability sounds in contract or tort. If the theory of recovery rests upon
breach of a written contract, the six-year statute of limitations provided in NRS 11.190(1)(b)
would begin to run at the moment of breach, and the limitation period has elapsed. Here,
however, the cause of action sounds in tort for interference with intangible property interests.
In Nevada, since we have no statute of limitations expressly governing actions to redress
wrongs to this type intangible property interest, we are relegated to NRS 11.190(2)(c) which
provides a four-year statute of limitations for any action upon a contract, obligation or
liability not founded upon an instrument in writing. (Emphasis supplied.)
Here, however, whether the precise act which triggered the statute of limitations was the
denial of credit or the actual judgment of arrearages, is immaterial as the case was filed
within the limitations period for both the credit problem and the judgment.
The petition for writ of mandamus is denied.
Mowbray and Thompson, JJ., concur.
I concur in the legal determination articulated by our brother Manoukian, i.e., that a cause
of action for malpractice accrues when a client both sustains damage, and discovers or should
discover his cause of action.
____________________

2
California has since Neel & Budd enacted a specific lawyer malpractice statute. California Code of Civil
Procedure 340.6 in relevant part provides that:
(a) An action against an attorney for a wrongful act or omission . . . arising in the performance of
professional services shall be commenced within one year after the plaintiff discovers, or through the use of
reasonable diligence should have discovered, the facts constituting the wrongful act or omission, or four years
from the date of the wrongful act or omission, whichever occurs first. In no event shall the time for
commencement of legal action exceed four years except that the period shall be tolled during the time that any of
the following exist:
(1) The plaintiff has not sustained actual injury; . . . (Emphasis supplied.)
should discover his cause of action. I consider this holding socially as well as legally sound,
since it should operate to spread the cost of oversights, which occur with all practitioners,
evenly over all users of professional servicesrather than imposing heavy and possibly
destructive losses on those users of professional services who discover damage only after a
substantial period of time.
Although our holding may seem harsh, professional practitioners may purchase
malpractice insurance, to protect both themselves and those they serve from loss by reason of
mistakes and oversights. Most careful practitioners do so, and pass the premium cost of such
insurance to their clients in their fees, so that a pool to defray losses is thereby created with
the consumers' funds. This court already has held that a professional liability policy is a
contractual asset, calling for the payment of money, to which the consumer may obtain
accesseven through a subsequent general administration, if necessary, after the
practitioner's death and probate of her estate. See Kotecki v. Augusztiny, 87 Nev. 393, 487
P.2d 925 (1971).
It is, I think, essential to legal and logical symmetry that this court recognize and apply a
statute of limitations consistent with our holding in Kotecki, i.e., that until such time as the
cause of action should have been discovered, the statute of limitations does not begin to run
against a consumer's right to proceed against either a negligent professional practitioner, or
his estate, thereby seeking access to the risk-sharing pool the consumer indirectly contributed
to through payment of fees. Cf. Kirtland v. Tri-State Insurance Company, 556 P.2d 199 (Kan.
1976).
Batjer, C. J., dissenting:
Although I agree that a proceeding in mandamus will lie to review an order denying
summary judgment, I respectfully dissent from the remainder of the majority opinion. Three
critical points of time are here involved. The first, December 12, 1968, the day of the
negligent act, when the errant decree was allowed to be entered. The next was shortly
thereafter when Thomas N. Griswold received a copy of the decree, discovered the error and
brought it to petitioner's attention; and the third was December 13, 1969, the day after
Griswold's obligation to pay $3,600 in alimony terminated and the damage commenced.
When the resulting injury occurred on December 13, 1969, the statute of limitation
commenced to run and the action by Griswold against the petitioner, filed on May 20, 1976,
should be necessarily barred. NRS 11.190(2)(c). Denzer v. Rouse, 180 N.W.2d 521 (Wis.
1970).
____________
94 Nev. 446, 446 (1978) Eaton v. J. H. Inc.
EARL C. EATON; BETTY EATON; PAUL EATON; and J. R. BET, INC., a Nevada
Corporation, Appellants, v. J. H. INC., aka JACK HARPER, INC., aka CUSTOMUSIC
INCORPORATED; WESTERN DIVERSIFIED CORPORATION; CHARLES L.
McCARTY and ANN P. McCARTY, Respondents.
No. 9451
July 12, 1978 581 P.2d 14
Appeal from judgment of liability upon a written contract and from dismissal of a
third-party complaint; Second Judicial District Court, Washoe County; James J. Guinan,
Judge.
Owners of game room business appealed from judgment of district court finding certain of
them liable for damages resulting from breach of their contract with game machine supplier,
and from dismissal of their third-party complaint against transferees of their game room
business. The Supreme Court held that: (1) trial court finding that game room owners
breached contract provision regarding assumption of agreement for exclusive right to place
game machines in business and provision regarding insurance was supported by substantial
evidence, and (2) game machine supplier was entitled to lost profits from game room owner
who wrongfully transferred business only for period after transfer of business in which
supplier actually did not receive profits and not from date of wrongful transfer.
Affirmed in part; reversed in part and remanded.
M. Jerome Wright, Reno; and Rupert C. Schneider, Ely, for Appellant.
Cooke, Roberts and Reese, Reno, for Respondent J. H. Inc.
Cromer, Barker & Michaelson, and Victor Alan Perry, Reno, for Respondents Western
Diversified Corporation and the McCartys.
1. Pleading.
Where amended complaint which alleged that defendants leased and conveyed business without requiring
assignees to assume agreement between plaintiff and defendants incorporated by reference provisions of
contract requiring assignees to be bound by original agreement, plaintiff alleged facts entitling it to relief as
a result of this breach. NRCP 8(a),(e).
2. Insurance.
In action for breach of contract, trial court finding that game room owner who borrowed money from
pool table and game machine supplier for addition of game room to business breached contract provision
requiring owner to fully insure against loss or damage to machines was supported by
substantial evidence.
94 Nev. 446, 447 (1978) Eaton v. J. H. Inc.
requiring owner to fully insure against loss or damage to machines was supported by substantial evidence.
3. Contracts.
Third-party defendants who took over operation of game room business pursuant to agreement which
included outright purchase of portion of property, including game room, and lease of remainder of
property, pursuant to deed and lease, neither of which mentioned agreement between business owners and
plaintiffs to loan owners money in exchange for exclusive right to place game machines in business, did not
assume agreement.
4. Damages.
When plaintiff is prevented from performing balance of term of his contract, lost profits are an
appropriate measure of damages so long as evidence provides a basis for determining, with reasonable
certainty, what profits would have been, had contract not been breached.
5. Damages.
A record of past profits of an established enterprise provides a valid basis for determining future profits
with reasonable certainty.
6. Damages.
Rule that if defendant's breach of contract saves expense to plaintiff by discharging his duty of rendering
a performance in return, amount of this savings must be deducted from damages, is applicable only if
evidence indicates that plaintiff would actually save expense by discharge of his performance; any fixed
expenditures which would not be decreased as a consequence of his nonperformance are not taken into
account.
7. Damages.
In action for breach of contract for exclusive right to place game machines in business for period of ten
years, trial court finding that lost profits were $160 per week was supported by substantial evidence.
8. Damages.
Game machine supplier was entitled to lost profits from game room owner who wrongfully transferred
business only for period after transfer of business in which supplier actually did not receive profits and not
from date of wrongful transfer.
OPINION
Per Curiam:
This is an appeal from a judgment finding certain of the appellants, who were defendants
below, liable for damages resulting from breach of their contract with respondent J. H. INC.,
aka JACK HARPER, INC., aka CUSTOMUSIC INCORPORATED [hereafter Customusic],
and from dismissal of their third-party complaint against respondents Western Diversified,
Charles L. McCarty and Ann P. McCarty.
1. The Facts.
In 1972 appellant Earl Eaton and his partner, Paul Alexander, owners of the Oasis Bowl,
negotiated an agreement with Customusic, a supplier of pool tables and game machines.
Customusic agreed to loan the partners $19,000 for the addition of a game room to their
business, in exchange for an exclusive right to place machines in the Oasis Bowl for a
period of ten years.
94 Nev. 446, 448 (1978) Eaton v. J. H. Inc.
a game room to their business, in exchange for an exclusive right to place machines in the
Oasis Bowl for a period of ten years. The loan was to be repaid from the partners' share of the
proceeds of the machines, except that the balance of the loan would be payable on demand
should the agreement be breached. The partners also agreed to fully insure Customusic
against loss or damage to the machines. The agreement provided that in the event of a sale or
transfer of the business, the agreement would be binding upon the partners' successors or
assigns, and that the partners would remain liable, unless the purchaser or transferee assumed
the agreement.
In the spring of 1973, Eaton and Alexander agreed between themselves to dissolve their
partnership, with Eaton retaining all the partners' interest in the Oasis Bowl. Eaton
subsequently formed J. R. Bet, Inc., which assumed operation of the Bowl. In July, 1974, J.
R. Bet, Inc., entered a lease-purchase agreement with respondents Western Diversified and
the McCartys. No mention was made in the lease or deed of the initial agreement with
Customusic.
In October, 1974, Customusic filed suit against Earl Eaton and Paul Alexander, alleging
breach of their 1972 agreement, and praying for immediate repayment of the balance of the
loan, plus liquidated damages at the contractual rate of $250 per week for the remainder of
the ten-year term. Eaton and Alexander filed a third-party complaint against Western
Diversified and respondents McCarty, alleging that they had assumed the Customusic
contract. The defendants also alleged that their obligations had been assumed by J. R. Bet,
Inc. Plaintiff Customusic subsequently filed an amended complaint adding J. R. Bet, Inc., and
its officers Betty and Paul Eaton, as parties defendant.
Prior to trial, third-party defendants Western Diversified and the McCartys, moved for a
court order permitting them to remove plaintiff's machines from the Oasis Bowl, and to
contract for their replacement by some other party. The motion was denied pending
determination of the issues raised by the third-party complaint.
Trial was held before the court, sitting without a jury. At its conclusion, judgment was
entered against defendants Earl Eaton, Paul Alexander and J. R. Bet, Inc., in the amount of
$79,633.50. Defendants' third-party complaint against Western Diversified was dismissed,
with prejudice.
This appeal is brought by defendants Earl Eaton, Betty Eaton, Paul Eaton and J. R. Bet,
Inc., and is not joined by defendant Alexander. As a preliminary matter, we note that
appellants Betty Eaton and Paul Eaton were subjected to no liability by the judgment, and
therefore the appeal is dismissed as to them.
94 Nev. 446, 449 (1978) Eaton v. J. H. Inc.
liability by the judgment, and therefore the appeal is dismissed as to them. NRAP 3A(a).
2. Breach of the Contract.
[Headnote 1]
Appellants contend that the only breach which may be considered as a basis for liability is
that of the insurance provision, since that was the only breach alleged in plaintiff's amended
complaint. This contention is unsound. Plaintiff also alleged that defendants leased and
conveyed the Oasis Bowl without requiring the third-party defendants to assume the
agreement between plaintiff and defendants Earl C. Eaton and Paul E. Alexander. The
provisions of the contract requiring the assignees and successors of the partners to be bound
by the original agreement were incorporated by reference in the amended complaint. Plaintiff
therefore alleged facts entitling him to relief as a result of this breach as well. NRCP 8(a) and
(e).
[Headnote 2]
There is no merit to appellants' contention that the trial court erred in finding that the
agreement to fully insure Customusic's equipment had been breached. Appellants primarily
rely upon the certificate of insurance received in evidence to show that the equipment was
adequately covered. Yet that certificate on its face states that the loss payable provision to
Customusic was as regards pool tables only.
Both the court's findings, that appellants had breached the provision regarding assumption
(see below) and that appellants had breached the insurance provision, are supported by
substantial evidence and therefore must be upheld. L. M. Enterprises, Inc. v. Kenny, 92 Nev.
653, 556 P.2d 547 (1976).
3. Assumption by Third-Party Defendants.
[Headnote 3]
The trial court found that third-party defendants Western Diversified and Charles and Ann
McCarty had not assumed the agreement with Customusic. Appellants contend that this
finding is not supported by substantial evidence. This contention is meritless.
Third-party defendants took over operation of the Oasis Bowl pursuant to an agreement
with J. R. Bet, Inc., which included their outright purchase of a portion of the property,
including the game room, and a lease of the remainder of the property, with an option to
purchase. Neither the deed to the property which they purchased outright nor the lease of the
remainder of the property mentioned the 1972 agreement with Customusic, although the
lease explicitly provided for the assumption of the contract with the supplier of bowling
equipment.
94 Nev. 446, 450 (1978) Eaton v. J. H. Inc.
Customusic, although the lease explicitly provided for the assumption of the contract with the
supplier of bowling equipment. The contract with third-party defendants was thus clear and
unambiguous; there was no assumption by third-party defendants of the Customusic
agreement. It is therefore unnecessary to discuss the evidence of the facts and circumstances
surrounding its execution. The trial court correctly applied the plain meaning of the contract,
and its decision is therefore upheld. Fredricks v. City of Las Vegas, 76 Nev. 418, 356 P.2d
639 (1960); Christmas v. Cooley, 406 P.2d 333 (Colo. 1965).
4. Lost Profit Damages.
The trial court awarded $69,760 to Customusic as loss of profits to plaintiff for the
remainder of the term of the agreement. Appellants challenge both the appropriateness of a
lost profits award in this instance and the trial court's determination of the amount of the
award.
1

[Headnotes 4, 5]
The goal of a damage award for breach of contract is that the breaching party must place
the nonbreaching party in as good a position as if the contract were performed. Lagrange
Constr., Inc. v. Kent Corp., 88 Nev. 271, 275, 496 P.2d 766, 768 (1972). The award should
include the losses caused and gains prevented by the defendant's breach, in excess of savings
made possible. Restatement, Contracts, 329, at 503 (1932). It is clear that when plaintiff,
as here, is prevented from performing the balance of the term of his contract, lost profits are
generally an appropriate measure of damages so long as the evidence provides a basis for
determining, with reasonable certainty, what the profits would have been had the contract not
been breached. Restatement, Contracts, 331, at 515; 5 Corbin on Contracts, 1023, at 147
(1964); Bradley v. Nevada-California-Oregon Ry., 42 Nev. 411, 178 P. 906 (1919);
Cladianos v. Friedhoff, 69 Nev. 41, 240 P.2d 208 (1952). It is also the rule that a record of
past profits of an established enterprise provides a valid basis for determining such future
profits with reasonable certainty. Corbin, supra; McCormick on Damages, 29, at 107
(1935); Fireman's Fund Ins. Co. v. Shawcross, 84 Nev. 446, 442 P.2d 907 (1968); cf. Knier v.
Azores Constr. Co., 78 Nev. 20, 368 P.2d 673 (1962).
Appellants suggest that the amount of lost profits awarded by the trial court is not
supported by the evidence in the record.
____________________

1
Neither appellants nor respondents dispute the trial court's decision to award actual damages, rather than to
enforce the clause of the contract providing for $250 per week liquidated damages. See Golden v. McKim, 37
Nev. 205, 141 p. 676 (1914).
94 Nev. 446, 451 (1978) Eaton v. J. H. Inc.
The court based its calculations upon the $160 per week average plaintiff's share of the
income of the machines during the time that they were placed in the Oasis Bowl. The court
then multiplied this amount by the number of weeks from the transfer of the Oasis Bowl to
Western Diversified to the end of the term of the agreement, in order to arrive at a total lost
profits award.
[Headnote 6]
Appellants contend that the trial court erred in its determination that plaintiff's lost profits
were $160 per week, on the ground that the court failed to take into account plaintiff's costs
of supplying the machines. It is clear that [i]f the defendant's breach of contract saves
expense to the plaintiff by discharging his duty of rendering a performance in return . . . the
amount of this saving [must be] deducted from the damages that would otherwise be
recoverable. Restatement, Contracts, 335, at 533. This rule is applicable only if the
evidence indicates that plaintiff would actually save expense by the discharge of his
performance; any fixed expenditures which would not be decreased as a consequence of his
nonperformance are not to be taken into account. Schubert v. Midwest Broadcasting Co., 85
N.W.2d 449 (Wis. 1957); F. A. Bartlett Tree Expert Co. v. Hartney, 32 N.E.2d 237 (Mass.
1941).
[Headnote 7]
In this case, the court specifically noted that the evidence shows that substantially more
than $160 per week was made during good months and that the decrease in income was at
least partially attributable to failure of cooperation by the defendants. Since the trial court
was entitled to adjust the past profit figure to take into account the effect of defendants'
conduct, see Willred Co. v. Westmoreland Metal Mfg. Co., 200 F.Supp. 59, 64 (E.D.Pa.
1961), it may well have found that any expenditures actually saved by plaintiff were offset
effects. The factual finding of the trial court that plaintiff's lost profits were $160 per week
are supported by substantial evidence in the record and may not be disturbed on appeal. See
Cladianos v. Friedhoff, supra.
[Headnote 8]
Appellants' final claim is that the trial court erred in awarding plaintiff lost profits from the
date of the transfer of the Oasis owl to estern Diversified. We agree.
The record clearly indicates that plaintiff continued to collect its share of the proceeds of
the machines after the date of the transfer, and indeed through the trial itself. On the other
hand, it was clear that removal of plaintiff's machines from the premises was reasonably
certain to occur, once the court had determined that third-party defendants were not
bound by the agreement with Customusic.
94 Nev. 446, 452 (1978) Eaton v. J. H. Inc.
it was clear that removal of plaintiff's machines from the premises was reasonably certain to
occur, once the court had determined that third-party defendants were not bound by the
agreement with Customusic. In order to prevent double recovery by the plaintiff and, at the
same time, ensure that plaintiff recovers damages for the gains actually prevented by
defendants' breach, on remand the court should ascertain the time at which the plaintiff
actually stopped collecting its share of the proceeds, and base the award of damages on the
number of weeks thereafter remaining in the term of the agreement, rather than upon the
number of weeks from the date of their takeover of the business.
5. Earl Eaton's Personal Liability.
Since counsel for appellants conceded, during oral argument, that Earl Eaton's continuing
personal liability under his contract with Customusic is not contested, it is unnecessary for
this court to discuss whether he would also properly be found liable under an alter ego theory.
Goldsworthy v. Johnson, 45 Nev. 355, 204 P. 505 (1922).
Conclusion.
The trial court's determination of the amount of lost profits, as a portion of the damage
award, is reversed. In all other respects the decision of the trial court is affirmed. The case is
remanded with instructions to enter judgment in conformity with this opinion.
____________
94 Nev. 452, 452 (1978) Tam v. Colton
RICHARD TAM, Appellant, v. STANTON R. COLTON and Additional Parties Ordered by
the Court, FRED ANDERSON, JAMES L. BUCHANAN, II, JOHN BUCHANAN, LILLY
FONG, CHRIST N. KARAMANOS, MOLLY F. KNUDTSEN, LOUIS E. LOMBARDI,
BRENDA MASON, JOHN TOM ROSS, Individually and as the Board of Regents of the
University of Nevada, ALAN ELLSBERG, RONALD KENNETH FORNER, MICHAEL J.
SIGNORELLI, Jr., and the STATE OF NEVADA, Respondents.
No. 10919
JOHN TOM ROSS, Appellant, v. BOARD OF REGENTS OF THE UNIVERSITY OF
NEVADA, JAMES BUCHANAN, Chairman, and Members FRED ANDERSON, LOUIS E.
LOMBARDI, CHRIST N. KARAMANOS, BRENDA MASON, LILLIAN FONG, MOLLY
F. KNUDTSEN and JOHN BUCHANAN, and MIKE O'CALLAGHAN, Governor of the State
of Nevada, Respondents.
94 Nev. 452, 453 (1978) Tam v. Colton
MIKE O'CALLAGHAN, Governor of the State of Nevada, Respondents.
No. 10942
July 19, 1978 581 P.2d 447
Consolidated appeals from judgments of the Eighth and First Judicial District Courts; John
F. Mendoza and Michael E. Fondi, Judges.
Candidate for regent petitioned for writ of mandamus requiring acceptance of his
declaration of candidacy and challenged constitutionality of statutes which provide for a
six-year term of office for members of Board of Regents of university system and which
divide certain county into five subdistricts with each subdistrict to be represented by one
regent. A regent brought action for judicial declaration that six-year term of office was
unconstitutional and thus that certain administrative actions taken by Board were null and
void. The district court entered judgments denying petition for writ of mandamus and ruling
that the six-year term did not conflict with State Constitution, and candidate and regent
appealed. After consolidation of appeals, the Supreme Court held that: (1) candidate had
standing to assert constitutional rights of voters in his district and, as a voter in such district,
had requisite standing to assert the constitutional claims; (2) regent had standing to challenge
constitutionality of statute providing for six-year term of office; (3) four-year limitation
imposed under state constitutional provision that . . . tenure of any office not herein provided
for may be declared by law . . . but the legislature shall not create any office the tenure of
which shall be longer than four (4) years, except as herein provided in this constitution is not
applicable to regents, and (4) an analysis of process for selection of Board of Regents for
conformity with equal protection requirements of Fourteenth Amendment would be
inappropriate.
Each judgment affirmed.
Morris & Wood, Las Vegas, for Appellant Tam.
John Tom Ross, Carson City, for Appellant Ross.
George E. Holt, District Attorney, Clark County, for Respondent Colton.
Robert List, Attorney General; Donald Klasic, Deputy Attorney General; and Larry Lessly,
University Counsel, for other Respondents.
94 Nev. 452, 454 (1978) Tam v. Colton
Candidate for regent for university system did not, as a candidate, have standing to challenge
constitutionality of statutes which provided for six-year term of office for regents and which divided certain
county into five subdistricts with each subdistrict to be represented by one regent, but candidate had
standing to assert constitutional rights of voters in his district and, as a voter in such district, had requisite
standing to assert such constitutional claims. NRS 396.040, 396.041; Const. art. 11, 7; art. 15,
11.
Candidate has standing to assert constitutional rights of voters in his district.
Regent for university system had standing to challenge constitutionality of statute providing for a six-year
term of office for regents. NRS 30.040, 396.040; Const. art. 11, 7; art. 15, 11.
4. Colleges and Universities.
Four-year limitation imposed under state constitutional provision that . . . tenure of any office not herein
provided for may be declared by law . . . but the legislature shall not create any office the tenure of which
shall be longer than four (4) years, except as herein provided in this constitution is not applicable to
regents of university system, in light of fact that office of regent was created by Constitution and that
constitutional provision that [certain officials] shall for the first Four Years and until their successors are
elected and qualified constitute a Board of Regents . . . does not limit a regent's term of office. Const.
art. 11, 4, 7; art. 15, 11; NRS 396.040; Stats. Nev. 1869, ch. 80; Stats. Nev. 1887, ch. 37; Stats.
Nev. 1905, ch. 88; Stats. Nev. 1917, ch. 189; Stats. Nev. 1941, ch. 68.
Process for selecting Board of Regents for university system was not immune from equal protection
scrutiny. U.S.C.A.Const. Amend. 14.
6. Mandamus.
Mandamus is viable vehicle for challenging constitutional validity of a statute.
Once court declares apportionment scheme at odds with Fourteenth Amendment, legislature must be
accorded opportunity to correct the constitutional defects in the selection scheme. U.S.C.A.Const. Amend.
14.
An analysis of process for selection of Board of Regents for conformity with equal protection
requirements of Fourteenth Amendment would be inappropriate on appeal from judgments rendered in
actions for declaratory and mandamus relief, in light of fact that procedural setting and time constraints
involved in the case made it impossible to make a proper assessment of such issue and to impose any
acceptable remedy. NRS 396.040, 396.041; U.S.C.A.Const. Amend. 14.
OPINION
Per Curiam:
NRS 396.040 prescribes a nine-member Board of Regents for the University of Nevada
System, each member elected to fill a six-year term of office.
94 Nev. 452, 455 (1978) Tam v. Colton
the University of Nevada System, each member elected to fill a six-year term of office. Two
members are elected from Washoe County (District One), five members are elected from
Clark County (District Two), and two members are elected from the remainder of the State
(District Three). The terms of the members of the Board are staggered, so that three members
are elected every two years.
NRS 396.041 divides Clark County (District Two) into five geographic subdistricts, each
consisting of several Nevada Assembly districts. At the 1978 General Election, two members
from Clark County are to be elected to six-year terms. In Subdistrict C, one additional
member is to be elected to fill the remaining two years of a six-year term commenced in
1974. See, 396.060.
On May 26, 1978, Richard Tam, the appellant in No. 10919, attempted to file a declaration
of candidacy for the Board of Regents for a four-year term on an at-large basis in District
Two. Respondent Colton, the Registrar of Voters for Clark County, refused to accept the
filing unless Tam filed as a candidate for the unexpired part of the six-year term in Subdistrict
C, the subdistrict in which he resides. Tam then filed a petition for writ of mandamus,
requesting the court to compel Colton to accept his declaration of candidacy, and raising two
contentions. He first argued that the six-year term of office prescribed by NRS 396.040
violates Article 15, 11 and Article 11, 7 of the Nevada Constitution. He further contended
that the subdistricting scheme outlined in NRS 396.041 results in the dilution of the voting
power of the residents of his subdistrict, in violation of the 14th Amendment to the
Constitution of the United States. On June 22, 1978, the district court for the Eighth Judicial
District denied the petition for writ of mandamus, and Tam perfected this appeal.
On September 29, 1977, John Tom Ross, the appellant in No. 10942 and a Regent of the
University of Nevada, filed an action under NRS 30.010, et seq. (the Uniform Declaratory
Judgments Act), seeking a judicial declaration that the six-year term of office prescribed by
NRS 396.040 is unconstitutional, and thus that certain administrative actions taken by the
Board of Regents following votes involving the participation of certain members then in the
last two years of their six-year terms were null and void. On May 31, 1978, the district court
for the First Judicial District ruled that the six-year term prescribed by NRS 396.040 did not
conflict with the Nevada Constitution, and Ross appealed.
Because these two actions involve substantially identical issues (with the exception of the
equal protection apportionment claim, which is pressed solely by Appellant Tam in No.
94 Nev. 452, 456 (1978) Tam v. Colton
ment claim, which is pressed solely by Appellant Tam in No. 10919), we ordered
consolidation on appeal. For the reasons that follow, we affirm the judgment of the district
court in both cases.
I. Standing.
[Headnotes 1, 2]
Appellant Tam asserts standing to prosecute his action alternatively as a candidate for
Regent and as a registered voter in and resident of Subdistrict C, District Two. Since the
challenged provisions of the Nevada Revised Statutes in this case do not involve candidate
qualifications as such, we fail to see how Tam as candidate has standing to assert any
constitutional violation as to himself. Contrast, Buckley v. Valeo, 424 U.S. 1, 12 (1975);
Stoner v. Fortson, 379 F.Supp.704 (D.Ga.1972); Mortillaro v. State of La., 356 F.Supp. 521
(D.La. 1972). However, Tam's failure to assert any legally protectable interest as a candidate
is not fatal to this action, for it is clear not only that a candidate has standing to assert the
constitutional rights of the voters in his district, Walgren v. Board of Selectmen of Town of
Amherst, 519 F.2d 1364 (1st Cir. 1975); Mancuso v. Taft, 476 F.2d 187 (1st Cir. 1973), but
also that Tam in his capacity as voter in his particular district possesses the requisite standing
to assert the claims presented in this case. Clark County v. City of Las Vegas, 94 Nev. 74,
574 P.2d 1013 (1978).
[Headnote 3]
Appellant Ross has based his claim on the Uniform Declaratory Judgments Act, NRS
30.010, et seq. As a member of the Board of Regents, he is clearly a person . . . whose rights,
status or other legal relations are affected by a statute. NRS 30.040. He, therefore, has the
requisite standing to challenge the six-year terms prescribed under NRS 396.040.
II. The Six-Year Term.
[Headnote 4]
In 1971, the Nevada Legislature amended NRS 396.040 to change the term of office of
members of the Board of Regents from four years to six years. 1971 Stats. 1531. The
appellants contend that any term longer than four years violates Article 15, 11 and Article
11, 7 of the Nevada Constitution.
1. Article 15, 11 of the Constitution provides in pertinent part:
The tenure of any office not herein provided for may be declared by law, or, when
not so declared, such office shall be held during the pleasure of the authority making
the appointment, but the legislature shall not create any office the tenure of which
shall be longer than four {4) years, except as herein provided in this constitution."
94 Nev. 452, 457 (1978) Tam v. Colton
office the tenure of which shall be longer than four (4) years, except as herein provided
in this constitution. (Emphasis supplied.)
The office of Regent of the University of Nevada is created by the Constitution. Article 11,
7. See, King v. Board of Regents, 65 Nev. 533, 200 P.2d 221 (1948). This being so, the
four-year term limitation imposed under Article 15, 11 has no application in this case. See,
1929 Op. Atty. Gen. 326. Rather, unless the term of office of a Regent of the University is
otherwise limited under the terms of the Constitution, the legislature is free to prescribe a
term longer than for years. We see no conflict between the terms of Article 15, 11 and NRS
396.040.
2. The appellants contend however that such a specific term limitation does exist in Article
11, 7. That Section reads:
Board or Regents: Election and Duties. The Governor, Secretary of State, and
Superintendent of Public Instruction, shall for the first Four Years and until their
successors are elected and qualified constitute a Board of Regents to control and
manage the affairs of the University and the funds of the same under such regulations as
may be provided by law. But the Legislature shall at its regular session next preceding
the expiration of the term of Office of said Board or Regents provide for the election of
a new Board of Regents and define their duties. (Emphasis supplied.)
The use of the term first Four Years, it is argued, conveys the framers' intent there should
follow subsequent four-year terms. Thus, the term of office is fixed by the Constitution at
four years.
This particular interpretation of Article 11, 7, however, is belied both by a short survey
of the constitutional debates and by the legislative practice in the intervening one hundred
thirteen years since the enactment of Article 11, 7. A survey of the constitutional debates
reveals that an amendment to Article 11, 7 specifically authorizing the legislature to fix the
terms of the Board of Regents was rejected for the reason that it was thought that the
legislature already possessed such a power under Article 11, 4 of the Constitution.
1
Marsh,
Reports of the 1863 Constitutional Convention of the Territory of Nevada (1972 ed.)
588-589.
____________________

1
Mr. Nourse: I move to add to that amendment the words and fix their term of office'. Mr. Brosnan: I
think that is provided for already. Mr. Collins: Section 4, I believe it is, covers that ground.
Article 11, 4 reads: Establishment of state university; control by board of
94 Nev. 452, 458 (1978) Tam v. Colton
Further, if the term of office of the Regents had indeed been fixed in the Constitution,
there is little reason to believe that the legislature would have enacted legislation specifically
to fix the term of office upon the expiration of the four-year term of the first interim Board.
However, such legislation was in fact enacted in 1869, 1869 Stats. 134, fixing the term of
office of the Board of Regents at four years. Terms of two and four years were established in
1887, 1887 Stats. 43, which were re-enacted in 1905. 1905 Stats. 190. In 1917, the term was
enlarged to ten years, 1917 Stats. 352, at which length it remained until 1941, 1941 Stats. 92,
when the term was shortened to four years. The legislature's belief as to the scope of the
powers conferred upon it under the terms of the Constitution, manifested soon after the
enactment of the Constitution itself, lends support to the conclusion that Article 11, 7 was
meant only to set the term of the first interim Board of Regents, and that the term of office of
subsequent Boards was left to the discretion of the legislature under the general rule-making
powers conferred under Article 11, 4. Hendel v. Weaver, 77 Nev. 16, 359 P.2d 87 (1961);
State v. Worthington, 37 Nev. 212, 142 P. 230 (1914). We agree with the district court that
Article 11, 7 does not limit the term of office of the Board of Regents to four years.
Consequently, we reject the challenges to the constitutionality of NRS 396.040.
III. The Equal Protection Claim.
Tam's second argument is that the districting scheme as presently drawn under NRS
396.041 results, by reason of population disparities among the different subdistricts, in a
dilution of the voting power of the residents of his district under the guidelines originally set
down in Reynolds v. Sims, 377 U.S. 533 (1964). His petition for the issuance of a writ of
mandamus therefore requests that we require the 1978 election for the Board of Regents to be
held on an at-large basis, and that we do away with the districting scheme set out in NRS
396.041.
The respondents marshal two arguments in response to Tam's equal protection attack: first,
that the Board of Regents is not an official body exercising significant governmental control
under Avery v. Midland County, 390 U.S. 474 (1968), and Hadley v. Junior College District,
397 U.S. 50 (1970), and thus that it is not subject to the one man, one vote requirement of
Reynolds v. Sims, supra; and second, that even if subjected to equal protection scrutiny, the
fact that the apportionment scheme reflected in NRS 396.041 was initially valid when
adopted in 1971 precludes any further equal protection challenge for a ten-year period,
until the 19S0 decennial census has been completed.
____________________
regents. The Legislature shall provide for the establishment of a State University which shall embrace
departments for Agriculture, Mechanic Arts, and Mining, to be controlled by a Board of Regents whose duties
shall be prescribed by Law. (Emphasis supplied.)
94 Nev. 452, 459 (1978) Tam v. Colton
scheme reflected in NRS 396.041 was initially valid when adopted in 1971 precludes any
further equal protection challenge for a ten-year period, until the 1980 decennial census has
been completed. See, Reynolds v. Sims, supra, 377 U.S. at 583; Silver v. Reagan, 432 P.2d
26, 29 (Cal. 1967).
Rejecting the respondents' first argument, the district court adopted the second. It relied
upon Hadley v. Junior College District, supra, to find that the Board of Regents exercised
sufficient governmental powers to compel application of the one man, one vote principle to
its selection process. The court found, however, that the initial validity of the apportionment
scheme when adopted in 1971, see, Stewart v. O'Callaghan, 343 F.Supp. 1080 (D. Nev. 1972)
(three-judge court), insulated the selection process from equal protection attack until the
completion of the 1980 decennial census.
[Headnote 5]
Although we agree with the district court's conclusion that the selection process of the
Board of Regents is not immune from equal protection scrutiny, Hadley v. Junior College
District, supra; Barnes v. Board of Directors of Mount Anthony Union High School, 418
F.Supp. 845 (D. Ut. 1976), we conclude that analysis of that selection process for conformity
with the dictates of the 14th Amendment of the United States Constitution is entirely
inappropriate within the procedural setting and practical time constraints of this petition for
writ of mandamus.
Tam has petitioned the Nevada courts for a writ of mandamus to compel respondent
Colton to accept his declaration of candidacy to run on an at-large basis. Since NRS 396.040
specifically requires a candidate to run in his residence district, Tam's petition is in effect
twofold: (a) he seeks first a declaratory judgment that NRS 396.040 and 396.041 are
unconstitutional, and (b) he then seeks judicial imposition of a specific remedy for that
unconstitutionality: abolishment of all districts and election of the Board on an at-large basis.
[Headnote 6]
Nevada, like many of its sister states, has accepted the viability of Mandamus as a vehicle
for challenging the constitutional validity of a statute. McDonald v. Beemer, 67 Nev. 419,
220 P.2d 217 (1950); Colton v. District Court, 92 Nev. 427, 552 P.2d 44 (1976); 52
Am.Jur.2d, 95, pp. 418-420. To require a litigant first to seek a declaratory judgment and
then to seek mandamus, it is said, is to needlessly hamper the timely vindication of important
rights and to unduly burden the courts with a multiplicity of related legal actions.
94 Nev. 452, 460 (1978) Tam v. Colton
However, this judicially-fashioned procedural short-cut, combining traditional
declaratory judgment and mandamus proceedings, is based squarely on the premise that once
the constitutional violation is established (declaratory judgment), the remedy therefor
(mandamus) is both self-evident and exclusive. It is precisely the failure of this basic premise
in this case which renders Mandamus wholly inappropriate. For it becomes apparent upon
analysis that even if we were to find the selection process unconstitutional in this case, any
remedy we might impose in the few months remaining before the November 1978 elections
would involve both a denial of due deference to the legislative branch of state government,
and an overstepping of our own judicial powers, both in duty and practical competence.
[Headnotes 7, 8]
Tam's proposed solution, that we mandate an at-large election of the Board of Regents in
the 1978 elections, is subject to two infirmities. First, once a court declares an apportionment
scheme at odds with the 14th Amendment, it is clear that the legislature must be accorded the
opportunity to correct the constitutional defects in the selection scheme. Wise v. Lipscomb,
434 U.S. 1329 (1977) (per Powell, Circuit Justice); Wallace v. House, 515 F.2d 619, reh. den.
521 F.2d 816 (5th Cir. 1975), Visnich v. Sacramento County Board of Education, 112
Cal.Rptr. 469 (Cal.App. 1974); see, State v. Zimmerman, 128 N.W.2d 16 (Wis. 1964). The
legislature, however, is not in session, nor will it be before the November 1978 elections,
some three months away. Thus, if we were now to declare the present selection process
improper, we would leave the state without a valid election scheme, unless we were to
institute some alternative scheme on our own authority. Such action on our part, however, in
denying the legislature the opportunity to fashion an acceptable selection scheme, would be in
complete violation of our duty of deference to that branch in matters peculiarly within its
particular concern and competence. Yorty v. Anderson, 384 P.2d 417 (Cal. 1963); see also,
Silver v. Brown, 405 P.2d 132, 137 (Cal. 1965).
Further, even if we were to improperly arrogate to ourselves the authority to devise and
impose a remedy for the alleged constitutional violation in this case, it is clear that Tam's
suggested solution, at-large elections, would be the least preferred election scheme, since
multimember or at-large schemes often operate to dilute or cancel out the voting strength of
racial or political elements of the voting population. Wise v. Lipscomb, supra; Paige v. Grey,
437 F.Supp. 137 (D.Ga. 1977); Blacks United for Lasting Leadership, Inc. v.
94 Nev. 452, 461 (1978) Tam v. Colton
United for Lasting Leadership, Inc. v. City of Shreveport, 71 F.R.D. 623 (D.La. 1976).
Finally, given that the campaigns for the November elections are already in full swing, and
that this case arises in the very midst of the election process, the time necessary to conduct
the detailed hearing which would be necessary were we to attempt a redistricting on our own
would substantially impair, to say the least, the stability of the political election process in
this state. As stated by the California Supreme Court in Legislature v. Reinecke, 99 Cal.Rptr.
481, 485 (1972):
Reapportionment . . . is an extremely complex matter, for innumerable plans could
be adopted that would satisfy the one man-one vote requirement. Before this court, in
the discharge of its duty to insure the electorate equal protection of the laws, undertakes
to draft reapportionment plans of its own, it should accord all interested parties an
opportunity to be heard. The court should be fully informed with respect to all possible
criteria that might be adopted for reapportionment, and with respect to all the specific
implementations of such criteria that might be ordered into effect. Insofar as the 1972
elections are concerned, there is obviously insufficient time . . . for this court to allow
all interested parties to be heard, to resolve the conflicting contentions presented, and to
translate its conclusions into concrete reapportionment plans. . . .
We conclude, therefore, that the procedural setting and the time constraints involved in
this case render impossible a proper assessment of the appellant's claims and the imposition
of any acceptable remedy if he should prove ultimately successful. We shall, therefore, affirm
the district court's denial of the petition for writ of mandamus.
Affirmed.
____________
94 Nev. 461, 461 (1978) Dutton v. State
KIMBLE DUTTON, Appellant, v. THE
No. 9886
July 26, 1978 581 P.2d 856
Appeal from judgment of conviction, Eighth Judicial District Court, Clark County, James
A. Brennan, Judge.
Defendant was convicted before the district court of possession of stolen property, and he
appealed. The Supreme Court held that: {1) although defendant was indicted solely for
possession of stolen camera, district court did not err in admitting evidence dealing with
defendant's possession of stolen bronzeware, which was not charged in indictment, for
purpose of showing circumstances surrounding transaction and defendant's knowledge of
stolen character of goods; {2) evidence was sufficient to sustain conviction; {3) no error
was perceived with respect to district court's instructing of jury, where defendant neither
objected to instructions given nor requested additional clarifying instructions, and {4)
trial court was not required to sua sponte give instruction requiring acquittal if two
reasonable theories of guilt or innocence were inferable from record, where jury was
properly instructed regarding reasonable doubt.
held that: (1) although defendant was indicted solely for possession of stolen camera, district
court did not err in admitting evidence dealing with defendant's possession of stolen
bronzeware, which was not charged in indictment, for purpose of showing circumstances
surrounding transaction and defendant's knowledge of stolen character of goods; (2) evidence
was sufficient to sustain conviction; (3) no error was perceived with respect to district court's
instructing of jury, where defendant neither objected to instructions given nor requested
additional clarifying instructions, and (4) trial court was not required to sua sponte give
instruction requiring acquittal if two reasonable theories of guilt or innocence were inferable
from record, where jury was properly instructed regarding reasonable doubt.
Affirmed.
Eric Zubel, Las Vegas, for Appellant.
Robert List, Attorney General, Carson City; George E. Holt, District Attorney, Clark
1. Criminal Law.
All facts necessary to prove crime charged in indictment, when linked to chain of events which support
that crime, are admissible.
2. Criminal Law.
State is entitled to present a full and accurate account of circumstances of commission of crime.
3. Criminal Law.
If full and accurate account of circumstances of commission of crime presented by State also implicates
defendants in commission of other crimes for which they have not been charged, evidence is nevertheless
admissible. NRS 48.045.
4. Criminal Law.
Although defendant was indicted solely for possession of stolen camera, trial court did not err in
admitting evidence dealing with his possession of stolen bronzeware, which was not charged in indictment,
in prosecution for possession of stolen property wherein testimony indicated that defendant participated in
price negotiations with undercover officers posing as fences over bronzeware, but not with camera, and
defendant claimed that he did not personally possess stolen camera and did not have specific knowledge
that it was stolen, for purpose of showing both circumstances surrounding transaction and defendant's
knowledge of stolen character of goods. NRS 48.045, 205.275.
5. Receiving Stolen Goods.
In order to sustain conviction for possession of stolen property, State must show that: property was in fact
stolen; property was possessed by accused with knowledge that it was stolen at time of possession; and
property was possessed by him with felonious intent of depriving true owner of his property. NRS
205.275.
Knowledge that property was stolen can seldom be proved by direct evidence and resort must often be
made to circumstantial evidence; however, no distinction is made between direct and circumstantial
evidence in degree of proof required. NRS 205.275.
7. Larceny.
Possession of recently stolen property is so incriminating that to warrant conviction there need only be, in
addition to possession, slight corroboration in form of statements or conduct of defendant tending to show
his guilt. NRS 205.275.
In prosecution for possession of stolen camera, there was abundant corroboration of defendant's guilt by
virtue of evidence that camera was sold at a grossly inadequate price to an undercover fencing operation,
that defendant engaged in furtive conduct in negotiating with undercover officer, that he knew that dealer
was a fence, and by virtue of conflicts in defendant's testimony as to his reasons for going to fence. NRS
205.275.
In prosecution for possession of stolen camera, jury, as sole and exclusive judge of credibility of
witnesses, was entitled to infer from all facts and circumstances surrounding case that defendant did in fact
possess stolen camera and share in proceeds of its sale, despite his insistence that his companion had
exclusive possession. NRS 205.275.
Joint possession of stolen property is sufficient to sustain conviction. NRS 205.275.
11. Criminal Law.
No error was perceived by the Supreme Court with respect to district court's instructing of jury in
prosecution for possession of stolen property, where defendant neither objected to instructions given nor
requested additional clarifying instructions. NRS 205.275.
12. Criminal Law.
In prosecution for possession of stolen property, trial court was not required to sua sponte give instruction
requiring acquittal if two reasonable theories of guilt or innocence were inferable from record, where jury
was properly instructed regarding reasonable doubt. NRS 205.275.
OPINION
Per Curiam:
Kimble Dutton appeals from a conviction for possession of stolen property (NRS
205.275), contending the district court erred by admitting certain evidence, and instructing the
jury. Dutton also claims the evidence was insufficient to sustain the conviction. Finding no
reversible error, we affirm.
In 1976, the Las Vegas Metropolitan Police Department, in conjunction with the federal
government, established an undercover fencing operation code-named Operation Switch.
Under the fictitious name of Acme Imports, undercover police officers purchased stolen
merchandise. On September 27, 1976, Dutton and his friend Russell Murray entered the
store.
Dutton and his friend Russell Murray entered the store. Murray carried a wooden attache case
and a paper bag; Dutton, another wooden case. Upon examination, the undercover officer
discovered bronzeware in the attache cases, a Nicromat camera inside the paper bag, and two
pistols. The officer subsequently purchased the goods.
At trial the owner of the camera and bronzeware testified that the items were stolen from
his home the day before Dutton and Murray sold them to Acme. Testimony also indicated
that Dutton participated in price negotiations over the bronzeware, but not with respect to the
camera.
[Headnotes 1-4]
1. Dutton was indicted solely for possession of the stolen camera. He therefore claims it
was impermissible to admit evidence dealing with his possession of the bronzeware, because
it was not charged in the indictment.
1
Courts have long adhered to the rule that all the facts
. . . necessary to prove the crime charged in the in[dictment], when linked to the chain of
events which support that crime, are admissible. People v. Anderson, 518 P.2d 828, 830
(Colo. 1974). The 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 admissible. State v. Izatt, 534 P.2d 1107, 1110 (Idaho 1975); see
also Allan v. State, 92 Nev. 318, 549 P.2d 1402 (1976); State v. Sikes, 427 P.2d 756 (Or.
1967). Moreover, under our evidence code, [e]vidence of other crimes, . . . may . . . be
admissible [to show] proof of motive, opportunity, intent, preparation, plan, knowledge, or
absence of mistake or accident. NRS 48.045; Elsbury v. State, 90 Nev. 50, 518 P.2d 599
(1974); Nester v. State, 75 Nev. 41, 334 P.2d 524 (1959). Here, Dutton claimed he did not
personally possess the stolen camera, and did not have specific knowledge that it was stolen.
See Staab v. State, 90 Nev. 347, 526 P.2d 338 (1974). We therefore perceive no error by the
district court in admitting the evidence to show both the circumstances surrounding the
transaction, and Dutton's knowledge of the stolen character of the goods.
____________________

1
Dutton claims he participated in negotiations with respect to the bronzeware, so Murray could obtain a
higher price for the goods. He also insisted at trial that the goods were Murray's, and that he only drove Murray
to Acme as a favor. He claimed that Murray kept all the sale proceeds.
[Headnotes 5-8]
2. Dutton next claims the evidence was insufficient to sustain the conviction, because the
State failed to prove he knew the camera was stolen, or that he personally had possession. In
order to sustain a conviction for possession of stolen property the State must show: (1) the
property was in fact stolen, (2) the property was possessed by the accused with knowledge
that it was stolen at the time of possession, and (3) the property was possessed by him with
the felonious intent of depriving the true owner of the property. Staab, cited above.
Knowledge that property was stolen can seldom be proved by direct evidence and resort
must often be made to circumstantial evidence. However, no distinction is made between
direct and circumstantial evidence in the degree of proof required. [Citation omitted.]
Possession of recently stolen property is so incriminating that to warrant conviction there
need only be, in addition to possession, slight corroboration in the form of statements or
conduct of the defendant tending to show his guilt.' [Citation omitted.] People v. Vann, 524
P.2d 824, 827 (Cal. 1974). There is abundant corroboration in the instant case: the camera
was sold at a grossly inadequate price; Dutton engaged in furtive conduct in negotiating with
the undercover officer; he knew the dealer was a fence; and conflicts were present in his
testimony dealing with his reasons for coming to Acme.
[Headnotes 9, 10]
Moreover, there were sufficient facts from which the jury could infer joint possession of
the camera by Dutton and Murray, despite Dutton's insistence that Murray exclusively had
possession. The jury as the sole and exclusive judge of the credibility of the witnesses was
entitled to infer from all the facts and circumstances surrounding the case that Dutton did in
fact possess the camera and share in the proceeds of the sale. See, e.g., Wheeler v. State, 91
Nev. 119, 531 P.2d 1358 (1975). Joint possession of stolen property is sufficient to sustain
the conviction. Cf. Eliason v. State, 511 P.2d 1066 (Alaska 1973); Davis v. State, 369 P.2d
879 (Alaska 1962); State v. Ashby, 459 P.2d 403 (Wash. 1969).
[Headnotes 11, 12]
3. Finally, we perceive no error by the district court in instructing the jury, because Dutton
neither objected to the instructions given nor requested additional clarifying instructions. See,
e.g., Hudson v. State, 92 Nev. 84, 545 P.2d 1163 {1976); Geer v. State, 92 Nev. 221
(1976); Geer v. State, 92 Nev. 221, 548 P.2d 946 (1976). Nor do we agree that the court was
required to sua sponte give an instruction requiring acquittal if two reasonable theories of
guilt or innocence were inferable from the record, where the jury was properly instructed
regarding reasonable doubt. See Bails v. State, 92 Nev. 95, 545 P.2d 1155 (1976); Hall v.
State, 89 Nev. 366, 513 P.2d 1244 (1973).
Affirmed.
____________
94 Nev. 466, 466 (1978) Vargo v. Warden
JAMES EMERY VARGO, Appellant v. WARDEN,
No. 10975
July 26, 1978 581 P.2d 855
Appeal from order which summarily dismissed a petition for post-conviction relief, Eighth
Judicial District Court, Clark County; Paul S. Goldman, Judge.
The Supreme Court held that since claims had not been considered and resolved, either
from record, or after evidentiary hearing, order dismissing petition for post-conviction relief
was vacated and case was remanded for further proceedings, including appointment of
counsel to represent petitioner.
Order vacated; remanded, with instructions.
James Emery Vargo, in pro per.
Stephen Jones, Deputy District Attorney, Clark County, for Respondent.
Criminal Law.
Where petitioner's claims had not been considered and resolved, either from record, or after evidentiary
hearing, order dismissing petition for post-conviction relief was vacated and case was remanded for further
proceedings, including appointment of counsel to represent petitioner.
OPINION
Per Curiam:
In November 1977, this court affirmed appellant's murder conviction. Vargo v. State, 93
Nev. 554, 570 P.2d 1142 (1977).
94 Nev. 466, 467 (1978) Vargo v. Warden
Thereafter, appellant timely filed an in pro per petition for post-conviction relief in the Eighth
Judicial District Court.
The petition alleged that Vargo made a verbal request that on the appeal counsel present
the several issues that are now raised for the first time. He argues that counsel's failure to do
so constitutes a showing of the good cause . . . for the failure to present such claims on his
direct appeal, that is required by NRS 177.375(2).
Even though no opposition to the petition was filed, it was summarily dismissed by the
district judge and Vargo has appealed.
We do not reach the merit, if any, of the appeal. Vargo's claims have not been considered
and resolved, either from the record, or after an evidentiary hearing. See Stewart v. Warden,
92 Nev. 588, 555 P.2d 218 (1976). See also Smith v. Yeager, 393 U.S. 122 (1968). Cf.
Townsend v. Sain, 372 U.S. 293 (1963), and its progeny. Accordingly, we vacate the district
judge's order dismissing the petition for post-conviction relief and remand this case for
further proceedings, including the appointment of counsel to represent petitioner.
____________
94 Nev. 467, 467 (1978) Cavagnaro v. State Wide Investigations
FLORENCE CAVAGNARO, Appellant, v. STATE WIDE INVESTIGATIONS, INC., a
Nevada Corporation; FRANK SHERMAN, Respondents.
No. 9241
July 26, 1978 581 P.2d 859
Appeal from summary judgment, Eighth Judicial District Court, Clark County; Paul S.
Goldman, Judge.
After accepting benefits pursuant to the Industrial Insurance Act, widow of deceased
employee of subcontractor commenced action seeking additional damages for wrongful death
of her husband allegedly caused by negligence of respondents, a different subcontractor and
its employee. The district court granted respondents' motion for summary judgment on
ground that action was barred by provision of Industrial Insurance Act, and widow appealed.
The Supreme Court held that provisions of said Act providing that subcontractors and their
employees shall be deemed to be employees of principal contractor and that
subcontractors include independent contractors did not violate constitutional proscription
against involuntary servitude.
employees shall be deemed to be employees of principal contractor and that subcontractors
include independent contractors did not violate constitutional proscription against involuntary
servitude.
Affirmed.
Galatz, Earl & Biggar, Las Vegas, for Appellant.
Thorndal & Liles, Ltd., and Leland Eugene Backus, Las Vegas, for Respondents.
Constitutional Law; Workmen's Compensation.
Provisions of Industrial Insurance Act providing that subcontractors and their employees shall be deemed
to be employees of principal contractor and that subcontractors include independent contractors did not
violate constitutional proscription against involuntary servitude, since said provisions neither compelled
employee to labor against his will for benefit of another, nor prohibited or restricted any employee from
leaving service of employer. U.S.C.A.Const. Amend. 13; NRS 616.085, 616.115; Const. art. 1,
17.
OPINION
Per Curiam:
On July 30, 1973, appellant's husband, William Cavagnaro, was struck and killed by an
automobile while crossing Flamingo Road on his way to work at the construction project for
the MGM Grand Hotel in Las Vegas. The deceased was employed by Olson Glass Co., a
subcontractor on the MGM project. The automobile which struck him was driven by
respondent Frank Sherman, an employee of respondent State Wide Investigations, Inc., also a
subcontractor on the project.
Subsequent to the accident, appellant accepted benefits pursuant to NRS chapter 616
(Nevada Industrial Insurance Act). She then commenced this action seeking additional
damages for the wrongful death of her husband allegedly caused by respondents' negligence.
Respondents moved for and were granted summary judgment on the ground appellant's action
was barred by NRS 616.370, which provides, inter alia, that (1) once an employee receives
accident benefits under the Act, he is barred from commencing any action for additional
compensation, and, (2) the rights and remedies provided in the Act for an employee injured
by an accident arising in the course of his employment shall be exclusive of all other rights
and remedies.
Appellant's sole contention is that NRS 616.085 and 616.115 violate the constitutional
proscription against involuntary servitude because they deem all employees of
subcontractors and independent contractors to be employees of the principal contractor.1
The thrust of appellant's argument is that these statutes, by definition, "compel every
employee in Nevada to work not only for his chosen employer, but also for any other
employer" employed by the same principal contractor.
violate the constitutional proscription against involuntary servitude because they deem all
employees of subcontractors and independent contractors to be employees of the principal
contractor.
1
The thrust of appellant's argument is that these statutes, by definition, compel
every employee in Nevada to work not only for his chosen employer, but also for any other
employer employed by the same principal contractor. We are not persuaded by this logic.
The statutes neither compel an employee to labor, against his will, for the benefit of
another, nor prohibit or restrict any employee from leaving the service of the employer, and
thus, do not violate the involuntary servitude provisions of either the federal or state
constitution. Cf. Lancaster v. C.F.&I. Steel Corporation, 548 P.2d 914 (Colo. 1976).
____________
94 Nev. 469, 469 (1978) Landex, Inc. v. State ex rel. List
LANDEX, INC., A Foreign Corporation, Incorporated Under the Laws of the State of
Arizona, FRANK E. GLINDMEIER, et al., Appellants, v. THE STATE OF NEVADA, ex
rel. ROBERT LIST, Attorney General, and NEVADA REAL ESTATE DIVISION,
DEPARTMENT OF COMMERCE, ex rel. R. E. HANSEN, Real Estate Administrator,
Respondents.
No. 9053
July 26, 1978 582 P.2d 786
Appeal from judgments imposing civil penalties, granting injunctive relief, and ordering
restitution. Second Judicial District Court, Washoe County; Peter I. Breen, Judge.
State brought action against real estate corporation and its president for violation of
misleading advertising legislation. The district court ordered corporation to pay $25,000 for
20 violations of statute, ordered president to pay $2,500 for same violations, permanently
enjoined defendants from making any further misleading representations, and ordered
them to offer restitution to purchasers of land, and defendants appealed. The Supreme
Court, Manoukian, J., held that: {1) evidence supported determination that
misrepresentations had been made and that president of corporation was individually
liable for them, and justified trial court in entering permanent injunction enjoining
corporation from further pursuit of such prohibited activities; {2) action was not barred
by principles of res judicata and collateral estoppel by prior county district court
determination favorable to corporation in separate action against corporation to enjoin
sales of land, which involved different issues, and representations of a different type and
nature, made in a different location; {3) restitution was not available as a remedy in
absence of evidence of justifiable reliance upon corporation's misrepresentations and
consequent damage to purchasers, and in absence of any purchaser as a party to
proceeding, and {4) corporation and its president were liable for 20 violations of
misleading advertising legislation, and not merely for one violation.
____________________

1
U.S. Const. Amend. XIII provides, in pertinent part:
Neither slavery nor involuntary servitude . . . shall exist within the United States . . . .
Nev. Const. art. 1, 17, provides:
Neither Slavery nor involuntary servitude unless for the punishment of crimes shall ever be tolerated in this
state.
Subcontractors and their employees shall be deemed to be employees of the principal contractor.
Subcontractors' shall include independent contractors.
violations of statute, ordered president to pay $2,500 for same violations, permanently
enjoined defendants from making any further misleading representations, and ordered them to
offer restitution to purchasers of land, and defendants appealed. The Supreme Court,
Manoukian, J., held that: (1) evidence supported determination that misrepresentations had
been made and that president of corporation was individually liable for them, and justified
trial court in entering permanent injunction enjoining corporation from further pursuit of such
prohibited activities; (2) action was not barred by principles of res judicata and collateral
estoppel by prior county district court determination favorable to corporation in separate
action against corporation to enjoin sales of land, which involved different issues, and
representations of a different type and nature, made in a different location; (3) restitution was
not available as a remedy in absence of evidence of justifiable reliance upon corporation's
misrepresentations and consequent damage to purchasers, and in absence of any purchaser as
a party to proceeding, and (4) corporation and its president were liable for 20 violations of
misleading advertising legislation, and not merely for one violation.
Vargas, Bartlett, and Dixon, and James S. Beasley, Reno, for Appellants.
Robert List, Attorney General, and James I. Barnes, III, Deputy Attorney General, Carson
City, for Respondents.
1. Corporations.
President of real estate corporation, who testified that he personally instructed his sales personnel as to
what would comprise their sales presentations and also drafted podium speeches which were given during
sales presentations, because he exercised direct supervision of sales personnel and their promotional
presentations, could not escape culpability for misrepresentation made by sales personnel of corporation.
NRS 207.170 et seq., 207. 174.
2. Trade Regulation.
Evidence to establish violation of misleading advertising legislation is not that quantum necessary to
prove a victim's claim of fraud; to prove false advertising under statute, State need only establish that
defendants made statements they knew or should have known were untrue or misleading in order to effect
the sales; actual deception is unnecessary to create liability. NRS 207.170 et seq., 207.171, 207.173,
207.174, 207.176.
As regards misleading advertising legislation, standard for untrue or misleading statements is likelihood
that the public will be misled. NRS 207.170 et seq., 207.171, 207.173, 207.174, 207.176.
In action brought against real estate corporation and its president, pursuant to
misleading advertising legislation, upon ground that sales personnel of corporation had
made several specific misrepresentations in sale of land to the public, evidence supported
determination that misrepresentations had been made and that president of corporation
was individually liable for them, and justified trial court in entering permanent injunction
enjoining corporation from further pursuit of such prohibited activities. NRS 207.170 et
seq., 207.171, 207.173, 207.174, 207.176.
5. Judgment.
Doctrine of res judicata proscribes hearing of issues determined by a court of competent
jurisdiction in a prior proceeding between the same parties regarding the same cause of
action.
6. Judgment.
Doctrine of collateral estoppel operates to preclude the parties or their privies from
relitigating issues previously litigated and actually determined in prior proceeding.
7. Judgment.
Action brought against real estate corporation and its president, pursuant to misleading
advertising legislation, upon ground that sales personnel of corporation had made several
specific misrepresentations in sale of land to the public, was not barred by principles of
res judicata and collateral estoppel by prior county district court determination favorable
to corporation in separate action against corporation to enjoin sale of land, which
involved different issues, and representations of a different type and nature, made in a
different location.
misleading advertising legislation, upon ground that sales personnel of corporation had
made several specific misrepresentations in sale of land to the public, restitution was not
available as a remedy in absence of evidence of justifiable reliance upon corporation's
misrepresentations and consequent damage to purchasers, or evidence as to who
purchasers were or what amounts were owed to each, and in absence of any purchaser as
a party to proceeding. NRS 207.170 et seq.
misleading advertising legislation, arising from a meeting in a hospitality room at
which misrepresentations were initially made in a podium speech and repeated when
sales representatives individually approached each of approximately 20 persons attending
meeting, corporation and its president were liable for 20 violations of misleading
advertising legislation, and not merely for one violation. NRS 207.170 et seq., 207.171,
207.174.
OPINION
On May 2, 1974, acting under Nevada's misleading advertising legislation, NRS 207.171,
et seq., and Nevada Rules of Civil Procedure, Rule 65, et seq., governing injunctions, and
incidentally pursuant to NRS 119, our licensing and regulation of land sales laws,
respondents commenced this action in district court against appellant Landex, Inc.,
Civil Procedure, Rule 65, et seq., governing injunctions, and incidentally pursuant to NRS
119, our licensing and regulation of land sales laws, respondents commenced this action in
district court against appellant Landex, Inc., (hereinafter Landex), and Frank Glindmeier,
individually, president and sales manager of Landex. The complaint alleged three causes of
action. The first cause of action requested monetary civil penalties against Landex and
Glindmeier, pursuant to NRS 207.174 for false and misleading advertising and requested the
issuance of an injunction pursuant to NRS 207.176 enjoining appellant Landex from
continuing its deceptive practices. The second cause of action sought to enjoin Landex from
using advertising material in its land sales business which had not received the prior approval
of the Nevada Department of Commerce, through its Real Estate Division (hereinafter
Division), in accordance with NRS 119.120(1)(c) and 119.180(7). In its third cause of
action, the State sought to enjoin Landex from selling real estate through registered
representatives, a proscribed practice (see NRS 119.180), rather than through licensed real
estate salesmen or brokers, as required by NRS 645.210 and 645.230.
Prior to this litigation, Landex successfully sought, through the Division, an exemption
from all effects of Chapter 119 of the Nevada Revised Statutes, our land sales legislation,
with the exception that all advertising used in the sale of Mountain Meadow Ranches
(hereinafter MMR) must be submitted to and approved by the Division under NRS
119.120(1)(c).
The precise authority of this proceeding is contained in NRS 207.171, 207.174, and
207.176.
1

Incident to the first cause of action, the trial court found that on March 26, 1974,
appellants, through their various agents, had made representations which "were and are
false or deceptive or misleading, or tended to mislead within the meaning of NRS 207.
____________________

1
These statutes in relevant part provide:
NRS 207.171, It is unlawful for any person, firm, corporation or association or any agent or employee
thereof to use, publish . . . or by any other manner or means, including but not limited to solicitation or . . .
door-to-door contacts, any statement which is known or through the exercise of reasonable care should be known
to be false, deceptive or misleading in order to induce any person to purchase . . . any title or interest in any real .
. . property . . . or to enter into any obligation or transaction relating thereto. . . .
NRS 207.174, Any person, firm, corporation or association or any other organization which violates any
provision of NRS 207.171 . . . is liable for a civil penalty not to exceed $2,500 for each violation, which shall be
recovered in a civil action brought in the name of the State of Nevada by the attorney general . . . in a court of
competent jurisdiction. As used in this section, the term, each violation includes, as a single violation, a
continuous or repetitive violation arising out of the same act.
NRS 207.176, The attorney general . . . may bring an action in any court of competent jurisdiction in the
name of the State of Nevada on his own complaint or on the complaint, of any board, officer, person,
corporation or association to enjoin any violation or proposed violation of the provisions of NRS 207.171 to
207.177, inclusive.
had made representations which were and are false or deceptive or misleading, or tended to
mislead within the meaning of NRS 207. 170 et seq. The court further found that said false,
misleading, or deceptive statements were made to twenty prospective purchasers, and that
Glindmeier was directly responsible for the form and use of such false, misleading, or
deceptive statements. Incidental to these findings, Landex was ordered to pay a sum of
$25,000 for twenty violations of NRS 207.170, and appellant Glindmeier was ordered to pay
$2,500 for the same twenty violations. Additionally, appellants were permanently enjoined
from making any further representations of the nature determined to be misleading and were
ordered to offer restitution to all those persons who purchased a parcel of the MMR
subdivision after March 26, 1974.
With respect to the second and third causes of action, appellants were permanently
enjoined from utilizing any unapproved advertising and from utilizing registered
representatives for purposes of selling the subdivision's property.
This appeal is taken only from those portions of the judgment relating to the first cause of
action. Appellants contend the trial court erred (1) in its finding that Glindmeier violated
NRS 207.170, claiming the evidence is insufficient; (2) in concluding that the doctrines of res
judicata and collateral estoppel did not apply to preclude respondents' relief; (3) in ordering
Landex to make restitution to all purchasers of MMR after March 26, 1974; and (4) in
holding that appellants had committed twenty violations of NRS 207.170.
1. Substantial Evidence.
Appellant Glindmeier contends that he, as president of Landex, could not be held
responsible for unauthorized statements made by individual sales representatives and that
even if it were shown that Glindmeier was directly responsible for the alleged
misrepresentations, the Washoe District Court was barred by the doctrines of res judicata and
collateral estoppel from finding that the statements made by the Landex personnel were
deceiving and misleading. The latter questions will be discussed infra.
As to appellant Glindmeier's first claim, this Court's review of a trial court's
determinations of factual questions is limited. In Beverly Enterprises v. Globe Land Corp., 90
Nev. 363, 526 P.2d 1179 (1974), we stated:
Where a question of fact has been determined by the trial court, this court will not
reverse unless the judgment is clearly erroneous and not based on substantial evidence.
NRCP 52(a); Kockos v. Bank of Nevada, 90 Nev. 140, 520 P.2d 1359 {1974);
Fletcher v. Fletcher, S9 Nev. 540
P.2d 1359 (1974); Fletcher v. Fletcher, 89 Nev. 540, 516 P.2d 103 (1973).
Id. at 365, 526 P.2d at 1179.
[Headnote 1]
The record shows that appellant Glindmeier exercised direct supervision of the sales
personnel and their promotional presentations. He may not, therefore, escape culpability by
contending that Landex alone is liable. See, NRS 207.171 regarding agent and employee
liability; see also, Jory v. Bennight, 91 Nev. 763, 542 P.2d 1400 (1975). In addition to the
other substantial evidence, we find persuasive the fact of Glindmeier's testimony that he
personally instructed his sales personnel as to what would comprise their sales presentations
and also drafted the podium speeches which were given during the sales presentations.
Appellants contend that the sales personnel volunteered statements which were not
contained in the prepared speeches or materials. The record does not support this contention.
Several specific representations made to the prospective purchasers on May 26, 1974,
which were found to be misrepresentative of the actual subdivision are that: less than one
percent of the total land in Nevada is available for sale to the public; MMR consists of flat
land with a few rolling hills; there were springs and wells throughout the subdivision; all
water found in the subdivision was good water; costs of trips from the purchasers' homes to
purchase as well as on a subsequent trip to determine if they desired to retain the property
would entitle the purchaser to a federal income tax deduction; all of the registered
representatives in the Landex sales room on March 26, 1974, were approved for their selling
activities and were highly qualified in all phases of investment; and, that parcels in the
subdivision could be resubdivided by the purchasers.
[Headnotes 2-4]
Evidence to establish violations of NRS 207.171 is not that quantum necessary to provide
a victim's claim of fraud. To prove false advertising under our statute, the State need only
establish that the defendants made statements they knew or should have known were untrue
or misleading in order to effect the sale. Actual deception is unnecessary to create liability
under NRS 207.173. Cf. Lubbe v. Barba, 91 Nev. 596, 540 P.2d 115 (1975). The standard for
untrue or misleading statements is the likelihood that the public will be misled. See, Double
Eagle Lubricants, Incorporated v. F.T.C., 360 F.2d 268 (10th Cir. 1965). Our review of the
record reveals substantial evidence supportive of the trial court's determinations under NRS
207.171 and further respecting Glindmeier's individual liability.
under NRS 207.171 and further respecting Glindmeier's individual liability. Additionally, the
trial court was justified in entering a permanent injunction enjoining Landex from further
pursuit of such prohibited activities.
2. Res Judicata and Collateral Estoppel.
Appellants' second claim stems from a decision of the Fourth Judicial District Court of the
State of Nevada, in and for the County of Elko, rendered prior to the within litigation on
March 15, 1974. In that action, the district attorney of Elko County sought to enjoin the sale
of land in MMR incident to Chapter 278 of the Nevada Revised Statutes, opposing
Landex's claim of exemption from that Chapter's application. Incidental to the primary
claims, the district attorney alleged that Landex was in violation of NRS 207.171, by virtue of
an alleged representation by a corporate agent to the effect that the marketed open space
land had a reservation of water rights in Landex. The Elko trial court in a relevant part of its
decision concluded:
5: The court has observed from the promotional speeches filed with the Real Estate
Commission by the Defendant, that the Sales Pitch is that land is becoming scarce;
that land is a prudent investment, and in many cases in the past has resulted in huge
profits for the land owner. As for example, land on the Las Vegas Strip. The buyers are
invited to purchase as a speculative investment. There is nothing unlawful about this
approach as long as there is a full disclosure. (Emphasis added.)
Appellant argues that as a result of the Elko County District Court's determinations, the
Washoe County District Court was precluded by the doctrines of res judicata and collateral
estoppel from finding that the representations made by the sales representatives of Landex
were false or misleading.
In Paradise Palms v. Paradise Homes, 89 Nev. 27, 505 P.2d 596 (1973), this Court,
quoting from the landmark case of Bernhard v. Bank of America, Nat. Trust & Sav. Ass'n,
122 P.2d 892 (Cal. 1942), stated,
The doctrine of res judicata precludes parties or their privies from relitigating a cause
of action that has been finally determined by a court of competent jurisdiction. Any
issue necessarily decided in such litigation is conclusively determined as to the parties
or their privies if it is involved in a subsequent lawsuit on a different cause of action' . .
.
In determining the validity of a plea of res judicata three questions are pertinent:
Was the issue decided in the prior adjudication identical with the one presented in the
action in question? Was there a final judgment on the merits? Was the party against
whom the plea is asserted a party or in privity with a party to the prior adjudication?'
Id. at 30-31, 505 P.2d at 598-99.
Respondents concede the finality of the prior adjudication; however, they contend that they
were not in privity with the Elko County district attorney and that the issues litigated in this
Washoe County proceeding were different from those litigated and decided in the Elko
County action. From the record before us, we are constrained to agree with respondents that
the issues tried in the Elko proceeding are markedly dissimilar from those now before us. The
Elko case involved a different form of advertising than the form of podium speeches and
other personal contact. We find it unnecessary to discuss the privity question.
[Headnotes 5-7]
Furthermore, the Elko County decision as to the tendency of the questioned statement to
mislead the public was qualified by the language as long as there is a full disclosure. The
issue litigated there focused on whether there was, in fact, enough of a disclosure so as to
fully inform prospective purchasers. Moreover, the representations were of a different type
and nature, were made subsequent to the Elko decision, and were made in Reno, not Elko.
The doctrine of res judicata proscribes the hearing of issues determined by a court of
competent jurisdiction in a prior proceeding between the same parties regarding the same
cause of action. Markoff v. New York Life Ins. Co., 92 Nev. 268, 549 P.2d 330 (1976). The
doctrine of collateral estoppel operates to preclude the parties or their privies from relitigating
issues previously litigated and actually determined in the prior proceeding. State v. Kallio, 92
Nev. 665, 557 P.2d 705 (1976); Clark v. Clark, 80 Nev. 52, 389 P.2d 69 (1964). The trial
court committed no error in ruling the defenses of res judicata and collateral estoppel
inapplicable.
3. Restitution.
[Headnote 8]
Restitution was not one of the remedies specifically alleged or prayed for by respondents
in their complaint. It is appellant's contention that assuming arguendo the complaint was
sufficient to allow restitution, on the facts of this case an award of restitution was improper.
We agree.
In support of their claimed entitlement to restitution, respondents rely heavily on People v.
Superior Court of Los Angeles County {"Jayhill"), 507 P.2d 1400 {Cal.
Angeles County (Jayhill), 507 P.2d 1400 (Cal. 1973). At the time Jayhill was decided, the
California Business and Professions Code provided that false or misleading advertising may
be enjoined in an action by the attorney general but was silent as to the power of the trial
court to order restitution in such a proceeding. The California statutes involved are similar to
NRS 207.171, et seq. In considering the propriety of the attorney general seeking restitution
on behalf of defrauded purchasers, the California Supreme Court stated,
At the time the complaint was filed Business and Professions Code Section 17535
provided that false or misleading advertising may be enjoined in an action by the
Attorney General, but was silent as to the power of the trial court to order restitution in
such a proceeding. On the other hand the statute did not restrict the court's general
equity jurisdiction in so many words, or by necessary and inescapable inference. In
the absence of such a restriction a court of equity may exercise the full range of its
inherent powers in order to accomplish complete justice between the parties, restoring
if necessary the status quo ante as nearly as may be achieved. In particular, in an action
by the Attorney General under section 17535 a trial court has the inherent power to
order, as a form of ancillary relief, that the defendants make or offer to make restitution
to the customers found to have been defrauded. (Citations omitted; emphasis added.)
Id. at 1402. See also, Annot., 55 ALR3d 198 and Annot., 59 ALR3d 1222.
Appellants concede, and we recognize, that a court has the inherent power, ancillary to its
general equity jurisdiction, to order restitution in an appropriate case, see, Securities &
Exchange Com'n v. Golconda Mining Co., 327 F.Supp. 257 (S.D. N.Y. 1971); however, they
contend that the State must prove that persons were actually defrauded and suffered injury as
a result of the misrepresentations made. Respondents contend that they need only prove that a
violation of NRS 207.171 has occurred, without more, and cite NRS 207.173 which provides
in part, it is sufficient . . . that ay statement referred to in NRS 207.171 has a tendency to
deceive or mislead the public because of its false or deceptive or misleading character even
though no member of the public is actually deceived or misled by such statement. We are
constrained to agree with appellant Landex's argument. In People v. Superior Court of
Ventura County, 552 P.2d 760 (Cal. 1976), the California Supreme Court, dealing with an
action brought by a district attorney under legislation similar to NRS 207.171 et seq., stated:
Both complaints seek restitution to the investors. . . .
Both complaints seek restitution to the investors. . . . The People . . . are still required to
prove that restitution is appropriate even though civil penalties may also be appropriate
in the absence of such proof. (Citations omitted; emphasis added.)
Id. at 763. See also, Kugler v. Romain, 279 A.2d 640 (N.J. 1971).
The comparatively limited proof required to establish false or deceptive advertising
contrasts sharply with that necessary to prove actionable fraud. To establish fraud there must
be proven:
[1] A false representation made by the defendant, [2] knowledge or belief on the part
of the defendant that the representation is falseor, that he has not a sufficient basis of
information to make it, [3] an intention to induce the plaintiff to act or to refrain from
acting in reliance upon the misrepresentation, [4] justifiable reliance upon the
representation on the part of the plaintiff in taking action or refraining from it, and [5]
damage to the plaintiff, resulting from such reliance. . . .
Lubbe, supra, at 599, 540 P.2d at 117; accord, Ach v. Finkelstein, 70 Cal.Rptr. 472 (1968).
Viewing the question most favorably to respondents, the first three elements have been
proven; however, we find no evidence on elements four and five. Under our decision today,
as to false advertising, no purchaser need be produced, or even exist. However, relative to the
proposition of actionable fraud, the record does not reveal who, if any, of the some nine
hundred purchasers were recipients of the deceptive advertising. Not a single purchaser of a
MMR parcel was produced at trial, and there is not a shred of evidence showing reliance
upon the false, deceptive, or misleading presentations. Similarly, no evidence was proffered
showing that all buyers were similarly situated, and, therefore, what amounts are owed to
each. Because of like evidentiary voids we do not know whether reliance by the purchasers is
provable, as some purchasers may have known, as a result of their knowledge and experience,
that the representations were false or misleading. Even more fundamentally, no purchaser or
representative of a class was joined as a party to the proceeding, and for this reason alone
restitution was not an available remedy. More precisely, the court was without the power to
enter a judgment ordering an offer of restitution or, correspondingly, reconveyances.
Compare, United States v. Parkinson, 240 F.2d 918 (9th Cir. 1956); see also, Kugler, supra
(by reason of a price unconscionability common to all transactions, all of the sales
contracts were held invalid and unenforceable); Jayhill, supra {holding that as a form of
ancillary relief to the attorney general suit, a court may award restitution to all
purchasers shown to have been defrauded).
reason of a price unconscionability common to all transactions, all of the sales contracts were
held invalid and unenforceable); Jayhill, supra (holding that as a form of ancillary relief to
the attorney general suit, a court may award restitution to all purchasers shown to have been
defrauded).
Although Nevada is a notice pleading state, our practice is not so liberal as to permit
recovery in these circumstances. The court below erred in ordering restitution.
4. Twenty Violations of NRS 207.170.
[Headnote 9]
Appellants next challenge the award of civil penalties, contending that the wording of
NRS 207.170 clearly establishes that it is the act of publication and not the extent of that
advertising which determines whether one violation, or a number of violations, of false
advertising has been committed. They argue that here only one violation of NRS 207.171
occurred, referring to NRS 207.174 which states in part: As used in this section, the term
each violation' includes, as a single violation, a continuous or repetitive violation arising out
of the same act. The same act language requires that there be separate acts involved before
a person can be charged with more than one violation of NRS 207.171.
In the instant case, the court found that the statements complained of were made, initially,
by a person giving a podium speech to a group of approximately twenty persons in a Reno
hospitality room. It was further established that immediately thereafter various sales
representatives of Landex approached each potential investor individually and made certain
misrepresentations used as a partial basis of the complaint. It is essentially appellants'
contention that since the alleged misrepresentations were made to the group, there is only one
violation. We do not agree.
In Jayhill, supra, the court interpreted similar statutory language and determined the
number of violations by the number of victims. There, the defendant made twenty-five
separate misrepresentations to each customer in their door-to-door sales of encyclopedias.
The Jayhill court imposed the maximum penalty of $2,500 for each violation and rejected the
contention that a violation occurs with each misrepresentation, irrespective of the number of
victims. Compare, State v. Ralph Williams' N.W. Chrysler Plymouth, 553 P.2d 423 (Wash.
1976) (adopting the one violation per each misrepresentation rule).
In Jayhill, the court described the purpose behind California's false advertising provisions
as follows:
The new civil remedy was added because the injunction and misdemeanor
provisions of the old law were not adequate to stop false advertising rackets.
and misdemeanor provisions of the old law were not adequate to stop false advertising
rackets. The injunction is little more than a cease and desist order. The guilty party
keeps his gains and is merely ordered not to defraud people in the same way again.
Criminal prosecutions are seldom undertaken because juries tend to be reluctant to
apply criminal sanctions in white-collar crimes and because it is difficult for outsiders
to fix responsibility in the modern corporate structure.'
507 P.2d at 1404, n. 3.
Appellants argued that should we follow the Jayhill rationale, and if the alleged
misrepresentations had been printed in a newspaper, they would be liable for violations
numbering in the thousands. The Jayhill court was faced with, and, like this court, not
concerned with that possibility. The probable impact of the podium presentations, followed
by the one-to-one confrontations, is much greater than would be similar statements contained
in a newspaper or magazine. On this record, we do adopt the one-violation-per-customer rule
announced in Jayhill.
The judgments appealed from are wholly affirmed, with the exception of that portion
ordering Landex to offer restitution to its purchasers, which restitutionary order is reversed.
Batjer, C. J., and Gunderson, J., concurring:
We concur in the result.
____________
94 Nev. 480, 480 (1978) Ubriaco v. American Reliable Ins. Co.
JOHN P. UBRIACO and ELEANOR N. UBRIACO, Appellants, v. AMERICAN RELIABLE
INSURANCE COMPANY, A Corporation, Respondent.
No. 9183
July 26, 1978 581 P.2d 453
Appeal from an order granting involuntary dismissal under N.R.C.P. 41(b); Eighth Judicial
District Court, Clark County; J. Charles Thompson, Judge.
Insureds brought suit against insurer to recover for value of furs and jewelry assertedly
stolen in a burglary. The district court granted the insurer's motion for involuntary dismissal
at the close of the insureds' case, and the insureds appealed. The Supreme Court held that
where the approved statement of the case did not contain a statement of the evidence
regarding the value of the items allegedly stolen or that the insurance agent in fact failed to
explain relevant policy limitations, the insureds did not demonstrate that they had proved
a sufficient case for the court below and, therefore, the order granting the motion for
dismissal was affirmed.
fact failed to explain relevant policy limitations, the insureds did not demonstrate that they
had proved a sufficient case for the court below and, therefore, the order granting the motion
for dismissal was affirmed.
Affirmed.
LePome & Gorman, Las Vegas, for Appellants.
Pat J. Fitzgibbons, Las Vegas, for Respondent.
In appealing from a judgment of nonsuit, appellant must set out in his statement sufficient evidence, upon
every material issue, to entitle him to judgment; the burden of showing facts establishing a prima facie case
rests upon appellant and he can only show such facts by stating so much of the evidence produced by him
as is necessary to justify recovery.
Where general statements contained in the approved statement of the case, on appeal from involuntary
dismissal of suit to recover insurance benefits, did not contain a statement of the evidence regarding the
value of the items allegedly stolen or that the insurance agent in fact failed to explain certain policy
coverage limitations on unscheduled items of furs and jewelry, insureds did not demonstrate through the
record submitted that they had proved a sufficient case in the trial court and, therefore, affirmance of order
granting involuntary dismissal was required. NRCP 41(b); NRAP 10(c), (e).
OPINION
Per Curiam:
This is an appeal from an order granting a motion for an involuntary dismissal under
NRCP 41(b).
1
We affirm.
Appellants, John and Eleanor Ubriaco, initiated this action with a complaint against
Respondent, American Reliable Insurance Company, alleging that the agent of Respondent
had failed to explain certain policy coverage limitations ($500) on unscheduled items of furs
and jewelry. Appellants alleged that on the basis of this omission, Respondent should be held
liable for the full value of furs and jewelry covered by the policy and allegedly stolen while
the policy was in effect.
Respondent denied that the agent had failed to explain the specific limitations on the items
of personal property in question. Respondent's Answer also put at issue the occurrence of a
burglary and the value of the items allegedly stolen.
____________________

1
Rule 41(b) provides, in pertinent part: After the plaintiff has completed the presentation of his evidence,
the defendant, without waiving his right to offer evidence in the event the motion is not granted, may move for a
dismissal on the ground that upon the facts and the law the plaintiff has failed to prove a sufficient case for the
court or jury.
At the close of Appellants' case, the court granted Respondent's motion for involuntary
dismissal under NRCP 41(b), on the principal ground that Plaintiffs had failed to prove their
case, particularly with reference to any established or reasonable value of the articles
allegedly stolen.
As no transcript was made of the evidence or proceedings in this case, an approved
statement of the case has been prepared and submitted as the basis for review. NRAP 10(c)
and (e). According to the approved statement the following represents the total evidence
presented by Appellants:
At the trial of this matter Plaintiffs put on testimony concerning the facts
surrounding the alleged burglary, the reporting of the alleged burglary to the police, the
filing of a burglary report, and the filing of a claim for their loss with the Defendant's
insurance adjustor. Plaintiffs' attorney offered into evidence copies of the burglary
report and insurance policy and no objection being entered, they were admitted into
evidence. Plaintiffs also testified that on two (2) occasions they had called their
insurance broker to ask if certain items of personal property were covered by their
policy, and he assured them that the property was indeed covered.
Plaintiffs put on no other testimony and rested their case.
[Headnote 1]
The obligation of an appellant in presenting a comparable appeal to this court on the basis
of such a statement was outlined long ago:
In appealing from a judgment of nonsuit, the plaintiff and appellant must set out in
his statement sufficient evidence, upon every material issue, to entitle him to judgment;
and if that is shown by a settled statement, he is entitled to reversal; otherwise he must
fail. The burden of showing facts establishing a prima facie case rests upon him, and he
can show them in one way only; that is, by stating so much of the evidence produced by
him as is necessary to justify a recovery. Brown v. Warren, 16 Nev. 228, 231 (1881).
This principle has been reflected in recent decisions of this court upholding the judgment
of the district court when presented with only a partial transcript, Hay v. Hay, 92 Nev. 663,
556 P.2d 1264 (1976), or with an abbreviated statement of evidence, Fenkell v. Fenkell, 86
Nev. 397, 469 P.2d 701 (1970). As the court observed in Brown v. Warren, It matters not
what reasons the court might give for granting a nonsuit, or that the judgment upon those
grounds may be erroneous; the appellant must show in his evidence that in all other
respects he was entitled to recover."
reasons the court might give for granting a nonsuit, or that the judgment upon those grounds
may be erroneous; the appellant must show in his evidence that in all other respects he was
entitled to recover. 16 Nev. at 232.
[Headnote 2]
Appellants have failed to meet this burden. The general statements contained in the
Approved Statement of the Case do not contain a statement of the evidence regarding value
of the items allegedly stolen or that the agent in fact failed to explain the relevant policy
limitations.
Since Appellants have failed to demonstrate, through the record submitted that they have
proved a sufficient case for the court below, the order of the district judge granting the 41(b)
motion for dismissal must be affirmed.
Affirmed.
____________
94 Nev. 483, 483 (1978) Johnson v. Steel Incorporated
JOYCE JOHNSON, Appellant, v. STEEL INCORPORATED, A Nevada Corporation;
SOPHIA WEINER aka SOPHIE WEINER; CLYDE T. TURNER; and STANLEY
JOHNSON, Respondents.
No. 9093
July 26, 1978 581 P.2d 860
Appeal from a post-judgment order distributing community property and awarding
alimony; Eighth Judicial District Court, Clark County; Addeliar D. Guy, Judge.
Parties sought divorce. The district court distributed community property and awarded
alimony, and wife appealed. The Supreme Court held that: (1) distribution of community
property of parties was proper, but (2) court, in its limitation of duration of initial alimony
award to two years, failed to give adequate consideration to financial condition of parties,
non-income-producing nature of bulk of property awarded the wife, 20-year duration of
marriage, husband's age, health, and long-term earning potential, and wife's limited ability to
earn a living commensurate with her needs, particularly in light of her lack of job experience
and her continued responsibility for the care of three young children of the marriage.
Affirmed in part; reversed and remanded in part.
Galane & Tingey and James J. Jimmerson, Las Vegas, for Appellant.
John Peter Lee, Las Vegas, for Respondents.
1. Divorce.
Trial judge, in divorce proceedings, did not abuse discretion in distributing community property of
parties by dividing shares of close corporation of which her husband was president and had been
controlling stockholder rather than by ordering husband to pay wife half their total value due to lack of
cash assets of parties. NRS 125.150, subd. 1.
2. Divorce.
In making property division in divorce proceeding, court is not compelled to make exact equal
distribution to parties of either the community property itself or the value thereof. NRS 125.150, subd. 1.
3. Divorce.
Trial court, in divorce proceedings, in its limitation of duration of initial alimony award of $1,250 per
month for two years failed to give adequate consideration, as required, to financial condition of parties,
nonincome-producing nature of bulk of property awarded the wife, 20-year duration of marriage, husband's
age, health, and long-term earning potential, and, wife's limited ability to earn a living commensurate with
her needs. NRS 125.150, subd. 1.
OPINION
Per Curiam:
The principal issue presented in this divorce appeal is whether the district judge abused his
discretion in distributing the community property of the parties and in fixing the alimony
award.
1. The parties had been married about 20 years when the decree was entered, granting
Joyce a divorce. She was then 39 years old and her husband, Stanley, 40.
There were two minor children of the marriage: Kristine, age 14, and Kara, age 7. The
elder daughter had a chronic medical condition (curvature of the spine) which required
supervision and medical care for an indefinite period.
Joyce was married at the age of 19, and had never worked outside the home nor acquired
any marketable skills which would enable her to earn a living. Stanley, in the words of the
district judge, during marriage had acquired the skills of his trade, primarily from working in
the trade itself. Through his efforts he has built a thriving business in a highly competitive
[field].
The court below ordered Stanley to pay the community debts, $7,500 in attorneys' fees,
and awarded Joyce custody of the two children and $250 per child per month child support,
plus medical expenses. The court also awarded Joyce alimony in the amount of $1,250 per
month for two years, then $250 per month thereafter until the death or remarriage of
Joyce, or the majority or emancipation of the younger daughter.
month thereafter until the death or remarriage of Joyce, or the majority or emancipation of the
younger daughter.
Joyce, in this appeal, urges that the court below abused its discretion in (1) failing to
distribute sufficient income-producing property to her, and (2) in providing for a substantial
reduction in alimony after two years.
2. Courts in Nevada are granted broad discretion by statute to determine equitable
distribution of community property assets and to award alimony. NRS 125.150(1).
1
Before
the appellate court will interfere with the trial judge's disposition of the community property
of the parties or an alimony award, it must appear on the entire record in the case that the
discretion of the trial judge has been abused. Shane v. Shane, 84 Nev. 20, 22, 435 P.2d 753,
755 (1968). The decision of the trial judge should be upheld if a review of the record
indicates that the trial judge after considering all the evidence in the record made a fair, just
and equitable award. Id.
A. Distribution of Community Property.
[Headnote 1]
Joyce asserts various assignments of error, predicated primarily on the trial judge's failure
to recognize that she would not realize yearly income from the major asset distributed to her:
shares representing 40.13 percent ownership of Steel, Inc., a close corporation of which her
husband was president and had been controlling stockholder.
2
The trial court explained that
its decision to divide the shares of Steel, Inc., rather than have Stanley pay Joyce half their
total value, was based upon the lack of cash assets of the parties. The office building was
awarded Stanley because it housed his business operation, and he was in a better position to
pay off the encumbrances of some $82,000 on the building.
Appellant has set forth her estimate of the value of each of the community property assets
as distributed. When the assumption of community property debts of $134,S46, as ordered
by the court, is included, and the amounts totalled, it appears that Joyce received assets
valued at $356,059, while Stanley received assets, over and above the community debt,
of $350,443.
____________________

1
NRS 125.150(1): In granting a divorce, the court may award such alimony to the wife, or to the husband if
he is disabled or unable to provide for himself, in a specified principal sum or as specified periodic payments,
and shall make such disposition of the community property of the parties, as appears just and equitable, having
regard to the respective merits of the parties and to the condition in which they will be left by such divorce, and
to the party through whom the property was acquired, and to the burdens, if any, imposed upon it, for the benefit
of the children.

2
Joyce also argues error in the trial court's distribution of ownership of stock in two other corporations to
Stanley, rather than Steel, Inc. Assuming that the court's finding is in error, it was in no way prejudicial to Joyce
as her husband has tendered to Joyce the amounts which the trial court ordered paid her for the stock.
assumption of community property debts of $134,846, as ordered by the court, is included,
and the amounts totalled, it appears that Joyce received assets valued at $356,059, while
Stanley received assets, over and above the community debt, of $350,443.
[Headnote 2]
The court was not compelled to make an exact equal distribution to the parties of either
the community property itself or the value thereof. Fox v. Fox, 81 Nev. 186, 196, 401 P.2d
53, 58 (1965).
The record shows that the trial court entered its order for distribution of the community
property assets after consideration of voluminous evidence, both documentary and oral, and
upon a practical consideration of the business realities involved. Its determination in this
regard may not be disturbed on appeal.
B. Award of Alimony.
[Headnote 3]
Joyce suggests that the court abused its discretion in awarding her alimony of $1,250 per
month for two years, with a reduction to $250 per month thereafter. We agree.
The trial court explained its alimony award as follows:
Joyce has not worked during the course of her marriage and has no skill or trade to
rely upon. The Court therefore should provide a period for her to learn a trade. The
Court after examining the income tax returns (Exhibits 3, 4, 5 and 6) believes that
alimony in the amount of $1250 per month for a period of two years would be a
reasonable sum and time for Joyce to learn a trade or skill.
It is clear that the two year award was in the nature of rehabilitative alimony, awarded
wives for the purpose of facilitating their entry into the labor market. Some states have
explicitly or implicitly provided for such awards. See Reback v. Reback, 296 So.2d 541, 543
(Fla.App. 1974); In re Marriage of Lopez, 113 Cal.Rptr. 58, 72 (Cal.App. 1974). The broad
discretion afforded by NRS 125.150(1), supra, authorizes such an award in an appropriate
case.
While the trial courts have wide discretion in the determination of alimony, nevertheless,
there are limits to their discretion. The guidelines have been set forth as follows:
Much depends upon the particular facts of the individual case. Among the matters to
be considered are: the financial condition of the parties; the nature and value of their
respective property; the contribution of each to any property held by them as
tenants by the entirety; the duration of the marriage; the husband's income, his
earning capacity, his age, health and ability to labor; and the wife's age, health,
station and ability to earn a living."
respective property; the contribution of each to any property held by them as tenants by
the entirety; the duration of the marriage; the husband's income, his earning capacity,
his age, health and ability to labor; and the wife's age, health, station and ability to earn
a living. (Citation omitted.) Buchanan v. Buchanan, 90 Nev. 209, 215, 523 P.2d 1, 5
(1974).
In Buchanan, the wife was granted a payment of $300 per month, for three years as part of
a property settlement. This court found the award showed reasonable effort on the part of the
trial court to allow appellant to adjust to the situation. 90 Nev. at 214, 523 P.2d at 4. The
record revealed that the marriage had lasted only three years; that the wife was 31 years old,
and capable of earning $20 per day as a model, at the time of the award; and that the
husband's gross annual income during marriage had averaged $13,500.
In the instant case, however, there was a marriage of long duration (20 years), during
which Joyce had cared for the house and the children. These responsibilities will continue for
a number of years. Joyce was not found to be capable of earning a living at the time of the
award. Respondents frankly conceded that the property allocated Joyce will generate little
income. Nor are the stocks in Steel, Inc., a close corporation likely to be readily marketable.
The parties differ considerably in their estimates of the gross income of Joyce's husband, but
Stanley did concede a personal income before taxes of $83,000 in 1975. The trial court made
no finding on the issue but did conclude, on the basis of its examination of income tax
returns, that Joyce was initially entitled to $1,250 per month alimony.
Recently appellate courts in other jurisdictions have begun to question the wisdom of
awarding rehabilitative alimony in cases involving marriages of long duration, particularly
where there are minor children in the care ad custody of the wife, and there is no showing that
the wife will be able to acquire an earning capacity commensurate with her former standard
of living.
In Kay v. Kay, 339 N.E.2d 143 (N.Y. 1975), the New York Court of Appeals upheld an
Appellate Division determination that the trial court award of alimony had been inadequate.
After recognizing the legitimate and healthy trend toward consideration of the wife's ability to
become self-supporting in the determination of alimony (citing, among other cases, Freeman
v. Freeman, 79 Nev. 33, 378 P.2d 264 (1963)), the court pointed out:
. . . in our zeal to correct what may have been inequitably burdensome alimony
arrangements and to recognize the selfhood of women as functioning, independent
persons, we would do injustice to the men and women we seek to treat more equally
if we ignored the facts of life.
burdensome alimony arrangements and to recognize the selfhood of women as
functioning, independent persons, we would do injustice to the men and women we
seek to treat more equally if we ignored the facts of life. A woman who, for historical
and personal reasons, and especially with the long concurrence of her husband, chooses
to make her contribution to a marriage by remaining at home to raise the children of the
union and who finds herself, after 23 years, alone with still-growing children to rear,
might be victimized rather than liberated by being required to enter the working world.
339 N.E.2d at 147.
Although the wife in Kay, unlike Joyce, was college educated and had worked prior to
marriage, she had not participated in the job market for many years. The court noted that if
she preferred to work outside the home, and if her salary measurably exceeded work-related
expenses such as child-care, her husband could apply for a modification of the award.
However, the court continued, where [a husband] has acquiesced in and benefited from her
role as wife and mother for 23 years, he may not now, for his own economic reasons, force
her into a different role without demonstrating that it has economic viability and that the
children will not suffer any detriment from it. 339 N.E.2d at 147.
3

Similarly, the California appellate courts have begun to question awards based on the
assumption that wives who have not worked during marriages of long duration will develop
the capacity to earn enough to meet expenses engendered by their life-style during marriage.
In re Marriage of Lopez, supra, 113 Cal.Rptr. 58, held an award for $200 per month for 24
months unreasonable under the circumstances. The court noted that under California law, as
in Nevada, trial courts have broad discretion to determine alimony, and that appellate courts
are required to exercise judicial restraint.
____________________

3
As counsel for Joyce correctly pointed out in oral argument, NRS 125.150(6) provides for automatic
retention of jurisdiction by the trial court for purpose of modification of the alimony award. Such modification is
only to be granted, however, upon a showing by the applicant that a change is warranted by changed
circumstances. The trial court's ruling, on the other hand, presumes that within two years circumstances will
have changed so as to justify a $1,000 per month reduction in alimony. There was nothing in the evidence before
the trial court which would support such an inference or justify a modification of the procedure, and the burden
of proof, contained in the statute. See NRS 125.150(6), in pertinent part:
If a decree of divorce . . . provides for specified periodic payments of alimony, such decree or agreement
is not subject to modification by the court as to accrued payments. Payments pursuant to a decree entered
on or after July 1, 1975, which have not accrued at the time a motion for modification is filed may be
modified upon a showing of changed circumstances, whether or not the court has expressly retained
jurisdiction for such modification.
required to exercise judicial restraint. It observed that the wife was 39, and had not worked
during 14 years of marriage. She had obtained custody of her 15 year old daughter, and was
granted $250 per month child support. She had submitted evidence of expenses of $1,000 per
month at the time of separation. Although the husband pointed out that with income which
could be obtained from the property awarded her, the wife would receive $890 per month, the
court found this inadequate in light of the husband's ability to pay and the duration of the
marriage.
The Supreme Court of California, In re Marriage of Morrison, 573 P.2d 41 (1978),
speaking through Chief Justice Bird, had this to say on the subject at page 51:
Limiting the duration of support so that both parties can develop their own lives, free
from obligations to each other, is a commendable goal. However, if courts were to award
support with a set termination date simply for this reason and without any evidence as to
the ability of the supported spouse to support himself or herself, great injustices could
result. Although increasing numbers of married women today are employed, many others
have devoted their time, with their spouse's approval, to maintaining the home and
raising the children, leaving them no time for employment outside the home. This
willingness of the wife to remain at home limits her ability to develop a career of her
own. If the marriage is later dissolved, the wife may be unable, despite her greatest
efforts, to enter the job market.
4

The trial court in this case made no reference to any evidence, and made no factual
findings, which would justify the conclusion that Joyce would be able to develop the capacity
to earn $1,000 per month within two years. Respondents have pointed to no such evidence in
the voluminous record. Yet that is the discrepancy between what Joyce will receive in support
from her husband for the first two years, and thereafter.
We, therefore, conclude that the trial court, in its limitation of the duration of the initial
alimony award to two years, failed to give adequate consideration, as required by Buchanan,
to (1) the financial condition of the parties, (2) the non-income producing nature of the bulk
of the property awarded the wife, (3) the 20 year duration of the marriage, {4) the
husband's age, health, and long-term earning potential, and {5) the wife's limited ability
to earn a living commensurate with her needs, particularly in light of her lack of job
experience and her continued responsibility for the care of the two young children of the
marriage.
____________________

4
Florida appellate courts have also disapproved rehabilitative alimony, specifically authorized by Florida
statute, in similar situations. Lash v. Lash, 307 So.2d 241 (Fla.App. 1975) (wife, in mid-forties, would be forced
to enter job market after many years of marriage); Reback v. Reback, supra, 296 So.2d 541 (no evidence that
wife, age 56, would develop capacity for self-support within 5 years allowed for alimony).
the 20 year duration of the marriage, (4) the husband's age, health, and long-term earning
potential, and (5) the wife's limited ability to earn a living commensurate with her needs,
particularly in light of her lack of job experience and her continued responsibility for the care
of the two young children of the marriage.
The order of the trial court with respect to the distribution of the community property
assets is affirmed. The order regarding alimony is reversed and remanded to the district court
for reconsideration in accordance with the views expressed herein.
____________
94 Nev. 490, 490 (1978) Salas v. Sheriff
MARK G. SALAS, Appellant, v. SHERIFF,
No. 10939
July 26, 1978 581 P.2d 865
District Court, Clark County; Keith C. Hayes, Judge.
Appeal was taken from order of the district court denying pretrial petition for writ of
habeas corpus. The Supreme Court held that writ should be granted where prosecuting
attorney did not tender an acceptable explanation for his failure to have an interpreter present
at preliminary examination to assist in examination of alleged larceny victim.
Houston & Moran, Las Vegas, for Appellant.
Edward R. Kane, Deputy District Attorney, Clark County, for Respondent.
Habeas Corpus.
Pretrial petition for writ of habeas corpus should be granted where prosecuting attorney did not tender
acceptable explanation for failure to have interpreter present at preliminary examination to assist in
examination of alleged larceny victim.
OPINION
Per Curiam:
The facts in this case are essentially the same as those in Reason v. Sheriff, 94 Nev. 300,
579 P.2d 781 (1978), where we reversed a district court order denying habeas corpus
because the prosecuting attorney did not tender an acceptable explanation for his failure
to timely make arrangements for incriminating evidence to be brought to a preliminary
examination.
94 Nev. 490, 491 (1978) Salas v. Sheriff
reversed a district court order denying habeas corpus because the prosecuting attorney did not
tender an acceptable explanation for his failure to timely make arrangements for
incriminating evidence to be brought to a preliminary examination.
Here, the prosecuting attorney did not tender an acceptable explanation for his failure to
have an interpreter present to assist in the examination of the alleged victim of a larceny.
Accordingly, on the authority of Reason, we reverse and remand this case to the district
court with instructions to grant Mark G. Salas's petition for the writ of habeas corpus. See
also Salas v. Sheriff, 91 Nev. 802, 543 P.2d 1343 (1975).
____________
94 Nev. 491, 491 (1978) IBEW Local 396 v. Central Tel. Co.
IBEW LOCAL 396, Appellant, v. CENTRAL
TELEPHONE COMPANY, Respondent.
In the Matter of ARBITRATION BETWEEN CENTRAL
TELEPHONE COMPANY and IBEW LOCAL 396.
No. 9172
July 26, 1978 581 P.2d 865
Appeal from judgment denying motion to vacate arbitration award, Eighth Judicial District
Court, Clark County; Michael J. Wendell, Judge.
The district court affirmed arbitration award upholding dismissal of union member, and
union appealed. The Supreme Court held that arbitration board acted within scope of its
authority.
Affirmed.
John Peter Lee, Ltd., Las Vegas, for Appellant.
Neil J. Beller, Las Vegas, for Respondent.
1. Arbitration.
Function of court reviewing arbitration award is limited to ascertaining whether party seeking arbitration
is making claim which on its face is governed by contract.
2. Labor Relations.
Arbitrator's award must be based on collective bargaining agreement, and must be enforced by court even
if arbitrator's interpretation of contract is ambiguous or would differ from court's interpretation.
3. Arbitration.
Arbitrator's decision is bound only by scope of submission.
4. Labor Relations.
Where original submission to arbitration board was broadly phrased as to whether union member was
discharged for cause, and at arbitration hearing employer additionally sought, without objection,
consideration of member's status as "Chief Steward," arbitration board acted within
scope of its authority in affirming discharge of union member, who allegedly was
responsible for some damage to company property during strike.
member's status as Chief Steward, arbitration board acted within scope of its authority in affirming
discharge of union member, who allegedly was responsible for some damage to company property during
strike.
5. Arbitration.
Common-law rules of evidence do not apply to arbitration proceedings and hearsay is admissible.
6. Labor Relations.
Arbitrators, who expressly stated that they did not rely on hearsay statements by another employee
indicating that he, discharged union member and two other individuals were responsible for some damage
to company property during strike as basis for their decision affirming discharge, did not err in admitting
hearsay evidence or refusing to postpone hearing until after pending criminal proceedings against
declarant, who refused to testify at arbitration hearing due to such proceedings. NRS 38.145, 38.145,
subd. 1(d).
OPINION
Per Curiam:
IBEW Local 396, on behalf of one of its union members, William McNair, appeals from a
judgment by the district court which affirmed an arbitration award discharging McNair.
Finding the arbitration board acted within the scope of its authority we affirm the district
court's judgment.
McNair's discharge emanates from incidents which occurred during a strike called by
IBEW against respondent, Central Telephone Company (hereinafter CENTEL). During
negotiations on a new contract, CENTEL sustained damage to company property which
disrupted service in the Las Vegas area. After the strike was settled, Randy Winn, a CENTEL
employee, signed statements indicating that he, McNair, and two other individuals were
responsible for some of the damage. On February 11, 1974, CENTEL discharged McNair and
Winn. McNair subsequently filed a written grievance pursuant to his union contract with
CENTEL, protesting the discharge to an arbitration board. In a 2-1 decision, the board denied
McNair's claim, and affirmed his discharge. The district court thereafter denied IBEW's
motion to vacate the arbitration award. IBEW here appeals from that judgment contending (1)
the arbitrators exceeded their authority, and (2) the arbitration hearing was conducted in an
atmosphere of substantial prejudice.
1. IBEW first contends the district court erred by denying its motion to vacate the
arbitration award, because the arbitrators exceeded their authority.
its motion to vacate the arbitration award, because the arbitrators exceeded their authority.
See NRS 38.145(1)(c).
1
In support of this contention IBEW insists it was improper for the
arbitrators to consider McNair's status as a Chief Steward in justifying his discharge.
2

[Headnotes 1-3]
In considering this issue as framed we note that judicial review of arbitration awards is
governed by the following principles: (1) the function of a reviewing court is limited to
ascertaining whether the party seeking arbitration is making a claim which on its face is
governed by the contract, Steelworkers v. American Mfg. Co., 363 U.S. 564, 568 (1960); (2)
an arbitrator's award must be based on the collective bargaining agreement, and must be
enforced by the courts even if the arbitrator's interpretation of the contract is ambiguous or
would differ from the court's interpretation;
3
Steelworkers v. Enterprise Corp., 363 U.S. 593
(1960); and (3) the arbitrator's decision is bound only by the scope of the submission.
Northwestern Sec. Ins. Co. v. Clark, 84 Nev. 716, 720, 448 P.2d 39, 41 (1968); Enterprise,
cited above, at 598.
[Headnote 4]
Using these principles we find the arbitrators did not exceed their authority as claimed.
The original submission to the arbitration board was broadly phrased: whether McNair had
been discharged for cause."
____________________

1
NRS 38.145 provides in pertinent part:
1. Upon application of a party, the court shall vacate an award where:
(a) . . .
(b) . . .
(c) The arbitrators exceeded their power, . . .

2
The majority of the arbitration board found in relevant part:
McNair's testimony was vague, evasive and inconsistent.
. . . while the evidence as to Mr. McNair actually cutting any cables is inconclusive, there is ample evidence
that he knew the others in the group . . . cut cables and he did nothing to try to prevent it.
. . . McNair as Chief Steward . . . had a responsibility to endeavor to lead the group away from damaging
Company property. His testimony shows he made no effort to prevent what he knew was about to take place,
only turned his back so he wouldn't see it.
. . . McNair's failure to act to prevent others from doing damage to Company property when he, as Chief
Steward, was in a position to do so constitutes just and sufficient cause for his termination by the Company.

3
In this regard the Supreme Court has noted: The labor arbitrator's source of law is not confined to the
express provisions of the contract, as the industrial common lawthe practices of the industry and the shopis
equally a part of the collective bargaining agreement although not expressed in it . . . The ablest judge cannot be
expected to bring the same experience and competence to bear upon the determination of a grievance, because
he cannot be similarly informed. Steelworkers v. Warrior & Gulf Co., 363 U.S. 574, 581-582 (1960).
discharged for cause. At the arbitration hearing CENTEL additionally sought, without
objection, consideration of McNair's status as a Chief Steward. Therefore, since the
arbitrators stayed within the scope of the submissions, the district court made no error by
refusing to vacate the award. Cf. Enterprise, cited above at 598; Northwestern, cited above;
Safeway Stores v. American Bakery & Con. W.I.U., Local 111, 390 F.2d 79 (5th Cir. 1968).
[Headnotes 5, 6]
2. IBEW next attacks the award by claiming the arbitrators did not comply with NRS
38.145(1)(d).
4
IBEW claims the hearing should have been postponed, so that the arbitrators
would not rely on the hearsay statements of Randy Winn.
5
. It is well established that the
common law rules of evidence do not apply to arbitration proceedings. Brotherhood of Rail.
Train. v. St. Louis Southwestern Ry. Co., 252 F.Supp. 961, (D.C. Cir. 1966). Hearsay is
admissible. See, e.g., Petroleum Separating Co. v. Interamerican Refining Corp., 296 F.2d
124 (2nd Cir. 1961). Moreover, the arbitrators expressly stated that they did not rely on
Winn's hearsay statements as the basis for their decision. Therefore, the arbitrators made no
error by admitting the hearsay evidence, or refusing to postpone the hearing.
Affirmed.
____________________

4
1. Upon application of a party, the court shall vacate an award where:
(a) . . .
(b) . . .
(c) . . .
(d) The arbitrator refused to postpone the hearing upon sufficient cause being shown therefor or refused to
hear evidence material to the controversy or otherwise so conducted the hearing, contrary to the provisions of
NRS 38.075, as to prejudice substantially the rights of a party; or. . .

5
Winn refused to testify at the arbitration hearing due to pending criminal proceedings. CENTEL therefore
introduced his prior written statements into evidence to implicate McNair.
____________
94 Nev. 495, 495 (1978) A-Mark Coin Co. v. Estate of Redfield
A-MARK COIN COMPANY, INC., Appellant, v. THE ESTATE OF LaVERE REDFIELD,
Deceased; NELL J. REDFIELD, LUANA W. MILES and CANDIDA LARENA,
Coexecutrices of the Estate of LaVere Redfield; DOROTHY DESCHAMPS; RARE COIN
GALLERIES, a Corporation; and BOWERS & RUDDY GALLERIES, a Corporation,
Respondents.
No. 8769
July 26, 1978 582 P.2d 359
Appeal from orders of probate court, Second Judicial District Court, Washoe County; John
E. Gabrielli, Judge.
From order of the probate court, district court annulling prior order directing a private sale
of estate's coin collection and directing, instead, a public sale, and from order confirming sale
of collection to corporation, the corporation appealed. The Supreme Court, Thompson, J.,
held that probate court had jurisdiction to annul order directing private sale, and to order a
public sale when, subsequent to executrices' entry into agreement to sell collection for certain
amount pursuant to order for private sale, an unconditional offer was submitted to buy
collection for a greater amount.
Affirmed.
[Rehearing denied September 28, 1978]
Lionel Sawyer & Collins, of Las Vegas, and Hawkins, Rhodes, Sharp and Barbagelata, of
Gerald Smith; Clel Georgetta; Eli Grubic; Gordon Rice; Woodburn, Wedge, Blakey,
Folsom and Hug; and Vargas, Bartlett & Dixon, of Reno, for Respondents.
1. Courts.
Probate court has jurisdiction to vacate prior order on learning that it was entered through mistake, and
the court may initiate relief from such an order on its own motion. NRCP 60(b).
2. Executors and Administrators.
Probate court, which had entered order directing private sale of estate's coin collection, had jurisdiction
to annul such order and order a public sale when, subsequent to executrices' entry into agreement to sell
collection for $5,910,142 pursuant to the order for private sale, an unconditional offer was
submitted to buy collection for $6,501,156.
unconditional offer was submitted to buy collection for $6,501,156. NRS 148.170, 148.190; NRCP
60(b).
OPINION
At issue is the power of the probate court to annul its order directing a private sale of
the Redfield coin collection, and to direct instead, a public sale thereof.
The Estate of LaVere Redfield possessed 351,259 United States uncirculated silver dollars
and 56,337 United States circulated silver dollars, a hoard having an appraised value of some
$5,000,000. On November 4, 1975, the probate court authorized the Executrices of the estate
to sell the coin collection to one or more buyers without the requirement of full disclosure,
publication of notice and confirmation of sale. It was the court's belief, shared by those
interested in the estate, that a private sale pursuant to NRS 148.170 would produce the best
price, whereas a public sale would depress the coin market and significantly reduce the sale
price of the collection.
1

The Executrices, pursuant to such authorization, made an agreement with A-Mark Coin
Company, Inc., to sell the collection for $5,910,142. The sale was to occur January 19, 1976.
That sale did not take place. Ten days before it was to happen, Rare Coin Galleries and
Bowers & Ruddy Galleries, as coadventurers, submitted an unconditional offer in court to
purchase the hoard for $6,501,156 and tendered a cashier's check in that amount.
This occurrence prompted the court to reconsider its November 4 order authorizing a
private sale. The sale had not been consummated. It was evident that a better price could be
obtained if public bidding was allowed.
2
Accordingly, the court, on January 14, 1976,
found that: the order of November 4, 1975, was erroneously entered, and that a sale
pursuant to NRS 14S.170 was not appropriate and would not yield the best price; that the
court was obliged to obtain the best price for the estate; that the collection should be sold
pursuant to NRS 14S.190.3 Consequently, the court annulled the order of November 4,
accepted the unconditional bid of Rare Coin Galleries and Bowers & Ruddy Galleries
subject to further bidding at a public sale to be held January 27, 1976.
____________________

1
NRS 148.170: Perishable property and other personal property which will depreciate in value if not
disposed of promptly, or which will incur loss or expense by being kept, and so much other personal property as
may be necessary to provide the family allowance pending the receipt of other sufficient funds, may be sold
without notice, and title shall pass without confirmation; but the executor, administrator or special administrator
is responsible for the actual value of the property unless, after making a sworn return, and on a proper showing,
the court shall approve the sale. The court treated the coin collection as similar to perishable property which
would depreciate in value.

2
The court stated: However, the events which have transpired in this court this morning have demonstrated
as an actual fact that this court's November 4, 1975 order was made and entered upon an apparently erroneous
assumption, and all the fears upon which the order was based have now been effectively eliminated by the
bowers and Ruddy Galleries' unconditional bid, as stated. No one could have anticipated this, neither the court
nor the estate counsel.
court, on January 14, 1976, found that: the order of November 4, 1975, was erroneously
entered, and that a sale pursuant to NRS 148.170 was not appropriate and would not yield the
best price; that the court was obliged to obtain the best price for the estate; that the collection
should be sold pursuant to NRS 148.190.
3
Consequently, the court annulled the order of
November 4, accepted the unconditional bid of Rare Coin Galleries and Bowers & Ruddy
Galleries subject to further bidding at a public sale to be held January 27, 1976.
On January 27, 1976, public bidding occurred. A-Mark Coin Company, Inc., submitted the
highest bid, $7,300,000. The court confirmed a sale of the coin collection to that company.
Notwithstanding its status as the successful bidder, A-Mark Coin Company, Inc., has
appealed from two orders: the order directing a public sale, and the order confirming sale of
the coin collection to it for $7,300,000. It claims an enforceable contract with the Executrices
to purchase the coin collection for $5,910,142, and that the court lacked power to interfere
with that contract at the insistence of Rare Coin Galleries and Bowers & Ruddy Galleries
who allegedly were without standing to intrude. We turn to consider these contentions.
____________________
The Court has concluded as a result that the question of standing has now become moot, and since that has
now become moot, there is no question but that the court is duty bound to accept the bid which is for the best
interest and greatest benefit to the estate, and that is to accept the highest price in the scope of the law. This court
has certain statutory duties with respect to probate of estates which it is duty bound to follow, separate and apart
from the desires of the heirs or persons involved.
This will not be the first time that this court has vacated and set aside an order when convinced it was
erroneously entered for whatever reason. Therefore, the November 4, 1975 order is vacated and set aside, and
Nell Redfield and Dorothy DesChamps and all the three executrices of the estate are each and all relieved from
any and all liability to the Markoff firm for any and all damages for breach of contract in regard to the December
17, 1975 contract for the purchase of the coins, since it was made pursuant to this court's order, based upon, as it
now turns out at least, an honest mistake of fact and/or other matters which the court will not attempt to hear or
not attempt to define or indicate.

3
NRS 148.190:
1. Except as provided by NRS 148.080, 148.170 and 148 180 and in summary administration under chapter
145 of NRS, the executor or administrator may sell personal property of the estate only after he has caused
notice to be published at least 10 days before the sale in one or more issues of a newspaper published in the
county where the proceedings are pending, if there is such a newspaper; if not, then in one having general
circulation in the county. The notice shall include the time and place of sale, and a brief description of the
property to be sold.
2. Public sales must be made at the courthouse door, at some other public place, at the residence of the
decedent or at a place designated by the executor or administrator; but no sale may be made of any personal
property which is not present at the time of sale, unless the court shall otherwise order.
1. It is irrelevant whether Rare Coin Galleries and Bowers & Ruddy Galleries had
standing to object to the private sale and themselves submit a bid. Their bid, whether properly
submitted or not, caused the probate court to realize that the best interests of the estate would
be served by a public sale rather than a private sale.
4
Therefore, on its own initiative, the
court annulled its order authorizing a private sale, and directed a public sale.
[Headnotes 1, 2]
A probate court has jurisdiction to vacate a prior order upon learning that it was entered
through mistake. Abel v. Lowry, 68 Nev. 284, 231 P.2d 191 (1951). Our remedial rule,
NRCP 60(b), contemplates such action.
5
The court may initiate relief from such an order on
its own motion. Martin v. Leonard Motor El-Paso, 402 P.2d 954 (N.M. 1965); McDowell v.
Celebrezze, 310 F.2d 43 (5th Cir. 1962). The court below was sensitive to its obligation. Its
candor and wisdom in correcting an apparent mistake benefited the estate by $1,389,858. Its
power to act as it did is established and, in our view, beyond question.
2. Since the probate court acted within its authority in nullifying prior authorization for a
private sale and directing a public sale, we need not consider several other issues tendered by
this appeal.
Affirmed.
Mowbray and Manoukian, JJ., concur.
Batjer, C. J., concurring:
I concur in the result for a reason different than that announced by the majority.
____________________

4
In line with authority elsewhere, Balaban v. Bank of Nevada, 86 Nev. 862, 477 P.2d 860 (1972), held that
an unsuccessful bidder is not a person interested in the estate entitled to object to court confirmation of a sale.
Whatever relevancy that decision may have to the question of standing, it does not bear upon the power of a
probate court, sua sponte, to annul a prior order to protect the best interests of the estate.

5
NRCP 60(b): On motion and upon such terms as are just, the court may relieve a party or his legal
representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence,
surprise, or excusable neglect; (2) Fraud, misrepresentation or other misconduct of an adverse party which
would have theretofore justified a court in sustaining a collateral attack upon the judgment; (3) the judgment is
void; or, (4) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based
has been reversed or otherwise vacated, or it is no longer equitable that an injunction should have prospective
application. The motion shall be made within a reasonable time, and for reasons (1) and (2) not more than six
months after the judgment, order, or proceeding was entered or taken. A motion under this subdivision (b) does
not affect the finality of a judgment or suspend its operation. 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. The procedure for obtaining any relief from a judgment shall be by motion as
prescribed in these rules or by an independent action.
announced by the majority. I believe the order entered by the district court on November 4,
1975, was null and void ab initio and that the order dated January 14, 1976, was the only
valid order entered.
The only estate property which may be sold without notice with or without an order of the
court is perishable property or other property which will depreciate in value if not disposed of
promptly or which will incur loss or expenses by being kept. NRS 148.170. There is no
evidence in this record to show that the silver dollars were incurring loss or expense in being
kept, were depreciating in value or were perishable. The district court's finding and belief
that a public sale would depress the coin market and significantly reduce the sale price of the
collection were not valid reasons within the statutory scheme to support a private sale without
notice. The order confirming the sale of the coin collection to appellant for $7,300,000 should
be affirmed.
I must respectfully dissent.
The majority concludes a probate court has absolute power to set aside any estate sale sua
sponte so long as the court's judgment is in the best interests of the estate. Such analysis
fails to note a significant jurisdictional problem posed by our statutory scheme, and ignores
established principles dealing with standing to interfere with estate actions.
In October, 1975, the executrices filed a Petition for Instructions Regarding Sale of
Personal Property, seeking to sell a unique collection of 407,596 silver dollars. They sought
instructions because one of them, Nell J. Redfield, the decedent's widow and heir at law, as
well as Dorothy DesChamps, sole beneficiary of decedent's one-half community property
interest in the collection, both believed detailed disclosure and description of the coins to the
public at large would seriously depress the numismatic value of the collection. Consequently,
they sought permission to sell the collection pursuant to the private sale provisions of NRS
148.170, rather than under NRS 148.190, which required publication of notice of sale, and
confirmation in open court. The two remaining co-executrices doubted the applicability of
NRS 148.170, and believed disclosure would not adversely affect the market price.
Consequently, they joined with Nell J. Redfield in the petition for instructions.
At a November 4, 1975, hearing on the petition, the district court declared it was satisfied
that there is a real danger if this matter is opened up to public disclosure, and that there will
be a diminishing value to the coin collection that is involved here.
. . . The court then entered an Order Authorizing Executrices to Sell Certain Personal
Property Pursuant to N.R.S. Section 148.170.
1
Although notice of entry was given, no
appeal was taken, the parties apparently accepting the court's determination.
Thereafter, the co-executrices and appellant A-Mark negotiated and executed a purchase
agreement on December 17, 1975, selling the coin collection for $5,910,142. The purchase
agreement was joined in, and agreed to, by Dorothy DesChamps, the sole beneficiary of the
estate, and by Nell Redfield individually, the widow and heir at law of the decedent. The
price exceeded by more than 10 percent the appraised value of the property as determined by
the court-appointed appraiser.
On December 18, 1975, two other coin dealers who had not seen the collection, Rare Coin
Galleries and Bowers and Ruddy Galleries, instituted proceedings to prevent sale under the
contract. They filed both a Petition for Order to Inspect Personal Property and for Leave
Thereafter to Bid Thereon, and a Petition for Temporary Restraining Order and Preliminary
Injunction and a Bid to Purchase Personal Property.
On December 29, 1975, the co-executrices, including the widow and heir at law, filed a
motion to dismiss the petitions of the other coin dealers. The sole beneficiary later joined in
the motion. At that time, all parties to the estate apparently were satisfied that the terms of the
purchase agreement, including the sale price, were fair and equitable and in the best interests
of the estate.
The district court subsequently held another hearing in January, and (1) vacated its prior
order permitting sale pursuant to NRS 148.170, (2) canceled the existing contract with
A-Mark, and (3) ordered a public sale. At the public sale, A-Mark was once again the
successful bidder, but was now required to pay $7,300,000 for the collection.
____________________

1
The order provided in pertinent part:
. . .
3. That there is a grave danger of loss to the estate if a detailed description of the coin collection is disclosed
to the public;
4. That said coin collection constitutes personal property in the nature of perishable property' or other
personal property which will depreciate in value if not disposed of promptly or which will incur loss or expense
by being kept' as those terms are used in N.R.S. Section 148.170; and
5. . . . .
IT IS HEREBY ORDERED, ADJUDGE AND DECREED that Nell J. Redfield, Luana W. Miles and
Candida Larena, as executrices of the Will of LaVere Redfield, deceased, be and they hereby are authorized to
sell said coin collection pursuant to N.R.S. Section 148.170 to one or more buyers without the requirement of
full disclosure, publication of notice and confirmation of sale in open court as required by N.R.S. Section
148.190.
1. The majority concludes: Since the probate court acted within its authority in nullifying
prior authorization . . . we need not consider several other issues tendered by this appeal.
(Emphasis added.) I cannot agree. In my view, the district court did not act within its
authority. The court lacked jurisdiction to set aside the A-Mark contract once it was
executed on December 17, 1977.
It is clear that once a sale takes place pursuant to NRS 148.170, no person may act to
prevent the sale. The statute merely permits an action for damages if the sale by the executors
results in a loss to the estate. NRS 148.170 was adopted verbatim from California Probate
Code 770. Authority reveals the determination to sell personal property as a depreciating
asset, under such a private sale statute, presents a question of fact for the trial court if a party
objects to the sale after it is made. In Re Atkins' Estate, 8 P.2d 1052 (Cal.App. 1932); cf. In
Re Sherman's Estate, 297 P.2d 425 (Cal. 1956). Once such a sale is made, however, title . . .
pass[es] without confirmation. NRS 148.170. In any subsequent proceeding before the
district court, the executor, administrator, or special administrator is responsible [only] for
the actual value of the property, . . . (Emphasis added.) NRS 148.170; see also Goddard, 2
California Practice, Probate Court Practice, 1021, 72-75 (3rd ed. 1977). Any right to file
objections to prevent a sale applies only to provisions where title passes upon confirmation by
the court. See NRS 148.060(1); NRS 148.080; Goddard, cited above, 1021, 72-75;
2

1051, 108; Witkin, 7 Summary of California Law, Wills & Probate, 470, 5904 (1974);
compare In Re Depew's Estate, 149 P.2d 890 (Cal.App. 1944), with In Re Williamson's
Estate, 310 P.2d 77 (Cal.App. 1957), [and] In Re Dargie's Estate, 91 P.2d 126 (Cal. App.
1939). Thus, the district court lacked jurisdiction to set aside the sale under NRS 148.170
once the contract with A-Mark was executed on December 17, 1975, and equitable title
passed.3
____________________

2
Sale of depreciating property is often a misunderstood proceeding. Frequently the administrator wants his
order before he completes the sale. Technically this is not possible. The sale must have been completed before it
is reported and all that the order does it to establish the amount which the representative is chargeable in his
accounts by reason of the sale. Unless the report clearly states that the sale has been made, the court cannot make
its order approving the sale price. There may be no valid reason why the representative may not have a private
understanding with the buyer that as between them the sale not be considered binding until the order is issued.
The danger of this practice lies in the difficulty of later saying that the sale was not completed. In one case where
a sale of depreciating property was reported and later the identical property was sold as personal property and
confirmed, the court held that the second sale was void as title had passed as a sale of depreciating property.
(Citing Depew.)
The representative does not have to report the sale of depreciating property to make the sale effective. The
only advantage of the order is to limit his responsibility to a fixed sum, the sale price.
A-Mark was executed on December 17, 1975, and equitable title passed.
3

2. Nor can I agree with the majority's conclusion that the standing of Rare Coin and
Bowers to intervene was irrelevant. Other courts have long recognized [o]nly persons in
interest have any standing to invoke the aid of either a court of equity or the court of probate
to set aside the sale of decedent's property under a court order. In Re Van Der Werf's Estate,
53 N.W.2d 238, 239 (Iowa 1952). Strangers or third persons having no interest in the estate
cannot make any attack on the sale. Ibid.; see also In Re Scholes' Estate, 301 P.2d 172
(Wash. 1936). Persons in interest have thus far been held to be heirs, devisees, legatees,
creditors, purchasers from the estate, or parties with any title or interest in the property being
sold. See Van Der Werf, cited above; Scholes, cited above; In Re Pearson's Estate, 33 P.451
(Cal. 1893); Collins v. Collins, 132 S.E. 389 (Ga. 1926). In Balaban v. Bank of Nevada, 86
Nev. 862, 867, 477 P.2d 860, 863 (1970) this court cited with approval both Van Der Werf
and Scholes, and recognized that an unsuccessful bidder is not a person interested in the
estate, and therefore lacks standing to object to a confirmation of sale requested under NRS
148.070.
4

In my view the standing concept recognized in Balaban becomes more imperative when a
private sale under NRS 148.170 is made, because the statute was designed to prevent delay
and resultant damage to an estate if executors could not quickly sell certain types of personal
property. Here, both Rare Coin and Bowers were coin dealers who had not even seen the
collection before filing their petitions to prevent the sale. They never attempted to
demonstrate any interest in the estate which would give them standing to set aside the
A-Mark contract with the executrices, heir at law, and beneficiary. Thus, I liken their status to
the unsuccessful bidder who lacked standing in Balaban.
Moreover, I cannot agree that the standing issue was rendered moot because of the court's
sua sponte action. As previously noted, the court lacked jurisdiction to proceed. The
record also clearly demonstrates that the court's actions were not sua sponte, but
precipitated solely by the Rare Coin and Bowers petitions.
____________________

3
No contention has been raised on appeal that the coins could not be sold as a depreciating asset. Therefore,
I cannot agree with Justice Batjer that the court's November 4 order was void ab initio. The executors clearly
had the power to sell the coins under NRS 148.170 with or without the court's authorization.

4
Written objection: Hearing; proof of notice. Any person interested in the estate may file written objections
to the confirmation of the sale and may be heard thereon, and may produce witnesses in support of his
objections. Before an order is made confirming a sale it must be proved to the satisfaction of the court that
notice of the sale was given as prescribed by this Title, and the order of confirmation must show that such proof
was made. (Emphasis added.)
record also clearly demonstrates that the court's actions were not sua sponte, but precipitated
solely by the Rare Coin and Bowers petitions.
In this regard, it should be noted that the executrices, heir at law, and sole beneficiary,
were clearly satisfied with the original A-Mark contract when it was executed on December
17. They wanted to complete the sale, and filed a motion in the district court to dismiss the
Rare Coin and Bowers petitions. They reversed their position only after the contract was
signed, and it became apparent a higher price could be obtained for the coins if the court set
aside the contract. In similar situations other courts have estopped executors to change their
position after they were responsible for procuring court action. See Consolidated
Coppperstate Lines v. Frasher, 297 P.2d 692 (Cal.App. 1956); Bennett v. Bennett, 82 S.E.2d
653 (Ga. 1954); Cunningham v. Richardson, 122 P. 368 (Wash. 1912). I believe the parties in
interest should be similarly estopped in the instant case.
3. Finally, I note the majority opinion opens the door for officious intermeddling by
parties without an interest in the estate, and who stand to lose nothing by their interference. If
A-Mark had not been successful at the second auction, and lost the coins to another bidder, it
is apparent that A-Mark would also be denied recovery for damages caused by Rare Coin's
interference (i.e., for intentional interference with an existing contract), because the court
acted in the best interests of the estate. I do not believe the legislature intended such a
result. The rights of all the contracting parties must be given equal dignity. Contracts with an
estate should not be regarded as obligations voidable at the pleasure of the probate court. To
permit a court to set aside existing contracts merely because it would be in the best interests
of the estate, ignores the best interests of those who deal with estates in good faith.
____________
94 Nev. 503, 503 (1978) State v. Adams
THE STATE OF NEVADA, Appellant, v.
IKE ADAMS, Respondent.
No. 10302
July 26, 1978 581 P.2d 868
Appeal from order vacating guilty plea and dismissing indictment for burglary; Eighth
Judicial District Court, Clark County; Paul S. Goldman, Judge.
The Supreme Court, Thompson, J., held that since defendant, who took $50 worth of
canned hams from food store, admitted that he had formed intent to steal something
before he entered the store, he was chargeable with burglary and trial court should not
have allowed defendant to withdraw his guilty plea on theory that, as member of public,
defendant was invited to store and that his crime was petit larceny rather than burglary.
94 Nev. 503, 504 (1978) State v. Adams
admitted that he had formed intent to steal something before he entered the store, he was
chargeable with burglary and trial court should not have allowed defendant to withdraw his
guilty plea on theory that, as member of public, defendant was invited to store and that his
crime was petit larceny rather than burglary.
Reversed.
George E. Holt, District Attorney, and Thomas D. Beatty, Assistant District Attorney,
Swanson & Momot, of Las Vegas, for Respondent.
1. Criminal Law.
Motion to withdraw plea of guilty is addressed to discretion of court and its decision will not be set aside
on appeal, unless abuse of discretion is apparent. NRS 176.165.
2. Burglary.
Common-law breaking is not essential element of crime of burglary and only an entry with intent to
commit larceny or other felony is required. NRS 205.060.
3. Burglary.
For purposes of burglary statute, authority to enter building open to public extends only to those who
enter with purpose consistent with reasons building is open. NRS 205.060.
4. Burglary.
Criminal intent formulated after lawful entry will not satisfy burglary statute. NRS 205.060.
5. Burglary.
Consensual entry is not defense to charge of burglary against one who is shown to have made simple
entry with larcenous intent. NRS 205.060.
6. Burglary; Criminal Law.
Since defendant, who took $50 worth of canned hams from food store, admitted that he had formed intent
to steal something before he entered the store, he was chargeable with burglary and trial court should not
have allowed defendant to withdraw his guilty plea on theory that, as member of public, defendant was
invited to store and that his crime was petit larceny rather than burglary. NRS 205.060.
OPINION
Ike Adams entered a voluntary plea of guilty to burglary in a Food King Store. He had
there unlawfully taken about $50 worth of canned hams. Before accepting his guilty plea the
court asked whether he had formed the intent to steal something before he entered the
store to which inquiry Adams answered "yes."
94 Nev. 503, 505 (1978) State v. Adams
court asked whether he had formed the intent to steal something before he entered the store to
which inquiry Adams answered yes. Statute declares that one is guilty of burglary if he
enters a store with intent to commit grand or petit larceny. NRS 205.060.
1

Subsequently, the court allowed Adams to withdraw his guilty plea. The court reasoned
that Adams, as a member of the public, was invited to the Food King Store, and that his crime
was petit larceny rather than burglary.
[Headnote 1]
1. A guilty plea may be withdrawn to correct manifest injustice. NRS 176.165.
2
A
motion to withdraw a plea of guilty is addressed to the discretion of the court, and the court's
decision thereon will not be set aside on appeal unless an abuse of discretion is apparent.
State v. District Court, 85 Nev. 381, 455 P.2d 923 (1969).
[Headnotes 2-6]
2. A common law breaking is not an essential element of the crime of burglary. McNeeley
v. State, 81 Nev. 663, 409 P.2d 135 (1965); State v. Watkins, 11 Nev. 30 (1876). Our statute
requires only an entry with the intent to commit larceny or other felony. The authority to enter
a building open to the public extends only to those who enter with a purpose consistent with
the reason the building is open. People v. Weaver, 243 N.E.2d 245 (Ill. 1969). A criminal
intent formulated after a lawful entry will not satisfy the statute. On the other hand, an entry
with intent to commit larceny cannot be said to be within the authority granted customers of a
business establishment. Indeed, even if a consensual entry is implied, it is not a defense to a
charge of burglary against one who is shown to have made a simple entry with larcenous
intent. People v. Deptula, 373 P.2d 430 (Cal. 1962); People v. Blair, 288 N.E.2d 443 (Ill.
1972); State v. Baker, 161 N.W.2d 864 (Neb. 1968); State v. Bull, 276 P.528 (Idaho 1929).
3
We, therefore, conclude that the district court abused its discretion when it allowed Adams to
withdraw his guilty plea and in dismissing the indictment. Manifest injustice within the
intendment of NRS 176.165 does not occur from the entry of a guilty plea to a sustainable
charge.
____________________

1
NRS 205.060: Every person who . . . enters any . . . store . . . with intent to commit grand or petit larceny . .
. is guilty of burglary.

2
NRS 176. 165: . . . but to correct manifest injustice the court after sentence may set aside the judgment of
conviction and permit the defendant to withdraw his plea.

3
Cases under the various types of burglary statutes are collected in the Annot., 93 A.L.R. 2d 531 entitled
Maintainability of burglary charge, where entry into building is made with consent.
94 Nev. 503, 506 (1978) State v. Adams
not occur from the entry of a guilty plea to a sustainable charge.
Reversed.
____________
94 Nev. 506, 506 (1978) Nevada National Bank v. Huff
NEVADA NATIONAL BANK, Appellant,
v. BILLY HUFF, Respondent.
No. 9342
August 1, 1978 582 P.2d 364
Appeal from judgment upon jury verdict for compensatory and punitive damages; Second
Judicial District Court, Washoe County; Peter I. Breen, Judge.
Debtor brought action against bank seeking compensatory and punitive damages for bank's
allegedly wrongful repossession of his truck. The district court entered judgment of
$10,082.04 for debtor upon jury's verdict, and bank appealed. The Supreme Court held that:
(1) course of conduct established between debtor and bank consisting of debtor's habitual
delinquencies, bank's making oral and written demands upon debtor for payment and debtor's
quickly following payments of delinquencies, imposed upon bank duty, before it could
properly rely upon default and repossession clauses in lease agreement, to give notice to
debtor that strict compliance with terms of long-ignored contract would henceforth be
required in order to avert repossession, and thus, upon bank's failure to give such notice, jury
could properly have concluded that bank's repossession was wrongful; (2) there was sufficient
evidence upon which to base instruction on punitive damages; (3) debtor was not required
specifically to plead waiver by bank of default and repossession clauses in lease agreement,
and (4) no error occurred in excluding debtor's former counsel's proffered testimony during
cross-examination to effect that he withdrew from case because of his difficulty in getting in
touch with debtor, in that marginal relevance of such testimony was substantially outweighed
by danger that it could cause confusion and potential prejudice.
Affirmed.
Guild, Hagen & Clark, Ltd., of Reno, for Appellant.
James W. Hardesty, of Reno, for Respondent.
1. Secured Transactions.
When a lease arrangement serves a commercial function closely analogous to such other common
financing methods as conditional sales and chattel mortgages, various parties involved should become
subject to both duties imposed and protections accorded under Uniform Commercial Code and its
interpretive case law. NRS 104.9101-104.9507.
There is nothing unconscionable in a contract clause authorizing repossession of a chattel upon default;
indeed, Uniform Commercial Code article specifically authorizes such self-help remedies upon condition
that they be carried out without breach of peace. NRS 104.9503.
An established course of dealing under which debtor lessee makes continual late payments and secured
party lessor accepts them does not result in a waiver of secured party's right to rely upon a clause in
agreement authorizing him to declare a default and repossess chattel.
Even though no outright waiver of a secured party's right to rely upon clause in agreement authorizing
him to declare a default and repossess chattel occurs through a course of dealing involving acceptance of
late payments, a secured party who has not insisted upon strict compliance in past, who has accepted late
payments as a matter of course, must, before he may validly rely upon such a clause to declare a default
and effect repossession, give notice to debtor lessee that strict compliance with terms of contract will be
demanded henceforth if repossession is to be avoided.
Course of conduct established between debtor and bank consisting of debtor's habitual delinquencies,
bank's making written and oral demands upon debtor for payment, and debtor's quickly following payment
of delinquencies, imposed upon bank duty, before it could properly rely upon default and repossession
clauses of lease agreement, to give notice to debtor that strict compliance with terms of long-ignored
contract would henceforth be required in order to avert repossession, and thus, upon bank's failure to give
such notice, jury, as debtor contended, could properly have concluded that bank's repossession of truck was
wrongful.
In action brought by debtor against bank seeking damages for bank's alleged wrongful repossession of his
truck arising out of incident in which repossession was mostly based on notice of impending cancellation of
insurance coverage received by bank's assistant branch manager, evidence that such manager, in complete
violation of bank policy, did not ascertain whether cancellation had been averted, which it in fact had been
five days before he received notice and that no care was taken to protect property found in vehicle after
repossession which resulted in theft of valuable property and substantial freezing damage to truck and
camper was sufficient evidence of malice in fact upon which to base instruction on punitive damages.
NRS 42.010.
7. Estoppel.
General rule is that waiver or estoppel must be specifically pleaded.
In action brought by debtor against bank seeking damages for bank's alleged wrongful repossession of his
truck, debtor was not required specifically to plead waiver by bank of default and repossession clauses in
lease agreement, in that waiver was not issue, but rather issue was debtor's right to
rely upon course of conduct established between him and bank consisting of debtor's
habitual delinquencies, bank's making written and oral demands upon him for
payment and debtor's quickly following payment of delinquencies and debtor's right
to be notified of a modification of such conduct on part of bank.
agreement, in that waiver was not issue, but rather issue was debtor's right to rely upon course of conduct
established between him and bank consisting of debtor's habitual delinquencies, bank's making written and
oral demands upon him for payment and debtor's quickly following payment of delinquencies and debtor's
right to be notified of a modification of such conduct on part of bank.
In action brought by debtor against bank seeking damages for bank's allegedly wrongful repossession of
his truck, no error occurred in excluding debtor's former counsel's proffered testimony during
cross-examination to effect that he withdrew from case because of his difficulty in getting in touch with
debtor, which bank contended was relevant to a course of conduct by debtor that he simply did not
communicate with people he did not want to communicate with, in that marginal relevance of such
testimony was substantially outweighed by danger that it could cause confusion and potential prejudice,
and could inject collateral issues which would divert jury from real issues in case. NRS 48.035, 48.035,
subd. 1.
OPINION
Per Curiam:
This is an appeal from a judgment of $10,082.04. entered after a jury verdict awarding
respondent Huff compensatory and punitive damages for Nevada National Bank's (NNB)
wrongful repossession of his truck. NNB alleges four errors: 1) that the jury erred in
concluding that the repossession was wrongful; 2) that there was insufficient evidence before
the district court upon which to base an instruction to the jury on the issue of punitive
damages; 3) that Huff was required specifically to plead waiver; and 4) that the district court
erred in excluding certain testimony by Huff's former counsel. We affirm.
On January 22, 1973, Huff entered into a lease arrangement with NNB with respect to a
1973 GMC pick-up truck. Monthly payments were set at $122.14 for a period of 36 months.
Huff was to insure the vehicle.
In the three years prior to this transaction, Huff had engaged in two other commercial
contracts with NNB: one, the installment purchase of his mobile home, and two, another
lease arrangement concerning another truck. Both transactions had proved Huff to be a
less-than-ideal debtor: he had paid late on a regular basis, often running several months in
arrears, and his insurance had been cancelled on at least three occasions. Upon receipt of each
of the notifications of cancellation, NNB had contacted both Huff and the insurer to arrange
for reinstatement. On two occasions, the Bank had exercised the option reserved to itself
under the contract and purchased insurance itself, adding the costs to Huff's monthly
payments.
insurance itself, adding the costs to Huff's monthly payments. Huff was apparently
well-known in the collection department as one to be consistently behind in his payments.
Against this course-of-dealing background, Huff and NNB entered into the January 1973
pick-up lease arrangement. As with the two prior contracts, NNB was contractually entitled to
declare the lease in default upon any late payment or upon any interruption in insurance
coverage. Upon default, NNB was entitled to repossess the vehicle. However, as with the two
prior contracts, the Bank took no such action, even though Huff incurred late charges every
single month from the inception of the lease, twice ran two months behind schedule, once ran
three months behind schedule, and had his insurance cancelled for a period of ten months.
Rather, NNB simply attempted to nurse the transaction along. Pursuant to official bank
policy, monthly notices of delinquent payments were sent to Huff, and bank employees often
telephoned or visited Huff at his home with requests for payment. After such a telephone call
or visit, Huff would usually make payment as requested. In January 1975, when he had fallen
three payments behind schedule, Huff responded to a visit at his home by making three
monthly payments in a two-week period. Also pursuant to official NNB policy, bank
employees responded to receipt of notification of cancellation of Huff's insurance on the truck
with a written inquiry to the insurer to ascertain whether the policy had been reinstated. After
receipt of such a notification of cancellation in July 1974, such an inquiry was made.
However, even though no notice of reinstatement was received for a period of ten months, the
Bank took no steps toward repossession of the vehicle.
In March 1975, collections agent Fitzgerald became aware that the truck had been
uninsured for ten months. Checking further, he found that Huff was fifteen days late on his
March payment. Although not authorized to do so by any officer of the Bank, Fitzgerald and
another employee went to Huff's property and repossessed the truck. However they were
quickly apprehended by Huff who forcibly removed Fitzgerald from the truck, threatening
both men with bodily harm, and drove off with his vehicle. Payment of the delinquent March
installment was made the following day and insurance on the vehicle was reinstated soon
after. This incident apparently engendered some hostility toward Huff in the Collections
Department of NNB.
Huff was late with his payments every month after March 1975. In June 1975, he fell two
months behind, but made a double payment which brought him current through July 1. On
July 17, when he was technically one payment behind again, Huff made another double
payment, bringing him current through September 1.
July 17, when he was technically one payment behind again, Huff made another double
payment, bringing him current through September 1. Huff made this last payment in an
attempt to get ahead of schedule so that he could take an extended vacation. He apparently
thought, erroneously, that the July 17 double payment would bring him current through
October 1, 1975.
On October 15, 1975, Huff's insurer notified him that the insurance on the truck was about
to be cancelled. On this same date, the insurer mailed official notification of the impending
cancellation to NNB as owner of the vehicle. This notice stated that coverage would expire
ten days after receipt of the notice by the owner. This notice was received by NNB on
October 21, thus informing them that the insurance would expire on October 31, ten days
later.
On October 16, Huff personally visited the insurer's Reno office, where he paid his
past-due premium and averted the impending cancellation of his insurance coverage. After
payment, he requested the insurance agent to telephone NNB informing them of the
reinstatement. It is not clear whether this call was actually made, however a written notice of
reinstatement was mailed to NNB from the insurer's San Francisco office on November 3.
On October 21, five days after Huff had forestalled cancellation of the insurance policy,
NNB Assistant Branch Manager Sharp received the cancellation notice sent on October 15 by
the insurer, informing NNB that coverage would lapse on October 31. Disregarding both the
official bank policies described above and the Bank's entire course of dealing with Huff,
Sharp 1) did not telephone or otherwise contact either Huff or the insurer to ascertain whether
the past-due premiums had been paid and cancellation averted (it had); 2) did not telephone
or otherwise contact Huff regarding his arrearages on his monthly payments, and 3) did not
inform Huff that strict compliance with the terms of the lease agreement would henceforth be
required to avert repossession. Rather, Sharp and another NNB employee went on Huff's
property at 1 a.m. on Saturday, October 25, and repossessed the truck.
Because of the cold weather during the night-time hours, Huff had equipped the truck with
an electric heater, connected to his near-by house trailer by an electrical cord, in order to keep
the water pipes in the truck and its camper from freezing. As Sharp and his companion drove
away, this electrical cord snapped, disconnecting the heater. The truck was then driven to the
Washoe County Sheriff's Department where, leaving the truck parked on a downtown street,
both men entered the building to report the repossession.
building to report the repossession. Although both knew the camper on the back of the truck
to be unlocked, neither remained to guard it. They then drove the truck to a storage yard
where again no precautions were taken to secure the camper. Further, no inventory was taken
of the camper. When Huff was allowed to inspect the truck some five days later, four hunting
rifles valued at $900, a walkie-talkie radio, and a fishing tackle box were missing from the
camper. When Huff finally regained possession of the truck, it was discovered that all water
pipes in the camper and truck had frozen and burst. Further, the back door of the camper unit
had been jimmied open, and the rear end of the truck had been damaged in a minor
collision.
1. Did the Jury Err in Finding that the Repossession was Wrongful?
[Headnote 1]
In discussing the propriety of NNB's conduct in this case, both parties have centered their
arguments exclusively around a collection of cases dealing with installment purchases under
Article 9 of the Uniform Commercial Code (NRS 104.9101-9507). If it were in fact necessary
in this case to positively characterize the commercial agreement between Huff and NNB as
either a traditional lease or a security interest, it seems clear that its characteristics as the latter
would far outnumber any it possessed as the former.
1
See, Whitworth v. Krueger, 558 P.2d
1026 {Idaho 1976); Kupka v. Morey, 541 P.2d 740 {Alaska 1975); Puritan Leasing
Company v.
____________________

1
Under the terms of the lease between NNB and Huff, Huff was to make monthly payments of $122 for a
period of 36 months. Of this monthly payment, $35 was labeled a finance charge, and $85 depreciation
reserve. This latter figure was subtracted monthly from the capitalized cost of the truck, or the price for
which the bank had originally purchased the vehicle from the dealer. At the end of the 36-month term, Huff
could either purchase the truck for the difference between his total payments of depreciation reserve and the
capitalized cost, or he could return the truck to NNB for NNB to sell on the open market. However in this
latter case, Huff was liable to NNB for any shortfall in the proceeds of the sale from the unpaid balance of the
capitalized cost. In other words, upon signing the lease agreement, Huff became instantly liable for the
entire cost of the truck.
This same liability attached if for any reason, including the total destruction of the vehicle as Huff drove out
of the lot on the first day of the lease, the lease arrangement were to end: upon such an occurrence, NNB
would sell the car (including a sale for nothing if the truck had been destroyed) and Huff would be liable for
the difference between his depreciation reserve payments to date and the original value of the vehicle.
In Whitworth v. Krueger, 558 P.2d 1026, 1029, the Supreme Court of Idaho stated: [T]he fact that the
Kruegers' agreement was entitled a lease' rather than an installment sale contract' does not mean that the
Kruegers were not subject to these provisions of the UCC. In circumstances where the lease' gives the lessee'
the option to acquire the leased' goods at the expiration of the lease' term without additional consideration or
for nominal consideration, i.e., where the lease' is commercially indistinguishable from an installment sales
contract, [UCC 1-201(37)] provides that a lessor's' interest in leased' goods is a security interest. . . .
P.2d 1026 (Idaho 1976); Kupka v. Morey, 541 P.2d 740 (Alaska 1975); Puritan Leasing
Company v. August, 546 P.2d 679 (Cal. 1976); Meyer v. World Concrete, Inc., 431 P.2d 403
(Okla. 1967); cf. Fuqua v. Hanson, 567 P.2d 862 (Kan. 1977). See gen., Coogan, Leases of
Equipment and Some Other Unconventional Security Devices: An Analysis of UCC Section
1-201(37) and Article 9, 1973 Duke L.J. 909. However we need not definitively characterize
the commercial agreement in this case, since we conclude that UCC-based statute and case
law should govern this commercial arrangement by analogy, to the extent it is not so
governed outright. In the recent case of Hiles Co. v. Johnston Pump Co., 93 Nev. 73, 560
P.2d 154 (1977), we held that under appropriate circumstances, the provisions of the Uniform
Commercial Code (NRS Chapter 104) would extend by analogy to lease transactions not
technically within the Code's scope. When, as here, a lease arrangement serve[s] a
commercial function closely analogous to such other common financing methods as
conditional sales and chattel mortgages, Puritan Leasing Company v. August, supra, 546
P.2d at 686, we think the various parties involved should become subject to both the duties
imposed and the protections accorded under the Uniform Commercial Code and its
interpretive case law. See also, All-States Leasing Company v. Bass, 538 P.2d 1177 (Idaho
1975); Baker v. City of Seattle, 484 P.2d 405 (Wash. 1971).
[Headnotes 2, 3]
Clearly there is nothing unconscionable in a contract clause authorizing the repossession
of a chattel upon default. See, Lawrence Barker, Inc. v. Briggs, 248 P.2d 897 (Cal. 1952).
Indeed, Article 9-503 of the UCC specifically authorizes such self-help remedies upon the
condition that they be carried out without breach of the peace. NRS 104.9503. Further, an
established course of dealing under which the debtor (lessee) makes continual late payments
and the secured party (lessor) accepts them does not result in a waiver of the secured party's
right to rely upon a clause in the agreement authorizing him to declare a default and
repossess the chattel.
____________________

Under this definition, the lease in this case would appear to be a security interest: upon his initial entry
into the lease agreement, Huff became instantaneously liable for the entire value of the truck, either as a direct
debtor in the event that he himself chose to buy the truck at the end of the 36-month term, or else as guarantor
of the total original purchase price in the event that the vehicle was destroyed or sold to someone else. Upon
complying with the terms of the lease, therefore, the truck became his at the end of the lease term for nothing
more than that for which he was already contractually liable, i.e., for no additional consideration. Upon analysis,
this lease agreement appears to be nothing other than an installment sales contract arranged for optimum
federal tax results: the monthly rental payments exactly equal the total allowable deductions for interest
(finance charge) and depreciation (depreciation reserve), with the traditional down payment reserved for
the end of the transaction.
rely upon a clause in the agreement authorizing him to declare a default and repossess the
chattel. Ford Motor Credit Company v. Waters, 273 So.2d 96 (Fla.App. 1973); Fontaine v.
Industrial National Bank of Rhode Island, 298 A.2d 521, 11 U.C.C.Rptr. 1096 (R.I. 1973).
[Headnote 4]
However, it is clear that even though no outright waiver of a secured party's right to rely
upon such a clause occurs through a course of dealing involving the acceptance of late
payments, a secured party who has not insisted upon strict compliance in the past, who has
accepted late payments as a matter of course, must, before he may validly rely upon such a
clause to declare a default and effect repossession, give notice to the debtor (lessee) that strict
compliance with the terms of the contract will be demanded henceforth if repossession is to
be avoided. Ford Motor Credit Company v. Waters, supra; Fontaine v. Industrial Bank of
Rhode Island, supra; Kupka v. Morey, supra; Varela v. Wells Fargo Bank, 93 Cal.Rptr. 428
(Cal.App. 1971).
[Headnote 5]
Assessing NNB's conduct in this case, it must be noted at the outset that Huff effectively
forestalled any lapse in the insurance coverage on the truck, thus precluding any declaration
of default for this reason. Thus, the only ground upon which the Bank could have declared a
default under the contract was Huff's one and one-half month arrearage in his payments: on
October 21, Huff had paid only through September 1, instead of through November 1 as
required under the contract. This delinquency clearly would constitute valid grounds for the
declaration of a default under the contract.
2

However, analysis of the course of dealing between Huff and NNB, both with respect to
the specific transaction in question and with respect to the two similar transactions during the
same time period, reveals that it was a common occurrence for Huff to be behind in his
monthly payments. In fact, Huff had been late with every single payment under the truck
lease. Further, he had been two payments behind on two occasions, and three payments
behind on one occasion. In spite of these delinquencies, NNB had never declared a default or
invoked its right to repossess. (The March 1975 repossession attempt was based primarily
upon Huff's failure to insure the vehicle: at that time he was only 15 days delinquent on his
March payment.)
____________________

2
Under 13 of the lease agreement, [i]f lessee shall default in the payment of any installment of fixed rents,
or any other sums payable hereunder by Lessee, . . . then in such event Lessor, at its sole option, may declare this
lease in default. Upon Lessor declaring this lease in default, . . . Lessor or its agents may take possession of said
vehicle wherever same may be found and may enter upon any premises of Lessee to take possession of same.
he was only 15 days delinquent on his March payment.) Rather, written and oral demands for
payment had always been made upon him, and payment had always quickly followed.
This course of conduct established between Huff and NNB imposed upon NNB the duty,
before it could properly rely upon the default and repossession clauses in the lease agreement,
to give notice to Huff that strict compliance with the terms of the long-ignored contract would
henceforth be required in order to avert repossession of the vehicle. Upon NNB's failure to
give such notice, the jury could properly have concluded that NNB's repossession of the truck
was wrongful.
2. Was the Jury Properly Instructed on Punitive Damages?
NNB next argues that even if the repossession was improper, the record is devoid of
evidence upon which the district court could have based its instruction to the jury on punitive
damages under NRS 42.010. This section reads, in pertinent part:
Cases in which exemplary, punitive damages may be awarded. In an action for the
breach of an obligation not arising from contract, where the defendant has been guilty
of oppression, fraud or malice, express or implied, the plaintiff, in addition to the actual
damages, may recover damages for the sake of example and by way of punishing the
defendant.
In Caple v. Raynel Campers, Inc., 90 Nev. 341, 526 P.2d 334 (1974), we stated that [t]he
malice contemplated by NRS 42.010 is malice in fact . . . [which] must be established by the
evidence if it is the ground relied upon to support an award of punitive damages. Malice in
fact sufficient to support an award of damages may be established by a showing that the
wrongful conduct was willful, intentional and done in reckless disregard of its possible
results. 90 Nev. at 344.
In Caple we approved the award of punitive damages in a wrongful repossession case in
which the buyer was not in default or even alleged to be so by the creditor. In that case, the
repossessor acknowledged that its actions had been completely in error; nonetheless the
vehicle had never been returned to the debtor. In Nevada Credit Rating Bur. v. Williams, 88
Nev. 601, 503 P.2d 9 (1972), we approved an award of punitive damages following a grossly
excessive attachment of goods to satisfy an unrelated debt. In Ford Motor Credit Company v.
Waters, supra, a wrongful repossession involving a creditor's disregard without notice of a
pre-established course of conduct in accepting late payments was held to support the award of
punitive damages, when the repossessor's agent failed to take proper precautions to insure the
safety of personal property found in the repossessed vehicle, and had disregarded
established company policies with respect to such property.
found in the repossessed vehicle, and had disregarded established company policies with
respect to such property.
[Headnote 6]
Analysis of the Bank's conduct in this case reveals that there was ample evidence
presented at trial of malice in fact, upon which the district court could validly have based its
instruction on punitive damages. The repossession was based in large part upon the notice of
impending cancellation of insurance coverage received by Sharp on October 21. However,
Sharp admitted at the trial that, in complete violation of established bank policy, he took no
steps to ascertain whether the cancellation had been averted, which it in fact had been five
days before he received the notice. Sharp's repossession of the vehicle in these circumstances
could properly have been characterized by the jury to be wrongful conduct [that] was willful,
intentional and done in reckless disregard of its possible results. Caple v. Raynel Campers,
Inc., supra, 90 Nev. at 344. As in Ford Motor Credit Company v. Waters, supra, no care was
taken to protect the personal property found in the vehicle after repossession: the electrical
cord connecting the heater to an electrical socket in Huff's mobile home was ripped out; the
camper was left unlocked in downtown Reno at 2 a.m. on a Saturday; the camper was left
unlocked at the tow yard; no precautions were taken to insure that the vehicle was protected
against freezing.
3
Finally, the Bank's failure to protect Huff's personal property and the
property of others in the camper at the time of the repossession resulted in the theft of
valuable property and substantial freezing damage to the truck and camper. Upon these facts,
we find that the trial court had sufficient evidence before it upon which to base an instruction
to the jury under NRS 42.010.
3. Was Huff Required Specifically to Plead Waiver?
[Headnotes 7, 8]
NNB cites the general rule that waiver or estoppel must be specifically pleaded. However,
as stated by the court in Ford Motor Credit Company v. Waters, supra, 273 So.2d at 100, in
an identical context, waiver is not the issue before us. The issue is the right of the buyer to
rely upon the prior dealings that had taken place and the buyer's right to be notified of a
modification of such conduct on the part of the [creditor]. See also, Varela v. Wells Fargo
Bank, supra, 93 Cal.Rptr. at 431.
4. The Testimony of Huff's Former Counsel.
____________________

3
The Repossession Report filled out by Sharp and his fellow NNB employee contains a blank to be
checked by the repossessors reading: Antifreeze checked? This question was answered with a check in the box
labeled no.
[Headnote 9]
Early on in the course of the trial, Huff called Attorney Albright as a plaintiff's witness, in
order to have Albright verify the damage that had been done to the door of the camper and the
rear end of the truck. Albright had represented Huff at the time of the repossession and the
initial inspection of the vehicle, but had ceased to do so by the time of the trial. NNB then
sought on cross-examination to question Albright as to the reasons for the termination of his
attorney-client relationship with Huff. Upon objection, the Bank made an offer of proof to the
effect that the proposed testimony would show that Albright withdrew from the case because
of his difficulty in getting in touch with Huff. This, according to the Bank, was relevant to a
course of conduct by Mr. Huff that he simply does not communicate with people he doesn't
want to communicate with.
The trial court, relying on NRS 48.035,
4
found that the marginal relevance of this
evidence was substantially outweighed by the danger that the testimony of Huff's former
attorney as to the facts concerning the breakdown of the relationship could cause confusion .
. . and potential prejudice, and could inject collateral issues which would divert the jury from
the real issues in the case. In light of the extremely marginal relevance of this evidence, this
conclusion was correct.
Affirmed.
____________________

4
NRS 48.035(1): Although relevant, evidence is not admissible if its probative value is substantially
outweighed by the danger of unfair prejudice, of confusion of the issues or of misleading the jury.
____________
94 Nev. 516, 516 (1978) Stewart v. Warden
JAMES RUDY STEWART, Jr., Appellant, v. WARDEN,
No. 10141
August 9, 1978 579 P.2d 1244
Appeal from order denying petition for post-conviction relief, First Judicial District Court,
Carson City; Frank B. Gregory, Judge.
On remand after a prior appeal, 92 Nev. 588, 555 P.2d 218 (1976), relief was denied in a
post-conviction proceeding in the district court and petitioner appealed. The Supreme Court
held that alleged errors not being cognizable on direct appeal because of failure to make
objection to instructions, the errors were, a fortiori, not cognizable in the post-conviction
proceeding.
94 Nev. 516, 517 (1978) Stewart v. Warden
were, a fortiori, not cognizable in the post-conviction proceeding.
Affirmed.
Horace R. Goff, State Public Defender, J. Thomas Susich, Chief Deputy Public Defender,
and J. Gregory Damm, Deputy Public Defender, Carson City, for Appellant.
Criminal Law.
Alleged errors not being cognizable on direct appeal, because of failure to make objections to
instructions, the errors were, a fortiori, not cognizable in post-conviction proceeding.
OPINION
Per Curiam:
James Rudy Stewart, Jr., was convicted, by jury verdict, of first degree murder and the
judgment and sentence were affirmed by this court in Stewart v. State, 92 Nev. 168, 547 P.2d
320 (1976). Thereafter, Stewart filed a petition for post-conviction relief which was
summarily dismissed. On appeal that order was vacated and the case was remanded to permit
the district court to hear and resolve the contentions raised in the post-conviction petition.
Stewart v. Warden, 92 Nev. 588, 555 P.2d 218 (1976).
The instant proceeding is Stewart's appeal from the order which the district court entered
after it had considered and resolved those allegations contained in the petition for
post-conviction relief.
The only assigned errors complain of two (2) jury instructions. At trial there was no
objection to either instruction; therefore, the alleged errors would not have been considered in
Stewart's direct appeal. See Cutler v. State, 93 Nev. 329, 566 P.2d 809 (1977), where we
noted that a failure to tender an objection during trial precludes appellate consideration of the
claimed error. Cf. Hankerson v. North Carolina, 432 U.S. 233 (1977). Since the alleged errors
were not cognizable on the direct appeal, a fortiori, they are not cognizable in a subsequent
post-conviction proceeding.
Affirmed.
____________
94 Nev. 518, 518 (1978) Turner v. State
ERNEST CHARLES TURNER, Appellant, v. THE
No. 10043
August 9, 1978 583 P.2d 452
Appeal from judgment of conviction, Second Judicial District Court, Washoe County;
John E. Gabrielli, Judge.
Upon pleading guilty, defendant was sentenced in the district court to consecutive ten-year
terms for robbery and use of deadly weapon. Defendant appealed. The Supreme Court held
that statute, which provides that when act charged as a public offense is within jurisdiction of
another state, territory or country, as well as of this state, a conviction or acquittal thereof in
former is a bar to prosecution or indictment therefor in this state, barred defendant's
prosecution in Nevada for armed robbery after federal district court had accepted defendant's
guilty plea and sentenced him to prison term for same crime.
Reversed.
William Dunseath, Public Defender, Washoe County; and Ernest Charles Turner, in pro
per, for Appellant.
Larry Hicks, District Attorney, and John L. Conner, Deputy District Attorney, Washoe
1. Criminal Law.
Under statute, which provides that when act charged as a public offense is within jurisdiction of another
state, territory or country, as well as of this state, a conviction or acquittal thereof in former is a bar to
prosecution or indictment therefor in this state, a defendant may mot be prosecuted after prior conviction or
acquittal in another jurisdiction if all acts constituting offense in this state were necessary to prove offense
in prior prosecution. NRS 171.070.
2. Criminal Law.
Statute, which provides that when an act charged as a public offense is within jurisdiction of another
state, territory or country, as well as of this state, a conviction or acquittal thereof in former is a bar to
prosecution or indictment therefor in this state, barred defendant's prosecution in Nevada for armed
robbery after federal district court had accepted defendant's guilty plea and sentenced him to prison term
for same crime. NRS 171.070.
OPINION
Per Curiam:
Appellant's counsel has filed a no-merit brief on behalf of his client, see Sanchez v.
State, 85 Nev. 95, 450 P.2d 793 (1969) claiming appellant's guilty plea was not voluntary,
and the prosecutor failed to abide by the terms of a plea bargain.
94 Nev. 518, 519 (1978) Turner v. State
the prosecutor failed to abide by the terms of a plea bargain. These issues need not be
decided. Appellant, in a separate in pro per application, has raised an issue which is
dispositive and mandates reversal, to wit: his prosecution in Nevada after conviction in
another sovereignty for the same crime was statutorily barred.
Prior to any proceeding in Nevada, appellant was convicted in Texas on unrelated charges.
The federal government then brought appellant to Nevada to answer charges for bank
robbery. The federal district court in Reno accepted appellant's guilty plea and sentenced him
to another prison term. Thereafter, on application of the Washoe County prosecutor, the
justices' court issued a writ of habeas corpus ad prosequendum, to obtain appellant from
federal custody and prosecute him for armed robbery in Nevada.
1
Appellant pleaded guilty in
district court, and was sentenced to consecutive ten-year terms for robbery, and use of a
deadly weapon.
[Headnotes 1, 2]
NRS 171.070 provides: When an act charged as a public offense is within the jurisdiction
of another state, territory or country, as well as of this state, a conviction or acquittal thereof
in the former is a bar to the prosecution or indictment therefor in this state. Under this
section, a defendant may not be prosecuted after a prior conviction or acquittal in another
jurisdiction if all the acts constituting the offense in this state were necessary to prove the
offense in the prior prosecution. People v. Belcher, 520 P.2d 385, 390-391 (Cal. 1974); cf.
Cal.Pen.Code 656 (West 1970); Model Pen. Code 1.11, Tentative Draft No. 5 (1956)
2

Accordingly, the judgment is reversed.
____________________

1
We need not decide whether the justices' court had authority to issue such a writ. Compare Nev. Const. art.
6, 8; with Nev. Const. art. 6, 4; art. 6, 6; see also NRS 34.380(1); cf. R. v. Whitmer, In and For Salt Lake
County, 515 P.2d 617 (Utah 1973); State v. Lackey, 257 P.2d 849 (Okl.Crim. 1953).

2
Due to the statutory prohibition we therefore need not decide whether under Nevada Const. art. 1, 8, such
multiple prosecution for the same offense violates double jeopardy principles. Compare Bartkus v. Illinois, 359
U.S. 121 (1959); [and] Crane v. State, 92 Nev. 593, 555 P.2d 845 (1976); with Commonwealth v. Mills, 286
A.2d 638 (Pa. 1971); [and] People v. Cooper, 247 N.W.2d 866 (Mich. 1976); [and] State v. Hogg, 385 A.2d
844, 23 Cr. L. 2161 (N.H. 1978).
____________
94 Nev. 520, 520 (1978) Brimage v. Warden
DANIEL RAY BRIMAGE, Appellant, v. WARDEN,
No. 10253
August 9, 1978 582 P.2d 375
Appeal from order which summarily dismissed a petition for post-conviction relief, First
Judicial District Court, Carson City; Michael E. Fondi, Judge.
The Supreme Court held that prima facie showing of good cause for petitioner's failure to
present post-conviction claims within one year after conviction as required by statute was
brought forth by uncontroverted allegations that petitioner was denied effective assistance of
counsel in proceedings that led to his plea of guilty and that plea entered by petitioner was
involuntary.
Order vacated; remanded, with instructions.
Horace R. Goff, State Public Defender, J. Thomas Susich, Chief Deputy Public Defender,
and J. Gregory Damm, Deputy Public Defender, Carson City, for Appellant.
Robert List, Attorney General, and D. Geno Menchetti, Deputy Attorney General, Carson
City; George E. Holt, District Attorney, and H. Leon Simon, Chief Appellate Deputy, Clark
Criminal Law.
Prima facie showing of good cause for petitioner's failure to present post-conviction claims within one
year after conviction as required by statute was brought forth by uncontroverted allegations that petitioner
was denied effective assistance of counsel in proceedings that led to his plea of guilty and that plea entered
by petitioner was involuntary. NRS 177.375, subd. 2.
OPINION
Per Curiam:
On October 1, 1975, in the Eighth Judicial District Court, Clark County, Daniel Ray
Brimage entered a solemn plea of guilty to two (2) separate counts of robbery (NRS 200.380)
and use of a deadly weapon in the commission of those offenses (NRS 193.165).
In April, 1977, Brimage petitioned the First Judicial District Court for a writ of habeas
corpus for post-conviction relief contending (1) he had been denied effective assistance of
counsel in the Eighth Judicial District Court proceedings; and, (2) his guilty plea was
involuntary. Even though no opposition to the petition was filed, it was summarily denied,
without hearing, five months after it had been filed.
94 Nev. 520, 521 (1978) Brimage v. Warden
the petition was filed, it was summarily denied, without hearing, five months after it had been
filed. The order recited that relief was being denied because Brimage failed to file his
Petition within one year following the entry of judgment of conviction, and upon his failure to
show good cause for delay in failing to do so . . . .
In this appeal, Brimage contends we are compelled to reverse because the district judge
refused to (1) appoint counsel and (2) hear and resolve the allegations in the habeas petition.
He argues that his uncontroverted allegations constitute a prima facie showing of good cause
for his failure to present the claims within one year after conviction, as required by NRS
177.375(2). We agree.
We do not reach the merit, if any, of the appeal. Brimage's claims have not been
considered and resolved, either from the record, or after an evidentiary hearing.
1
See Stewart
v. Warden, 92 Nev. 588, 555 P.2d 218 (1976). See also Smith v. Yeager, 393 U.S. 122
(1968). Cf. Townsend v. Sain, 372 U.S. 293 (1963), and its progeny. Accordingly, we vacate
the district judge's order dismissing the petition for post-conviction relief and remand this
case for further proceedings, including the appointment of counsel to represent petitioner.
____________________

1
After the appeal had been noticed, the Chief Appellate Deputy in the Clark County District Attorney's
office, as counsel for respondent, designated and filed, as a supplemental record on appeal, transcripts of the
proceedings involving Brimage in the Eighth Judicial District Court. Those transcripts were not before the
district judge in the post-conviction proceedings.
____________
94 Nev. 521, 521 (1978) Mosa v. Wilson-Bates Furniture Co.
RALPH MOSA, Appellant, v. WILSON-BATES
FURNITURE CO., a Corporation, Respondent.
No. 9238
August 9, 1978 583 P.2d 453
Appeal from judgment of Seventh Judicial District Court, White Pine County; Merlyn H.
Hoyt, Judge.
Furniture company brought action to recover for goods sold and delivered to corporation.
The district court found stockholder and sole contributing investor liable for corporate debt.
On appeal, the Supreme Court held that application of alter ego doctrine so as to hold
stockholder and sole contributing investor liable for debts of corporation was supported by
substantial evidence.
Affirmed.
John Manzonie, Ely, for Appellant.
C. E. Horton, Ely, for Respondent.
Corporations.
Application of alter ego doctrine so as to hold stockholder and sole contributing investor liable for
corporate debts was supported by substantial evidence.
OPINION
Per Curiam:
In an action brought by Respondent Wilson-Bates Furniture Company, Ralph Mosa was
found liable for goods sold and delivered to Mobel, Inc., doing business as Cattleman's Inn.
Mosa has appealed claiming that the trial judge erred in applying the alter ego doctrine in
finding him individually responsible for the corporation's debts. We disagree and affirm the
judgment.
1. Uncontroverted evidence as to the background and operation of Mobel, Inc.,
established that it had been formed in connection with the purchase of Cattleman's Inn; that a
Charles R. Bell (who was a party-defendant below but relieved of any liability) and Appellant
were the sole stockholders and that Appellant was the sole contributing investor.
While Bell had originally managed the business for a period of several months, Appellant
had possession and control of the business operations on or about March 1, 1976. After that
time, no corporate formalities, such as meetings or stockholder reports, were observed. The
corporate bank account was disregarded, and all receipts and expenditures were made from an
account in Appellant's name. The liquor license held by Cattleman's was changed to omit the
corporate name and substitute that of Appellant only.
2. Appellant's principal complaint on appeal is that the trial court found no evidence to
support the alter ego doctrine upon which the court predicated Appellant's personal liability.
Since we are dot favored with formal findings of fact, we must look to the findings
contained in the decision of the trial court for purposes of this review. NRCP 52(a); Poe v. La
Metropolitana Co., 76 Nev. 306, 353 P.2d 454 (1960). While the court did find that there was
no such evidence existing at the time, the debts were incurred (i.e., while the business was
under the management of co-defendant Bell), the court also found that after March 1, 1976,
Appellant had seized control of the corporate business, converted the Cattleman's Inn into
a private business enterprise," and had become "The alter ego of the Corporation."
private business enterprise, and had become The alter ego of the Corporation.
The court further found that after Appellant's assumption of control of the business of the
corporation, he had given Respondent personal assurance at various times that he
[Appellant] would personally pay the outstanding debts of Mobel, Inc., and that such
assurances were given to induce forebearance by [Respondent] in asserting its claim against
the corporation for debts due and owing.
The court observed that shortly thereafter the Corporation went out of business, rendering
the debts [uncollectible]. The court concluded that Injustice can be avoided only by
enforcement of [Appellant's] promises to pay the debt of Mobel, Inc.
3. This court has repeatedly restated the factors needed to establish the alter ego doctrine:
(1) The corporation must be influenced and governed by the person asserted to be its
alter ego. (2) There must be such unity of interest and ownership that one is inseparable
from the other; and (3) The facts must be such that adherence to the fiction of a separate
entity would, under the circumstances, sanction a fraud or promote injustice. Eklund v.
Nevada Wholesale Lumber Co., 93 Nev. 196, 197, 562 P.2d 479, 479-80 (1977),
quoting McCleary Cattle Co. v. Sewell, 73 Nev. 279, 282, 317 P.2d 957, 959 (1957).
The trial court's finding of alter ego after March 1, 1976, is fully supported by the record.
As in Caple v. Raynel Campers, Inc., 90 Nev. 341, 526 P.2d 334 (1974), Appellant was the
sole investing and directing force; there was unity of interest and ownership of such nature
that the corporation had no apparent independent business operation. 90 Nev. at 344, 526
P.2d at 336. Likewise in Carson Meadows Inc. v. Pease, 91 Nev. 187, 533 P.2d 458 (1975),
Appellant clearly governed the business enterprise, failed to hold meetings or keep
corporate records, commingled corporate funds with his own, and used the corporate shell
as a conduit for his individual enterprise. 91 Nev. 191, 533 P.2d at 460-61. Unlike the
individuals in Eklund v. Nevada Wholesale Lumber Co., supra, North Arlington Med. v.
Sanchez Constr., 86 Nev. 515, 471 P.2d 240 (1970), or Baer v. Amos J. Walker, Inc., 85 Nev.
219, 452 P.2d 916 (1969), Appellant was shown to have been an owner of the corporation.
1
Also relevant in the case at hand are the judge's findings that Appellant, after the alter
ego relationship had arisen, had given his personal assurances to the creditor that he
would be personally responsible for the debt.
____________________

1
This court has indicated that the holding out by an individual that he is personally liable for the debts of the
corporation may be properly taken into account in determining whether the doctrine should apply. North
Arlington Med. v. Sanchez Constr., supra n. 3, 86 Nev. at 522, 471 P.2d at 245.
Also relevant in the case at hand are the judge's findings that Appellant, after the alter ego
relationship had arisen, had given his personal assurances to the creditor that he would be
personally responsible for the debt. In these circumstances, the trial court's determination that
the imposition of liability upon Appellant was necessary to avoid injustice must be upheld.
The court's application of the alter ego doctrine is supported by substantial evidence in the
record. Consequently, the judgment is affirmed.
____________
94 Nev. 524, 524 (1978) Johnson v. Harber
DAN H. JOHNSON, Appellant, v. WILLIAM HARBER,
Doing Business as HARBER CONSTRUCTION, Respondent.
No. 9261
August 9, 1978 582 P.2d 800
Appeal from order and judgment dismissing action for failure to prosecute. Eighth Judicial
Plaintiff appealed from an order and judgment of the district court dismissing the action
for failure to prosecute. The Supreme Court held that pertinent rule of civil procedure
mandates dismissal for failure to prosecute within five years when the trial court sua sponte
vacates the trial date and plaintiff and his counsel know of the court's action and remain
silent.
Affirmed.
Jerry J. Kaufman, Las Vegas, for Appellant.
Albright & McGimsey, and William H. Stoddard, Las Vegas, for Respondent.
Rule of civil procedure mandates dismissal for failure to prosecute within five years when the trial court
sua sponte vacates the trial date and plaintiff and his counsel know of the court's action and remain silent.
NRCP 41(e).
Dismissal for failure to bring to trial a claim within five years of filing the complaint is mandatory.
NRCP 41(e).
It is the duty of each plaintiff to be sufficiently diligent to preclude entry of a dismissal for failure to bring
the claim to trial within five years of filing the complaint. NRCP 41(e).
As regards rule pertaining to dismissal for failure to prosecute within five years, the
substitution of plaintiff and the filing of an amended complaint did not commence anew
the period in which to calculate the relevant time. NRCP 41(e).
OPINION
Per Curiam:
This case involves the failure of plaintiff-appellant to prosecute his claim within the
mandatory five year period provided in NRCP 41(e). The complaint was filed on April 26,
1971, and appellant was substituted as real-party-in-interest plaintiff on July 9, 1971, with an
amended complaint showing such substitution filed on July 12, 1971. Trial was eventually set
for November 21, 1972, but defendant-respondent successfully moved to vacate trial set for
that date.
Over two years later, appellant again attempted to bring the matter to trial, and a trial date
was set for August 9, 1975. The trial court having erroneously set the trial date pursuant to its
short-trial calendar sua sponte reset the trial date on a stacked calendar to be heard
sometime between October 27 and October 30, 1975. The record is not clear as to what
transpired next, but apparently, the trial was continued and subsequently the court sua sponte
reset the trial date on the stacked calendar between April 26 and May 21, 1976. The court
then again sua sponte reset the trial date for the stacked calendar between June 14 through
July 8, 1976.
On June 24, 1976, respondent moved for dismissal pursuant to NRCP 41(e) for failure of
appellant to bring the matter to trial within the five years as required. The motion for
dismissal was granted on July 19, 1976, and appellant now appeals that order of dismissal.
[Headnote 1]
The narrow question presented is whether NRCP 41(e) mandates dismissal for failure to
prosecute within five years when the trial court sua sponte vacates the trial date and plaintiff
and his counsel know of the court's action and remain silent.
NRCP 41(e) provides in relevant part:
Any action heretofore or hereafter commenced shall be dismissed . . . on motion of the
defendant, after due notice to plaintiff or by the court upon its own motion, unless such
action is brought to trial within five years after the plaintiff has filed his action, except
where the parties have stipulated in writing that the time may be extended.
[Headnote 2]
Although appellant appears to be the victim of unfortunate circumstances, this Court has
consistently held that dismissal pursuant to NRCP 41(e) for failure to bring to trial a claim
within five years of filing the complaint is mandatory. Meredith v. Arden, 92 Nev. 620, 555
P.2d 1241 (1976); Monroe, Ltd. v. Central Telephone Co., 91 Nev. 450, 538 P.2d 152 (1975);
Trail v. Faretto, 91 Nev. 401, 536 P.2d 1026 (1975); Bank of Nevada v. Friedman, 86 Nev.
747, 476 P.2d 172 (1970); Great W. Land & Cattle v. District Ct., 86 Nev. 282, 467 P.2d
1019 (1970); Lindauer v. Allen, 85 Nev. 430, 456 P.2d 851 (1969); Faye v. Hotel Riviera,
Inc., 81 Nev. 350, 403 P.2d 201 (1965); Thran v. District Court, 79 Nev. 176, 380 P.2d 297
(1963); Astorga v. Ishimatsu, 77 Nev. 30, 359 P.2d 83 (1961); Harris v. Harris, 65 Nev. 342,
196 P.2d 402 (1948).
We have said that
[w]e are of the opinion that NRCP 41(e) is clear and unambiguous and requires no
construction other than its own language. Whenever plaintiff has failed for two years
after action is filed to bring it to trial, the court may exercise its discretion as to
dismissing it, but when it is not brought to trial within five years, the court in the
absence of a written stipulation extending time, shall dismiss it. In the latter case the
exercise of discretion is not involved.
Thran, supra, 79 Nev. at 181, 380 P.2d at 300. In Smith v. Garside, 81 Nev. 312, 314, 402
P.2d 246, 247 (1965), this Court further held that
[t]he language of the rule is mandatory. The lower court was forced to grant the
defendants' motion to dismiss. It had no discretion in the matter, nor do we have any on
appeal from the dismissal order. (Citations deleted.)
Furthermore,
[r]ule 41, as written and construed, does not contemplate an examination of the
equities. Any other construction would destroy the mandatory 5-year dismissal rule and
make the determination a matter of trial court discretion.
Great W. Land & Cattle, supra, 86 Nev. at 285, 467 P.2d at 1021. In Bank of Nevada, supra,
86 Nev. at 749, 476 P.2d at 174, we stated:
This court has made its position clear in several cases that the only exception to a
mandatory dismissal for failure to bring an action to trial within 5 years after the
complaint is filed is a written stipulation of the parties agreeing to extend the 5-year
period.
[Headnote 3]
It is the duty of each plaintiff to be sufficiently diligent to preclude entry of a 41(e)
dismissal. Monroe, supra, Bank of Nevada, supra; Thran, supra.
Here, appellant was not unmindful of the rule requiring timely prosecution of his cause.
Respondent had moved for a discretionary dismissal on January 31, 1975, pursuant to Rule
41(e) for failure to bring the cause to trial within two years after filing of the complaint.
Appellant, in opposition to that motion, clearly indicated awareness of the time constraint and
the exact date on which the complaint was filed.
1
Thus, appellant was obligated and aware
of the obligation to pursue a timely trial date.
[Headnote 4]
Appellant contends that the dismissal was premature because the substitution of plaintiffs
and the filing of an amended complaint commenced anew the period within which to
calculate the relevant time pursuant to 41(e). A similar argument confronted this Court in
Volpert v. Papagna, 85 Nev. 437, 456 P.2d 848 (1969), and was rejected:
[t]he date of the filing of the amended complaint is not the relevant date. The action
was commenced . . . when the complaint was filed. NRCP 3.
Id. at 440, 456 P.2d at 850. Moreover, appellant has conceded in his opposition to a prior
motion for dismissal that the action was commenced with the filing of the original complaint.
The order and judgment of the trial court dismissing the action is affirmed.
____________________

1
There is no indication in the record of the subsequent disposition of this motion, but apparently appellant
was successful in effecting its denial.
____________
94 Nev. 528, 528 (1978) Fennel v. Miller
ALICE FENNELL, Appellant, v. HARRY E. MILLER, LEO J. BENZINI, and VIRGINIA M.
BENZINI, dba TROPICANA MOBILE PARK; FRED GILLENBERG; ALICE
GILLENBERG; MICHAEL VICTOR BURRIS, dba BURRIS PAVING COMPANY;
STEVE L. HENRIE; CLARK COUNTY, NEVADA; and RALPH LAMB, SHERIFF OF
CLARK COUNTY, NEVADA, Respondents.
No. 9851
August 9, 1978 583 P.2d 455
Appeal from order granting motion for involuntary dismissal pursuant to NRCP 41(b);
Eighth Judicial District Court, Clark County; Thomas J. O'Donnell, Judge.
Widow brought action against driver of eastbound automobile and others to recover for
wrongful death of husband pedestrian, who, while crossing five-lane thoroughfare at night at
a point other than at an intersection or marked crosswalk, was struck from rear by such
automobile. The district court granted defendants' motion for involuntary dismissal, and
widow appealed. The Supreme Court held that: (1) evidence of negligence on part of driver
was insufficient to warrant submission of such issue to jury, and (2) pedestrian had been
contributorily negligent in crossing thoroughfare at an angle which placed his back to
eastbound traffic.
Affirmed.
John P. Foley and Pat J. Fitzgibbons, Jr., Las Vegas, for Appellant.
Rose, Edwards, Hunt & Pearson, Ltd., Las Vegas, for Respondent Miller.
Cromer, Barker & Michaelson, Las Vegas, for Respondents Benzinis dba Tropicana
Mobile Park; Gillenberg; Burris dba Burris Paving Co.; Henrie; and Clark County, Nevada.
1. Trial.
Motion for involuntary dismissal admits truth of a plaintiff's evidence and all inferences that reasonably
can be drawn therefrom, and the evidence must be interpreted in light most favorable to plaintiff. NRCP
41(b).
2. Automobiles.
In action to recover against motorist and others for wrongful death of pedestrian, who, while crossing
five-lane thoroughfare at night at a point other than at intersection or marked crosswalk, was struck from
rear by motorist's eastbound automobile, evidence of negligence on part of motorist was insufficient to
warrant submission of such issue to jury.
3. Trial.
Jury may not arbitrarily reject credible testimony which is not contradicted by other testimony or
available physical evidence.
4. Negligence.
Comparative negligence statute does not have retrospective application. NRS 41.141.
5. Automobiles.
Pedestrian, who crosses highway at point other than an intersection or marked crosswalk, an, thus, has a
statutory duty to yield right-of-way to all vehicles on highway, has corresponding duty to look in direction
or directions of anticipated danger and to continue to be alert to safeguard against injury. NRS 484.327,
subd. 1.
6. Automobiles.
Pedestrian, who, while crossing five-lane thoroughfare at night at a point other than at an intersection or
marked crosswalk, was struck from rear by eastbound automobile, had been contributorily negligent in
crossing thoroughfare at an angle which placed his back to eastbound traffic. NRS 41.080, 484.327,
subd. 1.
OPINION
Per Curiam:
This is an appeal from dismissal of a wrongful death action brought by decedent's wife,
arising out of an automobile-pedestrian accident in Las Vegas which occurred in front of the
Tropicana Mobile Park on the evening of November 10, 1971. Appellant's husband, Joseph
Fennell, was crossing Tropicana Avenue when he was struck and fatally injured by an
automobile driven by respondent Harry Miller. Appellant subsequently initiated this action
against Miller; the Benzinis, owners of the park, and Fred Gillenberg, its manager; Michael
Burris, dba Burris Paving Company, and Steve Henrie, who were responsible for paving the
streets and driveways of the park on the day of the accident; Clark County; and the State of
Nevada. Following presentation of appellant's case-in-chief to the jury, the trial court granted
the motion of all defendants for involuntary dismissal, pursuant to NRCP 41(b).
[Headnote 1]
This court has previously dismissed the appeal as to the State of Nevada. The question
before us is whether, as to the remaining respondents, appellant failed to prove a sufficient
case for the jury. A motion for involuntary dismissal admits the truth of a plaintiff's evidence
and all inferences that reasonably can be drawn therefrom, and the evidence must be
interpreted in the light most favorable to the plaintiff. Gunlock v. New Frontier Hotel, 78
Nev. 182, 183-84, 370 P.2d 682 (1962). Even judged by such generous standards, we are
constrained to agree with the court below that appellant is not entitled to recovery.
1. The Evidence.
The evidence, viewed in the light most favorable to appellant, established the following
relevant facts. On the day of the fatal accident, Burris Paving Company was applying asphalt
sealant to the entrance, streets and driveways of the Tropicana Mobile Park, where appellant
and Fennell resided. While the sealant was drying, residents were directed by the park
manager to park their cars in a vacant lot across Tropicana Avenue, a five-lane thoroughfare.
Shortly before 6:00 p.m., Fennell went to the entrance of the park to meet some dinner guests.
After a short conversation with the manager, Fennell started across Tropicana Avenue
from the park entrance toward his guests, who were in the lot on the south side of the avenue,
slightly to the east of the entrance. As Fennell reached the southernmost lane of traffic, he
was struck from the rear by Miller's eastbound car. Based on examination of Miller's skid
marks, the investigating officer concluded that Miller had applied his brakes two feet prior to
the point of impact; Miller himself had no recollection of seeing Fennell before the impact
occurred. The investigating officer also concluded, on the basis of the physical evidence, that
Miller had been traveling at a speed of 38 miles per hour when he applied his brakes.
The portion of Tropicana Avenue where the accident occurred was comprised of four
traffic lanes and a center turn lane; it had neither street lights nor pedestrian crosswalks. The
posted speed limit was 45 miles per hour. At the time the accident occurred, it was dark, and
the street itself was not illuminated by the lights at the entrance to the park. Traffic was
described as moderate; there was evidence that there had been a temporary break in
westbound traffic just before Fennell began to cross the thoroughfare.
2. Respondents' Liability.
[Headnote 2]
As to respondent Miller, appellant has simply failed to present any evidence upon which a
reasonable inference of negligence could be based. Her contention that such an inference
could be based upon Miller's failure to see decedent in time to avoid the impact is disposed of
by our ruling in Johnson v. Brown, 77 Nev. 61, 359 P.2d 80 (1961). In affirming involuntary
dismissal, we held that
[I]t is not required of the driver of a vehicle to anticipate that a pedestrian would be
crossing a boulevard in the middle of a block at any point other than within a marked
crosswalk, any more than a driver should anticipate that a vehicle approaching from the
opposite direction would suddenly cross over into his lane of traffic. A driver cannot be
charged with failure to exercise due care toward a person so crossing the boulevard,
unless such person is observed in time for the driver to avoid colliding with him.
be charged with failure to exercise due care toward a person so crossing the boulevard,
unless such person is observed in time for the driver to avoid colliding with him.
Id. at 66, 359 P.2d at 82.
[Headnote 3]
In this case, as in Johnson, there was no reason for a driver to anticipate that a pedestrian
would suddenly appear in his path. Nor is there any evidence which would support an
inference that Miller, driving in the dark, in the midst of rush-hour traffic, actually saw
Fennell in time to avoid a collision. Appellant's additional contentions with regard to Miller's
negligence may be dismissed with the observation that a jury may not arbitrarily reject
credible testimony which is contradicted neither by other testimony nor the available physical
evidence. Kerr v. Mills, 87 Nev. 153, 483 P.2d 902 (1971).
[Headnotes 4, 5]
Appellant has discussed at length the duties of the various other respondents toward
decedent. It is unnecessary to explore the issues thus raised, for we agree with respondents'
contention that decedent was guilty of contributory negligence as a matter of law.
1
A
pedestrian crossing a highway at any point other than an intersection or a marked crosswalk
has a statutory duty to yield the right-of-way to all vehicles on the highway. NRS 484.327,
subd. 1. A pedestrian with such a duty has a corresponding duty to look in the direction or
directions of anticipated danger, and to continue to be alert to safeguard against injury. Gibb
v. Cleave, 55 P.2d 938, 939 (Cal.App. 1936), quoting Lavin v. Fereria, 52 P.2d 518 (Cal.App.
1935).
[Headnote 6]
The only reasonable inference which may be drawn from the established facts is that
decedent, crossing the five-lane thoroughfare toward his guests, at an angle which placed his
back to eastbound traffic, simply failed to continue to be alert to the approach of oncoming
vehicles. It is clear that but for the negligence of decedent, who subjected both himself and
oncoming vehicles to an unreasonable risk of harm in the circumstances presented, the
accident would not have occurred. Appellant is thus precluded from recovering from the
remaining respondents. See Gibb v. Cleave, supra, Chase v. Thomas, 46 P.2d 200 (Cal.App.
1935); Chiribel v. Southern Pac. Co., 79 Nev. 311, 383 P.2d 1 (1963); NRS 41.080.
The judgment of the district court is affirmed.
____________________

1
The comparative negligence statute, NRS 41.141, was not in effect when this accident happened, and does
not have retrospective application. Rice v. Wadkins, 92 Nev. 631, 555 P.2d 1232 (1976).
____________
94 Nev. 532, 532 (1978) McInnis v. McInnis
MARY ANN McINNIS, Appellant, v. WILLIAM
B. McINNIS, Respondent.
No. 9911
August 9, 1978 582 P.2d 802
Appeal from order denying motion to modify a judgment and decree of divorce; Eighth
Judicial District Court, Clark County; James A. Brennan, Judge.
Mother filed motion to modify judgment and decree of divorce asking that child support
be increased and also requesting reasonable attorney fees. The district court denied motion in
all respects, and mother appealed. The Supreme Court held that: (1) trial court's refusal to
modify judgment with respect to child support was not abuse of discretion, and (2) refusal to
award attorney fees to mother was not improper.
Affirmed.
George Rudiak, Chartered, Las Vegas, for Appellant.
John Peter Lee and Richard McKnight, Las Vegas, for Respondent.
1. Divorce.
Trial court was justified in refusing to modify original divorce award by increasing amount of child
support where mother's contention that father's income showed substantial increase was not supported by
evidence in record.
2. Divorce.
Trial court's refusal to grant mother attorney fees in modification of child support proceeding was not
improper.
OPINION
Per Curiam:
This is an appeal from a post-judgment order denying Appellant's motion to increase her
child support payments.
Appellant Mary McInnis and Respondent William McInnis were divorced after eight years
of marriage. Appellant was awarded custody of the couple's two children, then three and six,
and was awarded $150.00 per month for their support. Payment of child support was to be
made directly by Respondent until September, 1976, with payments thereafter to be deemed
made from the proceeds of the couple's interest in a promissory note, payable at $330.00 per
month until August, 1982. Thereafter Respondent was to resume direct payments.
The couple's interest in the note had been adjudged to be community property by the divorce
decree. There was no appeal taken from that judgment.
One year later Appellant filed the instant motion to modify the judgment and decree of
divorce, asking that child support be increased to $160.00 per month per child, and later that
it be increased to $325.00 per month per child when the payments on the note ceased.
Appellant also requested reasonable attorney's fees. The trial court denied the motion in all
respects.
Appellant has appealed this post-judgment order, contending that the trial court abused its
discretion in refusing to grant an increase in the child support payments and in refusing to
award attorney's fees and costs of suit.
The Issues
1. The jurisdiction of the trial court to act upon Appellant's motion to modify the decree of
divorce with respect to child support is conferred by NRS 125.140(2). Cavell v. Cavell, 90
Nev. 334, 526 P.2d 330 (1974). The issue presented on appeal of the denial of such a motion
is whether the lower court abused the discretion conferred upon it by the statute. Edwards v.
Edwards, 82 Nev. 392, 419 P.2d 637 (1966).
In Goodman v. Goodman, 68 Nev. 484, 236 P.2d 305 (1951), this court indicated that the
sufficiency of the original award, the ability of the father to make additional payments, and a
showing of some pertinent change of circumstances as to the child and as to the father may be
appropriate guides for the exercise of [the court's] discretion under the circumstances of each
particular case, 68 Nev. at 490.
In this case Appellant has not demonstrated that the court willfully and deliberately
disregarded these matters, Goodman v. Goodman, 68 Nev. at 490, and, therefore, the order
of the trial court refusing to modify the judgment with respect to child support must be
upheld.
[Headnote 1]
Appellant's salary income, although considerably less than Respondent's, had almost
doubled from the time of the original award to the time of her motion, and had apparently
increased significantly again by the time of the hearing thereon. The estimate of expenses
which she submitted in support of her motion to modify was actually less than the estimate
she submitted at the time of the divorce. The sole evidence of Respondent's income in the
record before this court shows that his income decreased from 1974 to 1975. Appellant's
contention that Respondent's income showed a substantial increase in 1976 is not supported
by evidence in this record, and, therefore, may not be considered. Fenkell v. Fenkell, 86 Nev.
397, 469 P.2d 701 {1970).
Nev. 397, 469 P.2d 701 (1970). In these circumstances, the trial court was justified in
refusing to modify the original award by increasing the amount of child support.
2. Appellant argues that the trial court improperly relieved respondent-father of his
obligation to support his minor children when the court ordered the payments made from the
note proceeds. Appellant's argument misses the mark. The original judgment did not purport
to relieve Respondent of any obligation for the support of his minor children; it merely
specified a method of payment during the period until the promissory note is paid.
A trial court is directed by statute to make such order for the custody, care, education,
maintenance and support of [the] minor children as may seem necessary and proper. NRS
125.140(2). The legislature has further provided that community property may be burdened
(NRS 125.150(1)) or the separate property of either spouse set aside (NRS 125.150(3)) for the
benefit of the children of the marriage. Furthermore, the allocation of the couple's entire
community property interest in the promissory note to Appellant, with the provision that
Respondent's child support payments be deemed made from its proceeds after the first year,
was made pursuant to NRS 125.150(1), which directs the court, in its disposition of
community property, to take into account the burdens, if any, imposed upon it, for the
benefit of the children. Appellant did not choose to appeal the court's original judgment. She
may not now argue that, since the legal title to the couple's interest in the note was awarded
her by that judgment, Respondent should be viewed as making no contribution to the support
of his children.
3. Appellant's contention that she is forced to support the children through her savings
(i.e., the principal payments on the promissory note) is merely the converse of the argument
above and fails to take into account the conditional nature of the allocation of Appellant's
interest in the note.
We conclude, therefore, that the order denying Appellant's motion to modify the judgment
and decree of divorce by increasing the child support payments must be affirmed.
[Headnote 2]
Appellant also sought counsel fees totalling $3,450.00 and $376.67 costs, which the court
refused. Counsel for Appellant admitted that at least one-third of the requested fees and costs
were related to matters that preceded the filing of the instant motion. We believe that under
the circumstances presented, the trial court's order of denial should not be disturbed on
appeal. Therefore, we affirm.
____________
94 Nev. 535, 535 (1978) Hamilton v. State
GLENN L. HAMILTON, Appellant, v. THE
No. 10040
August 9, 1978 582 P.2d 376
Appeal from judgment of the Eighth Judicial District Court, Clark County; J. Charles
Thompson, Judge.
Defendant was convicted before the district court of sale of a controlled substance, and he
appealed. The Supreme Court held that: (1) evidence supported conviction, and (2) so long as
the verdict is supported by substantial record evidence, it will not be disturbed on appeal.
Affirmed.
Morgan D. Harris, Public Defender, and John H. Howard, Deputy Public Defender, Clark
Conviction of sale of a controlled substance, heroin, was supported by evidence, including testimony of
undercover officers that defendant offered to sell them some junk, which they understood to mean
heroin, that after negotiating a price defendant left and returned with a red balloon which officers believed
to and which was proven to contain heroin. NRS 453.161, 453.321.
2. Criminal Law.
Credibility of witnesses and weight of evidence is solely within the province of the jury.
3. Criminal Law.
So long as verdict is supported by substantial record evidence, it will not be disturbed on appeal.
OPINION
Per Curiam:
Appellant was convicted by a jury of the sale of a controlled substance (heroin), in
violation of NRS 453.161 and 453.321, and subsequently sentenced to a term of fifteen years
in Nevada State Prison, with credit for time served. His only contention on this appeal is that
the evidence adduced at trial was insufficient to support his conviction.
[Headnote 1]
This contention is without merit. Two undercover police officers testified that appellant
offered to sell them some "junk", which they understood to mean heroin.
94 Nev. 535, 536 (1978) Hamilton v. State
junk, which they understood to mean heroin. Each further testified that after negotiating a
price, appellant left, then returned with a red balloon. Upon ascertaining that the material
inside appeared to be heroin, the officers gave appellant money in exchange for the balloon.
They then placed appellant under arrest. An expert witness identified the substance in the
balloon as heroin.
[Headnotes 2, 3]
While appellant and his companion gave a different version of these events at trial, the
credibility of witnesses and the weight of the evidence is solely within the province of the
jury. So long as the verdict is supported by substantial evidence in the record, it will not be
disturbed on appeal. Azbill v. State, 88 Nev. 240, 495 P.2d 1064 (1972); Sanders v. State, 90
Nev. 433, 529 P.2d 206 (1974); Wheeler v. State, 91 Nev. 119, 531 P.2d 1358 (1975); Wise
v. State, 92 Nev. 181, 547 P.2d 314 (1976).
____________
94 Nev. 536, 536 (1978) Commercial Std. Ins. v. Tab Constr.
COMMERCIAL STANDARD INSURANCE COMPANY, a Corporation, Appellant, v. TAB
CONSTRUCTION, INC., a Nevada Corporation, Respondent.
No. 8960
August 9, 1978 583 P.2d 449
Appeal from an order granting summary judgment; Eighth Judicial District Court, Clark
County; Howard W. Babcock, Judge.
Construction company which furnished labor and materials in connection with
improvements made pursuant to agreement between county and developer brought action to
recover under surety bond executed on behalf of developer. The district court entered
summary judgment for construction company, and developer's surety appealed. The Supreme
Court held that six-month period contemplated by surety bond, which was executed on behalf
of developer in favor of county for benefit of those supplying labor and materials for certain
improvements to be constructed by developer pursuant to agreement between developer and
county as a condition of county approval of developer's subdivision map, and which required
that suit be instituted six months from the date of completion of said improvements as
completion' is defined under the applicable sections of the Civil Code of Nevada, began to
run at time improvements met county standards and specifications and not before, and
thus surety bond action brought by construction company within six months of date on
which improvements met county standards and specifications was not barred by
six-month limitation.
improvements met county standards and specifications and not before, and thus surety bond
action brought by construction company within six months of date on which improvements
met county standards and specifications was not barred by six-month limitation.
Affirmed.
McNamee, McNamee & Rittenhouse, Las Vegas; Anderson, McPharlin & Conners, Luther
L. Jensen, and Larry E. Robinson, Los Angeles, California, for Appellant.
Paul L. Larsen, Chartered, Las Vegas, for Respondent.
Counties.
Six-month period contemplated by surety bond, which was executed on behalf of developer in favor of
county for benefit of those supplying labor and materials for certain improvements to be constructed by
developer pursuant to agreement between developer and county as a condition of county approval of
developer's subdivision map, and which required that suit be instituted six months from the date of
completion of said improvements as completion' is defined under the applicable sections of the Civil Code
of Nevada, began to run at time improvements met county standards and specifications and not before,
and thus surety bond action brought by construction company within six months of date on which
improvements meet county standards and specifications was not barred by six-month limitation. NRS
278.380, 278.380, subd. 3.
OPINION
Per Curiam:
The narrow issue presented is whether respondent is barred from bringing this surety bond
action for its failure to commence suit to collect within six months from the date of
completion of improvements as required by the terms of the bond.
The court below, in granting summary judgment in favor of respondent, ruled that the suit
was timely and this appeal followed. We agree and affirm.
THE FACTS
In February, 1973, appellant surety executed a Subdivision Insurance Bond on behalf of
L. C. Smith, Co. (hereafter Developer). The bond was executed in favor of Clark County
for the benefit of those supplying labor and materials for certain off-site improvements to be
constructed pursuant to an agreement between Developer and Clark County. Developer was
to construct certain streets, curbs, lighting fixtures, sewers, etc., at its own expense, as a
condition of County approval of its subdivision map.
Respondent Tab Construction, Inc. agreed to furnish certain labor and materials in
connection with these improvements, to be completed according to Clark County
specifications. The work was substantially completed by February 1, 1974.
On November 12, 1974, however, Clark County directed that additional work be
performed by respondent to bring its portion of the improvements to county specifications.
The work was completed and accepted by the Department of Public Works by November 15,
1974. The instant suit was commenced on January 29, 1975.
THE ISSUES
NRS 278.380 is governing in the instant case.
1

The statute stated that the appropriate governing body may, upon approval of a subdivision
map, require that a subdivider improve or agree to improve streets or easements as a
condition precedent to acceptance of any offers of dedication. In the event of an agreement to
improve streets or easements, NRS 278.380(3) provided that the governing body may
require that the agreement be secured by a good and sufficient bond not in excess of the cost
of improvement. (Emphasis added.)
It is clear from the Off-Site Improvement Agreement between Developer and Clark
County that the improvements in question were to be constructed as a condition of county
approval of Developer's subdivision map, as recommended by the County Planning
Commission. As authorized by statute, the county elected to require a bond of the developer.
The bond required that suit be instituted six (6) months from the date of completion of
said improvements as completion' is defined under the applicable sections of the Civil Code
of Nevada. If completion is accepted as the date on which respondent performed the last
of the work called for in its contract with Developer, on or about November 15, 1974, its suit
filed January 29, 1975, was within the period of the limitation.
____________________

1
NRS 278.380 then read:
NRS 278.380. Approval of final map by governing body: Acceptance of dedications; street improvement
requirement; subdivider's bond.
1. Upon receipt of the final map and report of the planning commission, the governing body shall . . .
approve the map if the same conforms to all the requirements of NRS 278.010 to 278.630, inclusive, and of any
local ordinance applicable at the time of approval of the tentative map, or any rulings made thereunder.
2. The governing body shall at that time also accept or reject any or all offers of dedication and may, as a
condition precedent to the acceptance of any streets or easements, require that the subdivider either improve or
agree to improve the streets or easements.
3. In the event an agreement for the improvement of the streets or easements is entered into, the governing
body may require that the agreement be secured by a good and sufficient bond in an amount not in excess of the
cost of the improvement.
1941 Nev. Stats. ch. 110, 24, at 260; am. 1977 Nev. Stats. ch. 580, 12, at 1500.
Appellant suggests, however, that completion should be defined as 30 days from the
date work on the project ceased. Respondent has admitted that there was a gap in the work for
over 30 days after April 15, 1974. According to the affidavit of the Chief Inspector of Public
Works, no work was done by Developer or any subcontractors on the improvements covered
by the bond during that period. Appellant suggests, therefore, that the work was completed
by May 15, 1974, and that the period of limitation had run by November 15, 1974, two and
one-half months before respondent filed suit.
Appellant predicates its entire argument upon its contention that the applicable section
of the Civil Code referred to in the bond is focused on NRS 108.226, covering mechanics'
and materialmen's liens. That statute provides in pertinent part:
3. Any one of the following acts or events is equivalent to completion of the work of
improvement for all purposes of NRS 108.221 to 108.2395, inclusive:
. . . .
(c) The cessation from labor for 30 days upon any building, improvement or
structure, or the alteration, addition to or repair thereof.
2

We do not agree. In Nelson v. Trounce, 195 P. 393 (Cal. 1921), the California Supreme Court
refused to apply a similar 30 day work cessation provision in that state's mechanics' lien law
to the interpretation of the limitation of action provision in a bond issued pursuant to a public
construction contract. The court held that since the mechanics' lien law was not directly
applicable the contract would be completed only when the building in question was finished
in accordance with the contract terms.
This rule was later applied in Lewis v. Hopper, 295 P.2d 93 (Cal.App. 1956). A
subcontractor was held entitled to sue on a payment bond requiring suit within six months of
completion when action was commenced eight months after the date of completion by
the standards of the mechanics' lien law but within six months of completion of minor
installations which were called for in the contract.
In the instant case, respondent was entitled to be paid only upon completion of the work
according to Clark County specifications. According to the Department of Public Works,
the work was not completed as of November 12, 1974. Respondent was notified that his work
met county specifications by a letter dated November 15, 1974.
____________________

2
Appellant has also conceded, however, that The action against Commercial Standard Insurance Company
is based upon a written bond. It has nothing to do with a mechanics' lien foreclosure suit.
The date of completion in this instance as the date on which respondent brought its work
to county specifications is consistent with the purpose to be accomplished by the bond. The
contract between Developer and Clark County which called for the bond provided that if
construction of the improvements were not in accordance with applicable standards and
specifications as prescribed by law, the county might at its option proceed to complete said
improvements at the expense of the Developer under his bond. The purpose of the bond was
to cover work such as that ordered of respondent by the county on November 12, 1974, to
bring its work to county standards and specifications.
We rule, therefore, that the six month period began to run at the time the improvements
met county standards and specifications and not before, that is, November 15, 1974. Since
respondent filed suit within six months of that event on January 29, 1975, this action is not
barred by the time limitation specified in the surety bond. Consequently, we affirm the order
granting summary judgment.
____________
94 Nev. 540, 540 (1978) Molezzo Reporters v. Patt
MOLEZZO REPORTERS, Appellant, v.
SEYMOUR H. PATT, Respondent.
No. 9310
August 9, 1978 579 P.2d 1243
Appeal from judgment; Second Judicial District Court, Washoe County; Peter I. Breen,
Judge.
Reporters sued attorney to recover for reporting services rendered. The district court
entered judgment in favor of defendant, and plaintiffs appealed. The Supreme Court,
Thompson, J., held that attorney ordering reporting services in connection with litigation is to
be treated as a principal and liable, severally and jointly with his client, to pay for such
services, in the absence of express disclaimer of such liability.
Reversed.
Keith L. Lee, of Reno, for Appellant.
David Dean, of Reno, for Respondent.
Because of his control of litigation process, attorney should be treated as principal, severally and jointly
liable with client for reporting services rendered, which have been ordered by attorney in
connection with litigation, in the absence of his express disclaimer of such liability.
services rendered, which have been ordered by attorney in connection with litigation, in the absence of his
express disclaimer of such liability. SCR 45.
2. Courts.
Where reporter's services have been ordered by court without court specification for payment, it would
appear fair for all counsel and their clients to be jointly and severally liable to the reporter.
3. Champerty and Maintenance.
Rule providing that lawyer may not properly agree with client to pay or bear expenses of litigation but
may advance expenses subject to reimbursement does not touch the right of reporter to collect for his
services from attorney who ordered them without disclaiming liability. SCR 183.
OPINION
This action was commenced to recover a stipulated sum of money allegedly due Molezzo
Reporters for reporting services rendered by them to Attorney Patt at his request.
1
Patt did
not expressly disclaim responsibility for their charges until later, when he declined personally
to pay their bills. Neither did he advise the reporters that he personally would be responsible
for their charges when their services were engaged.
The district court found Patt not liable in these circumstances. Its decision was premised
upon the ordinary rule that an agent is not personally liable on a contract made for his
principal where the party with whom he is contracting knows that he is acting for another.
Moreover, the district court believed that to impose liability upon the attorney would sanction
champerty in violation of Supreme Court Rule 183 which provides that . . . A lawyer may
not properly agree with a client that the lawyer shall pay or bear the costs of litigation; he may
temporarily and in good faith advance expenses as a matter of convenience, but subject to
reimbursement.
The reporters have appealed contending that an attorney who orders their services, and
who does not at that time disclaim liability therefor, should be required to pay.
[Headnotes 1, 2]
1. Case authority elsewhere is divided. There is solid support for the view of the district
court that the attorney, as agent, is not personally liable on contracts made for his disclosed
principal and client in the absence of his express agreement to be bound. McCorkle v.
Weinstein, 365 N.E.2d 953 (Ill.App. 1977), is a recent expression of that reasoning. There
also is strong support for the rule that an attorney ordering services in connection with
litigation is to be treated as a principal and liable to pay for such services in the absence
of his express disclaimer of such liability.
____________________

1
In one instance the reporting was ordered by the court without specifying responsibility for payment.
services in connection with litigation is to be treated as a principal and liable to pay for such
services in the absence of his express disclaimer of such liability. Burt v. Gahan, 220 N.E.2d
817 (Mass. 1966). Cases supporting each point of view are collected in the Annot., 15
A.L.R.3d 531 (1967) entitled Attorney's Personal Liability for Expenses Incurred in Relation
to Services for Client.
We prefer the Burt v. Gahan, supra, rule. As noted by the Massachusetts Supreme Court,
the attorney-client relationship involves much more than mere agency, and is subject to
established professional standards. The attorney, and not his client, is in charge of litigation,
Gottwals v. Rencher, 60 Nev. 35, 92 P.2d 1000 (1939); Wehrheim v. State, 84 Nev. 477, 443
P.2d 607 (1968), and possesses the authority to bind his client in procedural matters in any
of the steps of an action or proceeding. SCR 45.
The attorney decides whether the services of a certified reporter are needed for depositions
or for court transcription of testimony. Because of his control of the litigation process, he
should be treated as a principal, severally and jointly liable with his client for reporting
services rendered. As noted in Burt v. Gahan, supra, there is no hardship in this rule, as it is a
simple matter for the attorney to exclude himself from liability by a timely statement to that
effect.
2

[Headnote 3]
2. SCR 183 reads in part: A lawyer may not properly agree with a client that the lawyer
shall pay or bear the expenses of litigation; he may temporarily and in good faith advance
expenses as a matter of convenience, but subject to reimbursement.
The rule specifically allows the attorney to advance expenses. The only restriction is that
the client remain liable to the attorney for reimbursement. Such reimbursement is to be
accommodated within the attorney-client relationship, and does not touch the right of the
reporter to collect for his services from the attorney who ordered them without disclaiming
liability therefor.
Accordingly, we reverse the judgment entered below and direct the district court to enter
judgment in compliance with this opinion.
____________________

2
We find no cases regarding the attorney's liability for reporting costs ordered by the court without court
specification for payment. In such circumstance, it would appear fair for all counsel and their clients to be jointly
and severally liable to the reporter.
____________
94 Nev. 543, 543 (1978) Ambassador Insurance Co. v. Bozarth
AMBASSADOR INSURANCE COMPANY, an Insurance Company,
Appellant, v. ROGER BOZARTH, Respondent.
No. 9328
August 9, 1978 582 P.2d 798
Appeal from order entering summary declaratory judgment. Eighth Judicial District Court,
Clark County; John F. Mendoza, Judge.
Insurer brought action seeking declaratory judgment relative to coverage under policy. The
district court entered order granting summary declaratory judgment to insured, and insurer
appealed. The Supreme Court held that where insurer did not treat owner policy substantially
different from nonowner policy, premiums were the same, transfer from nonowner policy to
owner policy was merely clerical matter and there was no insurance risk change, insured
under operator policy providing protection for operation of vehicles owned by others was
justified in his reasonable expectation that coverage existed under policy as to automobile he
subsequently purchased and insured's failure to promptly notify insurer of his purchase of
automobile did not preclude his recovery of basic reparation benefits when he was injured in
one-vehicle accident involving purchased automobile.
Affirmed.
John D. Nitz, Las Vegas, for Appellant.
James R. Crockett, Jr., Las Vegas, for Respondent.
1. Insurance.
Courts are not diligent in searching for an excuse to justify a forfeiture under an insurance policy.
2. Insurance.
Where insurer did not treat owner policy substantially different from nonowner policy, premiums were
the same, transfer from nonowner policy to owner policy was merely clerical matter and there was no
insurance risk change, insured under nonowner policy providing protection for operation of vehicles owned
by others was justified in his reasonable expectation that coverage existed under policy as to automobile he
subsequently purchased and insured's failure to promptly notify insurer about purchase of automobile did
not preclude his recovery of basic reparation benefits when he was injured in one-vehicle accident
involving purchased automobile. NRS 485.010 et seq., 698.010 et seq., 698.340.
OPINION
Per Curiam:
Appellant Ambassador Insurance Company issued a nonowner automobile insurance
policy to respondent Roger Bozarth.
Bozarth. Because he did not then own a vehicle, an operator policy was issued in lieu of an
owner policy and provided protection for Bozarth when he operated vehicles owned by
others. The policy was issued to satisfy the Nevada Motor Vehicle Safety Responsibility Act.
NRS Chapter 485. The premium was exactly the same for the non-owner policy as it was for
the owner policy.
During the policy period Bozarth purchased a vehicle but failed to inform Ambassador to
effect a change from the nonowner policy to an owner policy. Subsequently, Bozarth was
injured in a one-vehicle accident, but because he had failed to notify Ambassador of his
ownership of the automobile involved, the insurance company refused to provide the basic
reparation benefits mandated under the no-fault Nevada Motor Vehicle Insurance Act. NRS
Chapter 698.
Ambassador contended that a regulation announced by the Nevada Insurance
Commissioner authorized insurance companies to exclude from basic reparation benefits
insureds not having the requisite security for their vehicles.
1
Ambassador reasoned that
because Bozarth was injured in an owned vehicle while he had non-owner insurance, he came
within the exception, to the regulation and was thus precluded from receiving any basic
reparation benefits.
Bozarth contended that the Motor Vehicle Insurance Act was controlling and that basic
reparation benefits were owed irrespective of any distinction between owner and non-owner,
operator, policies. He argued that there was no distinction in premiums and there ought be no
distinction in entitlements.
Ambassador sued for declaratory relief and Bozarth filed a counterclaim. Bozarth then
moved for a summary declaratory judgment, which the trial court granted. Ambassador now
appeals the order granting summary declaratory judgment.
We query whether the trial court properly entered its order for summary declaratory
judgment in behalf of respondent?
Below, Ambassador sought a declaratory judgment and the court's order granting Bozarth's
counter motion was entered pursuant to NRCP 56(b) which provides in part that a party
against whom a claim . . . is asserted or a declaratory judgment is sought may, at any
time, move with or without supporting affidavits for a summary judgment in his favor as
to all or any part thereof.
____________________

1
The exclusionary language of Regulation PC-18 (1974) provided in part:
D. Exclusions
. . .
2. In order that proper insurance coverage will be provided with respect to every motor vehicle
owned by the named insured or any relative, this coverage does not apply to bodily injury sustained by
(a) the named insured or any relative arising out of the maintenance or use of any motor vehicle owned
by the named insured and with respect to which security under the Nevada Motor Vehicle Insurance Act
is not in effect. (Emphasis original.)
party against whom a claim . . . is asserted or a declaratory judgment is sought may, at
any time, move with or without supporting affidavits for a summary judgment in his
favor as to all or any part thereof.
In addition to seeking summary declaratory relief, Bozarth also filed a counterclaim praying
for both compensatory and exemplary damages. The trial court granted Bozarth's Motion for
Summary Declaratory Judgment, but made no determination as to damages. This suggests
that the judgment was interlocutory in nature. NRCP 56(c) states in part that a
summary judgment, interlocutory in character, may be rendered on the issue of liability
alone although there is a genuine issue as to the amount of damages.
Upon initial appeal, we remanded the matter to the district court for entry of a final
appealable judgment pursuant to NRCP 54(b). An express determination that no just reason
for delay exists and an express direction for entry of judgment having been made, we now
reach the merits of this matter.
[Headnotes 1, 2]
The evidence indicated that Ambassador did not treat its owner policy substantially
different from its non-owner policy. The premiums were exactly the same, the transfer from
an operator policy to an owner policy was merely a clerical matter, and there is no showing
whatsoever of an insurance risk change. Respondent was justified in his reasonable
expectation that coverage existed. Compare, Prudential Insurance Co. v. Lamme, 83 Nev.
146, 425 P.2d 346 (1967). Courts are not diligent in searching for an excuse to justify a
forfeiture. Clark v. London Assurance Corp., 44 Nev. 359, 195 P.809 (1921). Thus, the
failure of Bozarth to promptly notify Ambassador when he purchased the vehicle will not
preclude him from enjoying the basic reparation benefits contemplated by the enactment of
Nevada's do fault insurance scheme. NRS 698.230 provides for the right to receive basic
reparation benefits unless such benefits are excluded under the provisions of NRS 698.340,
all of which are inapplicable to respondent.
The order of the trial court granting respondent's motion for summary declaratory
judgment is affirmed.
____________
94 Nev. 546, 546 (1978) Wilshire Ins. Co. v. State
WILSHIRE INSURANCE CO., doing business as JACK'S BAIL BONDS, Appellant, v. THE
No. 9828
August 9, 1978 582 P.2d 372
Appeal from decision and order denying motion to exonerate bail bond and forfeiting
bond. Eighth Judicial District Court, Clark County; James A. Brennan, Judge.
The Supreme Court, Manoukian, J., held that: (1) where power of attorney empowered bail
bondsman to execute and deliver bail bonds only, and stated this power of attorney void if
altered or erased, bail bondsman was a special agent acting in behalf of surety and thus
notice of bail forfeiture proceedings given to bail bondsman was insufficient to impute notice
to surety, and (2) bail bondsman, by his acts of keeping constant vigil on defendant, visiting
defendant's residence to secure custody, taking second deed of trust on defendant's home as
security for bond, and filing motion to exonerate bail in behalf of surety, had not assumed
status of a general agent so as to make notice of forfeiture proceedings given to him sufficient
to impute notice to surety, since such acts, in aggregate, were both innocuous and reasonably
incidental to type of special or limited agent's authorizations and responsibilities contained in
bail bondsman's power of attorney and since State could not enlarge such agency in absence
of showing surety's consent or acquiescence in agent's acts.
Reversed.
David M. Schreiber, Las Vegas, for Appellant.
George E. Holt, District Attorney, Robert S. Sylvain and Patrick A. Gaura, Deputy District
Attorneys, Las Vegas, for Respondent.
Due process requires that notice be given of bail forfeiture proceedings. NRS 178.508.
2. Bail.
Notice to a general agent of bail forfeiture proceedings is deemed notice to surety. NRS 178.508.
3. Bail.
Where power of attorney empowered bail bondsman to execute and deliver bail bonds only, and
expressly stated this power of attorney void if altered or erased, bail bondsman was a special agent,
rather than general agent of surety, and thus notice of bail forfeiture proceedings given to bail bondsman
was insufficient to impute notice to surety, even though State contended that because power of attorney
failed to indicate a "below named agent" as stated in power, such constituted a defective
authorization neither creating nor limiting authority or bail bondsman.
below named agent as stated in power, such constituted a defective authorization neither creating nor
limiting authority or bail bondsman. NRS 178.508.
4. Bail.
Bail bondsman, by his acts of keeping a constant vigil on defendant, visiting defendant's residence to
secure custody, taking second deed of trust on defendant's home as security for bond and filing motion to
exonerate bail on behalf of surety, had not assumed status of a general agent so as to make notice of bail
forfeiture proceedings given to him sufficient to impute notice to surety, since, in aggregate, such acts were
innocuous and reasonably incidental to type of special agent's authorizations and responsibilities contained
in bail bondsman's power of attorney and since State could not enlarge such agency in absence of showing
surety's consent or acquiescence in agent's acts.
5. Bail.
A bail bondsman, absent extremely unusual circumstances, is deemed to be a special agent, and the lack
of continuity of service shows insufficient interest with surety upon which to predicate imputed notice to
surety when notice of bail forfeiture proceedings has been given to bail bondsman.
6. Forfeitures.
Law does not favor forfeitures and statutes imposing them must be strictly construed.
OPINION
On March 9, 1976, Jack Miller, doing business as Jack's Bail Bonds, attorney-in-fact for
Wilshire Insurance Company, filed in the justices' court a power of attorney and a bail bond
in the amount of $5,000 to secure the release of Ron Cooper, a defendant in a criminal
proceeding. After a change of plea, Cooper was scheduled for imposition of judgment and
sentencing on November 18, 1976, but failed to appear. On November 22, 1976, the court
clerk mailed a notice of intent to forfeit bail bond to Jack's Bail Bonds indicating that the
bond would be declared forfeited on February 22, 1977. No other notice of intent to forfeit
was given to anyone else. On February 22, 1977, Wilshire Insurance Company, through its
local agent Jack's Bail Bonds, filed a motion to exonerate bond. On March 8, 1977, movants
filed points and authorities contending failure by the court to comply with NRS 178.508
pertaining to notice requirements in bail forfeiture proceedings. They complained that notice
was not given to the surety as required by law. The next day on March 9, the court clerk
mailed a verbatim copy of the notice of intent to forfeit bond to the Wilshire Insurance
Company's offices in California. On March 28, 1977, the district court entered its order
denying the motion to exonerate bail and forfeited the bail bond.
bail and forfeited the bail bond. Findings of fact and conclusions of law were made to the
effect that Jack's Bail Bonds was found to be a general agent acting in behalf of Wilshire
Insurance Company. This appeal ensued.
The central issue concerns whether notice of the forfeiture proceedings given to Jack's Bail
Bonds is sufficient to impute notice to Wilshire Insurance Company. In addressing the issue,
we focus on whether Jack Miller was a special agent or a general agent acting in behalf of
Wilshire. The trial court found that Miller had gone beyond mere performance of a special
agent and was by act and affidavit . . . the general agent for Wilshire Insurance Company.
NRS 178.508 provides in part:
If the defendant fails to appear when his presence in court is lawfully required and
not excused, the court shall direct the fact of such failure to appear to be entered upon
its minutes, and if the undertaking or money deposited instead of bail bond is in excess
of $50, the court shall direct that the sureties first be given notice by certified mail that
the defendant has failed to appear and shall execute an affidavit of such mailing to be
kept as an official public record of the court. The undertaking or money instead of bail
bond shall not be declared forfeited until 90 days after the notice is mailed . . . .
[Headnotes 1, 2]
Due process requires that notice be given of forfeiture proceedings. Lambert v. California,
355 U.S. 225 (1957). Notice to a general agent is deemed notice to the surety. Kroeger v.
Union Indemnity Co., 14 P.2d 258 (Ariz. 1932). In Seigworth v. State, 91 Nev. 536, 539 P.2d
464 (1975), we held that a particular bail bondsman was a special rather than general agent.
The issue addressed there was whether a bail bondsman acting pursuant to the authority of a
limited power of attorney was a general or special agent of the surety. We examined the
express provisions of the power of attorney and found that the bondsman was empowered
only to bind the surety to a contract naming the county as beneficiary. Furthermore, the bail
bond itself had printed on it the name of the general agent for the surety who was not the bail
bondsman involved. Consequently, this Court held that the bail bondsman was a special agent
and not personally liable under the bail bond but declined to decide whether notice to a
special agent constituted notice to the surety pursuant to NRS 178.508 because the surety was
not a party to the proceeding. The surety is a party herein and we are constrained to reach the
latter issue in the instant case.
[Headnote 3]
The extent of the power of attorney in Seigworth was to "execute, and deliver . . . a
criminal bail bond."
execute, and deliver . . . a criminal bail bond. 91 Nev. at 538 n. 1, 539 P.2d at 465 n. 1.
Here, the power of attorney empowered the bondsman to execute and deliver bail bonds
only. Seigworth emphasized that the power of attorney expressly stated: THIS POWER
VOID IF ALTERED OR ERASED. Id. at 538, 539 P.2d at 466. Here, the power of attorney
similarly stated: This power of attorney void if altered or erased.
In both instances the language of the power of attorney limited the bail bondsman's
authority to those expressly authorized acts. Respondent contends that because the power of
attorney failed to indicate a below named agent as stated in the power, this constituted a
defective authorization neither creating nor limiting the authority of Miller. This argument is
without merit. Miller acted as agent, was considered the agent by all concerned, and is indeed
limited by the power of attorney document.
Thus, by the express provisions of the power of attorney and in light of Seigworth, we
consider Miller a special agent.
[Headnote 4]
Respondent, however, contends that Miller by his acts assumed the status of a general
agent. It interprets the following language in Miller's affidavit as conceding his status as
general agent:
2. That as agent for Wilshire Insurance Company, general agent, affiant on March 9,
1976, posted bail bond.
. . .
Respondent misinterprets the term general agent to apply to Miller instead of applying,
as obviously intended, to Wilshire Insurance Company. In addition, respondent cites as
indicating a general agency such acts among others as Miller's keeping a constant vigil on the
defendant, his visiting defendant's residence to secure custody, his taking a second deed of
trust on defendant's home as security for the bond, and his filing a motion to exonerate bail in
behalf of the surety. In the aggregate these acts are both innocuous and reasonably incidental
to the type of special or limited agent's authorizations and responsibilities here involved.
Respondent is attempting to expand the special agency into a general agency through the
acts and behavior of the agent himself. In Ellis v. Nelson, 68 Nev. 410, 233 P.2d 1072 (1951),
this Court adopted the statement that:
It is indispensable to keep in mind here that, as against the principal, there can be
reliance only upon what the principal himself has said or done, or at least said or done
through some other and authorized agent. The acts of the agent in question can not be
relied upon as alone enough to support an estoppel.
agent in question can not be relied upon as alone enough to support an estoppel. If his
acts are relied upon there must also be evidence of the principal's knowledge and
acquiescence in them.
Id. at 419, 233 P.2d at 1076; accord, Nevada Nat'l Bank v. Gold Star Meat Co., 89 Nev. 427,
514 P.2d 651 (1973).
Here, the trial court based its decision on Miller's acts and statements, not on any on the
part of Wilshire. In the absence of showing Wilshire's consent or acquiescence respondent
cannot enlarge the agency of Miller. The power of attorney expressly limited Miller's
authority and any enlargement must necessarily include some involvement on the part of
Wilshire. The record is silent with reference to any action on Wilshire's part.
[Headnote 5]
As to the issue of notice to the special agent constituting notice to the surety, in Seigworth,
supra, we suggested that this Court would not adopt that principle. There we found that a
special agent is an agent authorized to conduct a single transaction or a series of transactions
not involving continuity of service. 91 Nev. at 538, 539 P.2d at 465. (Emphasis added.) Bail
bondsmen, absent extremely unusual circumstances, are deemed to be special agents, and the
lack of continuity of service shows insufficient interest with the surety upon which to
predicate imputed notice.
NRS 178.508 mandates that the court direct that the surety be notified of the intention to
forfeit bail. The plain meaning of the statute is that the 90-day notice be given to the
underwriter or surety. Respondent recognized this deficiency when it belatedly sent a copy of
the notice of intent to forfeit to Wilshire, which copy stated that the bond would be forfeited
on February 22, 1977, a date that had occurred some two weeks previous.
[Headnote 6]
The law does not favor forfeitures and statutes imposing them must be strictly construed.
See, Porter v. Tempa M. & M. Co., 59 Nev. 332, 93 P.2d 741 (1939) and State v. Harmon, 35
Nev. 189, 127 P. 221 (1912).
Reversed.
____________
94 Nev. 551, 551 (1978) Manufacturers & Traders Trust v. Dist. Ct.
MANUFACTURERS AND TRADERS TRUST COMPANY, a New York Corporation; and
GORDON R. GROSS, a Nominee of the Trustees of Dominion Mortgage & Realty Trust, a
Massachusetts Business Trust, Petitioners, v. THE EIGHTH JUDICIAL DISTRICT COURT
OF THE STATE OF NEVADA, IN AND FOR THE COUNTY OF CLARK And THE
HONORABLE JOHN F. MENDOZA, Judge Thereof, Respondents.
No. 10005
August 9, 1978 583 P.2d 444
Following denial of creditors' motion for summary judgment in action against guarantors
of note for deficiency remaining after sale of property securing note, creditors petitioned for
writ of mandamus to compel trial court to grant summary judgment in their favor. The
Supreme Court, Mowbray, J., held that: (1) where facts were undisputed, mandamus was
appropriate vehicle to challenge trial court's denial of summary judgment; (2) guaranty of
note secured by mortgage or deed of trust was not itself a debt secured by the mortgage or
deed of trust, but rather was separate obligation, and thus suit upon contract of guaranty did
not result in deficiency judgment within meaning of deficiency judgment statutes, and (3)
guarantors were not entitled to protection of deficiency judgment statutes where creditors had
elected to pursue remedy under deed of trust securing notes before suing guarantors for
amount of indebtedness remaining on note which they had guaranteed.
Petition granted and writ ordered issued.
Lionel Sawyer & Collins and Paul R. Hejmanowski, Las Vegas, for Petitioners.
Thomas E. Lea, Las Vegas, for Respondents.
1. Mandamus.
Where material facts were undisputed in action by creditors against guarantors of note to obtain judgment
for deficiency existing after sale of property securing note, mandamus was appropriate vehicle to challenge
district court's denial of summary judgment on motion by creditors. NRAP 3A(b)(5).
2. Guaranty.
Guaranty of note secured by mortgage or deed of trust is not itself a debt secured by the mortgage or deed
of trust, but rather is separate obligation; thus suit upon contract of guaranty does not result in deficiency
judgment within meaning of statutes governing deficiency judgments. NRS 40.451-40.459.
3. Guaranty.
Guaranty of note is not promise to answer to debt of maker of note; when guaranty is negotiated in
consideration of value received by guarantor, it becomes the original and absolute obligation of guarantor
himself, whereby he promises to pay his own debt to guarantee.
4. Guaranty.
If maker of note pays it at date of maturity, guarantor's obligation is discharged; however, if maker fails
to pay note, guarantor remains liable upon his own obligation which is absolute and independent of note
itself.
5. Guaranty.
Separate, independent contract of guarantor of note constitutes independent obligation, which is not
secured by any other security which creditor may have for note.
6. Guaranty.
Guarantor may be sued upon his independent obligation regardless of any other security for note which
may be available to creditor.
7. Guaranty.
Statute which bars relief against maker of note does not bar relief against guarantor in that each
obligation is considered separately. NRS 40.451-40.459.
8. Guaranty.
Guarantors of notes were not entitled to protection of deficiency judgment statutes where creditors had
elected to pursue remedy under deed of trust securing notes before suing guarantors for amount of
indebtedness remaining on promissory note which they had guaranteed. NRS 40.430, 40.451-40.459.
OPINION
The narrow issue presented is whether guarantors of a promissory note secured by a deed
of trust are entitled to the protection of NRS 40.451 to 40.459, inclusive, governing
deficiency judgments, when the creditor has previously exercised its power of sale under the
deed of trust.
1
This is an original proceeding in mandamus in which petitioners seek a writ
directing the trial court to grant summary judgment in their favor. The petitioners, as
plaintiffs below, commenced this action in the district court to collect a deficiency judgment
on the remaining balance due on the note after property securing the note had been sold at a
trustee's sale.
____________________

1
NRS 40.451. As used in NRS 40.453 to 40.459, inclusive, indebtedness means the principal balance of
the obligation secured by a mortgage or deed of trust, together with all interest accrued and unpaid prior to the
time of sale, all costs and fees of such foreclosure sale, all advances made with respect to the property by the
beneficiary, and all other amounts secured by the mortgage or deed of trust or which constitute a lien on the real
property in favor of the person seeking the deficiency judgment. Such amount constituting a lien is limited to the
amount of the consideration paid by the lienholder.
NRS 40.453.
1. It is hereby declared by the legislature to be against public policy for any document relating to the sale of
real property to contain any provision
Petitioners and defendants filed cross motions for summary judgment. Defendants' primary
defense in the district court suit, was that as guarantors of an obligation secured by a deed of
trust, they were entitled to the deficiency judgment protections of NRS 40.451 to 40.459.
These provisions require a creditor seeking a deficiency judgment following a trustee's sale to
apply for such judgment within three months from the date of sale (NRS 40.455), and limit
the amount of such judgment to the difference between the fair market value of the property
and the amount of indebtedness remaining at the date of sale (NRS 40.459). The trial court
agreed, granting summary judgment for defendants. The court ruled that as a matter of law
the amount of liability of the defendants as guarantors is limited and must be determined in
accordance with NRS 40.451 through 40.459.
Petitioners subsequently filed this petition for a writ of mandamus directing the trial court
to enter summary judgment in their favor. They concede that if the deficiency statutes apply,
they are not entitled to recovery against defendants, since they failed to file suit within three
months of the date of sale. They urge, however, that the trial court erred in its
determination that the deficiency judgment statutes {NRS 40.451 to 40.459) apply to a
suit upon an independent contract of guaranty.
____________________
whereby a mortgagor or trustor waives any right secured to him by the laws of this state.
2. No court shall enforce any such provision.
NRS 40.455. Upon application of the judgment creditor or the trustee within 3 months from the date of the
foreclosure sale or the trustee's sale held pursuant to NRS 107.080, respectively, and after the hearing conducted
under NRS 40.457, the court may award a deficiency judgment to the judgment creditor or trustee if it appears
from the sheriff's return or the recital of consideration in the trustee's deed that there is a deficiency of sale
proceeds and a balance remaining due to the judgment creditor or the trustee respectively.
NRS 40.457.
1. Before awarding a deficiency judgment under NRS 40.455, the court shall hold a hearing and shall take
evidence presented by either party concerning the fair market value of the property sold as of the date of
foreclosure sale or trustee's sale. Notice of such hearing shall be served upon all defendants who have appeared
in the action and against whom a deficiency judgment is sought, or upon their attorneys of record, at least 15
days before the date set for hearing.
2. Upon application of any party made at least 10 days before the date set for the hearing the court shall,
or upon its own motion the court may, appoint an appraiser to appraise the property sold as of the date of
foreclosure sale or trustee's sale. Such appraiser shall file with the clerk his appraisal, which is admissible in
evidence. . . .
NRS 40.459. After the hearing under NRS 40.457, the court may award a money judgment against the
defendant or defendants personally liable for the debt. The court shall not render judgment for more than the
amount by which the amount of indebtedness which was secured by the mortgage, deed of trust or other lien at
the time of the foreclosure sale or trustee's sale, as the case may be, exceeded the fair market value of the
property sold at the time of such sale, with interest from the date of such sale. In no event shall the court award
such judgment, exclusive of interest after the date of such sale, in an amount exceeding the difference between
the amount for which the property was actually sold at the foreclosure sale or trustee's sale and the amount of
indebtedness which was secured by the mortgage, deed of trust or other lien at the time of such sale.
urge, however, that the trial court erred in its determination that the deficiency judgment
statutes (NRS 40.451 to 40.459) apply to a suit upon an independent contract of guaranty.
[Headnote 1]
A preliminary issue presented by any petition for a writ of mandamus is whether the case
is appropriate for consideration upon such petition, rather than by appeal. In the case at hand,
respondents have joined petitioners in urging the court to consider the matter upon the
petition. Since the material facts are undisputed, [m]andamus is an appropriate vehicle to
challenge the district court's denial of summary judgment. Laakonen v. District Court, 91
Nev. 506, 508, n. 2, 538 P.2d 574, 575, n. 2 (1975); Dzack v. Marshall, 80 Nev. 345, 393
P.2d 610 (1964); NRAP 3A(b)(5).
THE ISSUE
This court has recently ruled that a creditor is not required to pursue the maker of the note,
or the real property security, before suing the guarantor of a note secured by a mortgage or
deed of trust for the full amount of the indebtedness remaining on the note. First National
Bank of Nevada v. Barengo, 91 Nev. 396, 536 P.2d 487 (1975). The question presented by
this case is whether, if a creditor does choose to pursue his remedy against the property before
suing a guarantor, he may thereafter sue the guarantors for any remaining indebtedness on the
note without complying with the requirements and limitations of NRS 40.451 to 40.459,
supra.
The rationale and statutory interpretation applied by this court in Barengo, and by the
federal district court in Coombs v. Heers, 366 F.Supp. 851 (D. Nev. 1973), endorsed by this
court in Barengo, fully support the contention that the legislature did not intend to extend the
protection of the deficiency judgment statutes to guarantors.
Barengo and Coombs each dealt with the so-called one action rule of NRS 40.430,
requiring one action, in accordance with the deficiency judgment provisions of NRS 40.440
to 40.459, for the recovery of any debt, or for the enforcement of any right secured by
mortgage or lien upon real estate. In both cases, guarantors of promissory notes secured by
deeds of trust contended that NRS 40.430 precluded creditors from suing the guarantors
without complying with the deficiency judgment statutes. In each case, the court concluded
that the legislature had not intended to include guarantors within the protection of NRS
40.430.
The court in Coombs indicated the broad policy basis for its decision: "[T]he practical
effect of defendants' argument would be to transpose all of the protections afforded a
principal debtor into the guarantor contract, simply on the basis of a fear that those
protections will otherwise be evaded in some cases.
[T]he practical effect of defendants' argument would be to transpose all of the
protections afforded a principal debtor into the guarantor contract, simply on the basis
of a fear that those protections will otherwise be evaded in some cases. Such is not the
law. . . . And such an approach may well prove socially undesirable. . . . a small
corporate borrower may find it impossible to secure loan funds if corporate lenders
cannot require and look to a guarantor that will remain liable in the face of a defense,
such as bankruptcy, available to the principal debtor. 366 F.Supp 855.
In Barengo, this court determined that the federal court had correctly interpreted the law of
Nevada. The so-called one action rule' of NRS 40.430. . . does not, in our view, bear upon
the obligation of a guarantor to honor his separate, independent contract of guaranty. A
contract of guaranty is to be separately considered. (citations omitted). 91 Nev. 397, 536
P.2d 487. The courts ruled, in effect, that a separate, independent contract of guaranty is not a
debt . . . secured by mortgage or lien upon real estate, simply by virtue of the fact that the
note guaranteed is so secured.
Respondents suggest that the provisions of NRS 40.451 to 40.459 call for a different
interpretation in the case at hand. They rely principally upon the language of NRS 40.459,
which places a fair market value limitation upon the award of a deficiency judgment against
the defendant or defendants personally liable for the debt, and the language of NRS
40.457(1), which requires that notice of the hearing be served upon all defendants who have
appeared in the action and against whom a deficiency judgment is sought. Respondents
suggest that since the legislature, in the anti-waiver provision of NRS 40.453(1), referred
specifically to a mortgagor or trustor, a broader classificationincluding guarantorsmust
have been intended by the language of NRS 40.457(1) and 40.459.
[Headnotes 2-8]
In effect, the respondent guarantors, as in Barengo and Coombs, are contending that a
guaranty of a note secured by a mortgage or deed of trust is, itself, a debt secured by the
mortgage or deed of trust, rather than a separate obligation, and that a suit upon such contract
of guaranty therefore results in a deficiency judgment within the meaning of the statute. We
do not agree. This is precisely the argument which was rejected by both courts in Barengo
and Coombs. While the scope of the deficiency judgment statutes may include others besides
the original mortgagor (see, e.g., Everts v. Matteson, 132 P.2d 476 (Cal. 1943) (grantee, but
not guarantor, entitled to protection of California's deficiency judgment statute); or Short v.
Sinai.,
of California's deficiency judgment statute); or Short v. Sinai., 50 Nev. 346, 259 P. 417
(1927) (a surety, unlike a guarantor, is bound with his principal as an original promissor)),
there is no basis in the statutory language cited by respondents for concluding that the ruling
adopted by this court in Barengo does not apply to the deficiency judgment statutes in
question.
The rule in Nevada is that:
The guaranty of a note is not a promise to answer for the debt of the maker . . . when it
is negotiated in consideration of value received by the guarantor, but it becomes the
original and absolute obligation of the guarantor himself, whereby he promises to pay
his own debt to the guarantee; that is to say, the debt he owes his guarantee for what he
has received from the latter. The note meanwhile is delivered and held as collateral to
the promise of the guarantor. If the maker pays it at the date of its maturity, the
guarantor's obligation is by that fact discharged; but, if the maker fails to pay, the
guarantor remains liable upon his own obligation, which is absolute and independent of
the note itself. Randono v. Turk, 86 Nev. 123, 131, 466 P.2d 218, 223 (1970), quoting
Swenson v. Stoltz, 78 P. 999, 1000 (Wash. 1904).
The separate, independent contract of the guarantor thus constitutes an independent
obligation, which is not itself secured by any other security which the creditor may have for
the note. This is underscored not only by the approach, but by the result, in Barengo: a
guarantor may be sued upon his independent obligation regardless of any other security
which may be available for the note. The separate nature of a guaranty contract under Nevada
law is also reflected in the rule that a statute which bars relief against the maker of the note
does not thereby bar relief against the guarantor; each obligation is considered separately. See
Bank of Nevada v. Friedman, 82 Nev. 417, 420 P.2d 1 (1966) (statute of limitations).
Therefore, the conclusion that guarantors' obligations are to be considered without reference
to the statutory protections afforded a principal debtor is consistent with Nevada case law
regarding the nature of a contract of guaranty. Nor is there any basis in the statutory language
for concluding that defendants were entitled to the protection of the deficiency judgment
statutes (NRS 40.451 to 40.459) because the creditor had elected to pursue his remedy under
the deed of trust before suing the guarantors for the amount of indebtedness remaining on the
promissory note which they had guaranteed.
2
Consequently, a writ of mandamus shall
issue directing the district court forthwith to enter summary judgment for petitioners.
____________________

2
The California courts have consistently refused to extend the deficiency judgment statutes to guarantors. As
stated by Professor J. Hetland, Deficiency
Consequently, a writ of mandamus shall issue directing the district court forthwith to enter
summary judgment for petitioners.
It is so ordered.
Batjer, C. J., and Thompson and Manoukian, JJ., concur.
I respectfully dissent. By its holding today, the majority creates the prospect, clearly
contrary to legislative intent, that creditors will be able to effect a recovery from guarantors
far beyond that to which they are entitled.
1. The statutory scheme involved, NRS 40.451 et seq., is specifically designed to prevent a
creditor from subjecting obligors to a deficiency without first seeking a judgment from the
district court within three months of foreclosure or trustee's sale. The purpose of the
procedure is to fix the value of the security and thereby prevent imposition upon the obligors.
Here, the creditors did not comply with the statutory provisions. They therefore acknowledge
that they are precluded from seeking any deficiency against the principal obligor. However,
they seek to recover the total deficiency against a guarantor, whom they allege is not
entitled to statutory protection. Such reasoning must be rejected because, first, it would
indirectly subject the principal obligor to the same deficiency which could not be directly
recovered.
It is an elementary tenet of law that once a guarantor pays the alleged deficiency under the
note, he is then subrogated to the rights of the creditor to pursue the maker of the note (and
the principal obligor) for any amounts paid on the maker's behalf. Cf. Union Bank v. Gradsky,
71 Cal.Rptr. 64 (Cal.App. 1968). Under generally accepted principles, the maker-obligor
could therefore be subjected by indirection to a debt which could not be recovered directly.
Furthermore, to avoid this, if the maker-obligor were allowed to assert a defense against the
guarantor under the deficiency statutea defense created solely by the creditor's failure to
actthe result would be to subject the guarantor to a defense which he never contemplated,
and which does not result from his own actions, but from the creditor's neglect. This result
clearly does not follow from the statute in question.
2. Moreover, concerning possible double recovery, I note this court held in McMillan v.
United Mortgage Co., S2 Nev, 117, 412 P.2d 604 {1966), that a creditor could foreclose on
a deed of trust at an extra-judicial sale and still recover a deficiency. Therefore the
legislature took remedial action in 1969 by adding NRS 40.451 et seq., to force a creditor
to come to court within three months of foreclosure or trustee's sale, and present
evidence "concerning the fair market value of the property sold as of the date of . . . sale."
____________________
Judgment Limitations in CaliforniaA New Judicial Approach, 51 Cal.L.Rev. 1, 27 (1963): The main
difficulty with applying the sections [California antideficiency statutes] to additional security in either form
[guarantor or personal property] is not that it does not make sense, but rather that the legislature has not done
so. [Emphasis added.] As this court recently stated in another context, although this contention has some
appeal, it is one to be submitted to the legislature rather than to us. Outboard Marine Corp. v. Schupbach, 93
Nev. 158, 561 P.2d 450 (1977).
this court held in McMillan v. United Mortgage Co., 82 Nev, 117, 412 P.2d 604 (1966), that a
creditor could foreclose on a deed of trust at an extra-judicial sale and still recover a
deficiency. Therefore the legislature took remedial action in 1969 by adding NRS 40.451 et
seq., to force a creditor to come to court within three months of foreclosure or trustee's sale,
and present evidence concerning the fair market value of the property sold as of the date of .
. . sale. NRS 40.457. Thus, obligors were assured that only one recovery would be effected
against them. That is, the creditor could only recover one judgment, no greater than the
amount of the outstanding indebtedness, less the value of the security.
The majority narrowly construes the statutory scheme to deny guarantors this protection.
However, from the language adopted by the Legislature to describe the parties, it seems
apparent that they truly intended to prevent imposition upon all defendants liable, and not
simply protect mortgagors and trustors.
NRS 40.453 declares that it is against public policy for a document to contain a waiver of
a right secured to a mortgagor or trustor. However, the statutory provisions dealing directly
with deficiencies refer to defendants personally liable for the debt. NRS 40.459. See also
NRS 40.457(1). It therefore seems inconsistent to only protect the principal obligors. Other
courts, in construing similar statutes have held that guarantors are entitled to the same
protection as the obligor. See North End Bank & Trust Co. v. Mandell, 155 A. 80 (Conn.
1931); Bedcro Realty Corp. v. Brooklyn Trust Co., 49 N.E.2d 992 (N.Y.App. 1943); State
Bank of Albany v. Amak Enterprises, 353 N.Y.S. 857 (N.Y.App.Term. 1974). I submit there
is no valid reason to construe this remedial legislation otherwise.
____________
94 Nev. 558, 558 (1978) Wiley v. Cook
ROLAND H. WILEY; and ROLAND H. WILEY as Trustee for CAROL THOMAS; CAROL
THOMAS as Custodian for LISA THOMAS; ROLAND JOHN WILEY; and TRACY E.
WILEY, Appellants, v. W. T. TOMMY COOK; SUN CITY PROPERTIES, INC., a
Nevada Corporation; TOMMY J. TERRY, et al., Respondents.
No. 9104
August 9, 1978 583 P.2d 1076
Appeal from judgment, Eighth Judicial District Court, Clark County; Keith Hayes, Judge.
94 Nev. 558, 559 (1978) Wiley v. Cook
Lessees brought action for declaratory judgment concerning validity of written 99-year
lease with option to purchase, and one lessor filed counterclaim for waste. The district court
entered judgment declaring lease to be valid, and lessors appealed. The Supreme Court, held
that: (1) evidence supported findings that parties to lease executed it with intent to make it a
binding agreement between themselves and that terms and manner of execution of lease were
determined by lessor; (2) evidence supported finding that lease was valid notwithstanding
contentions that it was unenforceable under statute of frauds because it did not contain all
essential terms, because description of the land was inadequate, because agency of lessor who
executed lease was not proved, and because instrument was subject to oral understandings;
(3) specific enforcement of written lease was not error on theory that instrument was so vague
that definition of its terms was impossible, that consideration was inadequate, or that lessees
were guilty of sharp practice, misrepresentation or fraud, and (4) award to lessees of $2,500
in attorney fees was not reversible error.
Affirmed.
George Rudiak Chartered, Las Vegas, for Appellants.
Jones, Jones, Bell, LeBaron, Close & Brown, and Michael Buckley, Las Vegas; and
Albright & McGimsey, Las Vegas, for Respondents.
Notice of appeal from original judgment, filed before trial court had ruled on appellants' posttrial motions
for new trial and to amend or make additional findings of fact, was premature in violation of rules. NRAP
3, 3A(b), 4(a).
Evidence in declaratory judgment action concerning validity of written 99-year lease with option to
purchase supported findings that parties to lease executed it with intent to make it a binding agreement
between themselves and that terms and manner of execution of lease were determined by lessor.
3. Frauds, Statute of.
For purpose of statute of frauds, instrument need not incorporate all terms agreed upon, if there is
reasonable certainty as to underlying contract. NRS 111.205, subd. 1, 111.210.
4. Evidence.
Trial court may construe ambiguity in writing by receiving parol evidence.
purchase supported finding that written lease was valid notwithstanding contention by lessors
that lease was unenforceable under statute of frauds because it did not contain all
essential terms, in that all essential elements were included in lease agreement, and
failure to provide for time and manner of payment as to option did not necessarily
invalidate lease.
94 Nev. 558, 560 (1978) Wiley v. Cook
lease was valid notwithstanding contention by lessors that lease was unenforceable under statute of frauds
because it did not contain all essential terms, in that all essential elements were included in lease
agreement, and failure to provide for time and manner of payment as to option did not necessarily
invalidate lease. NRS 111.205, subd. 1, 111.210.
To satisfy statute of frauds, boundaries of land affected by writing need only be ascertainable from the
memorandum. NRS 111.205, subd. 1, 111.210.
Land description given in written 99-year lease with option to purchase was more than adequate to satisfy
requirements of statute of frauds. NRS 111.205, subd. 1, 111.210.
8. Principal and Agent.
Any objection to lack of agent's written authority must be raised by principal and not agent.
Issue whether lessor's authority to act as agent for other lessors was proven in writing as required by
statutes of frauds, which was not specifically addressed at trial, would not be considered for first time on
appeal from declaratory judgment finding written lease to be valid. NRS 111.205, subd. 1, 111.210.
purchase supported finding that written lease was valid notwithstanding contention by lessor that written
lease was by its terms subject to fulfillment of oral understandings, since oral understandings were taken
out of the statute of frauds by part performance. NRS 111.205, subd. 1, 111.210.
11. Specific Performance.
Granting of specific enforcement of written 99-year lease with option to purchase was not error on theory
that written instrument was so vague as to make definition of its terms impossible, or that consideration was
inadequate, or that lessees were guilty of sharp practice, misrepresentation or fraud.
In declaratory judgment action concerning validity of written 99-year lease with option to purchase, in
which lessor filed counterclaim for waste, award to lessees of $2,500 in attorney fees was not reversible
error. NRS 18.010, subd. 2(c).
OPINION
Per Curiam:
[Headnote 1]
This appeal is from a judgment by the district court which declared valid a 99-year
lease and option to purchase a 24-acre tract in North Las Vegas. Appellants claim (1) the
judgment is not supported by substantial evidence, (2) the lease-option is unenforceable
within the statute of frauds, and (3) the district court improperly awarded attorneys fees.1
Finding no reversible error, we affirm.
94 Nev. 558, 561 (1978) Wiley v. Cook
court improperly awarded attorneys fees.
1
Finding no reversible error, we affirm.
In April, 1971, Roland Wiley dictated the following agreement to respondent, W. T. Cook:
Parties: Roland H. Wiley 79.07%
Carol Thomas 6.53%
Carol Thomas
Custodian for Lisa Thomas 1.6%
Roland John Wiley 4.8%
Tracy E. Wiley 8.0%
Above parties lease for the term of 99 years commencing April 1, 1971 to W. T. Tommy
Cook and Tommy J. Terry the 24 acres east of Las Vegas Blvd. North & North Main
Streets [sic] in the city of North Las Vegas, Nevada. For the sum of $7,000.00 per month
payable in advance by several checks. Leassors [sic] reserve the right to sell said
property. However the any. [sic] such sale must have the written consent of the leassees.
[sic]
In the event the leassors [sic] have not sold the property within 6 months from date hereof
Leassees, [sic] may if they desire purchase said property:
A. For the sum of $1,500,000.00 at 6% interest payable monthly in advance with
$100,000 down payment.
____________________

1
At this point in time, we consider it inappropriate to reach appellants' other complaints. The original
judgment in this case was rendered April 6, 1976, and notice of entry thereon was given that same day. On May
5, 1976, appellants filed separate motions for new trial, and to amend or make additional findings of fact. On
June 28, 1976, appellants filed their notice of appeal from the original judgment, before the district court ruled
on appellants' post-trial motions. The notice of appeal stated:
This appeal is [f]rom the final Judgment entered March 25, 1976, as amended, . . . and as [may in the
future be] Amended by Order upon Appellants' [pending] Motion to Amend Findings, Make Additional
Findings, and Amend Judgment accordingly; and [f]rom the Order [which may] den[y] Appellants'
Motion for new Trial and for Leave to File Supplement to Complaint for Unlawful Detainer. . . .
The above notice of appeal was clearly premature in violation of the rules. See NRAP 4(a); NRAP 3; NRAP
3a(b). On September 23, 1976, the district court finally rendered a Corrected Judgment. the record does not
include any notice of entry or appeal from that judgment. Therefore, we decline to consider any issues which
may have been raised by the district court's action after the June 28 notice of appeal was filed.
94 Nev. 558, 562 (1978) Wiley v. Cook
B. Subject to fulfillment of oral understanding between the parties possession is
transferred as of April 1, 1971.
W. T. Tommy Cook Roland H. Wiley
Tommy J. Terry Carol Thomas
Dated: This First day Carol Thomas cust.
of April 1971. for Lisa Thomas
Tracey E. Wiley
Roland John Wiley
Roland H. Wiley
Their attorney
in fact.
Cook subsequently took possession and paid $7,000 per month rent. After several months,
Wiley notified Cook that the above agreement was not valid and binding, and Cook only had
a month-to-month tenancy. Thereafter, Wiley insisted Cook pay $8,000 per month rent. Cook
paid the increased rent until September, 1973, when he filed his Complaint for Declaratory
Judgment and Injunctive Relief. Wiley subsequently counterclaimed for waste, and payment
of some debt obligations not relevant to this discussion.
[Headnote 2]
1. Wiley first contends the district court was required to conclude from the evidence
presented that the agreement was really a sham, entitled to no force and effect. See Schieve v.
Warren, 87 Nev. 42, 482 P.2d 303 (1971). While appellants recognize that this court will not
disturb findings made upon substantial evidence, they insist the trial court reached a wrong
conclusion from the evidence presented. We note, however, in those cases where this court
has applied the so-called exception to the substantial evidence rule, the wrong conclusion
reached was either inconsistent with uncontroverted evidence, or contrary to objective
evidence which overwhelmingly disproved the oral testimony of a party. See, e.g., Seyden v.
Frade, 88 Nev. 174, 494 P.2d 1281 (1972); Deiss v. Southern Pacific Co. Et Al., 56 Nev. 151,
47 P.2d 928 (1935); Valverde v. Valverde, 55 Nev. 82, 26 P.2d 233 (1933); Walker Brothers
Bankers v. Janney, 52 Nev. 440, 290 P.413 (1930). Here, there was a substantial conflict
between the two principal witnesses concerning their intent to be bound by the
agreementi.e. Wiley insisted the agreement was a sham; Cook categorically denied these
assertions. In view of such conflicting evidence, we decline to interfere with the district
court's findings.
2
Warren v. Warren, 94 Nev. 309, 579 P.2d 772 (1978).
____________________

2
The district court made the following relevant findings:
1. That on or about April 1, 1971, Roland W. Wiley acting on behalf of
94 Nev. 558, 563 (1978) Wiley v. Cook
2. Wiley next contends the agreement is not enforceable pursuant to statute of frauds
because (a) the instrument does not include all the essential terms; (b) the description of the
land was inadequate; (c) Wiley's agency was not proved; and (d) the instrument was subject
to oral understandings. We disagree.
(a) The instrument in question clearly comes within two separate provisions of our statute
of frauds. The 99-year leasehold is governed by NRS 111.210; the option by NRS 111.205(1).
3

[Headnote 3]
Appellants first contend the instrument does not include the essential terms. See Stanley
v. Levy & Zentner, 60 Nev. 432, 112 P.2d 1047 (1941); Friedman v. Bergin, 140 P.2d 1 (Cal.
1943); Hanlon v. Hayes, 89 N.E.2d 51 (Ill. 1949); Rohan v. Proctor, 214 P. 986 (Cal.App.
1923). An instrument need not incorporate all the terms agreed upon, if there is reasonable
certainty as to the underlying contract. See Comment to Restatement of Contracts, 207. As
stated in the Restatement, the following minimum requirements are necessary for all writings
which come within the statute:
A memorandum, in order to make enforceable within the Statute, may be any
document or writing, formal or informal, signed by the party to be charged or by his
agent
____________________
himself and also acting on behalf of and as Trustee for Carol Thomas, Carol Thomas as Custodian for Lisa
Thomas, Roland John Wiley and Tracy Wiley, (lessors . . .) entered into a written 99 year lease and option to
purchase agreement with Cook and Terry . . .
4. That . . . Roland H. Wiley and Cook executed the [agreement] with intent to make it a binding agreement
between themselves.
5. That on a later date, Terry signed the . . . agreement with the intent that it be a binding instrument.
6. That the terms of the agreement and the manner of its execution were determined by Roland H. Wiley.
These findings were also supported using the doctrine of practical construction. Moore v. Prindle, 80 Nev.
369, 394 P.2d 352 (1964). Wiley's actions after the lease was signed were inconsistent with his claim actually
or apparently authorized thereunto, of month-to-month tenancy. For instance, Wiley sent a letter to a
tenant on the property informing him to pay rent to Cook because Wiley had entered into a long-term lease.
Moreover, Cook undertook obligations more consistent with a long-term agreement. See point 2(d), infra.

3
1. Every contract for a leasing for a longer period than 1 year, . . . shall be void unless the contract, or some
note or memorandum thereof, expressing the consideration, be in writing, and be subscribed by the party by
whom the lease or sale is to be made.
2. Every instrument required to be subscribed by any person under subsection 1 may be subscribed by the
agent of the party lawfully authorized.
1. No . . . interest in lands, other than for leases for a term not exceeding 1 year, . . . shall be created,
granted, assigned . . . or declared . . . unless . . . in writing, subscribed by the party creating, granting, assigning,
surrendering or declaring the same, or by his lawful agent thereunto authorized in writing.
94 Nev. 558, 564 (1978) Wiley v. Cook
actually or apparently authorized thereunto, which states with reasonable certainty,
(a) each party to the contract . . ., and
(b) the land, goods or other subject matter to which the contract relates, and
(c) the terms and conditions of all the promises constituting the contract and by whom
the promises are made. (Emphasis added.) Ibid. 207.
Moreover, pursuant to statute our legislature has required the recitation of the consideration
in any leasehold over one year. NRS 111.210.
[Headnotes 4, 5]
Here, we believe all the essential elements were included In the agreement for the 99-year
lease. Cf. Carlson v. Bain, 182 P.2d 909 (Colo. 1947); Bournique v. Williams et al, 225
Ill.App. 12 (1922). As to the option, however, it is apparent from the face of the instrument,
that the time and manner of payment were not included. But this defect will not necessarily
invalidate an otherwise binding agreement. The note or memorandum, . . . need not contain
those elements which become a part of the obligation by implication of law, custom, or past
practice, and it need not state all the details or particulars, of the agreement; a statement of
the substance of the agreement in general terms is sufficient. (Emphasis added). Johnson v.
Watson, 70 Nev. 443, 447, 272 P.2d 580, 582 (1954). A trial court may also construe an
ambiguity in the writing by receiving parol evidence. Ibid. The option agreement provided
that the lessees were given a right to purchase the land after six months, by tendering
$100,000 down on a purchase price of $1,500,000, at 6% interest payable monthly in
advance. The last provision is clearly ambiguous on its face. It is impossible to tell by
looking at the instrument whether principal or interest was payable monthly, and over what
period of time it was payable. Therefore, the court heard testimony and construed the
provision to mean 6% interest, interest only for 15 years, with the balance of $1,400,000
due and payable at the end of that period. Appellants contend these terms were left to future
negotiation in violation of the statute. Cf. Howard v. Beavers, 264 P.2d 858 (Colo. 1954);
Humpreys v. Day, 254 P.2d 996 (Okl. 1953); Keystone Hardware Corp. v. Tague, 158 N.E.27
(N.Y.App. 1927). It is apparent, however, that the district court concluded otherwise from the
conflicting evidence, and found that the above terms were made contemporaneous to the
execution of the instrument. Therefore, we decline to disturb the district court's findings.
94 Nev. 558, 565 (1978) Wiley v. Cook
[Headnotes 6, 7]
(b) Appellants next claim the land description was inadequate. To satisfy the statute of
frauds the boundaries need only be ascertainable from the memorandum. Durham v. Dodd,
285 P.2d 747, 749 (Ariz. 1955). Here, we believe the description was more than adequate to
satisfy the requirements. Compare Restatement of Contracts, 207, Hypothetical No. 9.
[Headnotes 8, 9]
(c) Wiley additionally contends his authority to act as the agent for the other appellants
was not proven in writing as required by NRS 111.205(1) and NRS 111.210(2). This issue
was not specifically addressed at trial, and will not be considered for the first time on appeal.
See, e.g., Holt v. N.I.C., 94 Nev. 257, 578 P.2d 752 (1978). Moreover, any objection to the
lack of an agent's written authority must be raised by the principal and not the agent. Mitchell
v. Locurto, 179 P.2d 848 (Cal.App. 1947).
[Headnote 10]
(d) Finally, appellants contend the instrument violates the statute of frauds because, by its
terms, it was subject to fulfillment of oral understandings. The evidence presented at trial
clearly showed that numerous oral undertakings were part of the agreement. For example,
Cook and Terry agreed to assist in the resale of the property for the first six months, pay
taxes, repair and maintain the property, assume several notes and obligations, and permit
Wiley to occupy a small portion of the property. Each of the above understandings, however,
were taken out of the statute of frauds by part performance, see Zunino v. Paramore, 83 Nev.
506, 435 P.2d 196 (1967); cf. Union Paving Co. v. Teglia, 70 Nev. 494, 274 P.2d 841 (1954),
and appellants' contention lacks merit.
[Headnote 11]
3. Appellants additionally contend that even if the instrument met the requirements of the
statute of frauds, it should not have been specifically enforced by the court. As noted
previously the instrument was not so vague as to be incapable of defining its terms. Any
ambiguities which may have been present were construed so as to make the lease and option
clearly enforceable by a court of equity. Nor do we believe the district court erred by not
finding the consideration inadequate, or respondents guilty of sharp practice,
misrepresentation or fraud to prevent specific performance. Cf. Nygard v. Dickinson, 97 F.2d
53 (9th Cir. 1938); Bushman v. Faltis, 150 N.W. 848 (Mich. 1915); Mercer v. Payne &
Carnaby Co., 192 N.W. 951 (Neb. 1923); Bournigue, cited above.
94 Nev. 558, 566 (1978) Wiley v. Cook
[Headnote 12]
4. Finally, appellants insist the district court erroneously awarded $2,500 in attorneys fees
on respondents' complaint for declaratory relief. We cannot discern from the record the
reasons for the district court's action, but the court was entitled to award fees to respondents
as the prevailing defendants on appellants' counterclaim for waste where they ha[d] not
sought recovery in excess of $10,000. NRS 18.010(2)(c), cf. City of Las Vegas v. Cragin
Industries, 86 Nev. 933, 478 P.2d 585 (1970).
Affirmed.
____________
94 Nev. 566, 566 (1978) Arvey v. State
LAWRENCE ARVEY, Appellant, v. THE
No. 10517
August 25, 1978 583 P.2d 1086
On motions to dismiss appeal and to forfeit bail, Eighth Judicial District Court, Clark
Defendant was convicted before the district court and he appealed. Motions to dismiss
appeal and to forfeit bail were filed. The Supreme Court held that where pending resolution
of appeal defendant failed to appear on other charges and was subject of bench warrant for his
arrest the court would exercise its discretion to unconditionally dismiss the appeal and forfeit
the bail.
Appeal dismissed; bail forfeited.
Harry E. Claiborne and Oscar B. Goodman, Las Vegas; F. Lee Bailey, Boston, Mass., for
Appellant.
Robert List, Attorney General, Carson City; George E. Holt, District Attorney, and Frank
J. Cremen, Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
An appellate court has broad discretion in disposing of appeals by escaped convicted felons.
2. Bail; Criminal Law.
Where defendant, who was admitted to bail pending resolution of appeal from judgment of conviction,
failed to appear on other criminal charges and was subject of bench warrant for his arrest, the Supreme
Court exercised its discretion to unconditionally dismiss the appeal and forfeit the
bail.
94 Nev. 566, 567 (1978) Arvey v. State
Court exercised its discretion to unconditionally dismiss the appeal and forfeit the bail.
OPINION
Per Curiam:
Lawrence Arvey was admitted to bail in the amount of $100,000, pending resolution of
this appeal from a judgment of conviction. Thereafter, he failed to appear before a district
court on other criminal charges and the judge of that court issued a bench warrant for Arvey's
arrest.
The state has filed motions contending that (1) Arvey's fugitive status warrants forfeiture
of the $100,000 bail posted in this case; and, (2) we should dismiss this appeal. We agree
with both contentions.
[Headnotes 1, 2]
An appellate court is vested with broad discretion in its disposition of appeals by escaped
convicted felons. See, for example, Molinaro v. New Jersey, 396 U.S. 365 (1970), and cases
cited therein. In Molinaro a convicted felon had escaped pending an appeal and bail had
already been revoked. There, the High Court summarily dismissed saying: No persuasive
reason exists why this Court should proceed to adjudicate the merits of a criminal case after
the convicted defendant who has sought review escapes from the restraints placed upon him
pursuant to the conviction. Id. at 366.
The language in Molinaro is appropriate here, where, in our view, the facts and
circumstances warrant the exercise of our discretion to unconditionally dismiss the appeal and
forfeit the $100,000 bail. Accordingly, both of respondent's motions are granted.
Remittitur shall issue forthwith.
It is so ORDERED.
____________
KIMBLE EDWARD DUTTON, Appellant, v. THE
No. 10013
August 25, 1978 583 P.2d 457
Appeal from judgment of conviction, Eighth Judicial District Court, Clark County; John F.
Mendoza, Judge.
Defendant was convicted before the district court of burglary, and he appealed. The
Supreme Court held that evidence, although circumstantial, disclosing caller's report to
police that someone had just broken window and entered her house, discovery by police
of two men standing next to back window of house, flight of such two men and
apprehension of defendant lying face down in sagebrush about 20 feet from fence
supported conviction for burglary.
although circumstantial, disclosing caller's report to police that someone had just broken
window and entered her house, discovery by police of two men standing next to back window
of house, flight of such two men and apprehension of defendant lying face down in sagebrush
about 20 feet from fence supported conviction for burglary.
Affirmed.
Morgan D. Harris, Public Defender, and James B. Gubler, Deputy Public Defender, Clark
Burglary.
Evidence, although circumstantial, disclosing caller's report to police that someone had just broken
window and entered her house, discovery by police of two men standing next to back window of house,
flight of such two men and apprehension of defendant lying face down in sagebrush about 20 feet from
fence supported conviction for burglary. NRS 205.060.
OPINION
Per Curiam:
Convicted, by jury verdict, of burglary (NRS 205.060), appellant here contends the
evidence was insufficient to sustain his conviction. We disagree.
In reviewing the sufficiency of the evidence on appeal, the issue is not whether this court
is convinced of [appellant's] guilt beyond a reasonable doubt, but whether the jury, acting
reasonably, could be convinced to that certitude by evidence it had a right to accept.
Edwards v. State, 90 Nev. 255, 258-59, 524 P.2d 328, 331 (1974). Here, the record indicates
that on the evening of November 5, 1976, Ms. Nelda Hunter called the police to report that
someone had just broken a window and entered her house. A police officer arrived within
four or five minutes and discovered two men standing next to a back window of the house.
The men looked at the police officer and then fled over a fence located behind the house. The
police officer pursued the men and found the appellant lying face down in some sagebrush
about 20 feet from the fence. The record further indicates that appellant, while testifying in
his own defense, admitted going to the Hunter residence, but stated be had gone there to
purchase marijuana and never entered the house. In our view this evidence, although
circumstantial, is sufficient to sustain the jury's verdict and, accordingly, the judgment will
not be disturbed.
judgment will not be disturbed. See Crawford v. State, 92 Nev. 456 552 P.2d 1378 (1976);
Edwards v. State, supra.
____________
94 Nev. 569, 569 (1978) Corrao Constr. Co. v. Curtis
CORRAO CONSTRUCTION CO., INC., Appellant, v. IVAN CURTIS, GUY FOSTER,
LOU HANSEN, and ROSS KARSTEN, Respondents.
No. 9068
August 25, 1978 584 P.2d 1303
Appeal from judgment; Second Judicial District Court, Washoe County; Grant L. Bowen,
Judge.
Employee, who was seriously injured in course and scope of his employment, commenced
action against property owners alleging their negligence as proximate cause of his injuries.
Owners, in turn, filed third-party complaint against employer, premised upon indemnity
clause in their contract. The district court found that employer's negligence caused employee's
injuries, that owners were not negligent and that indemnity agreement was valid, and
employer appealed. The Supreme Court, Thompson, J., held that: (1) that portion of
indemnity agreement in which employer agreed to indemnify owners for all claims, damages,
losses and expenses arising out of work if caused in whole or in part by negligence of
employer was meaningless with regard to claims of employee since only employer was
negligent, and therefore employee should have been compensated pursuant to provisions of
Industrial Insurance Act, and not otherwise, and (2) indemnity agreement was, however,
effective to impose upon employer an obligation to pay reasonable defense costs and
attorneys' fees incurred by owners in defending instant action.
Affirmed.
Halley and Halley, Reno; and Bolling, Pothoven, Walter & Gawthrop, Sacramento,
California, for Appellant.
Erickson, Thorpe & Swainston, Ltd., Reno, for Respondents.
1. Workers' Compensation.
Where employer was a participating employer within the Industrial Insurance Act, it was relieved from
tort liability to employee who was seriously injured while in course and scope of his employment. NRS
616.270.
Under the Industrial Insurance Act, employee may not sue his participating employer for injuries by
accident arising out of and in course of his employment, but employee may sue a third party for that party's
negligence and obtain damages, and compensation received by employee under the Industrial Insurance
Act is to be deducted from amount of damages so recovered. NRS 616.270, 616.560.
3. Indemnity.
Indemnity agreement which changes or enlarges liability of employer by imposing a liability to its
employee for damages caused by negligence of a third party is void by reason of express mandate of
provision of the Industrial Insurance Act voiding contracts of indemnity which change or modify liability
created by Act. NRS 616.265.
That portion of indemnity agreement in which employer, a construction company, agreed to indemnify
owners of property for all claims, damages, losses and expenses, including attorneys' fees, arising out of
work if caused in whole or in part by negligence of employer was meaningless with regard to claims of
employee who was seriously injured in course and scope of his employment, where only employer, and not
property owners, was negligent, and, therefore, employee should have been compensated pursuant to
provisions of the Industrial Insurance Act, and not otherwise. NRS 616.010 et seq., 616.265.
5. Indemnity.
Although indemnity agreement in which employer, a construction company, agreed to indemnify owners
of property from all claims, damages, losses and expenses, including attorneys' fees arising out of work if
caused in whole or in part by negligence of employer, was meaningless with regard to claims of employee
who was seriously injured in course and scope of his employment, since only employer, and not property
owners, was negligent, it was effective to impose upon employer an obligation to pay reasonable defense
costs and attorneys' fees incurred by owners in defending negligence action brought by employee.
OPINION
We are asked to decide whether the Nevada Industrial Insurance Act insulates an employer
from liability to a third party with whom it has an express contract of indemnity.
[Headnote 1]
Corrao Construction Co., Inc., the employer, agreed in writing with the owners of the
property to indemnify them from all claims, damages, losses and expenses, including
attorneys' fees, arising out of the work if caused in whole or in part by the negligence of the
employer. An employee of Corrao sustained serious injury while in the course and scope of
his employment. Since Corrao was a participating employer within the Nevada Industrial
Insurance Act, it was relieved from liability to the employee. Frith v. Harrah South Shore
Corp., 92 Nev. 447, 552
P.2d 337 (1976); Cummings v. United Resort Hotels Inc., 85 Nev. 23, 449 P.2d 245 (1969);
Tab Constr. Co. v. District Court, 83 Nev. 364, 432 P.2d 90 (1967); Simon Service v.
Mitchell, 73 Nev. 9, 307 P.2d 110 (1957). The employee was compensated in accordance
with the provisions of the Act.
Thereafter, the employee commenced this action against the owners alleging their
negligence as the proximate cause of his injuries. The owners, in turn, held a third-party
complaint against Corrao, the employer. This complaint was premised upon the indemnity
clause of their contract.
The district court found that the Employer Corrao's negligence caused the employee's
injuries; that the owners were not negligent as alleged by the employee; and that the
indemnity agreement was valid.
In the light of the district court's determination that only the Employer was negligent and
the third-party owner was not, we do not reach the issue we have been asked to decide. We
turn to explain why this is so.
[Headnote 2]
1. NRS 616.265 voids a contract of indemnity which changes or modifies the liability
created by the Act. An employee may not sue his participating employer for injuries by
accident arising out of and in the course of his employment. NRS 616.270. An employee, of
course, may sue a third party for that party's negligence, and obtain damages. The
compensation received by him under the Nevada Industrial Insurance Act is to be deducted
from the amount of damages so recovered. NRS 616.560; McDowell Construction Supply
Corp. v. Williams, 90 Nev. 75, 518 P.2d 604 (1974).
[Headnote 3]
It would appear, therefore, that an indemnity agreement which changes or enlarges the
liability of the employer by imposing a liability to its employee for damages caused by the
negligence of a third party would be void by reason of the express mandate of NRS 616.265;
Outboard Marine Corp. v. Schupbach, 93 Nev. 158, 561 P.2d 450 (1977), concerning an
alleged implied indemnity to the third party found to have been negligent. The case before us,
however, does not concern this situation at all since the third-party owners were found free of
fault and, therefore, not responsible for the employee's injuries.
[Headnote 4]
By reason of the findings with regard to negligence and proximate cause which have not
been challenged, it is certain that the indemnity agreement does not change, enlarge, or
modify the liability of the employer to its employee.
modify the liability of the employer to its employee. Consequently, the portion of the
indemnity concerning claims of the employee is meaningless in this case since only the
employer was negligent. The employee, therefore, should have been compensated pursuant to
the provisions of the Nevada Industrial Insurance Act, and not otherwise.
1

[Headnote 5]
2. Although the indemnity agreement is meaningless in this case with regard to the claims
of the employee, it is effective to impose upon the employer-indemnitor an obligation to pay
the reasonable defense costs and attorneys' fees incurred by the owners-indemnities in
defending this litigation.
Affirmed.
____________________

1
After the district court decided that the indemnity was valid (without explaining its limited effect in this
case) the employer and the owners voluntarily elected to settle with the employee. The employer's insurer paid
the employee $750,000 and the owners' insurers paid the employee $30,000. Since we do not reach the issue we
have been asked to decide, the provision of the settlement agreement that: In the event Corrao Construction
Company succeeds in the appeal, St. Paul Insurance Company shall reimburse Corrao's insurer $750,000 is
ineffective.
____________
94 Nev. 572, 572 (1978) Host Int'l, Inc. v. Summa Corp.
HOST INTERNATIONAL, INC., a Delaware Corporation, Appellant, v. SUMMA
CORPORATION, a Delaware Corporation, dba DESERT INN HOTEL, Respondent.
No. 9962
August 25, 1978 583 P.2d 1080
Appeal from judgment, Eighth Judicial District Court, Clark County; James A. Brennan,
Judge.
Lessee, which failed to give timely written notice of its intention to renew lease of gift
shop space at hotel, brought action seeking injunctive and declaratory relief to compel lessor
to renew lease. The district court denied relief, and plaintiff appealed. The Supreme Court
held that: (1) general rule is that right to renew lease is lost if notice is not given by plaintiff
as required by lease; (2) lessor neither waived nor was estopped to assert requirement of
written notice, and (3) no special circumstances existed which warranted equitable
intervention.
Affirmed.
Wiener, Goldwater & Waldman, Ltd., and Gerald M. Gordon, Las Vegas, for Appellant.
Lionel Sawyer & Collins, and Steve Morris, Las Vegas, for Respondent.
General rule is that right to renew lease is lost if notice is not given as required by lease.
2. Estoppel.
A waiver is intentional relinquishment of a known right; if intention is to be implied from conduct,
conduct should speak the intention clearly.
3. Declaratory Judgment.
In action for injunctive and declaratory relief to compel lessor to renew a lease of gift shop space at hotel,
record was devoid of any evidence that lessor intended to waive its right to written notice of renewal of
lease within specified time.
Where facts of case did not indicate, nor did plaintiff lessee suggest, in suit for injunctive and declaratory
relief to compel lessor to renew a lease of gift shop space at hotel, that any discussions of parties lulled
plaintiff, which failed to give timely written notice of its intention to renew lease, into inaction, no estoppel
arose.
Special circumstances may warrant equitable relief from failure to comply with a written notice
requirement to renew lease.
In action for injunctive and declaratory relief to compel lessor to renew lease of gift shop space at hotel,
no special circumstances were present which warranted equitable relief from lessee's failure to timely
comply with written notice requirement of its intention to renew lease, but, to the contrary, lessee admitted
that timely exercise of written notice was simply overlooked.
Equity will not intervene to protect a lessee from its own negligent failure to give required written notice
of renewal of lease.
OPINION
Per Curiam:
This appeal is from a judgment which denied injunctive and declaratory relief to compel
respondent to renew a lease of gift shop space at the Desert Inn Hotel in Las Vegas. The
initial lease for a term of 5 years, commencing June 1, 1972, and ending May 31, 1977,
required the renewal option to be exercised in writing 90 days prior to expiration of the
original term, i.e., no later than March 2, 1977. Written notice was not tendered until April
13, 1977.
[Headnote 1]
The general rule, acknowledged by both parties, is that "[t]he right to renew is lost if
notice is not given as required by the lease."
[t]he right to renew is lost if notice is not given as required by the lease. Benetti v. Kishner,
93 Nev. 1, 2, 558 P.2d 537, 538 (1977). Nevertheless, appellant contends (1) respondent
waived or may be estopped to assert the requirement of written notice; and, (2) special
circumstances exist which warrant equitable intervention. Neither contention has merit.
[Headnotes 2-4]
1. A waiver is the intentional relinquishment of a known right. [Citation omitted.] If
intention is to be implied from conduct, the conduct should speak the intention clearly. Reno
Realty v. Hornstein, 72 Nev. 219, 225, 301 P.2d 1051, 1054 (1956). This record is devoid of
any evidence that respondent intended to waive its right to written notice. See Medomak
Canning Co. v. York, 57 A.2d 745 (Me. 1948). Furthermore, the facts of this case do not
indicate, nor does appellant suggest, that any discussions of the parties lulled appellant into
inaction. Consequently, no estoppel arises. Cf. Summa Corp. v. Richardson, 93 Nev. 228, 564
P.2d 181 (1977).
[Headnotes 5-7]
2. Although special circumstances may warrant equitable relief from failure to comply
with a written notice requirement, no such circumstances are present here. See, e.g.,
American Houses v. Schneider, 211 F.2d 881 (3d Cir. 1954); Benetti v. Kishner, supra;
Dugan v. Haige, 54 So.2d 201 (Fla. 1951); Flint v. Mincoff, 353 P.2d 340 (Mont. 1960);
Jones v. Gianferante, 111 N.E.2d 419 (N.Y. 1953); Gruber v. Castleberry, 533 P.2d 82
(Ariz.App. 1975); Pouquette v. Double L-W Ranch, Inc., 464 P.2d 350 (Ariz.App. 1970). On
the contrary, appellant admitted that timely exercise of written notice was simply
overlooked. Equity will not intervene to protect a lessee from its own negligent failure to
give the required written notice. Medomak Canning Co. v. York, supra; I.X.L. Furniture &
Carpet Installment House v. Berets, 91 P. 279 (Utah 1907).
Affirmed.
____________
94 Nev. 574, 574 (1978) Baucom v. State
LAWRENCE E. BAUCOM, Appellant, v. THE
No. 9826
August 25, 1978 583 P.2d 1082
Defendant was convicted in the district court of robbery, and he appealed. The Supreme
Court held that the evidence was sufficient to establish that defendant took $35 worth of
gaming chips from the victim by force or fear of injury and, thus, was guilty of robbery.
Affirmed.
Robbery.
Evidence that defendant grabbed a handful of victim's gaming chips, that, when the victim attempted to
retrieve his chips, a struggle ensued in which defendant repeatedly told the victim I'm going to cut you
and that defendant escaped from the victim's grasp with about $35 worth of gaming chips was sufficient to
establish that the chips were taken by force or fear of injury and that defendant was guilty of robbery.
NRS 200.380.
OPINION
Per Curiam:
Convicted, by jury verdict, of robbery (NRS 200.380), appellant contends his conviction
was not supported by the evidence. We disagree.
The record indicates that on June 5, 1976, the victim, Clarence Davenport, was walking
through the El Cortez casino in Las Vegas, Nevada with about $150 in gaming chips in his
hands. Appellant bumped into the victim and grabbed a hand full of the victim's chips. The
victim grabbed appellant's thumb and attempted to retrieve his chips. A struggle ensued in
which appellant repeatedly told the victim, I am going to cut you. I am going to cut you.
Appellant finally escaped from the victim's grasp, taking with him about $35 worth of chips.
The thrust of appellant's argument is that the evidence fails to establish that the chips were
taken by force . . . or fear of injury, as required by NRS 200.380, and thus, the crime, if any,
was larceny and not robbery.
1
In our view the facts recited above amply support a taking by
both force and fear of injury and, accordingly, appellant's conviction will not be disturbed.
____________________

1
1. robbery is the unlawful taking of personal property from the person of another, or in his presence,
against his will, by means of force or violence or fear of injury, immediate or future, to his person or property, or
the person or property of a member of his family, or of anyone in his company at the time of the robbery. Such
force or fear must be used to obtain or retain possession of
above amply support a taking by both force and fear of injury and, accordingly, appellant's
conviction will not be disturbed. Dalie v. State, 94 Nev. 10, 574 P.2d 271 (1978).
____________________
the property, or to prevent or overcome resistance to the taking, in either of which cases the degree of force is
immaterial. If used merely as a means of escape, it does not constitute robbery.
____________
94 Nev. 576, 576 (1978) Turpen v. State
DENNIS O. TURPEN, Appellant, v. THE
No. 9998
August 25, 1978 583 P.2d 1083
Appeal from judgment, Second Judicial District Court, Washoe County; John F. Gabrielli,
Judge.
Defendant was convicted in the district court of first degree murder, and he appealed. The
Supreme Court held that: (1) trial court did not abuse its discretion in admitting autopsy
photographs depicting various wounds on victim's body; (2) defendant's failure to include
proposed instruction in appeal record precluded appellate review of issue of district court's
refusal to instruct jury on involuntary manslaughter; (3) substantial evidence of premeditation
and deliberation supported jury's determination, and (4) record contained no evidence of
incompetency of counsel to rebut presumption that counsel fully discharged his duties.
Affirmed.
Michael R. Specchio, Reno, for Appellant.
1. Criminal Law.
Admissibility of autopsy photographs depicting wounds on victim's body lies within sound discretion of
district court and, absent an abuse of discretion, decision will not be overturned.
2. Criminal Law.
In first degree murder prosecution, trial court did not abuse its discretion in admitting autopsy
photographs depicting various wounds on victim's body.
3. Criminal Law.
Appellate review of issue of district court's failure to instruct jury on involuntary manslaughter
was precluded where defendant failed to include proposed instruction in appeal
record.
involuntary manslaughter was precluded where defendant failed to include proposed instruction in appeal
record.
4. Homicide.
Premeditation and deliberation are questions of fact for jury and may be deduced from facts and
circumstances surrounding killing.
5. Homicide.
Evidence of nature and extent of victim's injuries, as well as infliction of repetitive blows, offered
substantial evidence of premeditation and deliberation to support jury's determination of defendant's guilt
of first degree murder. NRS 200.010, 200.030.
6. Criminal Law.
In first degree murder prosecution, record contained no evidence of incompetency of counsel so as to
rebut presumption that counsel fully discharged his duties.
OPINION
Per Curiam:
Dennis 0. Turpen stands convicted, by jury verdict, of the first degree murder of Johnie
Sue Hicks, a female companion with whom he had been sharing a motor home in Reno,
Nevada (NRS 200.010; NRS 200.030). In this appeal, Turpen contends (1) the district court
erred in admitting certain photographs into evidence; (2) the district court erred in failing to
give a proposed instruction; (3) the evidence was insufficient to support the verdict; and, (4)
he was denied effective assistance of counsel. We find no merit in these contentions.
[Headnotes 1, 2]
1. Appellant contends gruesome autopsy photographs depicting various wounds on the
victim's body should not have been admitted into evidence because their prejudicial effect
outweighed any probative value. Admissibility of such photographs lies within the sound
discretion of the district court and, absent an abuse of that discretion, the decision will not be
overturned. Dearman v. State, 93 Nev. 364, 566 P.2d 407 (1977). Here, the court followed the
intermediate cautionary review procedure recently approved in Dearman v. State, supra,
considered arguments of counsel, and thereafter concluded that because of the overall
picture and circumstances involved in this case, [the photographs] would be helpful to the
jury. . . . Under these circumstances, we perceive no abuse of the trial court's discretion in
admitting the photographs.
[Headnote 3]
2. Appellant next contends the district court erred in refusing to instruct the jury on
involuntary manslaughter. Appellant has failed to include the proposed instruction in the
record, thus precluding appellate review of this issue.
thus precluding appellate review of this issue. Anderson v. State, 81 Nev. 477, 406 P.2d 532
(1965).
3. Appellant also argues that the evidence was insufficient to sustain his conviction
because the record contains no proof of premeditation and deliberation.
[Headnotes 4, 5]
Premeditation and deliberation are questions of fact for the jury and may be deduced from
the facts and circumstances surrounding the killing. Curtis v. State, 93 Nev. 504, 568 P.2d
583 (1977). This case involved a brutal beating evidenced by multiple bruises, cuts and
lacerations. The pathologist testified to thirty-one (31) separate injuries, including subdural
hematoma. The nature and extent of these injuries, as well as the infliction of repetitive
blows, offer substantial evidence of premeditation and deliberation and, thus, support the
jury's determination of appellant's guilt. Curtis v. State, supra.
[Headnote 6]
4. Finally, appellant contends he was denied effective assistance of counsel because his
attorney failed to adequately prepare for trial, waived opening argument, and refused to
cross-examine a key witness for the prosecution. It is presumed that counsel fully discharged
his duties, and that presumption can only be overcome by strong and convincing proof to the
contrary. Warden v. Lischko, 90 Nev. 221, 223, 523 P.2d 6, 7 (1974). Accord, Bailey v.
State, 94 Nev. 323, 579 P.2d 1247 (1978). The evidence in the record contains no evidence of
incompetency of counsel and thus, fails to rebut this presumption. Lambert v. State, 94 Nev.
68, 574 P.2d 586 (1978).
Appellant's other assignments of error were either not preserved for appellate review by
timely objections or are totally without merit.
____________
94 Nev. 578, 578 (1978) Channel 13 of Las Vegas v. Ettlinger
CHANNEL 13 OF LAS VEGAS, INC., ARTHUR POWELL WILLIAMS, Individually, and
VIRGINIA M. WILLIAMS, Individually, Appellants, v. JOHN ETTLINGER, FRED L.
VANCE, LEONARD W. PHILLIPS, and FRANK E. FEDER, Respondents.
No. 9689
August 25, 1978 583 P.2d 1085
Appeal from amended order modifying summary judgment. Eighth Judicial District Court,
Clark County; John F. Mendoza, Judge.
In a suit on a promissory note, the district court entered summary judgment for the payee
in the sum of $80,505.92 and subsequently amended that judgment to include an additional
sum of approximately $14,000. Maker appealed. The Supreme Court held that where the
complaint contained adequate information to determine sum actually due and owing, but the
complaint prayed for the wrong amount and judgment was initially entered for that wrong
amount, there was a clerical error in the judgment that could be cured by resort to the rule
dealing with such clerical mistakes.
Affirmed.
Rose, Edwards, Hunt & Pearson, Ltd., Las Vegas, for Appellants.
Wiener, Goldwater & Waldman, Ltd., Las Vegas, for Respondents.
Judgment.
Where complaint contained adequate information to determine sum actually due and owing on
promissory note, but complaint prayed for the wrong amount, and judgment was initially entered for that
wrong amount, there was clerical error in judgment that could be cured by resort to rule dealing with such
clerical mistakes. NRCP 60(a).
OPINION
Per Curiam:
Appellants had executed and guaranteed a promissory note to the payee, Fred L. Vance, in
the principal sum of $181,668.12. Appellants timely tendered the first annual installment but
were tardy in their second installment. Thereafter respondent Vance, among others, filed suit.
Appellants then belatedly tendered the second annual installment plus interest which Vance
accepted without prejudice to his demand for the accelerated balance made pursuant to an
acceleration clause contained in the promissory note.
Vance moved for summary judgment praying for the balance due on the note in the sum of
$80,505.92. After the trial court entered summary judgment in that amount, and judgment
was recorded, respondent's counsel discovered that the amount of the judgment was
erroneously calculated and did not reflect the amount then presently due and owing. Vance
then filed an ex parte motion to correct the judgment, and without notice of motion, the trial
court entered an order amending the summary judgment to include an additional sum of
approximately $14,000. Appellant then moved to compel entry of satisfaction of the original
judgment and to declare the amended judgment null and void.
null and void. Respondent next moved for relief from judgment pursuant to NRCP 60(a).
After notice and hearing, the district court determined that the amended order will stand.
This appeal follows.
The sole question before us is whether the trial court properly amended the original
judgment?
Because the hearing in this matter was subsequently noticed and held, the validity of the ex
parte motion for an amended judgment is not before us. The trial court did in fact affirm the
amended judgment, but this affirmation was subsequent to a duly noticed hearing. Therefore
the issue before this court is whether the procedure leading to this subsequent affirmation of a
possibly defective original order was valid.
The subsequent hearing was held pursuant to NRCP 60(a) which in part provides:
[c]lerical mistakes in judgments, orders or other parts of the record and errors therein
arising from oversight or omission may be corrected by the court at any time of its own
initiative or on the motion of any party and after such notice, if any, as the court orders.
. . .
Respondent argues that Rule 60(a) is applicable because it was a mere oversight that the
complaint prayed for an erroneously calculated sum. Further, respondent claims the actual
intention of the trial court was to award the sum actually due and owing. Therefore Vance
contends the purported judgment contained a clerical error.
This Court has interpreted Rule 60(a) to mean that
[a] clerical error is a mistake in writing or copying. As more specifically applied to
judgments and decrees a clerical error is a mistake or omission by a clerk, counsel, or
judge, or printer which is not the result of the exercise of a judicial function. In other
words, a clerical error is one which cannot reasonably be attributed to the exercise of
judicial consideration or discretion.
Marble v. Wright, 77 Nev. 244, 248, 362 P.2d 265, 267 (1961) (Emphasis supplied). In Smith
v. Epperson, 72 Nev. 66, 294 P.2d 362 (1956), this Court distinguished between an error of
judgment which was a faulty determination as a matter of law and a clerical error which was
simply a failure to make the judgment truly speak the determination which had been made.
This involved the precise issue before this Court because the case resolves itself on the
interpretation to be given to clerical error. If the difference of some $14,000 is a
miscalculation which is a clerical error, Rule 60(a) is the proper vehicle. If this
miscalculation is termed a matter of substance, the proper procedure involves either
NRCP 59 pertaining to the amendment of judgments or Rule 60{b) pertaining to the
equitable relief a court may give on the basis of mistake, inadvertence, surprise, or
excusable neglect, and in either case the time for pursuing these remedies had lapsed.
miscalculation is termed a matter of substance, the proper procedure involves either NRCP 59
pertaining to the amendment of judgments or Rule 60(b) pertaining to the equitable relief a
court may give on the basis of mistake, inadvertence, surprise, or excusable neglect, and in
either case the time for pursuing these remedies had lapsed.
The complaint does contain adequate information to determine that the sum actually due
and owing is in fact the amount of judgment stated in the amended complaint and affirmed
after a noticed hearing. Had the complaint not given this information but merely prayed for an
$80,505.92 judgment, the amended judgment would have involved a substantial not a clerical
error, and procedures incorporated in Rules other than Rule 60(a) would have had to be
followed. It is apparent from the complaint, that a miscalculation occurred, and appellant
should not be given a windfall of some $14,000.
____________
94 Nev. 581, 581 (1978) Central Bank v. Baldwin
CENTRAL BANK, N.A., Appellant and Cross-Respondent, v. DONALD W. BALDWIN;
NOVA J. BALDWIN; WILLIAM A. TEIPNER; MARTHA S. TEIPNER; JACK S.
SARGENT; GWEN W. SARGENT; ROBERT M. STAMPFLI, and PATRICIA STAMPFLI,
Respondents and Cross-Appellants.
No. 9250
August 28, 1978 583 P.2d 1087
Appeal and cross-appeal from judgment entered in the Second Judicial District Court,
Washoe County; Peter I. Breen, Judge.
In a suit brought for defective construction of an apartment complex, the district court
rendered judgment against several defendants, including a bank, as joint venturers and bank
appealed. The Supreme Court held that substantial evidence supported the trial court's finding
that the bank was engaged in a joint venture for profit, because it not only lent the money for
the project, but its subsidiary owned half the stock of the developer and a bank officer had
approached another party with the proposal that they form a joint venture.
Affirmed.
[Rehearing denied December 7, 1978]
Charles E. Springer, Reno, for Appellant and Cross-Respondents.
John J. McCune, Reno, for Respondents and Cross-Appellant.
Where there is substantial evidence to support findings and judgment of trial court, Supreme Court will
not disturb such findings and judgment on appeal.
2. Joint Adventures.
In action for damages arising out of defective construction of apartment complex, substantial evidence
supported trial court's finding that bank was liable as joint venturer because it not only lent the money for
project, but its subsidiary owned half the stock of the developer and bank officer had approached another
party with the proposal that they form joint venture.
Issues raised for first time on appeal could not be considered by Supreme Court.
OPINION
Per Curiam:
Respondents were various purchasers of several apartment complex projects located in
Arizona and appellant Central Bank was successfully sued by respondents as a joint venturer
in these projects. Appellant claims no joint venture existed and urges reversal of the
judgment.
Testimony indicated that Sam J. Harris, a California building contractor, was approached
by James Nichols, then vice-president and mortgage officer of Central Bank, to joint
venture some construction projects. The action of Nichols was approved by Michael Rafton,
president and chairman of the board of Central Bank. Central Bank was precluded by law
from loaning money to any entity in which it had a stock equity interest. Appellant Bank
therefore arranged to have its wholly owned subsidiary Bankers SBIC form with Harris a new
construction corporation, Greater Sierra Construction Company. The stock of Greater Sierra
was divided equally between Harris and SBIC. The majority of the directors on the SBIC
board were also directors of Central Bank and at least one director of Greater Sierra was also
a director of SBIC and either a director or legal counsel for Central Bank.
Testimony indicated that the principal motivation for forming Greater Sierra was to enable
Central Bank to share profits of the venture in addition to the customary bank earnings
pursuant to outstanding loans.
Central Bank, Greater Sierra, SBIC, and Harris engaged in several construction projects.
Harris and Greater Sierra were required to obtain construction loans from no other source
than Central Bank, and their applications for financing always bypassed the conventional
loan processing at Central Bank and were given special attention.
than Central Bank, and their applications for financing always bypassed the conventional loan
processing at Central Bank and were given special attention. Greater Sierra had only one bank
account at Central Bank in which it deposited all down payments received from the various
projects.
Greater Sierra and Harris entered into construction contracts with the various respondents
for two large apartment complexes in Arizona. Harris refused to sign the substitute contract
submitted by the respondents but complied after an officer of Central Bank reviewed the
contracts and ordered Harris to sign. During negotiations, this bank officer assured
respondents that Central Bank would assure quality of construction through its inspections.
The title company documents, however, specified that the respondents would inspect the
construction projects themselves. Central Bank nevertheless conducted inspections, but
neither the respondents, Harris, nor Greater Sierra ever saw those inspection reports.
During the course of several construction projects, Greater Sierra took a large number of
promissory notes issued incidental to second trust deeds. These seconds constituted the
assets and represented the profits of Greater Sierra. When operating capital became short and
Harris wanted to discount some of the seconds to obtain necessary cash, it was Central
Bank which prohibited Greater Sierra from so obtaining the cash. Eventually Central Bank
established a line of credit for Greater Sierra and demanded delivery of the seconds to it.
The line of credit was approximately two million dollars, but the value of the seconds and
some real property deeded to Central Bank approximated seven million dollars.
The Comptroller of the Currency requested Central Bank to have SBIC reduce its
ownership in Greater Sierra because it appeared under new regulations that Central Bank was
loaning money to an affiliate in violation of law. SBIC, with four of its six directors also
sitting as directors of Central Bank and another SBIC director being an employee of the Bank,
reduced its shareholding in Greater Sierra from fifty percent to twenty-five percent.
Testimony indicated that the Comptroller of the Currency had no jurisdiction over SBIC
which could have refused to reduce its holding but for the control of Central Bank.
Eventually the apartment complexes purchased by respondents proved to be defective in
construction, and Harris, Greater Sierra, and Central Bank were sued as joint venturers.
Judgment was entered against all defendants jointly and severally, but only Central Bank
prosecutes this appeal. Respondents have cross-appealed several conclusions of law which
held that the parole evidence rule precluded evidence of oral agreements contradicting
express written terms in the title documents pertaining to the inspection of the
construction project.
contradicting express written terms in the title documents pertaining to the inspection of the
construction project.
The issue before us is whether the trial court erred in finding that Central Bank was a joint
venturer and thus liable to suit.
Appellant contends it has no liability for two reasons. It claims that NRS 41.590 was
enacted expressly to provide protection for lenders against actions arising from defective
protection or lenders against actions arising from defective property acquired with the
borrowed funds. Central Bank argues that this provision was specifically enacted in
consequence of the landmark case Connor v. Great Western Savings and Loan Ass'n, 447
P.2d 609 (Cal. 1968). NRS 41.590, enacted five years after Connor, is set forth below.
1

Even if appropriate, however, the statute is not applicable because the cause of action
arose and the complaint filed prior to the effective date of the provision. Miller v. Ashurst, 86
Nev. 241, 468 P.2d 357 (1970). Moreover, the statute itself contains an excepting clause that
liability will not attach unless the loss or damage is the result of some other action or activity
of the lender than the loan transaction. Appellant claims it cannot be held liable because it
was not involved in any activity other than the lending of money. The trial court, however,
made findings of fact that Central Bank was engaged in a joint venture for profit because its
subsidiary SBIC owned half the stock of Greater Sierra and because it approached Harris with
an offer to joint venture some construction projects. We agree.
[Headnotes 1, 2]
Where there is substantial evidence to support the findings and judgment of the trial court,
this Court will not disturb such findings and judgment on appeal. Davis v. Gomez, 92 Nev.
629, 555 P.2d 1228 (1976); J&J Building Contractors Inc. v. Savage Construction Inc., 92
Nev. 590, 555 P.2d 488 (1976). The trial court could have reasonably found under all the
circumstances that a joint venture was formed between Central Bank and Harris to form
Greater Sierra and engage in substantial construction projects. See, Shell Oil Company v.
Prestidge, 249 F.2d 413 (9th Cir. 1957); Walsh Construction Company v. Church, 247
F.Supp. 808 (S.D. N.Y. 1965); Nels E. Nelson Inc. v.
____________________

1
A lender who makes a loan of money, the proceeds of which are used or may be used by the borrower to
finance the design, manufacture, construction, repair, modification or improvement of real or personal property,
shall not be held liable to the borrower or to third persons for any loss or damage occasioned by any defect in the
real or personal properly so designed, manufactured, constructed, repaired, modified or improved or for any loss
or damage resulting from the failure of the borrower to use due care in the design, manufacture, construction,
repair, modification or improvement of such real or personal property, unless the loss or damage is the result of
some other action or activity of the lender than the loan transaction.
Inc. v. Tarman, 329 P.2d 953 (Cal. App. 1958); Holtz v. United Plumbing & Heating Co.,
319 P.2d 617 (Cal. 1957); L.V.M.&E. Works v. Roemisch, 67 Nev. 1, 213 P.2d 319 (1950).
Central Bank's references to the alter ego doctrine and to a choice of law consideration are
not properly before the court as these issues are raised for the first time on appeal. Young
Elec. Sign Co. v. Erwin Elec. Co., 86 Nev. 822, 477 P.2d 864 (1970). Because of our
disposition of this case, we need not consider respondents' cross-appeal.
The judgment of the trial court is affirmed.
____________
94 Nev. 585, 585 (1978) Sherburne v. Miller
CHARLOTTE SHERBURNE, Appellant, v. GARY O. MILLER; BETTY A. MILLER;
DOES I-V; ROE CORPORATIONS I-V, Respondents.
No. 9872
August 29, 1978 583 P.2d 1090
Appeal from judgment for respondent, defendant below, in wrongful death action. Fifth
Judicial District Court, Nye County; William P. Beko, Judge.
Wife brought action, as permitted under Industrial Insurance Act, against her deceased
husband's employer for wrongful death of husband. The district court entered judgment for
defendant and plaintiff appealed. The Supreme Court, Manoukian, J., held that: (1) if absence
of employer's presumed negligence is not determined in proper manner, and trial court
seriously misapprehends which party bore burden of proof, trial court's findings may be
disturbed upon appeal, and (2) evidence introduced by employer failed to rebut statutory
presumption of employer's negligence.
Batjer, C. J., and Gunderson, J., dissented.
Crockett & Rickdall, Las Vegas, for Appellant.
John P. Fadgen, Las Vegas, for Respondents.
If absence of employer's presumed negligence is not determined in proper manner in wrongful death
action permitted by Industrial Insurance Act against employer which does not provide and secure
compensation under such statute, and trial court seriously misapprehends which party bore burden of
proof, trial court's findings may be disturbed on appeal.
bore burden of proof, trial court's findings may be disturbed on appeal. NRS 616.375.
Employer, who fails to provide and secure compensation under Industrial Insurance Act, carries burden
to prove due care and rebut statutory presumption of negligence and proximate cause in action permitted by
such statute. NRS 616.375.
In wrongful death action permitted by Industrial Insurance Act against employer which fails to provide
and secure compensation under such statute, employer cannot rely upon decedent's claimed misjudgments
to overcome presumption of employer's negligence. NRS 616.375.
Evidence introduced by employer failed to rebut statutory presumption of employer's negligence in
wrongful death action permitted by Industrial Insurance Act against employers who do not provide and
secure compensation under such statute. NRS 616.375.
OPINION
Appellant brought suit in the lower court for the wrongful death of her husband Jay
Sherburne. It is conceded by the parties that under the definitions embodied in the Nevada
Industrial Insurance Act, NRS Chapter 616, Mr. Sherburne was an employee and
respondents Gary and Betty Miller were his employers. It is further conceded that
respondent had secured no industrial insurance coverage for their employees as required
under the Act.
On July 5, 1975, while dismantling a metal building with respondents, Jay Sherburne was
injured as part of the structure collapsed upon him. He died the next day, and it is conceded
that his death was proximately caused by the accident. Evidence was introduced that
respondents engaged in the dismantling of buildings as a part-time activity and had no
noteworthy training, skill, or expertise in this field other than having dismantled buildings
with the decedent on prior occasions. There was testimony that the building which collapsed
on the decedent was the only building of its type ever dismantled by respondents and
decedent, as well as the largest, although there was no variance from the procedures used
previously.
Because workman's compensation benefits were unavailable, appellant commenced this
action pursuant to NRS 616.375 pertaining to employers not participating in the industrial
insurance program. That statute contains a rebuttable presumption that the occurring accident
was attributable to employer negligence.
Appellant during her case-in-chief relied on the statutory presumption of negligence to
establish liability. Respondents introduced facts allegedly indicating the absence of
negligence. Subsequently, at the conclusion of trial, the district court sitting without a jury
made findings of fact and conclusions of law that respondents had successfully rebutted the
presumption of negligence. Judgment was entered accordingly, and appellant appeals
therefrom.
The issue before us is whether respondents met their burden of proof to demonstrate
absence of negligence.
Appellant based this action upon NRS 616.375, which provides in part that:
1. If any employer within the provisions of NRS 616.285 fails to provide and secure
compensation under this chapter, any injured employee or his dependents may bring an
action at law against such employer for damages as if this chapter did not apply.
. . .
3. In such action as in this section provided, the employer shall not escape liability
for personal injury or accident sustained by an employee of such employer, when the
injury sustained arises out of and in the course of the employment, because:
(a) The employee assumed the risks: (1) inherent or incidental to, or arising out of
his employment; (2) Arising from the failure of the employer to provide and maintain a
reasonably safe place to work; or (3) Arising from the failure of the employer to furnish
reasonably safe tools or appliances. (b) The employer exercised reasonable care in
selecting reasonably competent employees in the business. (c) The injury was caused by
the negligence of a coemployee. (d) The employee was negligent, unless it appears that
such negligence was willful and with the intent to cause injury or the injured party was
intoxicated.
In such cases it shall be presumed that the injury to the employee was the result of the
negligence of the employer and that such negligence was the proximate cause of the
injury. In such case the burden of the proof rests upon the employer to rebut the
presumption of negligence. (Emphasis added.)
[Headnote 1]
This statute effectively shifts the burden of proof to the employer who is presumed
negligent unless and until the presumption is sufficiently rebutted. Appellant claims the trial
court misinterpreted this provision shifting the burden back to the appellant by stating that
"[t]he facts simply do not support any findings of negligence on the part of the
defendants," In the abstract, such statement is ambivalent and merely the converse of
the finding of an "absence of negligence."
the appellant by stating that [t]he facts simply do not support any findings of negligence on
the part of the defendants, In the abstract, such statement is ambivalent and merely the
converse of the finding of an absence of negligence. It is a permissible conclusion of law in
this type of case provided it is reached through the defendant's burden to show such absence.
If it is arrived at by failure of the plaintiff to prove negligence, it is a patent misapplication of
the burden of proof and in violation of the statute. The issue to be resolved is whether this
conclusion of an absence of negligence was determined in a proper manner. If it was not and
the trial court seriously misapprehended which party bore the burden of proof, its findings
may be disturbed on appeal. Fulton National Bank v. Tate, 363 F.2d 562 (5th Cir. 1966).
[Headnotes 2-4]
Although an employer rejecting the Industrial Insurance Act cannot be held liable when
there is a complete absence of negligence on his part, he nevertheless carries the burden to
prove due care and rebut the statutory presumption of negligence and proximate cause.
Richard Matthews, Jr., Inc. v. Vaughn, 91 Nev. 583, 540 P.2d 1062 (1975). Here, the
presumptions of negligence and proximate cause themselves, absent rebuttal, satisfied the
plaintiffs' otherwise evidentiary responsibility. See, Reeder v. Pincolini, 59 Nev. 396, 94 P.2d
1097 (1939); Buhler v. Maddison, 176 P.2d 118 (Utah 1947). At trial, respondents had not
sufficiently rebutted the presumption of negligence to be entitled to judgment. As evidenced
in the lower court, respondents were not engaged in the dismantling of buildings as a
full-time occupation; the building which collapsed and killed decedent was the only steel
building dismantled by respondents and was also the largest. Respondents testified that they
had followed their usual procedure and that decedent had given them advice on how best to
proceed. Such evidence is unresponsive to rebut the presumption of negligence. The trial
judge in his memorandum of decision stated that there was no evidence whatsoever that any
procedure employed is not consistent with usual practices in the disassembly of such
structures. Notwithstanding the remarks of the trial court, however, these usual procedures
were never shown to be customary operating practices employed by individuals engaged in
the occupation of dismantling buildings. Indeed the only mention of a standard of care was
ineffectively supplied by the trial judge who commented at the end of the trial that he was
inclined to find an absence of negligence based somewhat on my personal experience in my
own prior employment before I became an attorney. And since that time, and having some
experience in buying and selling a large number of houses and in the manner in which
they were moved, I may have difficulty in finding negligence in the dismantling of this
building in the manner you mentioned it was done."
and having some experience in buying and selling a large number of houses and in the
manner in which they were moved, I may have difficulty in finding negligence in the
dismantling of this building in the manner you mentioned it was done. The explanation
contemplated by our Legislature is not to be a matter of the subjective judgment of the trial
court but must be supported by whatever evidence is before the court. Thus, the standard of
care owed by respondents was never supplied and consequently the court was without any
basis by which to determine the complete absence of negligence. See, 57 Am.Jur.2d,
Negligence, 66-81. Moreover, respondents cannot rely on decedent's claimed misjudgments
to overcome the presumption of negligence. Such defense is expressly denied the employer
who elects to proceed without the coverage of industrial insurance. NRS 616.375.
Consequently, respondents did not carry their burden to rebut the statutory presumption of
negligence. To hold otherwise would make the presumptions contained in NRS 616.375 a
nullity.
The judgment of the lower court is reversed and the trial court is directed to enter
judgment in favor of appellant, plaintiff below, on the issue of liability alone. The question of
damages should be determined by the trial court on the basis of the evidence already adduced
at trial in accordance with the standard principles governing awards in cases of wrongful
death. NRS 41.090(2).
Batjer, C. J., dissenting, with whom Gunderson, J., concurs:
I respectfully dissent from the result announced by the majority. The trial judge found, and
it is not disputed, that appellant entered the case with the rebuttable presumption that
respondents were negligent; that such negligence was the proximate cause of the fatal injury
to appellant's husband, Jay Sherburne; and, that it was respondents' burden to rebut the
statutory presumption of their negligence. NRS 616.375; Richard Matthews, Jr., Inc. v.
Vaughn, 91 Nev. 583, 540 P.2d 1062 (1975); Cahow v. Michelas, 62 Nev. 295, 149 P.2d 233
(1944).
At the conclusion of a trial before the court, the district judge concluded respondents had
effectively rebutted the presumption of their negligence by a preponderance of the evidence
and, accordingly, rendered judgment in their favor. This determination lies exclusively within
the province of the trier of fact and, if supported by the evidence, should not be disturbed on
appeal. See Richard Matthews, Jr., Inc. v. Vaughn, supra; Cahow v. Michelas, supra.
In determining whether respondents had rebutted the statutory presumption of their
negligence, i.e., that they were not negligent, the trial court was bound to measure
respondents' conduct against the general standard of care that a reasonable, prudent person
would exercise under the same circumstances. See Driscoll v. Erreguible, 87 Nev. 97, 482
P.2d 291 (1971); Heimer v. Salisbury, 142 A. 749 (Conn. 1928); cf. Richard Matthews, Jr.,
Inc. v. Vaughn, supra. That standard required that respondents' conduct conform to the
conduct of an ordinary, but not an extraordinary, prudent person, Driscoll v. Erreguible,
supra, and, in this case, required that respondents exercise due care. Due care does not
require constant, everlasting vigilance; but instead, requires only such care as a person of
ordinary prudence would exercise under the circumstances. Missouri Pac. R. Co. v. Huffman,
108 S.W.2d 479(Ark. 1937). Whether due care has been exercised in any given situation is
a matter to be determined by the trier of fact, Berbohn v. Pinkerton, 255 P.2d 260 (Okla.
1953); Film v. Downing & Perkins, 66 A.2d 613 (Conn. 1949), and that determination should
not be disturbed if it is supported by the evidence.
Although the evidence adduced at trial is rather meager, it must be viewed in a light most
favorable to respondents. See Novack v. Hoppin, 77 Nev. 33, 359 P.2d 390 (1961). The
record indicates that Jay Sherburne had considerable experience in dismantling and moving
structures and that he had counseled and advised respondents concerning the method and
procedure for dismantling the steel building here involved. The record further unequivocally
indicates that, at the time of the collapse of the wall which fatally injured Jay Sherburne, the
wall, as well as the purlins which connected the trusses, was completely and firmly affixed to
the foundation of the building by steel-anchored bolts imbedded in the concrete. There is
nothing in the record to indicate that either Jay Sherburne, with his experience in dismantling
and moving buildings, or the respondents, had any reason to suspect that the steel-anchored
bolts would be ripped from the foundation and the wall would fall.
Upon this record, the district judge, reasoning from his knowledge and experience in light
of the testimony, concluded that respondents had exercised sufficient due care to overcome
the presumption of negligence. Cf. Raymond v. Portland R. Co., 62 A. 602(Me. 1905)
(holding that where due care is exercised, there can be no negligence). In my view, this
conclusion is supported by the evidence and should not be disturbed.
The majority seems to find error in the fact that the trial judge called upon his past
personal experience in dismantling and moving structures to reach his conclusion that
respondents had successfully rebutted the presumption of negligence.
and moving structures to reach his conclusion that respondents had successfully rebutted the
presumption of negligence. However, the basis upon which any trier of fact determines
whether an accident would not have ordinarily happened in the absence of negligence is that
of common knowledge and experience. Brizendine v. Nampa Meridian Irrigation District,
548 P.2d 80 (Idaho 1976).
I would affirm the judgment of the district court.
____________
94 Nev. 591, 591 (1978) Havas v. Haupt
VIC HAVAS and TYRONE HAVAS, dba AAA AUTO LEASING AND
RENTAL, Appellants, v. LETA HAUPT, Respondent.
No. 9212
September 12, 1978 583 P.2d 1094
Appeal from judgment and order denying motions to amend judgment and for new trial,
Eighth Judicial District Court, Clark County; Carl J. Christensen, Judge.
Lessors of automobile brought action against lessee for damages and replevin of
automobile. The district court entered judgment for lessee, and lessors appealed. The
Supreme Court held that: (1) evidence sustained finding that lessors had fraudulently
procured lessee's signature on lease agreement, and (2) lessee's failure a call a witness whom
lessee had stated she intended to call at trial did not warrant the granting of lessors' motion for
new trial, since lessors were notified before trial that lessee was not going to call such witness
to testify and lessors' failure to either exercise reasonable diligence to procure witness'
testimony or seek continuance to allow them to subpoena witness precluded a claim of
surprise.
Affirmed.
Paul V. Carelli, III, Las Vegas, for Appellants.
James E. Rogers, Las Vegas, for Respondent.
1. Evidence.
In action brought by lessors of automobile against lessee for damages and replevin of automobile, parol
evidence rule did not preclude admission of evidence of parties' alleged oral agreement concerning
purchase price of automobile, which evidence contradicted the purchase price figure contained in written
lease, since proffered evidence demonstrated fraud in the procurement of the lease.
94 Nev. 591, 592 (1978) Havas v. Haupt
2. Bailment.
Evidence in action brought by lessors of automobile against lessee for damages and replevin of
automobile sustained finding that lessors had fraudulently procured lessee's signature on lease agreement.
3. New Trial.
The grant or denial of new trial based upon claim of surprise lies within sound discretion of trial court;
the surprise contemplated by rule governing motions for new trial must result from some fact,
circumstance, or situation in which a party is placed unexpectedly, to his injury, without any default or
negligence of his own, and which ordinary prudence could not have guarded against.
4. New Trial.
In action brought by lessors of automobile against lessee for damages and replevin of automobile, lessee's
failure to call a witness whom lessee had stated she intended to call at trial did not warrant the granting of
lessors' motion for new trial, since lessors were notified before trial that lessee would not call such witness
to testify, and lessors' failure to either exercise reasonable diligence to procure witness' testimony or seek a
continuance to allow them to subpoena the without precluded a claim of surprise. NRCP 59(a).
OPINION
Per Curiam:
Appellants commenced this action for damages and replevin of a 1971 Lincoln Mark III
automobile which they had leased to respondent. The district court found that appellants had
fraudulently procured respondent's signature on the lease agreement and granted judgment in
favor of respondent. Appellants contend (1) the evidence was insufficient to sustain a finding
of fraud and, (2) the district court erred in denying their motion for a new trial. We disagree.
1. On June 21, 1971, respondent went to AAA Auto Leasing and Rental in Las Vegas for
the purpose of leasing a 1971 Lincoln Mark III automobile. After discussing various lease and
purchase arrangements with appellant Vic Havas, respondent agreed to enter into a lease
providing for 24 monthly payments of $225, with an option to purchase the automobile upon
termination of the lease. Vic Havas then prepared a standard form lease agreement. After he
had completed the lease, Havas informed respondent that he had inadvertently placed the
carbon paper between the pages of the lease backwards and therefore he would have to
re-write the lease. Respondent stated that she was in a hurry and agreed, at Havas's request, to
sign a blank lease which Havas promised to fill in later.
[Headnotes 1, 2]
Respondent made payments pursuant to her lease agreement and, after her last payment,
notified Havas that she wanted to exercise her option to purchase the automobile.
94 Nev. 591, 593 (1978) Havas v. Haupt
exercise her option to purchase the automobile. Havas informed her that the purchase price
would be $5,115 and produced a copy of the lease which contained a hand-written notation
that the open end lease last payment will be $5,115.00. Respondent contended the purchase
price agreed to by the parties was $4,115.
1
The district court concluded that Vic Havas had
fraudulently procured respondent's signature on the blank lease for the purpose of filling in
the figure of $5,115 rather than the agreed upon figure of $4,115. In our view, this finding is
supported by clear and convincing evidence and, thus, will not be disturbed on appeal. Havas
v. Alger, 85 Nev. 627, 461 P.2d 857 (1969).
2. Appellants also contend the district court abused its discretion in refusing to grant a
new trial. They argue that respondent's failure to call Mr. Page, a witness which she had, in
answers to written interrogatories, stated she intended to call at trial, constituted surprise
which ordinary prudence could not have guarded against. . . . NRCP 59(a). This failure, they
conclude, materially prejudiced their right to a fair trial.
[Headnotes 3, 4]
The grant or denial of a new trial based upon a claim of surprise lies within the sound
discretion of the trial court. Bott v. Wendler, 453 P.2d 100 (Kan. 1969); Lusher v. Silver, 161
P.2d 472 (Cal.App. 1945). The surprise contemplated by NRCP 59(a) must result from
some fact, circumstance, or situation in which a party is placed unexpectedly, to his injury,
without any default or negligence of his own, and which ordinary prudence could not have
guarded against. See Jennings v. American President Lines, 143 P.2d 349 (Cal.App. 1943).
Here, appellants were notified before trial that respondent was not going to call Page to
testify. At this juncture, it was incumbent upon appellants to take any action necessary to
protect their own interests. Their failure to either exercise reasonable diligence to procure
Page's testimony or seek a continuance to allow them to subpoena Page precludes a claim of
surprise.
2
Baker v. Berreman, 142 P.2d 448 (Cal.App. 1943). Under these circumstances,
the trial court did not abuse its discretion in denying the motion for a new trial.
____________________

1
Appellants contend oral evidence contradicting the $5,115 figure contained in the written lease is barred by
the parol evidence rule; however, that rule is inapplicable where, as here, the proffered evidence demonstrates
fraud in the procurement of the lease. See Havas v. Alger, 85 Nev. 627, 461 P.2d 857 (1969), involving
appellant Vic Havas's fraudulent procurement of an automobile sales contract.

2
Appellants conceded in their reply brief that they could have insured Page's testimony by serving him with a
subpoena.
94 Nev. 591, 594 (1978) Havas v. Haupt
Appellants' other assignments of error are without merit and, accordingly, the judgment is
affirmed.
3

____________________

3
The Governor designated the Honorable Merlyn H. Hoyt, Judge of the Seventh Judicial District, to sit in the
place of the Honorable John Mowbray, Justice, who was disqualified. Nev. Const. art. 6, 4.
____________
94 Nev. 594, 594 (1978) Clifmar, Inc. v. Lee
CLIFMAR, INC., a Nevada Corporation, Appellant, v.
THEODORE B. LEE and DORIS S. LEE, Respondents.
No. 9399
September 15, 1978 584 P.2d 157
Appeal from judgment, Eighth Judicial District Court, Clark County; Howard W.
Babcock, Judge.
Lessors commenced action against lessee seeking judicial termination of lease, restitution
of premises, and lease payments due and owing. Following trial without a jury, the district
court entered judgment in favor of lessors, and lessee appealed. The Supreme Court held that
trial court's findings that waterline discovered on leased premises was a de minimis
encroachment, that there was no constructive eviction, that lessee had neither effectively
terminated lease nor abandoned property, but rather had continuously retained a possessory
interest therein, were supported by substantial evidence.
Affirmed.
[Rehearing denied October 16, 1978]
Jones, Jones, Bell, LeBaron, Close & Brown, and Robert A. Kimsey, Las Vegas, for
Appellant.
Bell, Young & Barney, Ltd., Las Vegas, for Respondents.
In lessors' action against lessee seeking judicial termination of lease, restitution of premises and lease
payments due and owing, wherein lessee asserted as defense that presence of waterline on leased property
constituted a constructive eviction, that it had orally terminated lease and abandoned property, and that said
abandonment impressed lessors with duty to mitigate damages and, having failed to do so, they were
precluded from recovering damages for unpaid rent, trial court's findings, resulting in judgment in favor of
lessors, that waterline was a de minimis encroachment, that there was no constructive eviction, and that
lessee had neither effectively terminated nor abandoned property were supported by substantial evidence.
Constructive eviction and abandonment are factual determinations to be made by trier of fact.
Where trial court, sitting without a jury, makes factual determinations upon conflicting evidence, those
determinations will not be disturbed on appeal where they are supported by substantial evidence.
OPINION
Per Curiam:
[Headnote 1]
Respondents commenced this action seeking judicial termination of a lease, restitution of
the premises, and lease payments due and owing. A trial without jury resulted in judgment in
favor of respondents. Appellant contends the evidence was insufficient to support the
By written agreement dated June 29, 1973, respondents leased appellant 13,000 square feet
of vacant, unimproved real property located in Las Vegas, Nevada. The lease provided, inter
alia, that (1) the term would be ten (10) years, with monthly lease payments of $300; (2) the
land would only be used as a parking lot; and, (3) all notices regarding the lease were to be in
writing.
In February, 1974, appellant's president, James Schiff, discovered a water line running
along the northern boundary of the property. The line, used to provide water service to
adjacent property, encroached about one or two feet onto the leased property. Schiff
considered the line to be a substantial interference with his use of the property and
discontinued payment of rent.
Respondents attempted to settle the dispute with appellant and, after several months of
unsuccessful negotiations, commenced this action. Appellant defended on the ground the
presence of the water line constituted a constructive eviction and, further, it had, upon
discovery of the line, orally terminated the lease and abandoned the property. This
abandonment, it argued, impressed respondents with a duty to mitigate damages and, having
failed to do so, respondents were precluded from recovering damages for unpaid rent.
After hearing contradictory testimony from the parties, the district court found the water
line was a de minimis encroachment and there had been no constructive eviction. The court
further found appellant had neither effectively terminated the lease nor abandoned the
property; but rather, had continuously retained a possessory interest therein. Appellant
vigorously contends these findings are not supported by the evidence.
[Headnotes 2, 3]
Constructive eviction and abandonment are factual determinations to be made by the trier
of fact. See Scott v. Prazma, 555 P.2d 571 (Wyo. 1976) (constructive eviction); Gangadean v.
Erickson, 495 P.2d 1338 (Ariz.App. 1972) (abandonment). Where a trial court, sitting
without a jury, makes such determinations upon conflicting evidence, those determinations
will not be disturbed on appeal where, as here, they are supported by substantial evidence.
Havas v. Engebregson, 94 Nev. 336, 580 P.2d 122 (1978); J & J Building Contractors, Inc. v.
Savage Construction, Inc., 92 Nev. 590, 555 P.2d 488 (1976).
Respondents' request for attorney's fees on appeal is denied.
____________
94 Nev. 596, 596 (1978) Kinsey v. Clark Co. Sheriff
FLORENCE KINSEY, Appellant, v. SHERIFF, CLARK
No. 10955
September 15, 1978 584 P.2d 158
The Supreme Court held that petition for habeas corpus challenging a justice court's order
denying motion for production of certain records was not cognizable in district court, and
interlocutory appellate review of order denying such relief was not available.
Order vacated.
Remanded with instructions.
Geraldine Zucker, Deputy, Clark County, for Respondent.
Habeas Corpus.
Petition for habeas corpus challenging a justice court's order denying motion for production of certain
records was not cognizable in district court, and interlocutory appellate review of order denying such relief
was not available. NRS 34.360-34.680.
OPINION
Per Curiam:
This is an appeal from an order denying a pretrial habeas corpus challenge to a justice
court's order denying Florence Kinsey's motion for the production of certain records.
94 Nev. 596, 597 (1978) Kinsey v. Clark Co. Sheriff
corpus challenge to a justice court's order denying Florence Kinsey's motion for the
production of certain records.
There is no provision in the habeas corpus statutes (NRS 34.360-NRS 34.680) which
permits a pretrial challenge to an order denying a motion for discovery. Neither is there a
provision for interlocutory appellate review of such orders.
1
Therefore, the habeas petition
was not cognizable in the district court. Accordingly, we vacate the district court's order and
remand this case with instructions to dismiss the petition for a writ of habeas corpus. Cf.
Sheriff v. Toston, 93 Nev. 394, 566 P.2d 411 (1977).
____________________

1
Cf. Franklin v. District Court, 85 Nev. 401, 455 P.2d 919 (1969), where this court ruled that appellate
review of such orders is postponed until entry of a final judgment of conviction.
____________
94 Nev. 597, 597 (1978) Chavez v. Robberson Steel Co.
JOSE CHAVEZ and THOMAS HILL, Appellants, v. ROBBERSON STEEL COMPANY, a
Corporation, Respondent.
No. 9410
September 18, 1978 584 P.2d 159
Appeal from judgment in favor of respondent. Eighth Judicial District Court, Clark
Construction workers brought action against manufacturer of structural steel beams to
recover for injuries sustained due to collapse of structural steel. The district court entered
judgment for defendant and plaintiffs appealed. The Supreme Court, Manoukian, J., held that
complaint which alleged that defendants were engaged in design, fabrication and furnishing
of structural steel members to be used in construction, that such steel members were
negligently designed and negligently and defectively fabricated and that direct and proximate
result of such negligent design and fabrication of steel members was the collapse of portion
of structural steel causing injuries to construction workers and their incurring medical
expenses and loss of income set forth cause of action for both strict products liability and
negligence so that trial court's refusal to instruct jury regarding strict liability was prejudicial
error.
Reversed.
Dickerson, Miles & Pico, Las Vegas and Jack R. Ormes, Los Angeles, for Appellants.
Beckley, Singleton, DeLanoy, Jemison & Reid, Las Vegas, for Respondent.
1. Pleading.
Nevada is a notice-pleading jurisdiction and liberally construes pleadings to place into issue matter which
is fairly noticed to adverse party. NRCP 8(a).
2. Pleading.
A single count may allege alternative theories of recovery. NRCP 8(e)(2).
3. Appeal and Error; Products Liability.
Complaint which alleged that defendants were engaged in design, fabrication and furnishing of structural
steel members to be used in construction, that such steel members were negligently designed and
negligently and defectively fabricated and that direct and proximate result of such negligent design and
fabrication was the collapse of portion of structural steel causing injuries to construction workers and their
incurring medical expenses and loss of income set forth cause of action for both strict products liability and
negligence so that trial court's refusal to instruct jury regarding strict liability was prejudicial error in
personal injury action brought by injured construction workers. NRCP 8(a), (e)(2).
OPINION
Appellants Jose Chavez and Thomas Hill, plaintiffs below, were injured while employed
as ironworkers for a subcontractor constructing a building at the University of Nevada, Las
Vegas campus. The cause of the injuries was the collapse of structural steel, allegedly the
result of defective welds on beams manufactured and supplied by respondent Robberson Steel
Company.
During the course of trial, it became apparent that the lower court perceived this action as
sounding in negligence only. After appellants presented their case-in-chief, they moved to
amend the complaint to allege strict products liability. Although appellants maintained that
their initial pleading sufficiently alleged an action in strict products liability, they moved for
leave of court to expressly allege that theory of recovery. Respondent opposed that motion,
contending that it would be unfairly prejudiced by so belated an amendment. The district
court denied the motion to amend and respondent then presented its proof that the beam was
employed for an unintended use, that the weld was designed to support only the beam itself
during alignment, and that the appellants had overloaded the weld by adding their own weight
to the cantilevered beam.
After the trial court refused to give instructions pertaining to strict products liability, the
jury returned a verdict in favor of respondent. Appellants' motion for new trial was denied
and they now pursue this appeal.
The main issue is whether the complaint alleged not only a claim for relief for negligence,
but as well a claim for relief on the alternative theory of strict liability. If the complaint
alleged alternative theories, then the district court erred in refusing to instruct the jury about
strict liability.
Liability may attach to a defendant in a products liability case under several disparate
theories of recovery: express or implied warranty, negligence, or strict liability in tort. 63
AmJur. 2d, Products Liability, 1-4. The instant case revolves around whether the
complaint pleaded a cause of action in negligence or strict liability or both.
The complaint in this action alleged only one cause of action for each appellant. The
charging paragraphs are set forth below.
1

[Headnotes 1, 2]
Nevada is a notice-pleading jurisdiction and liberally construes pleadings to place into
issue matter which is fairly noticed to the adverse party, NRCP 8(a); Taylor v. State Univ., 73
Nev. 151, 311 P.2d 733 (1957). A single count may allege alternative theories of recovery.
NRCP 8(e)(2).
[Headnote 3]
We conclude that the allegations set forth a cause of action for both strict products liability
and negligence, and that the court's refusal to instruct the jury regarding strict liability was
prejudicial error. Barker v. James, 486 P.2d 195 (Ariz.App. 1971).
____________________
V.

1
[D]efendants . . . were engaged in the design, fabrication and the furnishing of certain structural
steel members to be used in the construction . . .; further, that said structural steel members were
negligently designed and negligently and defectively fabricated.
VI.
That . . . as a direct and proximate result of the negligent design and negligent and defective
fabrication of said structural steel members, a portion of the structural steel . . . was caused to collapse . .
. proximately causing the injuries and damages . . . .
VII.
That as a direct and proximate result of the negligent and defective fabrication of said structural steel
members, plaintiff was injured. . . .
VIII.
That as a direct and proximate result of the negligence of the defendants . . . it was necessary for
plaintiff to have and procure competent physicians and surgeons. . . .
IX.
[T]hat by reason of the negligence of the defendants . . . plaintiff has suffered and will continue in the
future to suffer loss of income. . . .
Having reached this result, we reverse the judgment of the lower court.
____________
94 Nev. 600, 600 (1978) Kimble v. Swackhamer
ISABEL KIMBLE, BRUCE BLACKADAR, MARY FRAZZINI, THEODORE OLESON,
Jr., and MARJORIE da COSTA EASTMAN, Appellants, v. WILLIAM D. SWACKHAMER,
Secretary of State of the State of Nevada; and LEGISLATIVE COMMISSION OF THE
STATE OF NEVADA, Intervener, Respondents.
No. 10650
September 19, 1978 584 p.2d 161
Appeal from judgment; First Judicial District Court, Carson City; Michael E. Fondi,
Judge.
Action was brought concerning constitutionality of statute requiring submission to voters
of advisory question. The district court found statute not to be unconstitutional, and appeal
was taken. The Supreme Court, Thompson, J., held that statute requiring submission to
registered voters of advisory question as to whether voters recommended ratification by state
legislature of proposed amendment to United States Constitution, which expressly stated that
result of voting on question would not place any legal requirement on legislature or any of its
members, was not a limitation on legislative power violative of Article of United States
Constitution setting out methods for ratification of constitutional amendments and divesting
the people of authority to themselves ratify amendments to United States Constitution.
Affirmed.
Phyllis Halsey Atkins, Reno, for Appellants.
Robert List, Attorney General, and Donald Klasic, Deputy Attorney General, Carson City,
for Respondent Secretary of State.
Frank W. Daykin, Carson City, for Respondent Legislative Commission.
Constitutional Law.
Statute requiring submission to registered voters of advisory question as to whether voters recommended
ratification by state legislature of proposed amendment to united States Constitution, which expressly
stated that result of voting on question would not place any legal requirement on legislature or any of its
members, was not a limitation on legislative power volative of Article of United States Constitution setting
out methods for ratification of constitutional amendments and divesting the people of authority to
themselves ratify amendments to United States Constitution. U.S.C.A.Const. art. 5; Stats. Nev. 1977, ch.
174, 1 et seq.
OPINION
At issue is the constitutionality of chapter 174, 1977 Nev. Stats., which requires the
submission of an advisory question to the registered voters of this state on the ratification of
the proposed amendment to the Constitution of the United States commonly known as the
equal rights amendment. It is asserted that the chapter violates article V of the federal
constitution. The district court found no constitutional infirmity. For reasons hereafter
expressed we agree with that court and, therefore, affirm the judgment entered below.
The advisory question to be presented at the 1978 general election is set out in section 4 of
the chapter. It is:
Do you recommend that the Nevada legislature ratify the following proposed
amendment to the United States Constitution, commonly known as the equal rights
amendment?
Section 1. Equality of rights under the law shall not be denied or abridged by the
United States or by any State on account of sex.
Sec. 2. The Congress shall have the power to enforce, by appropriate legislation,
the provisions of this article.
Sec. 3. This amendment shall take effect two years after the date of ratification.
YES.... NO....
Section 3 and section 5 of the chapter each expressly state that the result of the voting on
this question does not place any legal requirement on the legislature or any of its members.
Section 6 directs the secretary of state to certify the result of the votes cast on the question to
the president of the senate and the speaker of the assembly as the recommendation of the
registered voters of the state. Thus, the legislature may vote for or against ratification, or
refrain from voting on ratification at all, without regard to the advisory vote.
Article V of the federal constitution divests the people of authority to themselves ratify
amendments to the federal constitution. Such power is limited to two methods, by action of
the legislatures of three fourths of the states, or conventions in a like number of states. Hawke
v. Smith, 253 U.S. 221 (1920).
1

The appellants contend that chapter 174, in practical effect, grants the registered voters of
Nevada the authority to ratify the proposed equal rights amendment to the federal constitution
since we may presume that the legislature will be governed by the outcome of the advisory
vote if, perchance, it recommends ratification. However, the cases upon which they mainly
rely in presenting this contention are not supportive. Those cases are Hawke v. Smith, supra,
and Leser v. Garnett, 258 U.S. 130 (1922).
Hawke held that there could be no referendum upon the decision of a state legislature to
ratify or reject a proposed amendment to the federal constitution. And Leser merely held that
the function of a state legislature in ratifying a proposed amendment to the federal
constitution was a federal function transcending any limitations sought to be imposed by the
people of the state.
2

Chapter 174 does not concern a binding referendum, nor does it impose a limitation upon
the legislature. As already noted, the legislature may vote for or against ratification, or refrain
from voting on ratification at all, without regard to the advisory vote. The recommendation of
the voters is advisory only. In re Estate of Hogan, 146 N.W.2d 257, 259 (Iowa 1966). To
recommend does not mean to bind. Fletcher v. Porter, 21 Cal. Rptr. 452, 454 (Cal. D.C.A.
1962). Consequently, we find it wholly impossible to construe chapter 174 as a limitation
on legislative power violative of article V of the federal constitution.3 Rather, the chapter
simply specifies a means by which to assist the legislature whether to consent or not to
consent to the proposed amendment.
____________________

1
Article. V.: The Congress, whenever two thirds of both houses shall deem it necessary, shall propose
Amendments to this constitution, or, on the Application of the Legislatures of two thirds of the several States,
shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and
purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or
by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the
Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and
eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no
State, without its Consent, shall be deprived of it's equal Suffrage in the Senate.

2
Other cases dealing with a binding referendum on prior legislative action ratifying a proposed amendment to
the federal constitution are: Barlotti v. Lyons, 189 p. 282 (Cal. 1920); In re Opinion of the Justices, 107 A. 673
(Me. 1919); Decher v. Vaughan, 177 N.W. 388 (Mich. 1920); Hatch v. Murray, 526 P.2d 1369 (Mont. 1974). In
each instance, the court found a violation of article V of the federal constitution.
Limitations upon legislative power to ratify or refuse to ratify a proposed federal amendment likewise are in
violation of article V. Trombetta v. State of Florida, 353 F.Supp. 575 (M.D.Fla. 1973); State ex rel. Tate v.
Sevier, 62 S.W.2d 895 (Mo. 1933); Walker v. Dunn, 498 S.W.2d 102 (Tenn. 1972.)
it wholly impossible to construe chapter 174 as a limitation on legislative power violative of
article V of the federal constitution.
3
Rather, the chapter simply specifies a means by which
to assist the legislature whether to consent or not to consent to the proposed amendment. The
following words of Dyer v. Blair, 390 F.Supp. 1291, 1307 (N.D.Ill, 1975), are apposite to the
case at hand:
Article V identifies the bodyeither a legislature or a conventionwhich must
ratify a proposed amendment. The act of ratification is an expression of consent to the
amendment by that body. By what means that body shall decide to consent or not to
consent is a matter for that body to determine for itself. This conclusion is not
inconsistent with the premise that the definition of the term ratified is a matter of
federal law. The term merely requires that the decision to consent or not to consent to a
proposed amendment be made by each legislature, or by each convention, in accordance
with procedures which each such body shall prescribe.
Affirmed.
Batjer, C. J., and Mowbray and Manoukian, JJ., concur.
I question whether the federal issue could, in any event, be considered correctly decided.
Moreover, so far as I can perceive, my colleagues have not explained how it is proper under
the Nevada Constitution for our Legislaturethrough an Act obviously intended neither to
make nor to modify law, and therefore manifestly outside the Legislature's normal lawmaking
functionto utilize this state's election ballots in ways not contemplated by Nevada's
Constitution.
As the Legislative Counsel concedes, in Gibson v. Mason, 5 Nev. 283 (1869), this court
declared the Legislature could not properly use the ballots to shift ultimate responsibility for
enactment of a proposed law to the voters.
1
A fortiori, it would seem the Legislature, by
Constitution solely a law-making body, may not pass a non-law requiring an advisory vote
which binds neither the Legislature nor anyone else, and which defers to a future day
decisions on how the vote may be used to shift or dilute legislative responsibility.
____________________

3
One case, Opinion of the Justices, 160 N.E. 439 (Mass. 1928), may be read to support the proposition that a
non-binding procedure is violative of article V. We reject that opinion as unsound, and not supported by the
authorities relied upon by the Massachusetts court.

1
An act of the legislature made dependent upon their votes or approval would be utterly voidand so it has
been frequently held. Id. at 293.
defers to a future day decisions on how the vote may be used to shift or dilute legislative
responsibility.
In Opinion of the Justices Relative to Eighteenth Amendment, 160 N.E. 439 (Mass. 1928),
the Supreme Judicial Court of Massachusetts treated a question identical in principle to the
one before us, i.e. whether an attempt through initiative petition to order an advisory question
onto the State election ballots was proper under the Massachusetts Constitution. Deciding
such a directive was an improper exercise of law-making power, the Massachusetts court
noted its view that [t]he precise question is whether it is a law'. . . Holding in the negative,
that respected court noted that the word law' imports a general rule of conduct, 160 N.E. at
440, which of course the Act of our Legislature, now under consideration, most certainly
does not involve. The Court went on to note that the supposed law was
. . . wanting in features essential to constitute its provisions a law within any
permissible conception of the meaning of that word. Superficial appearances cannot
clothe with the attributes of law something in substance vain and inoperative. The
mandate to the secretary of the commonwealth in section 2 to tabulate the returns of the
votes and to transmit copies * * * to each Senator and Representative in Congress
from this commonwealth is subsidiary and incidental to the main purpose of the
proposed law; it relates to a matter which standing alone possesses no legal force; it
cannot convert into a law something in itself ineffectual.
160 N.E. at 440.
Ms. Atkins, counsel for the E.R.A. proponents, in effect contends this advisory
referendum is not only unconstitutional on its face, but inherently unfair to historically
disadvantaged and therefore relatively underfinanced persons, such as the proponents in this
case arguably are. Ms. Atkins notes that rather than being able to concentrate their efforts
merely on persuading the Nevada Legislature, as the U.S. Constitution would contemplate,
E.R.A. proponents will now be forced to expend important financial resources attempting to
win a totally non-binding victory in the November electionunder penalty of having defeat
used against them during the later, binding struggle in the Legislature.
Moreover, as Ms. Atkins points out, the E.R.A. proponents may well incur disadvantages
from the advisory referendumeven if statewide vote totals show overall approval of the
E.R.A. Election returns will be available district by district. Hence, arguably some key
legislators might be persuaded by the advisory vote to oppose the E.R.A., even if Ms.
the advisory vote to oppose the E.R.A., even if Ms. Atkins' clients succeed in generating
general support for the amendment throughout Nevada.
Thus, Ms. Atkins argues in effect, by the improper use of the Nevada election process, the
cost of the ratification process contemplated by the U.S. Constitution will be increased, its
complexion will be changed, and uncontemplated complexities will be imposed. I agree.
____________
94 Nev. 605, 605 (1978) Thomas v. State
WILLIAM TROY THOMAS, Appellant, v. THE
No. 10133
September 28, 1978 584 P.2d 674
Appeal from judgment of conviction, upon a jury verdict. Second Judicial District,
Washoe County; John E. Gabrielli, Judge.
Defendant was convicted before the district court of burglary and battery with intent to
commit rape, causing substantial bodily harm, and he appealed. The Supreme Court held that:
(1) defendant failed to demonstrate any abuse of discretion by trial court in its denial of
defendant's request for new counsel; (2) trial judge did not err in failing to immediately
admonish jury upon his decision that defendant was to be bound and gagged, and instead
giving such admonishment at conclusion of trial; (3) no objection having been made to
allegedly improper comments by prosecutor during closing argument, the Supreme Court
would not consider statements on appeal; and (4) evidence showing that defendant entered
victim's room with her consent was not a defense to burglary.
Affirmed.
1. Criminal Law.
Right to counsel of one's own choosing is not absolute.
2. Criminal Law.
Defendant is not entitled to reject his court-appointed counsel and request substitution of other counsel at
public expense absent a showing of adequate cause for such a change.
3. Criminal Law.
Decision whether friction between counsel and client justifies appointment of new counsel is entrusted to
sound discretion of trial court and should not be disturbed on appeal in absence of a clear showing of
abuse.
4. Criminal Law.
Notwithstanding contention that trial court did not adequately inquire into problem before refusing to
grant defendant's request for change of counsel, in prosecution for burglary and battery with intent to
commit rape, causing substantial bodily harm, defendant was given a full opportunity at a pretrial hearing
and at trial to present his grounds for objection to trial court. NRS 200.400, 205.060.
5. Criminal Law.
Defendant cannot base a claim of inadequate representation upon his refusal to cooperate with appointed
counsel.
6. Criminal Law.
Suggestion by counsel that defendant plead guilty is not sufficient cause for demanding substitution of
counsel.
7. Criminal Law.
In prosecution for burglary and battery with intent to commit rape, causing substantial bodily harm, trial
judge was justified in denying request by indigent defendant on day of trial to hire a private attorney with
money coming, to take place of appointed attorney, which request would have necessitated a continuance.
NRS 175.383, 200.400, 205.060.
8. Criminal Law.
Trial judge did not err in failing, on its own motion, to issue an immediate admonition to jury upon his
decision that defendant be bound and gagged to prevent further disruptive outbursts, rather than giving
such admonition at conclusion of trial, in prosecution for burglary and battery with intent to commit rape,
causing substantial bodily harm. NRS 200.400, 205.060.
9. Criminal Law.
Where no objection was made to remarks made by prosecutor during his closing argument which
suggested that jury not be sympathetic to defendant because he was ordered bound and gagged and which
commented on defendant's failure to look victim in the eye when she testified, in prosecution for burglary
and battery with intent to commit rape, causing substantial bodily harm, the Supreme Court would not
consider said statements on appeal. NRS 200.400, 205.060.
10. Burglary.
Evidence showing that defendant entered victim's room with her express consent, with specific intent to
commit rape, was not a defense to burglary. NRS 205.060.
OPINION
Per Curiam:
Appellant William Troy Thomas was convicted, upon a jury verdict, of burglary {NRS
205.060) and battery with intent to commit rape, causing substantial bodily harm {NRS
200.400).
verdict, of burglary (NRS 205.060) and battery with intent to commit rape, causing
substantial bodily harm (NRS 200.400).
Appellant assigns as error: (1) the judges' failure to grant appellant's requests for a change
of counsel, (2) the judge's failure immediately to admonish the jury upon his decision that
appellant must be bound and gagged, (3) the judge's failure to admonish the jury, sua sponte,
to ignore certain remarks of the prosecutor during oral argument, and (4) the conviction of
appellant for burglary upon evidence showing that he entered the victim's room with her
consent.
1. Requests for Change of Counsel.
As an indigent defendant, appellant was assigned counsel from the Public Defender's
office. On April 29, 1977, Mr. McNabney of that office represented appellant at his
preliminary hearing. Appellant, against the advice of Mr. McNabney, chose to waive the
hearing. On May 24, 1977, Mr. McNabney filed a motion to be relieved, citing substantial
conflict between appellant and himself, and appellant's failure to cooperate with counsel in
his defense. A bearing on the motion was conducted the following day by Judge James J.
Guinan. Appellant was given a full opportunity to present his objections, citing the advice of
counsel regarding the preliminary hearing, and Mr. McNabney's discussion of the option of
pleading guilty to forcible rape. The judge denied the request that private counsel be
appointed at public expense.
On the morning of the trial, June 13, 1977, appellant interrupted the questioning of jurors
to inform the court that he was going to retain private counsel. After consultation, and outside
the presence of the jury, Mr. McNabney informed the court that appellant said he had the
means, and wished to hire a private attorney. In response to questioning by the court,
however, appellant claimed only to have money coming. The court denied the request as
coming too late in the proceedings.
[Headnote 1]
The right to counsel of one's own choosing is not absolute. United States ex rel.
Baskerville v. Deegan, 428 F.2d 714, 716 (2d Cir.), cert. denied 400 U.S. 928 (1970).
[Headnotes 2, 3]
A defendant is not entitled to reject his court-appointed counsel and request substitution
of other counsel at public expense absent a showing of adequate cause for such a change.
Junior v. State, 91 Nev. 439, 441, 537 P.2d 1204 (1975). The decision whether friction
between counsel and client justifies appointment of new counsel is entrusted to the sound
discretion of the trial court, Jackson v. United States, 412 F.2d 149, 151 {D.C. Cir.
412 F.2d 149, 151 (D.C. Cir. 1969), and should not be disturbed on appeal in the absence of a
clear showing of abuse. Good v. United States, 378 F.2d 934, 935 (9th Cir. 1967).
[Headnote 4]
The primary contention of counsel on appeal is that the trial court did not adequately
inquire into the problem. He cites Brown v. Craven, 424 F.2d 1166 (9th Cir. 1970), where the
court held that the summary denial of motions for new counsel, addressed to the court
considerably in advance of trial, was an abuse of discretion. The holding is inapplicable to the
facts of this case. Appellant was given a full opportunity at a pretrial hearing, and at trial, to
present his grounds for objection to the trial court.
[Headnotes 5-7]
Nor is any abuse of discretion revealed in the denials of appellant's requests. A defendant
cannot base a claim of inadequate representation upon his refusal to cooperate with appointed
counsel. Such a doctrine would lead to absurd results. Shaw v. United States, 403 F.2d 528,
529 (8th Cir. 1968). Nor is suggestion by counsel that a defendant plead guilty sufficient
cause for demanding a substitution. People v. Norman, 60 Cal.Rptr. 609, 626 (Cal.App.
1967). The judge's denial of appellant's request on the day of the trial, which would have
necessitated a continuance, was justified in the circumstances. United States v. Sexton, 473
F.2d 512 (5th Cir. 1973); Good v. United States, supra; United States ex rel. Baskerville v.
Deegan, supra, United States v. Bentvena, 319 F.2d 916, 934-35 (2d Cir.), cert. denied 375
U.S. 940 (1963); NRS 175.383.
Appellant has demonstrated no abuse of discretion in the denials of appellant's requests for
new counsel.
2. Admonition to the Jury.
[Headnote 8]
Following several disruptive and disrespectful outbursts by appellant during the jury
selection process, two of which came after a clear warning by the trial judge of the
consequences of such behavior, appellant was handcuffed and tape was placed over his
mouth.
Appellant's first interruption of the trial proceedings came during jury selection. After his
initial outburst, and over appellant's protest, the court directed appellant to proceed to the jury
room for a conference with his counsel. Upon their return, and outside the presence of the
jury panel, the court warded appellant that if he would not be quiet during the proceedings the
court would have him gagged and handcuffed. The appellant responded, Well, gag and
handcuff me. The court replied that that would not be done unless it became necessary.
"Well, it is necessary. . . .", appellant replied.
replied that that would not be done unless it became necessary. Well, it is necessary. . . .,
appellant replied. Return of the jury was followed by two further outbursts from appellant.
Appellant was then handcuffed, and tape was placed over his mouth. Selection of the jury
panel continued, and potential jurors were each questioned generally or specifically about the
effect of their reactions to what they had witnessed upon their ability to judge the case
impartially. At various points in the trial, outside the presence of the jury, the judge informed
appellant that the restraints would be removed if he were willing to abstain from further
interruptions. Appellant gave no indication of his willingness to do so. At the conclusion of
the trial, the jurors were instructed as follows:
The defendant has been bound and his mouth taped during the course of this trial.
This was done upon the order of this court in order that the trial could proceed without
interruption. This should not be considered by you in arriving at your verdict.
Counsel on appeal contends that the trial court erred in failing, on its own motion, to issue
an immediate admonition to the jury to disregard the measures taken to prevent further
disruptions by appellant. Counsel has cited no authority for the imposition of such a
requirement.
The Supreme Court of California has imposed upon a judge who determines that physical
restraints are necessary the duty of giving the jury such an instruction at some point in the
trial. People v. Duran, 545 P.2d 1322 (Cal. 1976). See also ABA Standards, Trial by Jury
4.1(c), at 92 (Approved Draft, 1968); State v. Roberts, 206 A.2d 200, 205 (N.J. Super. 1965).
That sound practice was followed in the case at hand, as the jury was so instructed.
Furthermore, in the context of the questions and comments addressed by both counsel to the
potential jurors during the selection process which immediately followed the imposition of
the restraints, it appears that the incident could have no prejudicial effect upon the jury's
determination of the guilt or innocence of appellant.
There is no merit to this assignment of error.
1

3. Prosecutorial Misconduct.
____________________

1
We also note that the alternative of binding and gagging a disruptive defendant, while not constitutionally
impermissible, Illinois v. Allen, 397 U.S. 337, 343-44 (1970), and authorized by NRS 175.387(1)(a), has been
criticized by the High Court, which indicated a strong preference for the exclusion [Headnote 9]
The of such defendants from the courtroom, whenever a contempt citation would be ineffective (Illinois v.
Allen, supra, 397 U.S. at 344). See also ABA Standards, The Function of the Trial Judge 6.8, and
commentary, at 88-90 (Approved Draft, 1972).
[Headnote 9]
The prosecutor during his closing argument suggested to the jury that they not be
sympathetic to the appellant because the court had ordered him bound and gagged. He also
commented on appellant's failure to look the victim in the eye when she had testified.
Appellant claims such conduct constituted prejudicial error, compelling reversal. We do not
agree. There was no objection made to the statements when made and we shall not now
consider them on appeal. Williams v. State, 93 Nev. 405, 566 P.2d 417 (1977); Sorce v.
State, 88 Nev. 350, 497 P.2d 902 (1972); Bonnenfant v. State, 86 Nev. 393, 469 P.2d 401
(1970).
4. Consent to Entry as Defense to Burglary.
[Headnote 10]
As appellant conceded in oral argument, this assignment of error is disposed of by our
recent holding in State v. Adams, 94 Nev. 503, 581 P.2d 868 (1978), that under Nevada's
burglary statute
2
consent to entry was not a defense, so long as the defendant was shown to
have made the entry with larcenous intent. There is no basis for distinguishing this case,
either on the ground that consent was express, rather than implied, see People v. Deptula, 373
P.2d 430, 431-32 (Cal. 1962); State v. Baker, 161 N.W.2d 864 (Neb. 1968), or that the
specific intent in question was felonious rape rather than larceny, see Flynn v. State, 93 Nev.
247, 562 P.2d 1135 (1977). There is, therefore. no merit to this assignment of error.
____________________

2
NRS 205.060
1. Every person who, either by day or night, enters any house, room, apartment, tenement, shop,
warehouse, store . . . [etc.], with intent to commit grand or petit larceny, or any felony, is guilty of burglary.
. . . .
(Emphasis added.)
____________
94 Nev. 610, 610 (1978) Franko v. State
MICHAEL ROSS FRANKO, Appellant, v. THE
No. 10107
September 28, 1978 584 P.2d 678
Appeal from judgment of conviction and sentence, upon a jury verdict; Eighth Judicial
District, Clark County; Paul S. Goldman, Judge.
Defendant was convicted before the district court of battery with intent to commit rape
with use of deadly weapon and robbery with use of deadly weapon, and he appealed.
with intent to commit rape with use of deadly weapon and robbery with use of deadly
weapon, and he appealed. The Supreme Court held that: (1) defendant's objections to victim's
possession of blouse and its altered condition went to weight of the evidence, rather than
blouse's admissibility; (2) victim's identification of blouse was sufficient foundation for
admission of blouse; (3) permitting State to cross-examine defendant as to whether he had
told his attorney about detective's asserted harassment of defendant before he gave statement
to police regarding his involvement in case did not violate attorney-client privilege, and (4)
defendant could be given two enhanced sentences due to use of deadly weapon, in light of
fact that the underlying offenses required proof of different facts.
Affirmed.
Morgan D. Harris, Public Defender, and Herbert F. Ahlswede, Deputy Public Defender,
Edward R. Kane, Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
In proceeding in which defendant was convicted of battery with intent to commit rape with use of deadly
weapon and robbery with use of deadly weapon, defendant's objection to victim's possession of blouse,
which assertedly had been torn and from which buttons had been ripped at time of the offense, and
objections to altered condition of such blouse, which victim had assertedly attempted to mend, went to
weight of the evidence, rather than to admissibility of the blouse. NRS 193.165, 200.380, 200.400.
2. Criminal Law.
Proper foundation for admission of physical evidence may be established either by a chain of custody or
through identification by an appropriate witness.
3. Criminal Law.
weapon and robbery with use of deadly weapon, victim's identification of blouse as the blouse worn by her
at time of the offenses was a sufficient foundation to permit blouse to be admitted into evidence. NRS
193.165, 200.380, 200.400.
4. Criminal Law.
Alteration of physical evidence, when explained to jury, does not in itself compel exclusion of the item.
5. Criminal Law.
Whether physical evidence is sufficiently similar to be proper evidence of its former condition is a
determination properly addressed to sound discretion of trial court, and court's determination will not be
disturbed on appeal.
6. Witnesses.
weapon and robbery with use of deadly weapon and in which defendant testified that a
detective harassed defendant before he gave statement to police regarding his
involvement in the case, permitting State to cross-examine defendant in regard to
whether he told attorney about the harassment did not violate attorney-client
privilege.
deadly weapon and in which defendant testified that a detective harassed defendant before he gave
statement to police regarding his involvement in the case, permitting State to cross-examine defendant in
regard to whether he told attorney about the harassment did not violate attorney-client privilege. NRS
193.165, 200.380, 200.400.
7. Criminal Law.
Rule that when the same evidence is required, there is then but one offense and it is improper to charge
separate counts did not apply to issue whether defendant, who was convicted of battery with intent to
commit rape with use of deadly weapon and robbery with use of deadly weapon, could be given two
enhanced sentences due to use of deadly weapon, in light of fact that additional penalty imposed for use of
a deadly weapon is not an offense. NRS 193.165, 193.165, subd. 2, 200.380, 200.400.
8. Criminal Law.
Defendant, who was convicted of battery with intent to commit rape with use of deadly weapon and of
robbery with use of deadly weapon, could be given two enhanced sentences due to use of deadly weapon,
in light of fact that the underlying offenses required proof of different facts. NRS 193.165, 193.165,
subd. 2, 200.380, 200.400.
OPINION
Per Curiam:
Appellant was convicted, upon a jury verdict, of battery with intent to commit rape with
use of a deadly weapon (NRS 200.400;
1
NRS 193.165), and of robbery with use of a deadly
weapon (NRS 200.380; NRS 193.165). He appeals that conviction, and the enhanced
sentences imposed upon each count for use of a deadly weapon.
1. The Facts.
The incident leading to the arrest and conviction of appellant occurred at the Silver City
Mini Mall in Las Vegas, where appellant was a recently-employed security guard and the
victim was an employee of one of the shops. On the evening of October 4, 1976, appellant
surprised the victim in the store. The appellant drew his gun, and attempted to rape her. Either
dissuaded by her entreaties or fearful of discovery, he eventually abandoned the attempt. He
then demanded the victim's pocketbook at gunpoint, withdrawing her driver's license, and
warning her that if she went to the police, he would return and kill her.
Appellant seeks reversal on the ground that the court erred in admitting two items of
evidence, and on the further ground that the court erred in sentencing him to enhanced
penalties on both the battery with intent to rape and the robbery convictions. We disagree and
affirm.
____________________

1
Since amended. 1977 Nev. Stats., ch. 598, 8, at 1628-29.
2. The Evidence.
The victim testified that during the incident appellant had torn and ripped several buttons
from her blouse. She further testified that after the incident she had attempted to mend the
blouse and replace the buttons, but had then thrown it in a closet, where it had remained until
the district attorney requested that she bring it on the day of the trial. The blouse was admitted
into evidence over objection.
[Headnotes 1-5]
Appellant's objections to the witness' possession of the blouse and its altered condition go
to the weight of the evidence, rather than its admissibility, which is within the sound
discretion of the trial court and will be respected in the absence of grave abuse. Bishop v.
State, 92 Nev. 510, 521, 554 p.2d 266 (1976). A proper foundation may be established either
by a chain of custody or through identification by an appropriate witness. State v. Noble, 514
P.2d 460 (Ariz. 1973); see Bishop v. State, supra, Sorce v. State, 88 Nev. 350, 497 P.2d 902
(1972). In this case, the victim's identification of the blouse was sufficient. The alterations, to
which the victim testified in detail, were not prejudicial to appellant. NRS 47.040. Nor does
allegation of physical evidence, when explained to the jury, in itself compel exclusion of the
item. State v. Hood, 356 P.2d 1100 (Or. 1960). Whether the evidence was sufficiently
similar to be proper evidence of its former condition, 4 Wigmore, Evidence 1154(6), at
332 (Chadbourn rev. 1972), was a determination which is properly addressed to the sound
discretion of the trial court, and will not be disturbed on appeal.
3. The Attorney-Client Privilege.
[Headnote 6]
Appellant on direct examination by his attorney testified that before he gave his statement
to the police regarding his involvement in the case one of the detectives had harassed him.
On cross-examination the prosecutor inquired if the appellant had told his attorney about
the harassment. There being no objection to the question, the appellant said that he had.
When asked when, appellant replied that he first told his wife and then his attorney in
October, 1976.
In State v. Ingels, 104 P.2d 944 (Wash.), cert. denied 311 U.S. 708 (1940), the defendant
on direct examination testified regarding a certain transaction. On cross-examination, he was
asked if he had told his attorney about the transaction. After noting that the privilege should
be carefully guarded, the Washington court held that when a defendant had testified to a fact,
the trial court did not err in permitting the state to inquire if he had advised his attorney of
the fact.
if he had advised his attorney of the fact. In reference to the rule, the court said at page 959,
In 3 Wharton's Criminal Evidence, 11th Ed., 2098, 1236, the rule is stated as
follows: While the privilege against revealing confidential communications between
attorney and client may be waived by the client, the evidence of the waiver must be
distinct and unequivocal. . . . At least, the mere fact that the client, whether he is an
ordinary witness in a criminal prosecution or the accused, testifies does not constitute a
waiver; nor does the fact that he calls his attorney as a witness without examining him
as to such privileged communication. But if the client opens up the subject in his
testimony by voluntarily testifying thereto, the privilege is deemed waived.
The supreme court of Minnesota, in the case of State v. Tall, 43 Minn. 273, 45 N.W.
449, 450, considering the matter of cross-examination of a material witness for the
defendant in a criminal action as to whether or not he had communicated to his attorney
a fact to which he had testified, used the following language: The privilege belongs to
the client, and not to the attorney, and where the client testifies to the fact in question
there can be no reason, in general, why he may not be required to testify as to whether
he had communicated that fact to his attorney.
4. The Enhanced Penalty Statute.
Appellant was sentenced to prison for two years for battery with intent to commit rape,
with an additional two years for use of a deadly weapon, plus fifteen years for robbery, with
an additional fifteen years for use of a deadly weapon in the commission of that offense. The
robbery sentence was suspended, and appellant was placed on probation for five years.
Appellant contends that since there was only one use of a deadly weapon, the imposition
of two separate sentences for that use violates the rule that when the same evidence is
required, then there is but one offense and it is improper to charge separate counts. We
disagree.
[Headnotes 7, 8]
Since the additional penalty imposed for use of a deadly weapon is not an offense at all,
NRS 193.165(2); Woofter v. O'Donnell, 91 Nev. 756, 542 P.2d 1396 (1975), the rule to
which appellant refers does not apply. In Woods v. State, 94 Nev. 435, 581 P.2d 444 (1978),
this Court held that the test is whether each underlying count requires proof of an additional
fact which the other does not. In this case, there can be little doubt that the underlying
offenses of battery with intent to commit rape, and robbery, required proof of different
facts.
commit rape, and robbery, required proof of different facts. Compare NRS 200.400 and
200.380. Cf. Wright v. State, 94 Nev. 415, 581 P.2d 442 (1978). Imposition of an enhanced
penalty for each offense was therefore entirely appropriate and did not violate the due process
rights of appellant.
The conviction and sentence of appellant are affirmed.
____________
94 Nev. 615, 615 (1978) Lingo v. State
MICHAEL FREDERICK LINGO, Appellant, v. THE
No. 10214
September 28, 1978 584 P.2d 681
Appeal from judgment of conviction and sentence, upon a jury verdict. Eighth Judicial
District, Clark County; Carl J. Christensen, Judge.
Defendant was convicted in the district court of robbery with use of deadly weapon and
was sentenced to life with possibility of parole under habitual criminal statute, and he
appealed. The Supreme Court held that: (1) in light of curative action taken by trial court
following references by prosecutor and police officer, to fact defendant was arrested for
carrying concealed weapon, denial of motion for mistrial was justified, and (2) sufficient
notice of State's intention to urge sentencing of defendant under habitual criminal statute was
given, and thus defendant was not denied procedural due process.
Affirmed.
Morgan D. Harris, Public Defender, and Herbert F. Ahlswede, Deputy, Clark County, for
Appellant.
Robert List, Attorney General, Carson City; George E. Holt, District Attorney, and Gerald
D. Waite, Deputy, Clark County, for Respondent.
1. Criminal Law.
Trial court was justified in denying defendant's motion for mistrial based upon references by prosecutor
and arresting officer to fact that defendant was carrying concealed weapon at time of arrest where after
each such reference trial court admonished jury that they were to disregard such statements and consider
only charge against defendant of robbery with use of deadly weapon. NRS 193.165, 200.380.
Where State gave notice by amended information of intent to impose punishment pursuant to habitual
criminal statute if defendant were found guilty on primary offense of robbery with use of
deadly weapon, at sentencing hearing counsel for defendant stated that he was
aware that State was going to urge sentencing under habitual criminal statute, and
counsel for defendant was fully prepared to challenge presentation of State,
sufficient notice of State's intention to urge sentencing under habitual criminal
statute was given, and thus defendant was not denied procedural due process.
94 Nev. 615, 616 (1978) Lingo v. State
guilty on primary offense of robbery with use of deadly weapon, at sentencing hearing counsel for
defendant stated that he was aware that State was going to urge sentencing under habitual criminal statute,
and counsel for defendant was fully prepared to challenge presentation of State, sufficient notice of State's
intention to urge sentencing under habitual criminal statute was given, and thus defendant was not denied
procedural due process. NRS 207.010, subd. 2; U.S.C.A.Const. Amends. 5, 14.
OPINION
Per Curiam:
A jury found Michael Frederick Lingo, the appellant, guilty of robbery with the use of a
deadly weapon. (NRS 200.380, 193.165). After a separate hearing, he was sentenced to life
with possibility of parole under the habitual criminal statute, (NRS 207.010).
Appellant seeks reversal of his judgment of conviction on the grounds (1) that the trial
court erred in denying his motions for mistrial and (2) that he was given an inadequate notice
by the State of its intention to proceed under the habitual criminal statute. We have reviewed
the record and find appellant's contention meritless. Therefore, we affirm.
1. The Mistrial.
[Headnote 1]
On the day following the robbery, the appellant was noticed by a gas station attendant
sitting on a rock near the station. The attendant became suspicious and called the police. A
pistol was found in his possession and appellant was arrested for carrying a concealed
weapon. The prosecutor as well as the arresting officer made reference to this fact. Appellant
predicated his motions for a mistrial on these statements, which the trial court rejected.
Appellant concedes that it was not error to admit the testimony of the arresting officer that
appellant was carrying a concealed weapon at the time of his arrest, but only that it was
impermissible to permit this officer to testify that this fact was the basis for his arrest. After
each such reference, the trial court admonished the jury that they were to disregard such
statements, and consider only the charge of robbery with use of a deadly weapon. In light of
the curative action taken by the trial court, and the state of the evidence against appellant,
1
we find that the trial court was justified in denying appellant's motions for mistrial. Elsbury v.
State, 90 Nev. 50, 518 P.2d 599 (1974); Hamlet v. State, 84 Nev. 699, 447 P.2d 492 (1968);
State v. Varga, 66 Nev. 102, 124, 205 P.2d 803 (1949).
____________________

1
At trial, the victim identified appellant as the individual who had engaged him in three separate
conversations and then robbed him, at gun point, of a
94 Nev. 615, 617 (1978) Lingo v. State
2. Notice of the State's intention to Urge Sentencing of Appellant under the Habitual
Criminal Statute.
[Headnote 2]
By an amended information, the State gave notice of its intent to impose punishment
pursuant to the habitual criminal statute (NRS 207.010(2)) if appellant were found guilty on
the primary offenses of robbery with use of a deadly weapon and carrying a concealed
weapon. Four specific prior convictions were listed by crime, date, place and case number.
See NRS 207.010(5). Shortly before trial, a defense motion for severance of the concealed
weapon charge was granted, without objection from the prosecution.
Appellant contends that he was without sufficient notice of the State's intention to urge
sentencing under the habitual criminal statute upon his conviction of robbery with use of a
deadly weapon. This contention is belied by the record. At the sentencing hearing, the State
announced its intention to present evidence, pursuant to its notice, demonstrating that
appellant should be so sentenced. Counsel for appellant responded: Your Honor, I am aware
that the State was going to proceed this way, Your Honor, and I have no objection to the
proceeding. The record of the subsequent proceedings confirms that counsel for appellant
was well prepared to challenge the presentation of the State's evidence. There is, in short, no
basis in the record for appellant's contention that he was denied procedural due process, and
we reject this assignment of error as meritless. NRS 177.255; 178.598. See Baymon v. State,
94 Nev. 370, 580 P.2d 943 (1978).
The judgment of conviction and sentence are affirmed.
____________________
number of personal items and a small amount of cash. The victim further identified as his own, on the basis of
various distinguishing features, several items of personal property which had been confiscated from appellant at
the time of his arrest. The victim's description of the gun used in the robbery closely matched the appearance of
the gun found in appellant's possession. Appellant's primary defense was based on the contention, apparently
rejected by the jury, that during the period of the robbery he was suffering from a diabetic reaction which
precluded formation of the requisite intent for robbery.
____________
94 Nev. 618, 618 (1978) Kabase v. Sheriff
MARVIN PHILLIP KABASE and JOHN DePASQUALE, Appellants, v. SHERIFF, CLARK
No. 11037
September 28, 1978 584 P.2d 682
Appeal from order denying a pretrial petition for writ of habeas corpus, Eighth Judicial
District Court, Clark County; John F. Mendoza, Judge.
The district court entered order denying pretrial habeas challenge to indictment charging
defendants with embezzlement, swindling, conspiracy and evasion of gaming taxes.
Defendants appealed. The Supreme Court held that evidence, if true, that defendants, while
employed by hotel in Las Vegas, participated in a scheme to mark race and sports book
tickets with winning horses or sports teams after outcome or winner of horse race or sporting
event had been determined and thereafter received monies for having done those acts was
sufficient to support felony charges of embezzlement, swindling and gross misdemeanor
charge of conspiracy to commit those two offenses but did not support tax evasion charge.
Goodman, Oshins, Brown & Singer, and Stephen Stein, Las Vegas, for Appellants.
Raymond Jeffers, Chief Deputy District Attorney, Clark County, for Respondent.
Conspiracy; Embezzlement; False Pretenses; Taxation.
Evidence, if true, that defendants, while employed by hotel in Las Vegas, participated in a scheme to
mark race and sports book tickets with winning horses or sports teams after outcome or winner of horse
race or sporting event had been determined and thereafter received monies for having done those acts was
sufficient to support felony charges of embezzlement, swindling and gross misdemeanor charge of
conspiracy to commit those two offenses but did not support tax evasion charge. NRS 463.360, subd. 2.
OPINION
Per Curiam:
This appeal is from an order denying a pretrial habeas challenge to an indictment which
charged appellants with embezzlement, swindling, conspiracy and evasion of gaming taxes.
94 Nev. 618, 619 (1978) Kabase v. Sheriff
The only issue of merit concerns the count charging appellants with evasion of gaming
taxes, in violation of NRS 463.360(2). Appellants contend their alleged conduct did not
constitute the crime of tax evasion. We agree.
NRS 463.360(2) provides, in pertinent part: Any person who willfully fails to report, pay
or truthfully account for and pay over any license fee or tax imposed by the provisions of this
chapter, or willfully attempts in any manner to evade or defeat any such license fee, tax or
payment thereof shall be punished.
. . .
The transcript of the proceedings before the grand jury contains evidence that appellants,
while employed by the Fremont Hotel in Las Vegas, participated in a scheme to mark race
and sports book tickets with the winning horses or sports teams after the outcome or winner
of the horse race or sporting event had been determined; and, thereafter received monies for
having done those acts. This evidence, if true, is sufficient to support the felony charges of
embezzlement and swindling and the gross misdemeanor charge of conspiracy to commit
those two offenses; however, it does not support the tax evasion charge.
In United States v. Mesheski, 286 F.2d 345 (7th Cir. 1961), the Internal Revenue Service
attempted, under a substantially identical statute (26 U.S.C. 7201), to obtain a conviction
against a person who prepared tax returns for others and diverted to his own personal use
money obtained from taxpayers for transmittal to the Director of Internal Revenue. In
reversing a judgment of conviction, the United States Court of Appeal ruled that defendant's
reprehensible actions, designed to hinder detection of the strictly local crime of
embezzlement, do not constitute such affirmative conduct as clearly and reasonably infers a
motive to evade or defeat tax. Id. at 347. See United States v. Pomponio 429 U.S. 10 (1976);
Spies v. United States 317 U.S. 492 (1943). Appellants' alleged conduct is within the quoted
language from Mesheski. Accordingly, the district judge should have granted the habeas
challenge to the tax evasion charge. The portion of the order which failed to do so is reversed.
The remainder of the order is affirmed.
____________
94 Nev. 620, 620 (1978) Willett v. State
THOMAS WILLETT Appellant, v. THE STATE OF
NEVADA, Respondent.
No. 9767
September 28, 1978 584 P.2d 684
Appeal from a judgment of conviction upon a jury verdict; Eighth Judicial District Court,
Clark County; J. Charles Thompson, Judge.
Defendant was convicted before the district court of the infamous crime against nature,
and he appealed. The Supreme Court held that in prosecution brought against defendant
accused of sexual act with minor boy, admission into evidence, on ground of showing
common scheme or plan, of testimony from boy other than victim of offense in question as to
separate act committed on him by defendant was not abuse of discretion, where sexual acts
committed on victim and witness were close in time, circumstances were similar, and modus
operandi was the same.
Affirmed.
County; and Manos & Cherry, Las Vegas, for Appellant.
Leon Simon, Chief Appellate Deputy, and L. J. O'Neale, Deputy, Clark County, for
Respondent.
Criminal Law.
In prosecution for offense of committing the infamous crime against nature brought against defendant
accused of sexual act with minor boy, admission into evidence, on ground of showing common scheme or
plan, of testimony from boy other than victim of offense in question as to separate act committed on him by
defendant was not abuse of discretion, where sexual acts committed on victim and witness were close in
time, circumstances were similar, and modus operandi was the same. NRS 48.035, 48.045, subd. 2,
201.190.
OPINION
Per Curiam:
A jury found appellant Thomas Willett guilty of three counts of violation of NRS 201.190,
the infamous crime against nature. He was sentenced to life imprisonment with the possibility
of parole on each count with the terms to run concurrently. The sentences were suspended
and appellant was placed on probation for a period not to exceed five years with the first
year to be served in the Clark County jail.
on probation for a period not to exceed five years with the first year to be served in the Clark
County jail. He seeks reversal of his judgment of conviction on the principal ground that the
court erred in admitting testimony concerning his illicit sexual relationship with another
person other than the victim in the instant case.
1. The record shows that appellant in November, 1973, while playing in a musical group
volunteered to entertain the children at Child Haven in Las Vegas. There he met the victim of
this crime, a minor boy. He went with the boy to his room to introduce him to the guitar, but
the session ended in the first of several acts of oral copulation on the minor. During the same
month appellant visited the Eddie Lee Home for boys in Clark County. There he met a minor
boy who testified that while the defendant, a volunteer worker, was helping us to set up for
Christmas, the defendant performed an act of oral copulation upon the young man. This
testimony was admitted during the State's case-in-chief, and it is the admission of this
testimony upon which the appellant seeks reversal of his judgment of conviction.
Appellant, in seeking reversal, relies heavily on Nester v. State, 75 Nev. 41, 334 P.2d 524
(1959), and narrows his argument to that part of the opinion regarding proof of other crimes:
It is a rule of criminal evidence that, on the trial of a person accused of crime, proof
of a distinct independent offense is inadmissible.
As exceptions to this general rule evidence of other crimes is competent to prove the
specific crime charged when it tends to establish (1) motive; (2) intent; (3) the absence
of mistake or accident; (4) a common scheme or plan embracing the commission of two
or more crimes so related to each other that proof of one tends to establish the others;
(5) the identity of the person charged with commission of the crime on trial.
75 Nev. at 76, 334 P.2d at 527.
The facts in Nester concerned a charge of forcible rape. The State introduced evidence of a
similar, but not identical, rape that was committed by that defendant six months after the rape
charged. The evidence was properly admitted to prove the identity of the rapist.
In the case at hand, the sexual acts committed on the victim and the witness were close in
time, both occurring in November of 1973; the circumstances were similar, both were minors
in homes for boys; and the modus operandi was the same, both boys were approached while
the defendant worked as a volunteer at their institutions. This case is squarely within the
fourth exception of the criteria listed in Nester, that is, to show "a common scheme or
plan".
fourth exception of the criteria listed in Nester, that is, to show a common scheme or plan.
The rule in Nester is codified at NRS 48.045(2), which states,
Evidence of other crimes, wrongs or acts is not admissible to prove the character of a
person in order to show that he acted in conformity therewith. It may, however, be
admissible for other purposes, such as proof of motive, opportunity, intent preparation,
plan, knowledge, identity, or absence of mistake or accident.
This statute was cited by this court in Allan v. State, 92 Nev. 318, 321, 549 P.2d 1402 (1976).
Allan also concerned the infamous crime against nature committed upon a minor. Allan's plan
or scheme was to invite children to his house trailer, show them a pornographic film, and
seduce the children. On the evening of the act for which he was charged, there were three
minor boys present. Although Allan was charged only with committing the infamous crime
with one, the two other boys testified, during the prosecution's case-in-chief, that Allan
committed the same act on them. That evidence was properly admitted as part of the res
gestae.
This court earlier this year, in McMichael v. State, 94 Nev. 184, 577 P.2d 398, 401 (1978),
adopted the language of the Arizona Supreme Court:
Upholding in a prosecution for fellatio, case-in-chief testimony of boys other than those
with whom defendant was charged with having committed the acts, the court in State v.
McDaniel, 298 P.2d 798 (Ariz. 1956), said:
Certain crimes today are recognized as stemming from a specific emotional
propensity for sexual aberration. The fact that in the near past one has given way to
unnatural proclivities has a direct bearing upon the ultimate issue whether in the case
being tried he is guilty of a particular unnatural act of passion. The importance of
establishing this fact far outweighs the prejudicial possibility that the jury might
convict for general rather than specific criminality. Even granting the general rule of
inadmissibility of evidence of independent crimes to prove the offense charged,
many courts recognize a limited exception in the area of sex crimes to prove the
nature of the accused's specific emotional propensity.
Id. at 802-03. Accord, State v. Miller, 564 P.2d 1246 (Ariz.App. 1977); State v. McFarlin,
517 P.2d 87 (Ariz. 1973); People v. Covert, 57 Cal.Rptr. 220 (App. 1967); compare, Allan v.
State, 92 Nev. 318, 549 P.2d 1402 (1976).
We do not believe the district judge in the case before us abused his discretion in admitting
the witness' testimony. The court, in a pretrial hearing and in a hearing without the presence
of the jury, balanced the proffered testimony against its probative value, NRS 48.035; Brown
v. State, 81 Nev. 397, 404 P.2d 428 (1965), and then determined that the probative value of
the evidence outweighed its prejudicial effect. We cannot rule, based on the facts presented,
that the lower court abused its discretion. Therefore, we affirm appellant's judgment of
conviction.
____________
94 Nev. 623, 623 (1978) Lawler v. Ginochio
H. ROGER LAWLER, Appellant, v. LLOYD R. GINOCHIO, LAWRENCE R. GINOCHIO,
LOUIS J. GINOCHIO, LEONARD E. GINOCHIO and LOUIS L. WELKER, individually
and doing business as GINOCHIO LIVESTOCK COMPANY, Respondents.
No. 9790
September 28, 1978 584 P.2d 667
Appeal from judgment in favor of plaintiffs and intervenor. Second Judicial District,
Washoe County; John W. Barrett, Judge.
Action was brought to recover damages incurred by plaintiffs and intervenor as a result of
defendant's possession of a ranch under terms of an unconsummated agreement to purchase.
Judgment was entered against defendant in the district court and he appealed. The Supreme
Court held that: (1) where foreign corporation was fully qualified to do business in Nevada at
time it sought to intervene, trial court was not precluded by statute from granting its motion
and (2) defendant failed to demonstrate any prejudice resulting from timing of corporation's
application for intervention and that denial of defendant's motion to dismiss was particularly
appropriate in light of defendant's contention that corporation was real party in interest in
view of statutory requirement that reasonable time be allowed for joinder of real party in
interest.
Affirmed.
Hale, Lane, Peek, Dennison and Howard, Reno, for Appellant.
Hill, Cassas and deLipkau, Reno, for Respondents.
1. Corporations.
Where foreign corporation was fully qualified to do business in Nevada at time it sought access
to court by its motion to intervene, trial court was not precluded by statute from
granting its motion even though it was not qualified to do business within state at
time suit was commenced.
Nevada at time it sought access to court by its motion to intervene, trial court was not precluded by statute
from granting its motion even though it was not qualified to do business within state at time suit was
commenced. NRS 80.010-80.040, 80.210, 80.210, subd. 1.
2. Parties.
Timeliness of motion to intervene is a determination that lies with sound discretion of trial court. NRCP
24.
3. Parties.
Most important question to be resolved in determination of timeliness of application for intervention is
not length of delay by interventor but extent of prejudice to rights of existing parties resulting from delay.
NRCP 24.
4. Parties.
Defendant failed to demonstrate any prejudice resulting from timing of corporation's application for
intervention; trial court's decision to allow intervention of corporation and deny defendant's motion to
dismiss was particularly appropriate in light of defendant's contention that corporation was real party in
interest in view or statutory requirement that reasonable time be allowed for joinder of real party in interest.
NRCP 1, 17(a).
OPINION
Per Curiam:
In July, 1974, plaintiff-respondents, Lloyd, Lawrence, Louis and Leonard Ginochio, and
Louis Welker, individually and doing business as Ginochio Livestock Company, commenced
this action to recover damages incurred by them as a result of appellant Lawler's possession
of the Calico Farms ranch in northern Nevada, under terms of an unconsummated agreement
to purchase. The cause was tried before the court, sitting without a jury, on January 13-16,
and July 15-16, 1975. Judgment for the original plaintiffs and Ginochio Livestock Company,
intervenor, was entered March 11, 1976. On appeal, Lawler contends that the trial court erred
in permitting the intervention of Ginochio Livestock Company, and in concurrently denying
his motion to dismiss the complaint on the ground that the original plaintiffs were not real
parties in interest. We disagree and affirm.
1. During presentation of plaintiffs' evidence in January, 1975, Lloyd Ginochio testified
that he had executed a deed conveying his interest in the ranch to the family corporation,
Ginochio Livestock Company. He was unable to testify from personal knowledge that the
remaining plaintiffs, the other shareholders in the corporation, had also signed the deed.
Lawler moved to dismiss the complaint on the ground that the Ginochio Livestock Company,
a California corporation which had not qualified to do business in Nevada, was the real party
in interest. The court, indicating that factual issues regarding status of title to the ranch
remained to be resolved, reserved judgment on the motion until the previously-scheduled
interval between plaintiffs' and defendant's presentation of evidence.
status of title to the ranch remained to be resolved, reserved judgment on the motion until the
previously-scheduled interval between plaintiffs' and defendant's presentation of evidence.
Counsel for plaintiffs indicated that his intention was to qualify the corporation to do business
in Nevada and then move to intervene. The corporation's motion to intervene was
subsequently filed on April 3, 1975, accompanied by evidence of its qualification to do
business in Nevada as of March 5, 1975. The court granted the motion to intervene, and
denied Lawler's motion to dismiss, on July 10, 1975.
Appellant suggests that NRS 80.210 prohibits the intervention of a foreign corporation
which was not qualified to do business in Nevada at the time the suit was commenced, and
that in any event the motion for intervention was not timely filed.
[Headnote 1]
2. Lawler contends that the trial court's decision to allow Ginochio Livestock Company to
intervene in this case violated the provision of NRS 80.210(1) that
Every corporation which fails or neglects to comply with the provisions of NRS
80.010 to 80.040, inclusive, . . . shall not be allowed to commence, maintain, or defend
any action or proceeding in any court of this state until it shall have fully complied with
the provisions of NRS 80.010 to 80.040, inclusive.
We find that there was no violation of NRS 80.210(1), since the corporation had fully
complied with the provisions of NRS 80.010 to 80.040, and thus was qualified to do business
in Nevada, by the time it sought access to the court.
As this court has stated,
Statutes imposing penalties upon such [non-complying foreign] corporations for
transacting business within a state or denying them the right to institute or maintain
actions in the courts of the state until they have complied with the law have usually
been sustained. In enforcing such statutes, however, the courts have been careful not to
limit the rights of such corporations beyond the plain import of the language used in the
statute. [Citation omitted.]
Scott v. Day-Bristol Consolidated Mining Co., 37 Nev. 299, 303, 142 P. 625 (1914). Here the
corporation did not seek to commence, maintain or defend the action until it had fully
complied with the statute. The situation is thus distinguishable from that dealt with by this
court in League to Save Lake Tahoe v. Tahoe Regional Planning Agency, 93 Nev. 270
Tahoe v. Tahoe Regional Planning Agency, 93 Nev. 270, 563 P.2d 582 (1977), in which the
non-complying corporation, as sole plaintiff, sought to commence and maintain an action in
violation of the express terms of the statute.
Since the corporation was fully qualified to do business in Nevada at the time it sought
access to the court by its motion to intervene, the trial court was not precluded by the terms of
NRS 80.210 from granting its motion.
[Headnotes 2-4]
3. Lawler also contends that the corporation's motion to intervene should have been
denied on the ground that it was not timely, as required by NRCP 24. Timeliness is a
determination that lies within the sound discretion of the trial court. Cleland v. Eighth
Judicial District Court, 92 Nev. 454, 456, 552 P.2d 488 (1976). As one federal court has
observed in interpreting the equivalent federal rule, Timeliness' is not a word of exactitude
or of precisely measurable dimensions. The requirement of timeliness must have
accommodating flexibility toward both the court and the litigants if it is to be successfully
employed to regulate intervention in the interest of justice. McDonald v. E. J. Lavino Co.,
430 F.2d 1065, 1074 (5th Cir. 1970).
The most important question to be resolved in the determination of the timeliness of an
application for intervention is not the length of the delay by the intervenor but the extent of
prejudice to the rights of existing parties resulting from the delay. Duff v. Draper, 527 P.2d
1257, 1260 (Ida. 1974); McDonald v. E. J. Lavino Co., supra; Diaz v. Southern Drilling
Corp., 427 F.2d 1118 (5th Cir.), cert. denied sub nom. Trefina, A.G. v. United States, 400
U.S. 878 (1970); 7A Wright & Miller, Federal Practice and Procedure: Civil 1916 (1972).
In this case, appellant has failed to demonstrate any prejudice resulting from the timing of the
corporation's application. No new factual issues related to the underlying dispute were raised
by the corporation's complaint or by Lawler's answer to it. Lawler was granted his day in
court, and was fully protected by the court's ruling.
1
See Good v. District Court, 71 Nev. 38,
279 P.2d 467 {1955).
____________________

1
The decision by the trial court to allow the intervention of the corporation, and deny appellant's motion to
dismiss, is particularly appropriate in light of appellant's contention that the corporation was the real party in
interest. NRCP 17(a) provides, in pertinent part,
No action shall be dismissed on the ground that it is not prosecuted in the name of the real party in
interest until a reasonable time has been allowed after objection for ratification of commencement of the
action by, or joinder or substitution of, the real party in interest. . . .
In granting the corporation's motion to intervene, the court was protecting the legitimate interests of appellant,
while adhering to the requirement of NRCP 17(a) that a reasonable time be allowed for joinder.
P.2d 467 (1955). The court's action was entirely consistent with the admonition of NRCP 1
that the Nevada Rules of Civil Procedure shall be construed to secure the just, speedy and
inexpensive determination of every action.
____________
94 Nev. 627, 627 (1978) Spencer v. Nevada State Welfare Div.
JAMES SPENCER, JR., Appellant, v. NEVADA STATE
WELFARE DIVISION, Respondent.
No. 9794
September 28, 1978 584 P.2d 669
Appeal from order terminating parental rights, Eighth Judicial District Court, Clark
County; Keith C. Hayes, Judge.
The Supreme Court held that record of unstable and chaotic homelife, father's failure to
make support payments as ordered, father's failure to provide for children's medical needs and
his erratic attendance of court-ordered counseling sessions supported trial court's order
terminating father's parental rights.
Affirmed.
Wiener, Goldwater & Waldman, Ltd., Las Vegas, for Appellant.
Robert List, Attorney General, Carson City, and James G. Armstrong, Deputy Attorney
General, Las Vegas, for Respondent.
Bastards.
Record of unstable and chaotic homelife, father's failure to make support payments as ordered, father's
failure to provide for children's medical needs and his erratic attendance of court-ordered counseling
sessions supported order terminating parental rights of natural father of five minor children born out of
wedlock. NRS 128.018, 128.105.
OPINION
Per Curiam:
The natural father of five minor children born out of wedlock appeals an order terminating
his parental rights. He here contends the district court erred in finding him an unfit parent,
and in finding he had made only "token efforts" to avoid being declared unfit.
94 Nev. 627, 628 (1978) Spencer v. Nevada State Welfare Div.
and in finding he had made only token efforts to avoid being declared unfit.
1

In our view, the record supports the judgment. There is ample evidence of an unstable and
chaotic homelife, ultimately resulting in the children being taken into State Welfare custody
for neglect and abandonment; of failure to make support payments as ordered; of failure to
provide for medical needs, despite repeated notification by telephone and mail; and of erratic
attendance of court-ordered counseling sessions to improve appellant's domestic situation. It
appears that appellant has, in fact, never provided the children with an adequate homelife for
any substantial period of time, and, in determining appropriate action for their best interest,
the district court judge noted all five were still under the age of eight.
We are unable to say that the lower court erred.
____________________

1
Grounds for termination of parental rights.
1. A finding by the court of any one of the following:
(a) Abandonment of a child;
(b) Neglect of a child; or
(c) Unfitness of a parent,
is sufficient ground for termination of parental rights.
2. Upon a finding by the court that a parent or parents have made only token efforts:
(a) To support or communicate with the child;
(b) To prevent neglect of the child; or
(c) To avoid being an unfit parent,
the court may declare the child abandoned or neglected or the parent unfit. (Emphasis added.)
NRS 128.018 defines unfit parent as:
. . . 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, or who knowingly permits such child to associate
with vagrants, vicious or immoral persons, or to live in a disreputable place. (Emphasis added.)
____________
94 Nev. 628, 628 (1978) State v. Kirkpatrick
STATE OF NEVADA, Appellant, v. GARY
STEVEN KIRKPATRICK, Respondent.
No. 10328
September 28, 1978 584 P.2d 670
Appeal from an order dismissing an information, Eighth Judicial District Court, Clark
Defendant, charged, by information, with having taken personal property from person of
victim, or in her presence, by means of force or violence or fear of injury, moved to dismiss
information, contending use of disjunctive "or" rendered information "wholly
insufficient."
means of force or violence or fear of injury, moved to dismiss information, contending use of
disjunctive or rendered information wholly insufficient. The district court granted
defendant's motion, and State appealed. The Supreme Court held that: (1) where, as here, a
single offense could be committed by one or more specified means, and those means were
charged alternatively, State need only prove one of alternative means in order to sustain a
conviction, and thus notice of charged offense was not improved by alleging that crime was
committed by acts a and b rather than by acts a or b, since, in either case, defendant
had to prepare a defense to all means by which it was alleged crime was committed, and (2)
defendant was afforded adequate protection from double jeopardy by applicable statutes, even
though he contended that disjunctive pleading subjected him to double jeopardy because
neither a conviction nor an acquittal would bar a subsequent prosecution upon alternative
allegations.
Thomas D. Beatty, Deputy District Attorney, Clark County, for Appellant.
Lang & Graves, Las Vegas, for Respondent.
Where a single offense may be committed by one or more specified means and those means are charged
alternatively, State need only prove one of alternative means in order to sustain a conviction, and thus
notice of charged offense is not improved by alleging that crime was committed by acts a and b rather
than by acts a or b, since, in either case, accused must prepare a defense to all means by which it is
alleged the crime was committed. U.S.C.A.Const. Amend. 6; NRS 173.075, subd. 2; Fed.Rules
Crim.Proc. rules 7(c)(1), 7 note, 18 U.S.C.A.
Defendant, charged, by information, with having taken personal property from person of victim, or in her
presence, by means of force or violence or fear of injury, was afforded adequate protection from double
jeopardy by applicable statutes, even though defendant contended that disjunctive pleading subjected him
to double jeopardy because neither a conviction nor an acquittal would bar a subsequent prosecution upon
alternative allegations. NRS 173.075, subd. 2, 174.085, subd. 3, 178.391, 193.165, 200.380.
OPINION
Per Curiam:
Respondent was charged, by information, with the crime of robbery (NRS 200.380) and
having used a deadly weapon in the commission of that crime {NRS 193.165).
commission of that crime (NRS 193.165). The information provided, in pertinent part, that
respondent had taken personal property from the person of JAYE JOSEPH, or in her
presence, by means of force or violence or fear of injury. . . . (Emphasis added.)
Respondent moved to dismiss the information, contending use of the disjunctive or
rendered the information wholly insufficient.
1
The thrust of respondent's argument was
that disjunctive pleading (1) failed to give him adequate notice of the offense with which he
was charged, thus violating the clear mandate of the Sixth Amendment;
2
and, (2) subjects
him to double jeopardy because neither a conviction nor an acquittal would bar a subsequent
prosecution upon the alternative allegations. The district court granted the motion. Appellant
contends this was error because disjunctive pleading is authorized by NRS 173.075(2).
3
We
agree.
4

[Headnote 1]
1. Where, as here, a single offense may be committed by one or more specified means,
and those means are charged alternatively, the state need only prove one of the alternative
means in order to sustain a conviction. See, e.g., Gerberding v. United States, 471 F.2d 55
(8th Cir. 1973); United States v. Conti, 361 F.2d 153 (2d Cir. 1966). Cf. State v. Luhano, 31
Nev. 278, 102 P. 260 (1909). Thus, notice of the charged offense is not improved by alleging
that the crime was committed by acts a and b rather than by acts a or b. In either
case, the accused must prepare a defense to all means by which it is alleged the crime was
committed. Johnson v. United States, 207 F.2d 314 (5th Cir. 1953); State v. Scott, 395 P.2d
377 (Wash. 1964).
____________________

1
A disjunctive allegation in pleading is one which charges a thing alternatively, with the conjunctive or.
Black's Law dictionary 555 (4th ed. (1957).

2
U.S. Const. amend. VI provides, in pertinent part:
In all criminal prosecutions, the accused shall. . . be informed of the nature and cause of the accusation. . . .

3
NRS 173.075(2) provides, in pertinent part:
It may be alleged in a single count that the means by which the defendant committed the offense are unknown
or that he committed it by one or more specified means.
This statute is identical to Federal Rule of Criminal Procedure 7(c)(1), whose legislative history indicates that
the foregoing provision is intended to eliminate the use of multiple counts for the purpose of alleging the
commission of the offense by different means or in different ways. Original Advisory Committee Note 2 to rule
7(c)(1).

4
Other jurisdictions have also approved the use of disjunctive pleading. See, eg., United States v. Alsop, 479
F.2d 65 (9th Cir. 1973); State v. Scott, 395 P.2d 377 (Wash. 1964); State v. Cantrell, 187 N.W.2d 832 (Wis.
1971); People v. Glass, 353 N.E.2d 214 (Ill.App. 1976).
[Headnote 2]
2. Respondent is afforded adequate protection from double jeopardy by NRS 174.085(3)
and NRS 178.391.
5
See State v. Scott, supra. Cf. Fairman v. State, 83 Nev. 137, 425 P.2d
342 (1967); State v. Carter, 79 Nev. 146, 379 P.2d 945 (1963).
The district court order is reversed and the case remanded with instructions to reinstate the
information.
____________________

5
When the defendant is convicted or acquitted, or has been once placed in jeopardy upon an indictment,
information or complaint, . . . the conviction, acquittal or jeopardy is a bar to another indictment, information or
complaint for the offense charged in the former, or for an attempt to commit the same, or for an offense
necessarily included therein, of which he might have been convicted under that indictment, information or
complaint.
No person can be subject to a second prosecution for a public offense for which he has once been prosecuted
and duly convicted or acquitted.
____________
94 Nev. 631, 631 (1978) Buckholt v. District Court
WILLIAM CHARLES BUCKHOLT, by his Guardian, PATRICIA A. BUCKHOLT; AND
PATRICIA A. BUCKHOLT, Petitioners, v. THE SECOND JUDICIAL DISTRICT COURT
OF THE STATE OF NEVADA, IN AND FOR THE COUNTY OF WASHOE, Respondent.
No. 10268
September 28, 1978 584 P.2d 672
Original proceeding in mandamus, Second Judicial District Court, Washoe County; John
E. Gabrielli, Judge.
Original proceeding in mandamus was brought against the district court which had
dismissed complaint on ground of forum non conveniens. The Supreme Court, Batjer, C. J.,
held that: (1) since defendant automobile manufacturer was resident of state by virtue of its
incorporation and did business in state, district court was obliged to accept jurisdiction of
action seeking damages for injuries allegedly resulting from single-vehicle accident involving
vehicle manufactured by defendant; (2) mandamus is proper remedy when district court
wrongfully or erroneously divests itself of jurisdiction, and (3) no basis for applying doctrine
of laches was demonstrated.
Petition granted.
Peter Chase Neumann, Reno, for Petitioners.
Erickson, Thorpe & Swainston, Ltd., Reno, for Respondent.
1. Courts.
Since defendant automobile manufacturer was resident of state by virtue of its incorporation and did
business in state, district court was obliged to accept jurisdiction of action seeking damages for injuries
allegedly resulting from single-vehicle accident involving vehicle manufactured by defendant; thus doctrine
of forum non conveniens was inapposite and manufacturer's motion to dismiss on that ground should not
have been granted.
2. Mandamus.
Mandamus does not lie where errors are committed in exercise of judicial discretion.
3. Mandamus.
Mandamus is proper remedy when district court wrongfully or erroneously divests itself of jurisdiction.
4. Mandamus.
Although no particular time limit is specified within which petition for writ of mandamus may be filed,
such writs are subject to doctrine of laches. NRAP 21(a).
5. Mandamus.
In determining whether doctrine of laches should be applied to preclude consideration of petition for
mandamus, it must be determined whether there was inexcusable delay in seeking the petition, whether an
implied waiver arose from petitioners' knowing acquiescence in existing conditions and whether there were
circumstances causing prejudice to respondent. NRAP 4(a), 21, 21(a).
6. Mandamus.
No basis for applying doctrine of laches was demonstrated so as to preclude consideration of petition for
mandamus brought on ground that district court had erroneously divested itself of jurisdiction of case.
NRAP 4(a), 21, 21(a).
OPINION
Petitioners brought suit against the Jeep Corporation, a Nevada corporation, seeking
damages for injuries allegedly resulting from a single vehicle accident involving a Jeep CJ-5
manufactured by the Jeep Corporation. The accident occurred on October 5, 1976, near
Cheyenne, Wyoming. Jeep moved to dismiss the complaint on the ground of forum non
conveniens. Respondent court granted the motion, without prejudice, and petitioners
instituted this proceeding.
In opposition to the petition, respondent contends (1) the complaint was properly
dismissed; (2) a writ of mandamus is an improper method of challenging the dismissal; and,
(3) the petition was untimely. We disagree.
[Headnote 1]
1. The petitioners, now Ohio residents, have chosen to litigate in Nevada. Since Jeep is a
resident of this state by virtue of its incorporation, and does business here, we conclude that
the district court is obliged to accept jurisdiction.
district court is obliged to accept jurisdiction. Under these circumstances, the doctrine of
forum non conveniens is inapposite, and Jeep's motion to dismiss should not have been
granted.
[Headnotes 2, 3]
2. Although mandamus does not lie where errors are committed in the exercise of judicial
discretion, we have previously decided that where the district court wrongfully or
erroneously divests itself of jurisdiction, . . . mandamus is the proper remedy. Swisco, Inc. v.
District Court, 79 Nev. 414, 419, 385 P.2d 772, 774 (1963), citing Floyd v. District Court, 36
Nev. 349, 135 P. 922 (1913).
[Headnotes 4-6]
3. Respondent next contends that a petition for a writ of mandamus, like an appeal, must
be filed within thirty (30) days, as mandated by NRAP 4(a).
1
Writs of mandamus, however,
are governed by NRAP 21 which specifies no particular time limit within which a petition for
a writ must be filed.
2
Nevertheless, as extraordinary remedies, such writs are subject to the
doctrine of laches. See Arant v. Lane, 249 U.S. 367 (1919). In determining whether the
doctrine of laches should be applied to preclude consideration of the present petition, we must
determine whether (1) there was an inexcusable delay in seeking the petition; (2) an implied
waiver arose from petitioners' knowing acquiescence in existing conditions; and, (3) there
were circumstances causing prejudice to respondent. State, Crooke v. Lugar, 354 N.E.2d 755
(Ind.App. 1976). We have reviewed the record and find no basis for applying the doctrine of
laches and, therefore, conclude the petition was timely filed.
Accordingly, it is ordered that a peremptory writ of mandamus issue forthwith directing
the respondent court to entertain jurisdiction of this cause. The case is hereby remanded for
further proceedings consistent with this opinion.
Mowbray, Thompson, Gunderson, and Manoukian, JJ., concur.
____________________

1
NRAP 4(a) provides, in pertinent part:
In a civil case in which an appeal is permitted by law from a district court to the Supreme Court the notice
of appeal . . . shall be filed with the clerk of the district court within thirty (30) days of the date of service of
written notice of the entry of the judgment or order appealed from.

2
NRAP 21(a) provides, in pertinent part:
Application for a writ of mandamus . . . directed to a judge . . . shall be made by filing a petition therefor
with the clerk of the Supreme Court with proof of service on the respondent judge . . . and on all parties to the
action in the trial court.
____________
94 Nev. 634, 634 (1978) State PSC v. Zephyr Cove Water Co.
THE STATE OF NEVADA, PUBLIC SERVICE COMMISSION OF NEVADA, and REESE
TAYLOR, Jr., NOEL A. CLARK, and EVO A. GRANATA, the duly Appointed, Qualified,
and Acting Members of the Public Service Commission, Appellants, v. ZEPHYR COVE
WATER COMPANY, a corporation, Respondent.
No. 9198
September 29, 1978 584 P.2d 698
Appeal from judgment vacating an order of the Public Service Commission; Ninth Judicial
District Court, Douglas County; Llewellyn A. Young, Judge.
Appeal was taken from a judgment of the district court vacating an order of the Public
Service Commission with respect to proper rate for water utility. The Supreme Court held
that: (1) action of district court in authorizing a rate schedule predicated on court's
independent review of utility's revenues was contrary to statutory mandates, and (2) order of
Public Service Commission granting water utility a rate increase which would produce annual
revenues of $32,530 failed to reflect a just and reasonable return and, hence, was properly
vacated as being arbitrary and capricious where record showed that utility had not enjoyed a
reasonable rate increase in almost 20 years, had not paid its stockholders a dividend in 20
years, had consistently been unable to generate operating income sufficient to meet current
and deferred expenses, and had accumulated $60,000 in debts, a figure which considerably
exceeded depreciated plant value of utility.
Affirmed in part; reversed in part and remanded to the Public Service Commission.
City, for Appellants.
Daniel R. Walsh, Carson City, and Gary L. Hall, Sacramento, California, for Respondent.
1. Waters and Water Courses.
District court was without authority in review proceeding to permit direct collection of revenues from
customers of water utility without either approval by Public Service Commission or complying with
statutory requirements for interlocutory stay of a Commission order. NRS 704.010 et seq., 704.540,
subd. 1, 704.550.
Action of district court in authorizing a rate schedule predicated upon court's independent review of
revenues of water utility was contrary to statutory mandates. NRS 704.010 et seq., 704.540, subd. 1,
704.550.
Function of Supreme Court on review of decision holding that rate order of Public Service Commission
with respect to water utility was arbitrary, unreasonable and confiscatory was essentially the same as that of
the district court, that is, to review the decision of the Commission in order to determine whether it was
based upon substantial evidence and whether the Commission acted within its statutory authority to fix
such rate or rates, tolls, charges or other schedules as were just and reasonable. NRS 704.010 et seq.,
704.540, subd. 1, 704.550.
If analysis of a decision of Public Service Commission with respect to appropriate rate base or net return
reveals an arbitrary decision, not supported by law or record, so that a false conclusion as to actual rate of
return has been reached, decision of Commission must be vacated. NRS 704.010 et seq., 704.540, subd.
1, 704.550.
Order of Public Service Commission granting water utility a rate increase which would produce annual
revenues of $32,530 failed to reflect a just and reasonable return and, hence, was properly vacated as being
arbitrary and capricious where record showed that utility had not enjoyed a reasonable rate increase in
almost 20 years, had not paid its stockholders a dividend in 20 years, had consistently been unable to
generate operating income sufficient to meet current and deferred expenses, and had accumulated $60,000
in debts, a figure which considerably exceeded depreciated plant value of utility. NRS 704.010 et seq.,
704.540, subd. 1, 704.550.
OPINION
Per Curiam:
This appeal is from a judgment of the district court that vacated an order of the Public
Service Commission regarding the Zephyr Cove Water Company and fixed a new rate of
return as determined by the district judge.
THE FACTS
On January 28, 1972, respondent Zephyr Cove Water Company (hereafter Utility) applied
to the Public Service Commission of Nevada (hereafter Commission) for a general rate
increase. The application was supported by evidence of net worth derived from the Utility's
books, and projected expenses for 1972, showing a substantial net loss at current rates and
representing an increase of over 1000% from the expenses upon which the Utility's last rate
increase had been granted in 1953.
At the hearing before the Commission on June 27, 28 and 29, 1972, evidence presented by
the Commission's staff accountant and the representatives of the Utility varied widely in their
estimates of the appropriate rate base (Staff, $26,005; Utility, $124,763), and of projected
operating expenses (Staff, $23,882; Utility, $37,971).
However, the Commission staff witnesses did not dispute the Utility's contentions that the
Utility had shown a net profit in only two of the preceding ten years (1967 and 1968), had
paid no dividends since 1952, and had current outstanding debts in the principal amount of
$61,580.18 which were accruing interest at the rate of $3,402 per year.
The Utility's estimate of expenses was rejected on the ground that there was insufficient
evidence that such expenses would actually be incurred. The Commission then granted the
Utility a rate increase which would produce annual revenues of $32,530. The Commission
did not make a finding as to a reasonable rate of return.
The Utility appealed the Commission's order. On May 28, 1974, the Honorable James D.
Santini, then District Judge of the Eighth Judicial District, who was assigned to hear the
appeal, rendered a decision vacating the Commission's order on the ground that the end
result of [the Commission's] determination is not reasonable, justified or supported by
substantial evidence of record, and remanding the case to the Commission for
reconsideration. Judge Santini's decision was subsequently declared void, since it was entered
after the effective date of his resignation. The case was then heard by District Judge
Llewellyn A. Young, who also determined, in a decision rendered September 30, 1976, that
the Commission's order was arbitrary, unreasonable and confiscatory.
Judge Young in his order went on further to hold that the Utility was entitled to a rate
structure which would generate revenues of $52,155. This figure was predicated upon the
Judge's own findings that the proper rate base to be applied was $100,000 (book value of
common stock equity), that a reasonable rate of return upon this base was 8%, and that
expenses of $42,395.35 should be allowed. Judge Young ordered that such revenues would
remain in effect until the Public Service Commission establishes a reasonable rate of return
for the company [upon its application within three years].
This appeal is taken by the Commission, et al., from the district court's decision of
September 30, 1976. Appellants contend that the district court erred in determining that the
Commission's order was unreasonable, and that the court's jurisdiction was limited solely to
vacating the order of the Commission, if found unreasonable, rather than proceeding to fix
another rate of return. THE ISSUES
THE ISSUES
THE ISSUES
I
THE DISTRICT COURT'S ACTION IN AUTHORIZING A
RATE SCHEDULE PREDICATED UPON THE
COURT'S INDEPENDENT REVIEW OF
THE UTILITY'S REVENUES.
[Headnote 1]
The procedure for judicial review of the Commission's order is established by NRS Ch.
704. The Utility's suit in this instance is authorized by NRS 704.540(1), which provides, in
pertinent part,
Any party in interest being dissatisfied with an order of the commission fixing any
rate or rates . . . may within 90 days commence an action in the district court of the
proper county against the commission and other interested parties as defendants to
vacate and set aside any such order on the ground that the rate fixed in such order is
unlawful or unreasonable. . . . (Emphasis added.)
This was not a petition for mandamus, cf. Southwest Gas Corp. v. Public Serv. Comm'n, 92
Nev. 48, 546 P.2d 219 (1976), nor did the judgment purport to direct the Commission to
accept the rate schedule authorized by the court. The court, rather, authorized directly the
collection of revenues from the Utility's customers, without either approval by the
Commission or compliance with statutory provisions for the interlocutory stay of a
commission order (see Sierra Pac. Power v. Public Serv. Comm'n, 92 Nev. 522, 554 P.2d 263
(1976); NRS 704.550). There is no statutory authorization for such a procedure.
[Headnote 2]
Nor does the court's judgment comply with the standards for judicial review of a
Commission's determination. The overriding limitation upon the court's function in the
review of an administrative agency's determination is that neither the trial court, nor this
court, [may] substitute its judgment for the administrator's determination. North Las Vegas
v. Public Serv. Comm'n, 83 Nev. 278, 281, 429 P.2d 66 (1967). Review of the district court's
findings reveals that the court did, indeed, substitute its judgment for that of the
Commission. It must, therefore, be set aside.
II
THE REASONABLENESS OF THE
COMMISSION'S ORDER.
[Headnote 3]
The function of this court upon review is essentially the same as that of the district court:
to review the Commission's decision in order to determine whether it was based upon
substantial evidence, and did not constitute an abuse of discretion. North Las Vegas v.
Public Serv. Comm'n, supra, 83 Nev. at 281. The basic question before the court is whether
the Commission acted within its statutory authority to fix such rate or rates, tolls, charges or
schedules as shall be just and reasonable. NRS 704.120(1).
A public utility is entitled to such rates as will permit it to earn a return on the value
of the property which it employs for the convenience of the public equal to that
generally being made at the same time and in the same general part of the country on
investments in other business undertakings which are attended by corresponding risks
and uncertainties; but it has no constitutional right to profits such as are realized or
anticipated in highly profitable enterprises or speculative ventures.
Bluefield Waterworks & Improvement Co. v. West Va. Pub. Serv. Comm'n, 262 U.S. 679,
692-93 (1923), as quoted in Nevada Power Co. v. Public Serv. Comm'n, 91 Nev. 816, 825,
544 P.2d 428 (1975).
[Headnote 4]
This is the result by which the Commission's order must be measured. [I]t is not our
province to quarrel with methods used by the commission, . . . no matter how faulty they may
have been as means or guides in arriving at sundry determinations involved either in
evaluating the property or determining the net return if the end result of the orders is to
permit the company a just and reasonable return. Bell Tel. Co. v. Pub. Serv. Comm'n, 70
Nev. 25, 34, 253 P.2d 602 (1953) (emphasis added). If analysis of the Commission's
determination of the appropriate rate base or the net return reveals an arbitrary decision, not
supported by the law or the record, so that a false conclusion as to the actual rate of return
has been reached, the Commission's order must be vacated. Bell Tel. Co. v. Pub. Serv.
Comm'n, id.
We have reviewed the record before the Commission. Suffice it to say that it does not
support the Commission's findings and that it results in an unfair, unjust, and unreasonable
rate of return.
This court has quoted with approval the definition of a reasonable rate of return
articulated by the United States Supreme Court in Bluefield Waterworks & Improvement Co.
v. Pub. Serv. Comm'n, 262 U.S. 679, 693 (1923): The return should be reasonably sufficient
to assure confidence in the financial soundness of the utility and should be adequate, under
efficient and economical management, to maintain and support its credit and enable it to raise
the money necessary for the proper discharge of its public duties. Quoted in Nevada Power
Co. v. Public Serv. Comm'n, supra, 91 Nev. at 825.
The record shows that the Utility has not enjoyed a reasonable rate increase in almost 20
years; has not paid its stockholders a dividend in 20 years; has consistently been unable to
generate operating income sufficient to meet current and deferred expenses. The most
impressive evidence in which the effects of the past are reflected is in the accumulation of
over $60,000 in debtsa figure which exceeds considerably the depreciated plant value of
the Utility.
[Headnote 5]
In the case at hand, the Commission authorized rates which would produce a revenue of
$32,530; this figure is less than the legitimate anticipated expenses which should have been
allowed.
1
Thus the rate of return upon the investors' capitalno matter what its value is
determined to beis actually negative. Since this cannot represent a just and reasonable
return, by any standard, the Commission's order must be vacated.
2
We conclude, therefore,
that judgment of the district court vacating the order of the Public Service Commission
must be affirmed.
____________________

1
The Commission, for example, refused to include insurance and fringe benefits for employees in its
allowance for expenses of plant operation and maintenance, although there was nothing in the record to support
a finding that such expenses would be unreasonable. See Public Serv. Comm'n v. Ely Light & Power, 80 Nev.
312, 323-24, 393 P.2d 305 (1964). Nor did the Commission allow a projected increase in the cost of power for
pumping, despite the testimony of its staff accountant that a rate increase had been granted the supplying power
company. Finally, the Commission accepted the recommendation of its staff that no increase in general expenses
be estimated for 1972, although the Utility presented uncontradicted evidence that the Utility's management had
gone largely uncompensated for many years. Adequate compensation for administrative expenses would appear
to be a prerequisite for the level of sound management sought by the Commission.

2
Judge Santini in his order of reversal summed up the inequity of the Commission's action: Regulation
which adversely affects the financial integrity of the utility affects not only the present quality of service
rendered but also discourages future capital investment and expenditure. Unreasonable, arbitrary, or capricious
regulation which fails to provide a sufficient return to induce the utility to perform completely and effectively
its function for the public' is to be condemned. Market St. Ry. Co. v. Railroad Comm., 24 Cal.2d 378, 150 P.2d
196 (1944); [aff'd] 324 U.S. 548 (1945), NRS Chapter 704.
The Public Service Commission of Nevada has substantial discretion in selecting the appropriate methodology
for [affixing] a fair and reasonable rate
We conclude, therefore, that judgment of the district court vacating the order of the Public
Service Commission must be affirmed. However, that part of the judgment wherein the
district judge fixed a reasonable rate of return for the Utility must be reversed and the case is
remanded to the Commission for that purpose. It is so ordered.
3

____________________
schedule calculated to meet the needs of the public and those of the utility enterprise. However, where strict and
inflexible adherence to rules and regulation [produces] and unacceptable end result', the Commission must
exercise its discretion to insure the financial and functional stability of the utility applicant.
In the instant case, the Commission has permitted form to prevail over substance. And, although Appellant
has been made to suffer financial discomfort, the ultimate burden of the Commission's Order will undoubtedly
fall upon the individual consumer.

3
The Governor designated the Honorable Michael E. Fondi, Judge of the First Judicial District, to sit in the
place of the Honorable Noel E. Manoukian, Justice, who was disqualified. Nev. Const. art. 6, 4.
____________
94 Nev. 640, 640 (1978) McGinnis v. Consolidated Casinos Corp.
MARY ANN McGINNIS and OWEN W. McGINNIS, Appellants, v. CONSOLIDATED
CASINOS CORP., a Nevada Corporation, SAHARA-NEVADA CORPORATION, a Nevada
Corporation, DEL E. WEBB CORPORATION, an Arizona Corporation, and DEL E. WEBB
HOTEL CO., an Arizona Corporation d/b/a THE MINT HOTEL & CASINO, Respondents.
No. 9246
September 29, 1978 584 P.2d 702
Appeal from order dismissing complaint, Eighth Judicial District Court, Clark County; J.
Hotel employee and her husband brought action against hotel for injuries sustained after
she had completed her shift. The district court dismissed complaint and plaintiffs appealed.
The Supreme Court held that allegation that hotel employee was no longer in the course of
her employment by hotel was sufficient, when read in conjunction with rest of her amended
complaint, to remove claim from purview of Industrial Insurance Act and to state cause of
action against hotel on theory that injuries sustained by employee, who was attacked by
unknown assailant when she went to basement of hotel to change from her working uniform
into her street clothes, had been directly and proximately caused by hotel's failure to provide
adequate security in basement.
Stanley W. Pierce, Las Vegas, for Appellants.
Dickerson, Miles & Pico, and Charles H. Wagner, Las Vegas, for Respondents.
To state cause of action which avoids Industrial Insurance Act's proscription against common-law
negligence actions, an injured employee need only allege facts which would remove claim from purview of
the Act. NRS 616.010 et seq., 616.270, 616.370; NRCP 12(b).
One way employee may remove claims against employer from purview of Industrial Insurance Act is by
alleging that injury was not sustained in course of employment. NRS 616.010 et seq., 616.270, 616.370;
NRCP 12(b).
Allegation that hotel employee was no longer in the course of her employment by hotel was sufficient,
when read in conjunction with rest of her amended complaint, to remove claim from purview of Industrial
Insurance Act and to state cause of action against hotel on theory that injuries sustained by employee, who
was attacked by unknown assailant when she went to basement of hotel to change from her working
uniform into her street clothes, had been directly and proximately caused by hotel's failure to provide
adequate security in basement. NRS 616.016 et seq., 616.270, 616.370; NRCP 12(b).
OPINION
Per Curiam:
Appellants sought damages allegedly resulting from respondents' negligence. Respondents
moved for summary judgment contending a common law negligence action was barred by
NRS 616.270.
1
The district court ordered that the motion be treated as a motion to dismiss
and granted the motion with leave to appellants to file an amended complaint.
Appellants subsequently filed an amended complaint alleging that Mary Ann McGinnis, an
employee at the Mint Hotel, had completed her shift at the Mint and clocked out; after
visiting with some friends, Mary went to the employees' locker room in the basement of
the Mint Hotel to change from her working uniform into her street clothes; while
changing, Mary Ann was attacked, brutally beaten, and seriously injured by an unknown
assailant; the assault and resulting injuries did not arise out of or in the course of her
employment; and, the Mint Hotel's failure to provide adequate security in the basement
was the direct and proximate cause of her injuries.
____________________

1
1. Every employer within the provisions of this chapter, and those employers who shall accept the terms of
this chapter and be governed by its provisions, as in this chapter provided, shall provide and secure
compensation according to the terms, conditions and provisions of this chapter for any and all personal injuries
by accident sustained by an employee arising out of and in the course of the employment.
. . .
3. In such cases the employer shall be relieved from other liability for recovery of damages or other
compensation for such personal injury, unless by the terms of this chapter otherwise provided.
with some friends, Mary went to the employees' locker room in the basement of the Mint
Hotel to change from her working uniform into her street clothes; while changing, Mary Ann
was attacked, brutally beaten, and seriously injured by an unknown assailant; the assault and
resulting injuries did not arise out of or in the course of her employment; and, the Mint
Hotel's failure to provide adequate security in the basement was the direct and proximate
cause of her injuries.
Respondents, pursuant to NRCP 12(b), moved for and were granted an order dismissing
appellants' amended complaint, with prejudice, for failure to state a cause of action.
Appellants contend this was error. We agree.
[Headnotes 1-3]
In order to state a cause of action which avoids the Nevada Industrial Insurance Act's
proscription against common law negligence actions, see NRS 616.270; NRS 616.370, an
injured employee need only allege facts which would remove the claim from the purview of
the Act. Cf. McColl v. Scherer, 73 Nev. 226, 315 P.2d 807 (1957). One way an employee
may do this is by alleging that the injury was not sustained in the course of the employment.
Cf. NRS 616.270; NRS 616.370; Heitman v. Bank of Las Vegas, 87 Nev. 201, 484 P.2d 572
(1971); Nevada Industrial Comm'n v. Holt, 83 Nev. 497, 434 P.2d 423 (1967). Here,
appellants alleged that Mary Ann was no longer in the course of her employment when the
injury was sustained. In our view, this allegation is sufficient, when read in conjunction with
the rest of her amended complaint, to avoid dismissal for failure to state a cause of action.
Indeed, this allegation presents a genuine issue of material fact which must be heard and
resolved by the trier of fact. Cf. Heitman v. Bank of Las Vegas, supra.
Accordingly, the district court order is reversed and remanded with instructions to reinstate
appellants' amended complaint.
____________
94 Nev. 643, 643 (1978) Corbett v. State
LAFATE WILLIE CORBETT, Appellant, v. THE
No. 9870
September 29, 1978 584 P.2d 704
Appeal from judgment of conviction, Sixth Judicial District Court, Pershing County;
Llewellyn A. Young, Judge.
Defendant was convicted before the district court of voluntary manslaughter, and he
appealed. The Supreme Court, Gunderson, J., held that results of polygraph examinations of
defendant and eyewitnesses were admissible where before trial the parties and counsel
stipulated to such examinations and admissibility of results thereof, polygraph operator was
renowned expert in the field, all the charts were introduced in evidence, operator was
extensively cross-examined as to his findings, requisite instructions as to such evidence were
given, there was no claim that counsel was ineffective or overlooked any significant factor in
framing the stipulation and no claim that the State failed to comply with its part of the
bargain.
Affirmed.
Richard J. Legarza, Winnemucca, for Appellant.
Robert List, Attorney General, Carson City; and Richard A. Wagner, District Attorney,
Pershing County, for Respondent.
Stipulations.
Results of polygraph examinations of defendant and eyewitnesses were admissible where defendant, his
counsel and prosecutor stipulated to such examinations and admissibility of the results, polygraph operator
was a renowned expert, all charts were introduced, operator was extensively cross-examined as to his
findings, jury was instructed that it was for them to determine what weight and effect such evidence should
be given, there was no claim that counsel was ineffective or overlooked any significant factor in framing
the stipulation or that the state failed to abide its part of the bargain.
OPINION
Lafate Willie Corbett appeals his conviction for voluntary manslaughter. See NRS
200.050. Before trial, the parties and counsel stipulated to polygraph examinations of
appellant and all eyewitnesses, and to admissibility of the results. However, the results being
unfavorable to him, appellant objected to their admission at trial. In accord with the
stipulation, the trial court overruled the objection and admitted the polygraph results,
which appellant contends was error.
court overruled the objection and admitted the polygraph results, which appellant contends
was error. We disagree.
The admissibility of polygraph evidence upon prior stipulation is an issue of first
impression in Nevada. Among other courts considering the issue, there is a split of authority.
Some courts, reasoning that polygraph evidence is unreliable and that a stipulation does
not increase reliability, exclude the evidence. See, e.g., Pulakis v. State, 476 P.2d 474 (Alaska
1970); State v. Corbin, 285 So.2d 234 (La. 1973); People v. Liddell, 234 N.W.2d 669
(Mich.App. 1975); Fulton v. State, 541 P.2d 871 (Okla.Crim. 1975); Lewis v. State, 500
S.W.2d 167 (Tex.Crim. 1973).
However, the majority rule is that polygraph results may be admitted upon prior
stipulation. See, e.g., United States v. Oliver, 525 F.2d 731 (8th Cir. 1975), cert. denied 424
U.S. 973, 96 S.Ct. 1477 (1976); State v. Valdez, 371 P.2d 894 (Ariz. 1962); State v. Molina,
573 P.2d 528 (Ariz.App. 1977); People v. Houser, 193 P.2d 937 (Cal.App. 1948); People v.
Davis, 270 Cal.App.2d 841 (1969); Robinson v. Wilson, 44 Cal.App.3d 92 (1974); State v.
Lassley, 545 P.2d 383 (Kan. 1976); State v. Ghan, 558 S.W.2d 304 (Mo.App. 1977); State v.
Towns, 301 N.E.2d 700 (OhioApp. 1973); State v. Bennett, 521 P.2d 31 (Or.App. 1974);
State v. Ross, 497 P.2d 1343 (Wash.App. 1972); Cullin v. State, 565 P.2d 445 (Wyo. 1977).
Basic to this position is the consideration of fairness to the State as well as to the defendant.
Since the accused would undoubtedly rely on the results, if positive, it would be
unreasonable to allow him to defeat their introduction because the results were unfavorable.
Cullin v. State, cited above, at 457.
In State v. Valdez, cited above, the following procedural safeguards were set forth as
prerequisite to the admissibility of polygraph evidence:
(1) That the [prosecuting attorney], defendant and his counsel all sign a written
stipulation providing for defendant's submission to the test and for the subsequent
admission at trial of the graphs and the examiner's opinion thereon on behalf of either
defendant or the state.
(2) That notwithstanding the stipulation the admissibility of the test results is subject
to the discretion of the trial judge, i.e., if the trial judge is not convinced that the
examiner is qualified or that the test was conducted under proper conditions he may
refuse to accept such evidence.
(3) That if the graphs and examiner's opinion are offered in evidence the opposing
party shall have the right to cross-examine the examiner respecting:
a. the examiner's qualifications and training;
b. the conditions under which the test was administered; c.
c. the limitations of and possibilities for error in the technique of polygraphic
interrogation; and
d. at the discretion of the trial judge, any other matter deemed pertinent to the
inquiry.
(4) That if such evidence is admitted the trial judge should instruct the jury that the
examiner's testimony does not tend to prove or disprove any element of the crime with
which a defendant is charged but at most tends only to indicate that at the time of the
examination defendant was not telling the truth. Further, the jury members should be
instructed that it is for them to determine what corroborative weight and effect such
testimony should be given.
Id. at 900.
All of the above conditions have been met in the present case. Appellant, his counsel and
the district attorney all entered into a written stipulation whereby appellant and three
eyewitnesses submitted to polygraph examinations. It was further agreed that the results of
the examinations [would] be admissible into evidence at all stages of the proceedings against
the [appellant]. The trial court found that the polygraph operator, Dr. David Raskin, was a
renowned expert in the field of psychology and polygraph examination. All of the charts were
introduced into evidence, and Dr. Raskin was extensively cross-examined as to his findings.
Finally, the court gave the requisite instruction.
Despite admitted compliance with all of the above conditions, appellant vigorously
contends polygraph results are incompetent evidence as a matter of law, relying particularly
on the language of American Elevator Co. v. Briscoe, 93 Nev. 665, 572 P.2d 534 (1977) and
Warden v. Lischko, 90 Nev. 221, 523 P.2d 6 (1974), wherein this court stated: Neither
narcointerrogation nor the lie detector method has received court recognition as possessing
the trustworthiness and reliability needed to accord the results the status of competent
evidence. Vol. 3A, Wigmore, Chadbourne Revision, 998, 999 (1970). Warden v. Lischko,
cited above, at 224.
1
Of course, our decisions in American Elevator and Lischko establish
the rule followed in Nevada in the absence of stipulation, i.e.: that polygraph evidence is
inadmissible to impeach or corroborate the testimony of a witness.
____________________

1
While those cases discuss the general inadmissibility of polygraph evidence, the circumstances involved in
each case were such that alternate grounds were clearly dispositive of the issue before the court. In American
Elevator, the respondent's attorney had the polygraph test administered privately. Appellants inadvertently
discovered that the test had been administered and sought to introduce the results to impeach respondent. The
trial court precluded the evidence based primarily on the results being clothed by the attorney-client privilege.
The court further rejected the results for want of adequate foundation and finally because the method employed
was unreliable.
In the Lischko case the court stated that it was evident that the polygraph results in that case had no bearing
at all upon the charge before the court. State v. Lischko, cited above, at 224.
Of course, our decisions in American Elevator and Lischko establish the rule followed in
Nevada in the absence of stipulation, i.e.: that polygraph evidence is inadmissible to impeach
or corroborate the testimony of a witness. The case before us presents an entirely different
situation, however. In the present factual context, we are not bound to mechanical application
of the language of our earlier authorities.
Manifestly, there exists substantial judicial recognition of the reliability and accuracy of
the polygraph technique when conducted under certain conditions. United States v. De
Betham, 348 F.Supp. 1377 (S.D.Cal. 1972), aff'd 470 F.2d 1367 (9th Cir. 1972), cert. den.
412 U.S. 907, 93 S.Ct. 2299 (1973); United States v. Ridling, 350 F.Supp. 90 (E.Mich. 1972).
Similarly, scientific evidence confirming polygraph accuracy is abundant.
2
Still, despite
recognition of the technique's potential accuracy, significant policy considerations militate
against a general rule admitting results of polygraph tests which are performed without the
concurrence of all parties. Foremost of these are fairness, and judicial efficiency. Inherent in
the polygraph process are numerous variables which, if not properly monitored, can greatly
reduce the reliability of the test results. It would be necessary to commit a very substantial
amount of judicial time to evaluating foundation evidence, as well as to devising and
enforcing court-imposed controls over the critical variables, in order to insure reliability
under a rule admitting polygraph results generally.
Such concerns are no longer compelling, however, where the parties and counsel are
afforded the opportunity, prior to the polygraph examination, to control by stipulation those
variables deemed significant to fairness and reliability. A prime example is the stipulated
selection of the examiner, whose ability is perhaps the single most important variable
affecting the accuracy of polygraph. See United States v. De Betham, cited above.
3
Thus, a
stipulation gives an indirect assurance of accuracy, and, we believe, courts admitting
polygraph evidence under stipulated controls apparently do so because of a "tacit belief" in
the accuracy of the technique when so utilized.
____________________

2
Both of these instances of judicial recognition of the accuracy of the polygraph are pointed out along with
others in a comprehensive article on the admissibility of polygraph evidence, Tarlow, Admissibility of Polygraph
Evidence in 1975; An Aid in Determining Credibility in a Perjury Plagued System, 26 Hastings. L. J. 917
(1975). That article also establishes that scientific evidence of accuracy is plentiful. Id. at 931-934.

3
Other variables which the parties may deem significant to fairness might include provision for: how, if at
all, certain issues may be raised by the examiner; the environment in which the examination will be
administered; who, if anyone other than the examiner and subject, will be present during the examination; tests
to insure that any given subject is not under the influence of any drug which might enable the subject to beat the
test; and the degree of conclusiveness required before test results will be admissible.
tacit belief in the accuracy of the technique when so utilized. Tarlow, cited in footnote 2.
In the case before us, the parties agreed in the selection of a well-recognized, competent
examiner. There is no claim that counsel was ineffective or overlooked any significant factor
in framing the stipulation. Likewise, there is no claim that the State failed to comply with its
part of the bargain. Thus, the sole question here is whether a stipulation may be enforced
where it is entered freely and voluntarily, with the assistance of adequate counsel.
In our view, to deny effect to such a stipulation would deprive both the court system and
litigants of the opportunity to utilize a recognized scientific device, even though those
involved believe its use can be fairly controlled and will aid in the administration of justice. A
decision so rigid would, we think, be entirely inconsistent with the truth-discovery process.
Given judicial and scientific recognition that polygraph examinations achieve a valuable
level of reliability when fairly and competently conducted, and given further that a stipulation
provides a very significant indirect assurance of accuracy by allowing the parties to control
matters potentially affecting fairness and reliability, we are constrained to hold that polygraph
evidence may be admitted under the conditions expressed in State v. Valdez, cited above.
Since all of those conditions have been met in this case, the district court properly admitted
the polygraph evidence.
Affirmed.
4

____________________

4
Richard J. Legarza having diligently represented appellant on appeal, through the preparation of briefs and
upon oral argument, the district court is requested to enter an appropriate order providing for his compensation.
Brackenbrough v. State, 92 Nev. 460, 555 P.2d 419 (1976).
____________
94 Nev. 647, 647 (1978) Rhine v. Miller
ROBERT RHINE, Appellant, v. RUSSELL MILLER,
Respondent.
No. 9038
September 29, 1978 583 P.2d 458
Appeal from judgment, Eighth Judicial District Court, Clark County; J. Charles
Thompson, Judge.
Joint venturer, a contractor, brought action seeking accounting and one-half of profits
realized by his coadventurer, a property owner, in conveying to a third party the property
which was to be contributed by defendant to the joint venture real estate development
project.
venture real estate development project. The district court entered judgment for contractor but
refused to award him profits, and he appealed. The Supreme Court, Batjer, C. J., held that: (1)
proportional share of profit inured to benefit of joint venturer when coadventurer breached his
duty as trustee by appropriating common property to his own use and realizing profit
therefrom; coadventurer held profits in constructive trust for his joint venturer, and (2)
coadventurer who conveyed common property for $210,000 was liable to his joint venturer
for one-half the difference between that amount and amount contributed to joint venture by
parties.
Affirmed, as modified.
[Reporter's note: Rhine v. Miller, Adv. Op. 91, filed June 12, 1978, was recalled July 19,
1978.]
Lionel Sawyer & Collins, and John R. Lusk, Las Vegas, for Appellant.
Dennis R. Haney Professional Corporation, Ltd., Las Vegas, and Alfred Becker, Las
Vegas, for Respondent.
The relationship between joint venturers is fiduciary in character and imposes on venturers the obligation
of loyalty to enterprise and duty of good faith, fairness, and honesty in their dealings with each other with
respect to property belonging to venture.
Where one venturer commits his property to venture, but retains legal title in his own name, he holds such
property as trustee for enterprise.
As trustee, joint adventurer who committed property to the venture but retained legal title in his own
name was required to account strictly to his coadventurer and could not, by reason of his possession of the
property, enjoy unfair advantage or have greater rights in property than his coadventurer.
4. Trusts.
Proportional share of profit inured to benefit of joint venturer when his coadventurer breached his duty as
trustee by appropriating common property to his own use and realizing a profit therefrom; coadventurer
held profits in constructive trust.
5. Damages.
In order to establish an adequate basis for determining quantum of lost profits, plaintiff need only provide
best evidence available to him under facts and circumstances of case.
Joint venturer who unlawfully transferred common property held by joint venture for $210,000 was liable
to his coadventurer for one-half the difference between those profits and amount
contributed to joint venture by parties.
difference between those profits and amount contributed to joint venture by parties.
OPINION
In late 1972, appellant and respondent entered into a joint venture agreement for the
purpose of improving certain real property owned by respondent in Las Vegas, Nevada. The
agreement provided that: (1) respondent, a medical doctor in Las Vegas, would contribute
five (5) acres of real property situated on the corner of Eastern and Viking Avenues to the
joint venture; (2) appellant, a construction contractor and developer, would plan and construct
thirteen (13) residential dwellings on the property; and, (3) the parties would sell the
dwellings and divide the profits equally between them.
Appellant commenced performance pursuant to the agreement and incurred various
planning expenses in the amount of $6,953.83 before discovering that respondent had
conveyed the property to a third party as down payment on the purchase of an apartment
complex. Appellant then initiated this action seeking an accounting and one-half of the profits
realized by respondent in transferring the property. The district court found: (1) there was an
enforceable joint venture agreement; (2) respondent had breached that agreement; and, (3)
appellant was entitled to expenses incurred in furtherance of the venture, attorney's fees,
costs, and interest. However, the district court refused to award profits, concluding the
evidence offered in support thereof was unrealistic and unacceptable as a basis of computing
any profits . . . realized by [respondent]. Appellant contends this denial of profits was
erroneous. We agree.
[Headnotes 1-3]
Appellant's entitlement to profits arises from respondent's breach of the joint venture
agreement between the parties. The relationship between joint venturers is fiduciary in
character and imposes on the venturers the obligation of loyalty to the enterprise and a duty of
good faith, fairness, and honesty in their dealings with each other with respect to property
belonging to the venture. Lind v. Webber, 36 Nev. 623, 134 P. 461 (1913); McIver v.
Norman, 213 P.2d 144 (Or. 1949); Reaves v. Hembree, 330 So.2d 747 (Fla.App. 1976); L. M.
White Contracting Co. v. Tucson Rock & Sand Co., 466 P.2d 413 (Ariz.App. 1970); cf.
Randono v. Turk, 86 Nev. 123, 466 P.2d 218 (1970). Where, as here, one venturer commits
his property to the venture, but retains legal title in his own name, he holds such property as
trustee for the enterprise.
such property as trustee for the enterprise. See Lind v. Webber, supra; Kincaid v. Miller, 272
P.2d 276 (Colo. 1954); L. M. White Contracting Co. v. Tucson Rock & Sand Co., supra;
Swarthout v. Gentry, 144 P.2d 38 (Cal.App. 1943). Thus, as trustee, respondent was required
to account strictly to his coadventurer and could not, by reason of his possession of the
property, enjoy an unfair advantage or have greater rights in the property than his
coadventurer. See Granik v. Perry, 418 F.2d 832 (5th Cir. 1969); Lind v. Webber, supra;
Kincaid v. Miller, supra.
[Headnote 4]
When respondent breached his duty as trustee by appropriating the common property to his
own use and realizing a profit therefrom, a proportional share of that profit inured to the
benefit of appellant, Lind v. Webber, supra, and respondent holds those profits in a
constructive trust for him. See Randono v. Turk, supra; Fitz-Gerald v. Hull, 237 S.W.2d 256
(Tex. 1951); L. M. White Contracting Co. v. Tucson Rock & Sand Co., supra; O'Bryan v.
Bickett, 419 S.W.2d 726 (Ky.App. 1967).
[Headnote 5]
The sole remaining issue, then, is the measure of profits respondent realized. In order to
establish an adequate basis for determining the quantum of lost profits, appellant need only
provide the best evidence available to him under the facts and circumstances of the case. See
A To Z Rental, Inc. v. Wilson, 413 F.2d 899 (10th Cir. 1969); Long v. T-H Trucking Co., 486
P.2d 300 (Wash.App. 1971). Cf. Jim Mahoney, Inc. v. Galokee Corporation, 522 P.2d 428
(Kan. 1974); Dunseath v. Hallauer, 253 P.2d 408 (Wash. 1953); Stott v. Johnston, 229 P.2d
348 (Cal. 1951); Brown v. Homestake Exploration Corporation, 39 P.2d 168 (Mont. 1934).
[Headnote 6]
Here, appellant produced a copy of the contract which respondent executed relative to his
apartment purchase. The contract provided for respondent's purchase of the Lakes Apartments
for a total price of $1,000,000. As down payment, respondent was to convey his Eastern and
Viking property to the seller in exchange for a $210,000 credit against the total purchase
price. The contract was signed and acknowledged by respondent after arm's length
negotiations and, thus, constituted an admission that respondent had received $210,000 for
his property and, further, that the $210,000 figure was valid and accurate. See Hull v.
Sheehan, 239 P.2d 704 (Cal.App. 1952); Podesta v. Mehrten, 134 P.2d 38 (Cal.App. 1943).
Furthermore, this figure was neither denied by respondent nor controverted by any other
evidence. Indeed, if respondent had controverting evidence, such evidence was peculiarly
within his knowledge, and he should have offered it.
controverting evidence, such evidence was peculiarly within his knowledge, and he should
have offered it. See Duncan v. Essary, 392 P.2d 877 (Kan. 1964). In our view, this contract
was the best evidence available and the $210,000 figure recited therein provided a sufficient
basis for ascertaining the profits realized by respondent's unlawful transfer of the property. Cf.
Eastman Co. v. Southern Photo Co., 273 U.S. 359 (1927); A To Z Rental, Inc. v. Wilson,
supra; Jim Mahoney, Inc. v. Galokee Corporation, supra. The district court erred in refusing
to use this figure to compute profits to which appellant was entitled. Cf. B. B. & S.
Construction Co., Inc. v. Stone, 535 P.2d 271 (Alaska 1975); Brear v. Klinker Sand & Gravel
Company, 374 P.2d 370 (Wash. 1962).
The amount of appellant's profits is computed as one-half the difference between the
amount realized by respondent ($210,000) and the amount contributed to the joint venture by
the parties ($60,000 in land, and $6,953.83 in planning expenses). Thus, appellant is entitled
to $71,523.08, plus interest.
In addition to profits, appellant was entitled to, and the district court properly awarded,
$6,953.83 in planning expenses, attorney's fees, costs, and interest. Accordingly, that portion
of the judgment will not be disturbed.
The judgment is affirmed, as modified. See Jim Mahoney, Inc. v. Galokee Corporation,
supra.
Mowbray, Gunderson, and Manoukian, JJ., and Beko, D. J.,
1
concur.
____________________

1
The Governor designated William P. Beko, Judge of the Fifth Judicial District, to sit in place of Hon.
Gordon Thompson, Justice, who was disabled. Nev.Const. art. 6, 4.
____________
94 Nev. 651, 651 (1978) Christy v. Carlisle
PETER J. CHRISTY, Appellant, v. THERESA GORDON
CARLISLE, et al., Respondents.
No. 9815
September 29, 1978 584 P.2d 687
Appeal from order setting aside default judgment; Eighth Judicial District Court, Clark
Suit was instituted to recover damages from a multiple collision. The district court entered
default judgment against defendant and, upon entering order setting aside default judgment,
plaintiff appealed. The Supreme Court, Thompson, J., held that settlement negotiations and
exchange of correspondence between plaintiff's counsel and defendant's insurance
representative constituted an "appearance" within intendment of rule requiring a
three-day notice of application for default judgment and, in absence of such notice,
default judgment was subject to being set aside.
held that settlement negotiations and exchange of correspondence between plaintiff's counsel
and defendant's insurance representative constituted an appearance within intendment of
rule requiring a three-day notice of application for default judgment and, in absence of such
notice, default judgment was subject to being set aside.
Affirmed.
Cochrane, Lehman, Nelson & Rose, of Las Vegas, for Appellant.
Beckley, Singleton, DeLanoy & Jemison and Mark C. Scott, Jr., of Las Vegas, for
Respondents.
1. Judgment.
Written notice of application for default judgment must be given if defendant or representative has
appeared in action and, in absence of such notice, judgment is voided. NRCP 55(b)(2).
2. Judgment.
An appearance within contemplation of rule requiring plaintiff to give written notice of application for
default when defendant has appeared in action does not necessarily require some presentation or
submission to court. NRCP 55(b)(2).
3. Judgment.
Rule requiring plaintiff to give written notice of application for default when defendant has appeared in
action is designed to insure fairness to defendant or his representative on indicating a clear purpose to
defend. NRCP 55(b)(2).
4. Judgment.
A default judgment normally must be viewed as available only when adversary process has been halted
because of an essentially unresponsive party. NRCP 55(b)(2).
5. Judgment.
Settlement negotiations and exchange of correspondence between plaintiff's counsel and defendant's
insurance representative constituted an appearance within intendment of rule requiring a three-day notice
of application for default judgment and, in absence of such notice, default judgment was subject to being
set aside. NRCP 55(b)(2).
6. Judgment.
Defendant's insurance representative was entitled to rely on representation of plaintiff's counsel that
representative had an indefinite extension or time to answer subject to a notice that defendant had been
served and, in absence of such notice, default judgment entered against defendant could not be allowed to
stand. NRCP 55(b)(2).
OPINION
This appeal is from an order of the district court setting aside a default judgment in an
action to recover damages arising out of a four-car automobile accident. Suit was commenced
shortly before the two-year limitation period expired and named Theresa Carlisle as
defendant along with fictitiously named defendants.
Theresa Carlisle as defendant along with fictitiously named defendants.
The insurance carrier for Carlisle was promptly notified by plaintiff's counsel of the
lawsuit and was advised by letter that it had an indefinite extension of time to answer subject
to my advising you that we have served Ms. Carlisle. Subsequent negotiation between
counsel and the insurance company representative did not result in settlement. Counsel then
wrote the representative that plaintiff's final offer of settlement would remain open for ten
days and, if not accepted, would expire and we would go ahead and serve the defendant
Theresa G. Carlisle with the complaint that we filed on January 5, 1976.
The insurance representative did not accept the settlement demand within ten days.
Plaintiff's counsel then caused service of process to be made upon the director of the
department of motor vehicles pursuant to NRS 14.070. The summons and complaint was
mailed to the defendant Carlisle's Las Vegas address as it appeared on the accident report.
However, she had moved from Nevada, and since the one-year postal courtesy to forward
mail had lapsed, the certified letter was returned undelivered with the notation Return to
senderaddress unknown. Consequently, neither the defendant nor her insurance company
received actual notice that service of process had been made pursuant to that statute.
Default was entered July 7, 1976. Six days later a default judgment for $60,000 was
obtained. Not until January 25, 1977, did the defendant Carlisle's insurance company learn
that a default judgment had been secured. The six months period within which to present a
Rule 60(b) motion requesting relief from final judgment had then passed. Consequently,
counsel for defendant sought to set aside the entry of default judgment by motion pursuant to
Rule 55(b)(2).
1
He contended that for the purposes of that rule the defendant Carlisle had
appeared in the action and was, therefore, entitled to written notice of application for
judgment at least 3 days prior to the hearing on such application.
____________________

1
NRCP 55(b)(2): In all other cases the party entitled to a judgment by default shall apply to the court
therefor; but no judgment by default shall be entered against an infant or incompetent person unless represented
in the action by a general guardian, guardian ad litem, conservator, or other such representative. If the party
against whom judgment by default is sought has appeared in the action, he (or, if appearing by representative, his
representative) shall be served with written notice of the application for judgment at least 3 days prior to the
hearing on such application. If, in order to enable the court to enter judgment or to carry it into effect, it is
necessary to take an account or to determine the amount of damages or to establish the truth of any averment by
evidence or to make an investigation of any other matter, the court may conduct such hearings or order such
references as it deems necessary and proper and shall accord a right of trial by jury to the parties when and as
required by any statute of the State.
The district court ruled that the settlement negotiations and exchange of correspondence
between plaintiff's counsel and the defendant Carlisle's insurance representative should be
deemed an appearance within the intendment of Rule 55(b)(2) requiring a 3-day notice of the
application for default judgment. Since such notice was not given, the court set aside the
judgment and granted the defendant twenty days within which to answer or otherwise plead.
For reasons hereafter expressed, we affirm that determination.
[Headnotes 1-3]
1. Written notice of application for default judgment must be given if the defendant or
representative has appeared in the action. The failure to serve such notice voids the judgment.
Reno Raceway, Inc. v. Sierra Paving, 87 Nev. 619, 492 P.2d 127 (1971). An appearance
within the contemplation of Rule 55(b)(2) does not necessarily require some presentation or
submission to the court. Charlton L. Davis & Co. P.C. v. Fedder Data Center, 556 F.2d 308
(5th Cir. 1977). That rule is designed to insure fairness to a party or his representative who
has indicated a clear purpose to defend the suit. H. F. Livermore Corp. v. Aktiengesellschaft
Gebruder L., 432 F.2d 689 (D.C. Cir. 1970); R. F. v. D.G.W. 560 P.2d 837 (Colo. 1977);
Feeney v. Abdelahad, 372 N.E.2d 1315 (Mass.App. 1978).
[Headnotes 4, 5]
It is our underlying policy to have each case decided upon its merits. Hotel Last Frontier v.
Frontier Prop., 79 Nev. 150, 380 P.2d 293 (1963). With this in mind, we approve the
observation of the court in H. F. Livermore Corp. v. Aktiengesellschaft Gebruder L., supra,
that a default judgment normally must be viewed as available only when the adversary
process has been halted because of an essentially unresponsive party.
[Headnote 6]
2. Defendant Carlisle's insurance carrier had indicated a clear purpose to defend the suit.
Indeed, it was duty bound to do so, and plaintiff's counsel must have known this. The
insurance company was entitled to rely upon plaintiff's counsel's representation that it had an
indefinite extension of time to answer subject to advice that the insured defendant had been
served. The company was not notified of the fact of service. To allow the default judgment to
stand in these circumstances would manifestly be unfair.
Affirmed.
____________
94 Nev. 655, 655 (1978) National Convenience Stores v. Fantauzzi
NATIONAL CONVENIENCE STORES, INC., dba STOP N' GO MARKETS OF
NEVADA, INC., STOP N' GO MARKETS OF NEVADA, INC., NO. 0142, and STOP N'
GO MARKETS OF NEVADA, INC., NO. 0522, Appellants, v. FRED A. FANTAUZZI,
Individually, and as heir of CAROL FANTAUZZI, deceased, and as heir of JAY
FANTAUZZI, deceased, and JON FANTAUZZI, a minor, by his Guardian ad Litem, FRED
A. FANTAUZZI, Respondents.
No. 9126
September 29, 1978 584 P.2d 689
Appeal from judgment and from denial of motion for judgment notwithstanding verdict.
Eighth Judicial District Court, Clark County; John F. Mendoza, Judge.
Judgment was entered in the district court against employee and employer for wrongful
death of passengers in automobile struck head-on by automobile of employee who was
involved in a drag race while enroute to accomplish a job task on his day off. Employer's
motion for judgment n. o. v. was denied and it appealed. The Supreme Court, Manoukian, J.,
held that: (1) while ordinarily tortious conduct by an employee in transit to or from work will
not expose employer to respondeat superior liability, an exception exists whereby an
employee on some special errand, although not during usual working hours, may
nevertheless be considered within scope of his employment and (2) verdict finding employer
vicariously liable was supported by substantial evidence.
Affirmed.
Thompson, J., dissented.
Beckley, Singleton, DeLanoy, Jemison & Reid, Chartered, Las Vegas, for Appellants.
Cochrane, Lehman, Nelson & Rose, Las Vegas, for Respondents.
Employer can be vicariously responsible only for acts of his employees, not someone else, and one way
of establishing employment relationship is to determine when employee is under control of employer.
Policy rationale for doctrine of respondeat superior is grounded on theory of control rather than on
entrepreneur theory; once master-servant relationship is established, principal inquiry is whether tortious
conduct occurred within scope of employment.
Ordinarily, tortious conduct by an employee in transit to or from work will not expose employer to
respondeat superior liability; exception exists whereby employee on some special errand, although not
during usual working hours, may nevertheless be considered within his scope of employment and under
control of employer.
4. Automobiles.
In action brought against employee and employer for wrongful death of passengers in automobile struck
head-on by automobile of employee who was involved in drag race while enroute to accomplish job task
on his day off, verdict finding employer vicariously liable was supported by substantial evidence.
OPINION
This case concerns an accident which occurred on March 24, 1972, in Las Vegas, and the
subsequent liability of an employer for acts performed by an individual in its employ. The
employee, David Wagner, had been employed approximately one month before the accident
by appellant National Convenience Stores, which was doing business as several Stop N' Go
Markets of Nevada. He was assigned to do certain revamping work for several Stop N' Go
Markets consisting in part of measuring shelving space. While traveling among the various
stores, Wagner used his own automobile. Wagner's work shift was generally 7:00 a.m. to 3:00
p.m., and his normal work period was Monday through Saturday, inclusive. Two days prior to
the accident, Wagner left work one hour early to measure the shelving, and on the way to the
store, he stopped at several residences to pick up his wife and two friends to accompany him.
Wagner worked on this assignment well past his normal working hours in order to
accomplish the task.
Although March 24, the day of the accident, was scheduled as a working day for Wagner,
he, in fact, had that day off due to arrangements made for him to work a double shift the next
day. On the day of the accident, Wagner was driving his vehicle with the same individuals in
it that were present two days before when he was measuring shelves. Wagner was heading
toward a particular Stop N' Go Market to discuss work related matters with his supervisor
pertaining to another day off when he remembered that he had forgotten to obtain the
shelving measurements from one of the stores and announced to the passengers his intention
to go obtain those measurements before resuming his original course. The passengers in
Wagner's vehicle testified that they knew that he was going to measure shelf space at one of
the stores.
While driving to the store, Wagner became engaged with another youthful driver in erratic
driving characterized by witnesses as a drag race. Wagner's car went out of control, crossed
the center line, and collided head-on with another vehicle.
crossed the center line, and collided head-on with another vehicle. Carol Fantauzzi and her
infant, Jay, died. Her child Jon received serious injuries.
The action for wrongful death was argued to the jury on the theory of respondeat superior
incident to appropriate jury instructions.
Upon jury verdict, a judgment was entered against both Wagner and Stop N' Go.
Appellants moved for judgment notwithstanding the verdict which was denied. This appeal
follows that denial.
The single question before us is whether the trial court erred in permitting appellants to be
held liable under the doctrine of respondeat superior. We turn now to consider the issue.
Appellants contend that the policy rationale for respondeat superior traditionally has been
anchored on the concept of control but that modernly the justification is that vicarious
liability is simply one risk of business enterprise. Prosser, Law of Torts, at 459 (4th ed. 1971);
2 Harper & James, Law of Torts (1956), at 1376-78; Hinman v. Westinghouse Electric
Company, 471 P.2d 988 (Cal. 1970). These authorities provide a valuable analysis of the
philosophical history of the respondeat superior doctrine, but we find it unnecessary here to
adopt the purported modern trend. Compare, Meagher v. Garvin, 80 Nev. 211, 391 P.2d 507
(1964). Neither are we here disposed to adopt a rule of negligence without fault as relates to
vicarious liability.
[Headnote 1]
Acknowledging that one analysis of the policy underlying the doctrine of respondeat
superior is that vicarious liability is simply one risk of the entrepreneur system, United States
v. Romitti, 363 F.2d 662 (9th Cir. 1966); Farris v. United States Fidelity and Guaranty Co.,
542 P.2d 1031 (Or. 1975); compare, Meagher, the term control has been applied to
establish the master-servant relationship itself, the sine qua non of the respondeat superior
doctrine. Succinctly stated, the employer can be vicariously responsible only for the acts of
his employees not someone else, and one way of establishing the employment relationship is
to determine when the employee is under the control of the employer. Martarano v.
United States, 231 F.Supp. 805 (D. Nev. 1964).
In Wells, Inc. v. Shoemake, 64 Nev. 57, 64, 177 P.2d 451, 455 (1947), we stated:
The relation between parties to which responsibility attaches to one, for the acts of
negligence of the other, must be that of superior and subordinate, or, as it is generally
expressed, of master and servant, in which the latter is subject to the control of the
former. The responsibility is placed where the power exists.
placed where the power exists. Having power to control, the superior or master is
bound to exercise it to the prevention of injuries to third parties, or he will be held
liable. (Emphasis added.)
[Headnote 2]
Premised on the use of the term control in that passage, respondents justifiably contend
that Nevada's policy rationale for the doctrine of respondeat superior is grounded on the
theory of control rather than on the entrepreneur theory. We agree. Once a master-servant
relationship is established, usually through an analysis of control, the principal inquiry, as
was made in the court below, is whether the tortious conduct occurred within the scope of
employment.
[Headnote 3]
Ordinarily tortious conduct by an employee in transit to or from work will not expose the
employer to respondeat superior liability. This is known as the going and coming rule.
Short v. United States, 245 F.Supp. 591 (D. Del. 1965); State v. Superior Court, in & for
County of Maricopa, 524 P.2d 951 (Ariz. 1974); see, Annot. 52 ALR2d 287. An exception
exists whereby an employee on some special errand, although not during usual working
hours, may nevertheless be considered within his scope of employment and under control of
the employer. Boynton v. McKales, 294 P.2d 733 (Cal.App. 1956); Hinman, supra.
Appellants contend that Wagner was not on a special errand and cite as analogous cases
Pesio v. Sherman, 172 N.W.2d 748 (Minn. 1969), and Church v. Ingersoll, 234 F.2d 176,
cert. denied, 352 U.S. 879 (10th Cir. 1956). These cases are easily distinguishable, as in
neither of the cited cases may it be reasonably inferred that the employee was acting within
the scope of his employment when the accident occurred. The going and coming rule
precluded assignment of the vicarious liability in both situations.
In the instant case, Wagner was assigned tasks which of necessity took him away from his
normal place of employment. He was required to travel to the various Stop N' Go Markets in
Las Vegas to obtain shelf measurements. Evidence also indicated that he had rather broad
discretionary authority which included his working well past his usual working hours
completing these assignments. Notwithstanding the fact of Wagner's unfortunate momentary
indiscretion, we perceive no variance from this practice. This factual setting is not far
removed from the facts and holding in Prell Hotel Corp. v. Antonacci, 86 Nev. 390, 469 P.2d
399 (1970), where we imposed employer liability for an employee's willful tort committed
within the scope of his employment.
Had the accident occurred while enroute to discuss with his supervisor the possibility of a
day off for the ensuing week, clearly Wagner would not have been within the scope of his
employment. Wagner, however, temporarily abandoned his personal objective and turned to
accomplish a task reasonably within the scope of his employment and of benefit to his master.
State v. Gibbs, 336 N.E.2d 703 (Ind.App. 1975).
[Headnote 4]
There was thus introduced sufficient evidence to present the case to the triers of fact.
Whether an employee was engaged in the scope of employment when the tortious act
occurred raises an issue of fact which is within the province of a jury. Witt v. United States,
319 F.2d 704 (9th Cir. 1963); Nelson v. Nelson, 166 N.W.2d 70 (Minn. 1969); Meyer v.
Blackman, 381 P.2d 916 (Cal. 1963). The jury verdict is supported by substantial evidence
and, thus, will not be disturbed. Shaw v. Beehive State Agric. Co-Op, 92 Nev. 611, 555 P.2d
958 (1976); Gerber v. Prunty, 92 Nev. 597, 555 P.2d 488 (1976).
The judgment for respondents is affirmed.
Batjer, C. J., and Mowbray and Gunderson, JJ., concur.
Thompson, J., dissenting:
This appeal from an order denying the motion of National Convenience Stores, Inc., for a
judgment notwithstanding the verdict presents a question of law as to whether National's
employee, David Wagner, was acting within the scope and course of his employment when a
tragic accident happened. A jury found that Wagner had negligently driven his automobile
proximately causing the death of two people and serious personal injuries to a third person.
Damages in excess of three-quarters of a million dollars were assessed against Wagner and
his employer, National. It was National's contention in presenting its motion for a judgment
N.O.V., and now on this appeal, that it cannot be vicariously liable for the tort of Wagner
since he was not acting within the scope and course of his employment when the accident
happened. In my opinion the record supports this contention.
As to the liability of National the action was tried to the jury on the theory of respondeat
superior.
1
Consequently, the evidence must reflect the right of National to control Wagner's
conduct on the day when the accident occurred. Wells, Inc. v. Shoemake, 64 Nev. 57, 64
____________________

1
The enterprise theory of liability, i.e., where the inquiry is whether the specific risk is one that may fairly be
regarded as typical of or broadly incidental to the employer's enterprise, was not involved in this action. For
further explanation of this theory, see Rodgers v. Kemper Construction Co., 124 Cal.Rptr. 143 (Cal.App. 1975);
2 Harper & James, the Law of Torts 1376 (1956).
Shoemake, 64 Nev. 57, 64, 65, 177 P.2d 451 (1947). This evidence does not exist.
National operates a chain of small Stop N Go grocery stores. National hired Wagner as a
manager trainee. One of his tasks was to get shelf measurements of all of the Stop N Go
stores. He used his own car in traveling from store to store.
March 24, 1972, the day of the accident, was Wagner's day off. While driving his car he
remembered that he had not obtained the shelf measurements of a store located on Desert Inn
Road, and decided to go there for that purpose. His employer, National, did not know of his
decision to do so. As Wagner turned onto Desert Inn Road, he engaged in a drag race with a
teenage driver who had pulled alongside, and soon thereafter Wagner lost control of his car
and the tragic accident occurred.
The relation of master and servant did not exist when this accident happened because
National had not advised Wagner that he could act for it on that day. Indeed, National had no
idea that Wagner would spontaneously, on his day off, drive toward a Stop N Go store with
the thought of doing some work there. Wagner did nothing for his employer on March 24,
1972. He never reached the Stop N Go store. His conduct cannot be said to have benefited
National in any way.
As I see it, today's opinion allows the imposition of vicarious liability solely on the basis
of an employee's assertion that, on his day off, he was going to do some work for his
employer when the accident happened. I find no authority to support this proposition.
____________
94 Nev. 660, 660 (1978) Schall v. State ex rel. Dep't Human Res.
HERBERT M. SCHALL, Appellant, v. THE STATE OF NEVADA, ex rel. ITS
DEPARTMENT OF HUMAN RESOURCES, Respondent.
No. 9217
September 29, 1978 587 P.2d 1311
Appeal from judgment; Second Judicial District Court; Washoe County; John E. Gabrielli,
Judge.
Appeal was taken from order of the district court affirming decision of State Personnel
Advisory Commission to terminate employment of psychologist for mental health center. The
Supreme Court held that: (1) nothing in evidence presented to hearing officer for Commission
even remotely suggested disgraceful personal conduct on part of psychologist whose
employment had been terminated on ground of disgraceful personal conduct; (2) district court
did not have power to sustain dismissal for reason never asserted in proceedings before
hearing officer, and {3) psychologist was entitled to be reinstated with all accrued back
pay and rights, less amount he had earned in gainful employment since dismissal, and he
was also entitled to interest on monies due him and his costs below and on appeal.
dismissal for reason never asserted in proceedings before hearing officer, and (3) psychologist
was entitled to be reinstated with all accrued back pay and rights, less amount he had earned
in gainful employment since dismissal, and he was also entitled to interest on monies due him
and his costs below and on appeal.
Reversed.
Laub, Clark & Hall, Ltd., Reno, for Appellant.
Robert List, Attorney General, and Shirley Smith, Deputy Attorney General, Carson City,
for Respondent.
1. Officers.
Nothing in evidence presented to hearing officer for State Personnel Advisory Commission even remotely
suggested disgraceful personal conduct on part of state employee whose employment had been terminated
on ground of disgraceful personal conduct.
2. Officers.
District court did not have authority to sustain dismissal of state employee for reason never asserted
against him in proceedings before hearing officer for State Personnel Advisory Commission.
3. Interest; Officers.
State employee who had been improperly dismissed was entitled to be reinstated with all accrued back
pay and rights, less amount he had earned in gainful employment since dismissal, and he was also entitled
to interest on monies due him and his costs below and on appeal.
OPINION
Per Curiam:
This appeal is from an order of the district court affirming the decision of the Nevada State
Personnel Advisory Commission to terminate the employment of Dr. Herbert M. Schall, a
psychologist for Reno Mental Health Center.
1
The hearings officer for the Commission
supported the recommended termination of Dr. Schall on the ground of disgraceful personal
conduct. The district court found that the evidence did not support a finding of disgraceful
personal conduct, but proceeded to sustain the dismissal on the ground that his activity was
incompatible with employment, a charge that had never been asserted against him.
[Headnote 1]
1. The hearings officer found that Dr. Schall had discussed his personal matters with
patients, sometimes causing them to be upset. This, the officer characterized as disgraceful
personal conduct justifying termination.
____________________

1
Reno Mental Health Center is an agency of the State of Nevada, Department of Human Resources, Division
of Mental Hygiene and Mental Retardation.
conduct justifying termination. The phrase disgraceful personal conduct is not defined in
the Rules of Personnel Administration. We assume that disgraceful carries the connotation
of shameful or dishonorable. The ancient case of Polson v. Polson, 39 N.E. 498, 499 (Ind.
1895) noted that the words disgraceful, detestable, odious, scandalous, base, vile, shameful,
ignominious are given by Webster as synonyms of infamous. There is absolutely nothing in
the evidence presented to the hearings officer to even remotely suggest disgraceful personal
conduct on the part of Dr. Schall, and we affirm the district court determination in this regard.
[Headnote 2]
2. The central question tendered to us is whether the district court was empowered to
sustain Dr. Schall's dismissal for a reason never asserted against him. We believe it clear that
the court lacked such authority. The expression of this court in Nevada Tax Com. v. Hicks,
73 Nev. 115, 135, 310 P.2d 852 (1957) is on point. We there stated: Since what the
commission has treated as the major offenses are without substantial evidentiary support, we
feel that our proper course is to reverse the commission, accepting the apparent basis to be the
true basis of its action.
[Headnote 3]
3. We order the reinstatement of Dr. Schall with all accrued back pay and rights, less the
amount he has earned in gainful employment since dismissal. He also is entitled to interest on
monies due him, his costs below and on appeal. Stevens v. Hocker, 91 Nev. 392, 536 P.2d 88
(1975); Hardison v. Carmany, 88 Nev. 670, 504 P.2d 1 (1972).
Reversed.
____________
94 Nev. 662, 662 (1978) Dixon v. State
DENNIS HAROLD DIXON, Appellant, v. THE
No. 10022
September 29, 1978 584 P.2d 693
Appeal from judgment of conviction and denial of new trial. Second Judicial District
Court, Washoe County, Roy L. Torvinen, Judge.
Defendant was convicted in the district court of two counts of sale of controlled substance
and one count of conspiracy to sell controlled substance, and he appealed. The Supreme
Court, Manoukian, J., held that: (1) denial of defense counsel's motion for continuance was
not abuse of discretion, and {2) where defendant received part of heroin involved in each
transaction for himself, defense of procuring agent was not available.
94 Nev. 662, 663 (1978) Dixon v. State
(2) where defendant received part of heroin involved in each transaction for himself, defense
of procuring agent was not available.
Affirmed.
William N. Dunseath, Public Defender, Michael B. McDonald, Deputy Public Defender,
Washoe County, for Appellant.
1. Criminal Law.
Granting of continuance in criminal proceeding is within sound discretion of trial court.
2. Criminal Law.
Trial judge has sole discretion to determine whether counsel has reasonable time to prepare for criminal
proceeding.
3. Criminal Law.
Where trial court was aware of circumstances under which defendant's last counsel was appointed and no
specific reasons were recited by counsel in affidavit accompanying motion, denial of motion for
continuance was not abuse of discretion.
Procuring agent defense in prosecution for sale of controlled substance can be maintained only if
defendant was merely conduit for purchaser and in no way benefited from transaction. NRS 453.231.
5. Criminal Law.
Where defendant received part of heroin involved in each transaction for his own use, defense of
procuring agent was not available in prosecution for sale of controlled substance and conspiracy to sell
controlled substance. NRS 199.480, 453.231.
OPINION
Appellant was indicted and subsequently convicted on two counts of sale of a controlled
substance, NRS 453.231, and one count of conspiracy to sell a controlled substance, NRS
199.480. The arrests were occasioned by defendant's selling the contraband material to a
police informant and an undercover officer.
The informant took the officer to Dixon's residence where the officer stated he needed to
purchase heroin for his wife. Dixon arranged to purchase the heroin from a co-defendant, who
subsequently pled guilty and turned State's evidence. After the purchase, Dixon took a portion
of the heroin for himself and injected it into his arm in the presence of both the officer and the
informant. Approximately a week later the informant and the officer again purchased heroin
through Dixon, who completed the transaction with yet another co-defendant who stands
convicted for his participation.
94 Nev. 662, 664 (1978) Dixon v. State
co-defendant who stands convicted for his participation. Dixon again took a portion of the
heroin for his own use.
Prior to his trial, Dixon was represented by five defense attorneys. The last attorney was
notified of his appointment seventeen days prior to the trial date and did not receive the case
file until thirteen days prior to trial. A motion to continue was heard five days prior to trial,
which the court denied because the accompanying affidavits of counsel gave no specific
reasons why the case can't be tried.
Dixon now claims he was denied his constitutional right to the effective assistance of
counsel because his attorney was not given a continuance to adequately prepare for trial and
because counsel did not pursue a certain defense.
[Headnotes 1-3]
The granting of a continuance is within the sound discretion of the court. Johnson v. State,
90 Nev. 352, 526 P.2d 696 (1974); Jones v. State, 90 Nev. 45, 518 P.2d 164 (1974); Polito v.
State, 71 Nev. 135, 282 P.2d 801 (1955). Here the trial court was cognizant of the
circumstances under which Dixon's last counsel was appointed, but denied the motion for
continuance because no specific reasons were recited by counsel. The trial judge had sole
discretion to determine whether counsel had a reasonable time to prepare. Ungar v. Sarafite,
376 U.S. 575 (1964); Stamps v. United States, 387 F.2d 993 (8th Cir. 1967). The facts do not
indicate an abuse of discretion, and a review of defense counsel's direct examination and
cross-examination of witnesses indicates he was thoroughly familiar with the facts of the
case.
Dixon claims his defense counsel failed to employ the procuring agent defense. See,
United States v. Barcella, 432 F.2d 570 (1st Cir. 1970); Roy v. State, 87 Nev. 517, 489 P.2d
1158 (1971). He argues that failure to pursue this defense is attributable to the alleged
inadequacy of time for preparation.
[Headnotes 4, 5]
The procuring agent defense can be maintained only if the defendant were merely a
conduit for the purchaser and in no way benefitted from the transaction. Barcella, supra.
There was testimony that appellant received part of the heroin involved in each transaction.
Consequently, the defense was not available.
We therefore affirm the judgment of conviction.
____________
94 Nev. 665, 665 (1978) Schmidt v. State
WALTER LEWIS SCHMIDT, Appellant, v. THE
No. 10069
September 29, 1978 584 P.2d 695
Appeal from judgment and sentence for indecent exposure; Fifth Judicial District Court,
Mineral County; William P. Beko, Judge.
The Supreme Court held that: (1) defendant, who withdrew his initial plea of not guilty in
order to avoid amended information charging habitual criminality, was not denied due
process of law on theory that prosecutor's intention to amend information so as to include
charge of habitual criminality in event it became necessary to proceed to trial coerced
defendant into changing his plea and thereby forfeiting his right to jury trial; (2) defendant
was not entitled to reversal of judgment of conviction and sentence on ground of
prosecutorial vindictiveness, and (3) sentence of six years' imprisonment imposed upon
defendant was not cruel and unusual punishment.
Affirmed.
Horace R. Goff, Nevada State Public Defender, and J. Thomas Susich, Chief Deputy State
Public Defender, Carson City, for Appellant.
Larry G. Bettis, District Attorney, and John S. Hill, Deputy District Attorney, Mineral
Defendant, who withdrew his initial plea of not guilty in order to avoid amended information charging
habitual criminality, was not denied due process of law on theory that prosecutor's intention to amend
information so as to include charge of habitual criminality in event it became necessary to proceed to trial
coerced defendant into changing his plea and thereby forfeiting his right to jury trial; prosecutor's conduct
merely presented defendant with unpleasant alternatives of foregoing trial or facing charges on which he
was plainly subject to prosecution, and could not be viewed as violating due process clause of Fourteenth
Amendment. U.S.C.A.Const. Amend. 14.
Allegation that prosecutor was fully aware of defendant's prior felony convictions yet nevertheless elected
to refrain from including charge of habitual criminality in initial information, even if correct, did not
warrant finding that prosecutor was prohibited by due process considerations from procuring amended
information charging habitual criminality if defendant persisted in his plea of not guilty. U.S.C.A.Const.
Amend. 14.
3. Criminal Law.
Defendant, who was not charged initially with habitual criminality, but who withdrew his plea of not
guilty in order to avoid amended information charging habitual criminality, was not entitled to reversal of
judgment of conviction and sentence entered pursuant to his plea of guilty on ground of improper
prosecutorial vindictiveness.
4. Criminal Law.
Legislature, within constitutional limits, is empowered to define crimes and determine punishments, and
courts are not to encroach upon that domain lightly.
There is general presumption favoring validity of statutes which dictates recognition of their
constitutionality unless violation of constitutional principles is clearly apparent.
6. Criminal Law.
Punishment may be constitutionally impermissible if it is so disproportionate to crime for which it is
inflicted that it shocks the conscience and offends fundamental notions of human dignity. U.S.C.A.Const.
Amend. 8; Const. art. 1, 6.
7. Criminal Law.
Sentence of six years' imprisonment imposed upon defendant who entered plea of nolo contendere to
charge of indecent or obscene exposure was not cruel or unusual punishment prohibited by Federal and
State Constitutions. NRS 201.220, 201.220, subd. 1(b); U.S.C.A.Const. Amend. 8; Const. art. 1,
6.
OPINION
Per Curiam:
Walter Lewis Schmidt was charged with the crime of indecent or obscene exposure in
violation of NRS 201.220, a felony as defined by NRS 201.220(1)(b). His initial plea of not
guilty was withdrawn in order to avoid an amended information charging habitual criminality.
After entering a plea of nolo contendere, Schmidt was adjudged guilty of the crime alleged
and was sentenced to a term of six years in the Nevada State Prison.
Reversal of this judgment and sentence is now urged upon due process and cruel and
unusual punishment principles. Nonetheless, for reasons stated below, we conclude that the
decision of the district court must be affirmed.
[Headnote 1]
1. Appellant maintains that the prosecutor's intention to amend the criminal
information so as to include a charge of habitual criminality in the event it became necessary
to proceed to trial amounted to a denial of due process. This conclusion is based on the
premise that the appellant was improperly coerced into changing his plea to nolo contendere,
thereby forfeiting his right to a jury trial.
In actuality, we construe the prosecutor's conduct as merely presenting the appellant with
the unpleasant alternatives of foregoing trial or facing charges on which he wad plainly
subject to prosecution. Such a mode of behavior cannot be viewed as violating the due
process clause of the fourteenth amendment. Bordenkircher v. Hayes, 434 U.S. 357, 54 L.Ed.
2d 604 {197S).
(1978). This court has similarly held that a defendant's desire to plead guilty to an original
charge in order to avoid the threat of the habitual criminal statute will not give rise to a claim
of coercion. Whitman v. Warden, 90 Nev. 434, 529 P.2d 792 (1974); Stocks v. Warden, 86
Nev. 758, 476 P.2d 469 (1970).
[Headnote 2]
It also is alleged by appellant that the prosecution was fully aware of his prior felony
convictions, yet nevertheless elected to refrain from including the charge of habitual
criminality initially. Under these circumstances, appellant claims that the prosecution's
subsequent plan to procure an information charging habitual criminality likewise is prohibited
by due process considerations. Even assuming the correctness of appellant's allegation
arguendo, we perceive no reason for deviating from the reasoning set forth in Bordenkircher,
supra, wherein the Supreme Court indicated that although the prosecution possessed evidence
justifying a recidivist charge at the time of the original indictment, these facts were
immaterial and failed to violate due process.
[Headnote 3]
Appellant finally attempts to bring this case within the purview of Blackledge v. Perry,
417 U.S. 21 (1974), and North Carolina v. Pearce, 395 U.S. 711 (1969), decisions proscribing
prosecutorial vindictiveness or retaliation. Yet, these cases were appropriately distinguished
in Bordenkircher as follows:
In those cases the Court was dealing with the State's unilateral imposition of a
penalty upon a defendant who had chosen to exercise a legal right to attack his original
convictiona situation very different from the give-and-take negotiation common in
plea bargaining between the prosecution and the defense, which arguably possess
relatively equal bargaining power.' Parker v. North Carolina, 397 U.S. 790, 809, 25
L.Ed.2d 785, 90 S.Ct. 1458 (opinion of Brennan, J.).
54 L. Ed.2d at 610. A review of the record reveals that appellant's change of plea was in fact
the result of plea negotiations between his attorney of record and the prosecution. Thus, the
assertion of improper prosecutorial vindictiveness as enunciated in the Blackledge and Pearce
cases fails under the Bordenkircher rationale.
2. NRS 201.220(1)(b) provides for a sentence of not less than one year nor more than six
years for repeated indecent exposures. Appellant challenges the sentence of six years
imprisonment as unconstitutionally cruel and unusual in contravention of the eighth
amendment to the United States Constitution and article 1, section 6 of the Nevada
Constitution. It is further proposed by appellant that his offense was the manifestation of a
mental illness and that a six-year sentence would be no more effective for penal purposes
than a less severe one.
proposed by appellant that his offense was the manifestation of a mental illness and that a
six-year sentence would be no more effective for penal purposes than a less severe one.
[Headnotes 4, 5]
It is worthy to note in this regard that the legislature, within constitutional limits, is
empowered to define crimes and determine punishments, and the courts are not to encroach
upon that domain lightly. Egan v. Sheriff, 88 Nev. 611, 503 P.2d 16 (1972). Further, there is a
general presumption favoring the validity of statutes which dictates a recognition of their
constitutionality unless a violation of constitutional principles is clearly apparent. State ex rel.
Tidvall v. District Court, 91 Nev. 520, 539 P.2d 456 (1975); Cummings v. City of Las Vegas,
88 Nev. 479, 499 P.2d 650 (1972); City of Las Vegas v. Ackerman, 85 Nev. 493, 457 P.2d
525 (1969). Thus, it is frequently stated that a sentence of imprisonment which is within the
limits of a valid statute, regardless of its severity, is normally not considered cruel and
unusual punishment in the constitutional sense. United States v. Johnson, 507 F.2d 826 (7th
Cir. 1974), cert. den. 421 U.S. 949 (1975); People v. Dudley, 263 N.E.2d 1 (Ill. 1970), cert.
den. 402 U.S. 910 (1971). Accord, Anderson v. State, 92 Nev. 21, 544 P.2d 1200 (1976).
[Headnotes 6, 7]
Although a punishment may be constitutionally impermissible if it is so disproportionate
to the crime for which it is inflicted that it shocks the conscience and offends fundamental
notions of human dignity, In Re Lynch, 503 P.2d 921 (Cal. 1972), we are unable to
characterize the penalty in issue as manifestly disproportionate to the seriousness of the
offense or an affront to human dignity. Accordingly, appellant's sentence of six years
imprisonment cannot be interpreted as cruel or unusual punishment prohibited by the federal
and state constitutions. See West v. State, 511 S.W.2d 502 (Tex.Crim. 1974); Pineda v. State,
252 S.W.2d 177 (Tex.Crim. 1952).
Appellant relies on the case of Maatallah v. Warden, 86 Nev. 430, 470 P.2d 122 (1970),
for the proposition that imprisonment for mental illness may be cruel and unusual
punishment. However, Maatallah dealt with a defendant who had been found insane and
unable to stand trial. Unconvicted of any crime, Maatallah was eventually transferred to the
Nevada State Prison. In that case this court merely held that the defendant's contention that he
was not receiving treatment at the prison and was confined there as a criminal without having
been convicted, required an evidentiary hearing in the district court.
In the case at bar, appellant never contended to be mentally insane or incompetent to
stand trial.
insane or incompetent to stand trial. Consequently, his reliance on Maatallah is misplaced.
Therefore, in conclusion, we hold that appellant has not been denied due process of law for
the reason that his nolo contendere plea was the product of plea negotiations and an effort to
avoid the charge of habitual criminality. Additionally, his six-year sentence does not
constitute cruel or unusual punishment for it neither shocks the conscience nor is
disproportionate to the offense involved. Affirmed.
____________
94 Nev. 669, 669 (1978) McShane v. State
ROBERT MICHAEL McSHANE, Appellant, v.
No. 10096
October 3, 1978 584 P.2d 707
Appeal from judgment of conviction for involuntary manslaughter; Seventh Judicial
District Court, White Pine County; Merlyn H. Hoyt, Judge.
Defendant, who was charged in information with killing victim in commission of unlawful
act of operating his automobile in excess of posted speed limit, while under influence of
intoxicating liquor, in wrong lane of traffic and without maintaining a proper brake system,
was convicted before the district court of involuntary manslaughter, and he appealed. The
Supreme Court held that defendant's failure to request instruction on necessity of a
unanimous verdict as to at least one of alternative means charged, i.e., speed, liquor, wrong
lane or lack of proper brakes, constituted waiver of his right to complain unless instruction
was so essential to his case that court sua sponte was required to give it.
Affirmed.
Horace R. Goff, Nevada State Public Defender, Robert B. Walker, Jr., Contracting
Attorney, and Gregory Damm, Deputy State Public Defender, for Appellant.
Rupert C. Schneider, White Pine County District Attorney, for Respondent.
Criminal Law.
In involuntary manslaughter prosecution wherein defendant was charged with killing victim in
commission of unlawful act of operating his automobile in excess of posted speed limit, while under
influence of intoxicating liquor, in wrong lane of traffic and without maintaining a proper brake system,
defendant's failure to request instruction on necessity of a unanimous verdict as to at least one of
alternative means charged, i.e., speed, liquor, wrong lane or lack of proper brakes,
was waiver of his right to complain unless instruction was so essential to his case
that court sua sponte was required to give it.
94 Nev. 669, 670 (1978) McShane v. State
unanimous verdict as to at least one of alternative means charged, i.e., speed, liquor, wrong lane or lack of
proper brakes, was waiver of his right to complain unless instruction was so essential to his case that court
sua sponte was required to give it.
OPINION
Per Curiam:
A jury found McShane guilty of involuntary manslaughter, and judgment has duly been
entered thereon. The information alleged that the victim was killed by McShane in the
commission of the unlawful act of operating his automobile in excess of the posted speed
limit, while under the influence of intoxicating liquor, in the wrong lane of traffic and without
maintaining a proper brake system.
The appellant contends that the jury should have been instructed on the necessity of a
unanimous verdict as to at least one of the alternative means charged, that is, speed, liquor,
wrong lane, or lack of proper brakes. Such an instruction was not requested. The failure to so
request is a waiver of his right to complain unless the instruction was so essential to his case
that the court sua sponte was required to give it. Gebert v. State, 85 Nev. 331, 454 P.2d 897
(1969); Mears v. State, 83 Nev. 3, 422 P.2d 230 (1967). Moreover, we note that evidence was
introduced which would have allowed the jury to find that McShane drove his car at an
excessive speed, while under the influence of intoxicating liquor, in the wrong lane of traffic
and without proper brakes. Consequently, the propriety of such an instruction, had it been
requested, is doubtful.
Affirmed.
1

____________________

1
The Chief Justice designated the Honorable David Zenoff, Chief Justice (Retired) to sit in the place of the
Honorable Noel E. Manoukian, Justice, who voluntarily disqualified himself in this case. Nev. Const. art. 6,
19; SCR 244.
____________
94 Nev. 671, 671 (1978) Donovan v. State
E-EDENE MARICOTTA DONOVAN, Appellant, v.
No. 9802
October 6, 1978 584 P.2d 708
Appeal from judgments of conviction for robbery and armed robbery. Second Judicial
District, Washoe County; John E. Gabrielli, Judge.
The Supreme Court, Manoukian, J., held that: (1) statute providing relief for a prosecutor's
failure to notify defense counsel of all discoverable material was not applicable to informal
discovery arrangement made between counsel without benefit of court sanction; (2)
admission of clothing, which had been seized from defendant's home and which had not been
the subject of any testimony, did not substantially affect defendant's rights; (3) use of
defendant's wife's prior statements, which had been given to police when she was questioned
without obtaining defendant's consent, for purposes of impeaching wife after she had testified
on defendant's behalf did not cause wife to become a witness against defendant without his
consent in violation of statute, and (4) defense counsel's failure to challenge seizure of items,
which were not listed on search warrant but which were in plain view when seized, did not
deny defendant effective assistance of counsel.
Affirmed.
Robert List, Attorney General, Larry R. Hicks, District Attorney, and John L. Conner,
Deputy District Attorney, Washoe County, for Respondent.
1. Criminal Law.
Statute providing relief for a prosecutor's failure to notify defense counsel of all discoverable material is
only operative in situations in which a previous defense motion has been made and a court order issued.
NRS 174.295.
2. Criminal Law.
Statute providing relief for a prosecutor's failure to notify defense counsel of all discoverable material
was not applicable to informal discovery arrangement made between counsel without benefit of court
sanction. NRS 174.295.
3. Criminal Law.
Even if admission of statement, which defendant had made to police, was error in proceeding in which
defendant was convicted of unarmed robbery and four counts of armed robbery, the error was harmless, in
view of overwhelming evidence of guilt. NRS 174.235, 174.295.
4. Criminal Law.
Defendant could not on appeal offer new grounds for an objection made in the trial court.
5. Criminal Law.
In proceeding in which defendant was convicted of unarmed robbery and four counts of armed robbery,
admission of certain items of clothing, which had been seized from defendant's home and which had not
been the subject of any testimony, did not substantially affect defendant's rights. NRS 47.040, subd. 2.
6. Witnesses.
In criminal proceeding, use of defendant's wife's prior statements, which police obtained from her during
questioning conducted without defendant's consent, for purposes of impeaching her after she had testified
for defendant did not cause wife to become a witness against defendant without his consent in violation of
statute. NRS 49.295.
7. Witnesses.
Statute prohibiting state from calling defendant's spouse as a witness is inapplicable where defendant
calls the spouse as a witness. NRS 49.295.
Fact that certain items were not listed in search warrant did not render seizure of such items illegal where
they were in plain view when seized.
9. Criminal Law.
In proceeding in which defendant was convicted of unarmed robbery and four counts of armed robbery,
defense counsel's failure to challenge seizure of items, which were not listed in search warrant but which
were in plain view when seized, did not deny defendant effective assistance of counsel.
10. Criminal Law.
Presumption that defense counsel has fully discharged his duties can only be overcome by strong and
convincing proof to the contrary.
11. Criminal Law.
Counsel cannot be deemed ineffective for failure to engage in an exercise in futility.
OPINION
By the Court, Manoukian, J.
Appellant was charged with four armed robberies of service stations and one unarmed
robbery of a liquor store. While at a service station, Donovan discussed the recent string of
service station robberies with such detail that the attendant became suspicious. She noted
Donovan's license number and contacted the police who subsequently pictured Donovan in a
photographic lineup shown to the robbery victims. Three of the four victims identified
Donovan as the robber, and consequently the police effected a warrantless arrest on October
22, 1976. Later that evening, Reno police obtained a search warrant for Donovan's residence.
The warrant expressly authorized seizure of small caliber weapons but no weapons were
found at the residence. The police, however, did seize certain clothing and a bottle of tequila
not listed in the search warrant. The liquor and some items of clothing were eventually
admitted into evidence.
and some items of clothing were eventually admitted into evidence. The State presented as
witnesses the five robbery victims and three by-standers, all of whom identified Donovan as
the perpetrator of the robberies. The defense consisted of alibi witnesses. After a jury trial,
judgments of conviction were entered on all five counts, and Donovan now appeals.
The issues presented are: (1) Whether the trial court erred in failing to investigate
prejudice to appellant by the prosecutor's alleged violation of a discovery agreement; (2)
whether admission of irrelevant items of clothing prejudiced the appellant; (3) whether the
appellant was effectively denied the privilege to prevent testimony from his spouse; and (4)
whether the appellant was denied effective counsel by failure to challenge search and seizure
of certain evidence. We now turn to discuss these issues.
1. Breach of Discovery Agreement. Appellant had made statements to the police on two
occasions. Defense counsel and the prosecutor had informally agreed that the State would
provide materials discoverable under NRS 174.235. Through inadvertence, the prosecutor
only provided one statement, and when he attempted to introduce the second statement at
trial, as well, defense counsel objected. Although counsel had entered into an informal
agreement, the prosecution had invited defense counsel to inspect the files, but the offer went
unaccepted. The trial court permitted a police officer to testify as to the second statement.
[Headnotes 1, 2]
Although NRS 174.295 provides relief for a prosecutor's failure to notify defense counsel
of all discoverable material, that statute is only operative in situations where a previous
defense motion has been made and a court order issued. That provision is not applicable to
any informal arrangements that are made, as here, between counsel without benefit of court
sanction. Cf. Thompson v. State, 93 Nev. 342, 565 P.2d 1011 (1977). Appellant further
makes no allegation of an intentional failure to disclose information. Cf. Maginnis v. State, 93
Nev. 173, 561 P.2d 922 (1977).
[Headnote 3]
Even assuming, arguendo, error in the admission of the challenged statement, the
overwhelming evidence of guilt compels us to conclude it was harmless. Chapman v.
California, 386 U.S. 18 (1967).
2. Admission into Evidence of Irrelevant Clothing. The police seized several items of
clothing from appellant's home and placed it all in one box. At trial, only some of the clothing
items were drawn from the box and shown to be connected with the crime. The prosecution,
however, moved for admission of the box with all its contents. Defense counsel objected that
several items of clothing in that box had never been the subject of any testimony.
that several items of clothing in that box had never been the subject of any testimony. The
trial court nevertheless admitted the entire box including the clothing which was never
connected to the crimes.
[Headnotes 4, 5]
Appellant on appeal now belatedly offers as grounds of inadmissibility the possibility that
inclusion of such items may have confused the jury. A party cannot on appeal offer new
grounds for an objection made in the trial court. Geer v. State, 92 Nev. 221, 542 P.2d 946
(1976). Further, the admission of such clothing into evidence did not substantially affect
appellant's rights. NRS 47.040(2).
[Headnotes 6, 7]
3. Interference with Marital Privilege. This issue is raised at the insistence of appellant
without the concurrence of counsel. NRS 49.295 provides that a wife cannot be examined as
a witness for or against her husband without his consent. Essentially, Donovan claims that he
was effectively denied his right to exercise the marital privilege preventing his wife from
testifying against him. His argument is that the police should have obtained permission from
him prior to questioning his wife because any statement she may have made could have been
used to cross-examine her when she eventually testified in his behalf. Mrs. Donovan was
called by appellant as an alibi witness. Her testimony at trial was inconsistent with her prior
statements given to the investigating police officers. Donovan claims that the use of his wife's
prior statements to impeach her in effect caused her to become a witness against him without
his consent. We disagree. NRS 49.295 prohibits the state from calling the spouse as a witness
and is inapplicable where, as here, the defendant calls the spouse as a witness.
[Headnote 8]
4. Ineffective Counsel. Donovan alleges that he was denied effective assistance of counsel
because no attempt was made to challenge the search and seizure of items not listed in the
search warrant. He is specifically challenging the seizure of the bottle of tequila and the
clothing which were not listed in the search warrant. Even though they were not listed, their
seizure is not consequently illegal since the items seized were in plain view. Coolidge v. New
Hampshire, 403 U.S. 443 (1971); Wyatt v. State, 86 Nev. 294, 468 P.2d 338 (1970).
[Headnote 9]
Donovan cites the recent case emanating from the Ninth Circuit, Cooper v. Fitzharris, 551
F.2d 1162 (9th Cir. 1977), and suggests this Court adopt the standard enunciated there to
determine the effectiveness of counsel.
determine the effectiveness of counsel. The test announced in Cooper is whether counsel has
rendered reasonably effective assistance. The federal court in that case denounced the
traditional test which determined effectiveness of counsel by stressing whether the trial was
reduced to a sham, farce or mockery. As we recently held in Bailey v. State, 94 Nev. 323,
579 P.2d 1247 (1978), regardless of which standard we employ, we are unable to conclude
from the record that appellant was deprived of the effective assistance of counsel.
[Headnote 10]
Moreover, it is presumed that counsel fully discharged his duties, and that presumption
can only be overcome by strong and convincing proof to the contrary. Warden v. Lischko, 90
Nev. 221, 223, 523 P.2d 6, 7 (1974). The evidence in the record fails to rebut this
presumption.
[Headnote 11]
The inherent validity of the search and seizure indicates that nothing could be gained by
counsel moving to suppress the seized items. It would have been a futile effort and counsel
cannot be deemed ineffective for failure to submit to a classic exercise in futility. People v.
Eckstrom, 118 Cal.Rptr. 391 (Cal.App. 1975). Cooper, supra, suggests that the role of a court
presented with allegations of ineffective counsel
is not to pass upon the merits of the action not taken but to determine whether, under
the particular facts and circumstances of the case, trial counsel failed to render
reasonably effective assistance. This does not mean that it should second guess
reasoned choices between trial tactics nor does it mean that defense counsel, to protect
himself against allegations of inadequacy, must make every conceivable motion no
matter how remote the possibilities are of success.
We therefore affirm the judgment of conviction.
Because the State overwhelmingly proved appellant's guilt by other competent evidence, I
can concur in the result. Thus, the errors complained of may be deemed harmless. Schneble v.
Florida, 405 U.S. 427 (1972). However, I must disagree with certain other rationale offered
above.
First, concerning NRS 174.235, I cannot agree that because the statute is only operative in
situations where a previous defense motion has been made, the State may therefore avoid a
discovery motion by promising the defendant full discovery, and thereafter excuse its
breach through a claim of "inadvertence."
and thereafter excuse its breach through a claim of inadvertence.
Second, I cannot perceive how there is anything belated about appellant's contention that
clothing not connected to the crime, and specifically objected to on that ground, may have
confused the jury. By objecting in words directing the trial court's attention to the clothing's
irrelevance, I suggest appellant's counsel preserved an adequate objection. See NRS 48.015,
48.025. Here, the question of potential confusion, or lack of it, does not bear on the clothing's
admissibility, but upon its possible prejudicial effect. I have never understood that it is
necessary to argue prejudice, in order to preserve an objection.
Third, in all respect, so far as I can see, appellant's contention concerning NRS 49.295 has
not been treated, except through a declaration that the statute does not apply.
Fourth, concerning the warrantless seizure question, appellant's contention is that the
plain view doctrine does not apply, because the State anticipated finding the tequila and
clothing, and therefore their discovery and seizure were not inadvertent. Of course, under
Coolidge v. New Hampshire, 403 U.S. 443 (1971), inadvertence is an essential element to
application of the plain view doctrine. See Barnato v. State, 88 Nev. 508, 501 P.2d 643
(1972). Again, it does not appear to me that the issue raised is answered.
____________
94 Nev. 676, 676 (1978) Franklin v. Sheriff
DIANA FRANKLIN, Appellant, v. SHERIFF,
No. 11096
November 9, 1978 585 P.2d 1336
District Court; Thomas J. O'Donnell, Judge.
On appeal from an order of the district court denying pretrial petition for writ of habeas
corpus, the Supreme Court held that the fact that defendant was physically present with the
alleged robber, at a different time and place, might subject defendant to some criminal charge,
but such presence, without more, was insufficient to establish probable cause that defendant
participated in the robbery.
Reversed.
Morgan D. Harris, Public Defender, and Victor Austin, Deputy Public Defender, Clark
Robert List, Attorney General, Carson City; George E. Holt, District Attorney, and Stanley
W. Parry, Deputy District Attorney, Clark County, for Respondent.
Robbery.
Fact that defendant was physically present with alleged robber, at a different time and place, might
subject defendant to some criminal charge, but such presence, without more, was insufficient to establish
probable cause that defendant participated in the robbery. NRS 193.165, 200.380.
OPINION
Per Curiam:
An indictment charged that Diana Franklin committed a robbery (NRS 200.380) with the
use of a deadly weapon (NRS 193.165). A pretrial petition for a writ of habeas corpus was
denied and in this appeal Franklin contends that the district judge should have granted habeas
because the evidence before the grand jury is insufficient to support the charges. We agree.
The victim testified that she had been robbed in the parking lot of a savings and loan
association office and that the person who committed the robbery made a hasty departure in
an automobile occupied by an undetermined number of people, none of whom were identified
by race or gender.
The automobile was subsequently located and identified at a trailer park. The victim
testified that about an hour and a half after the robbery, the police drove her to the trailer park
where she saw and identified the person who allegedly perpetrated the robbery. That person
was then in the company of appellant and another woman. The three people were arrested and
indicted.
The victim did not identify Ms. Franklin as having been at the scene of the alleged crime.
Neither was there any other evidence to connect Ms. Franklin with the charged crime.
The fact that Ms. Franklin was physically present with the person who allegedly
committed the robberyat a different time and placemay subject her to some criminal
charge; however, we deem such presence, without more, insufficient to establish probable
cause that she participated in the robbery. See Palombo v. Sheriff, 93 Nev. 492, 568 P.2d 580
(1977), and cases cited therein. See also United States v. Martinez, 555 F.2d 1269 (5th Cir.
1977); and, United States v. Bartemio, 547 F.2d 341 (7th Cir. 1974).
Accordingly, we reverse the district court's order and remand this case with instructions to
grant appellant's petition for a writ of habeas corpus. Cf. Robertson v. Sheriff, 85 Nev. 681,
462 P.2d 528 (1969); State v. Jackson, 443 P.2d 279 (Kan. 1968).
____________
94 Nev. 678, 678 (1978) Manor v. Sheriff
DEBRA JEAN MANOR, Appellant, v. SHERIFF,
No. 11101
November 9, 1978 585 P.2d 1337
District Court; Thomas J. O'Donnell, Judge.
Reversed.
Reid & Alverson, Las Vegas, for Appellant.
Robert List, Attorney General, Carson City; George E. Holt, District Attorney, and Stanley
W. Parry, Deputy District Attorney, Clark County, for Respondent.
OPINION
Per Curiam:
On the authority of, and for the same reasons stated in Franklin v. Sheriff, 94 Nev. 676,
585 P.2d 1336 (1978), the order of the trial court which denied Debra Jean Manor's petition
for a writ of habeas corpus is reversed, and this case is remanded with instructions to grant
the petition.
____________
94 Nev. 679, 679 (1978) Jones v. State
EUGENE JONES, Appellant, v. THE STATE OF
NEVADA, Respondent.
No. 10165
November 10, 1978 585 P.2d 1340
Appeal from judgment entered on jury verdict of guilty for possessing a controlled
substance; Fifth Judicial District Court, Mineral County; William P. Beko, Judge.
The Supreme Court held that: (1) in a prosecution for an offense committed in Indian
country, the State was not obliged to prove that the accused was not an Indian; (2) because
the jurors were permitted to make an affirmation, in lieu of taking an oath to God, the
requirement of an oath or affirmation did not exclude from jury service those who did not
believe in God or who believed in a different supreme being; (3) the evidence was sufficient
to sustain the conviction, and (4) substantial evidence supported the trial court's finding that
the seizure of marijuana from the trunk of the defendant's car was with the voluntary consent
of the defendant.
Affirmed.
Harry A. Busscher, of Reno, for Appellant.
Larry G. Bettis, District Attorney, Mineral County, for Respondent.
1. Indians.
Offense committed in Indian country by one who is not an Indian is punishable by State.
2. Indians.
In prosecution for offense committed in Indian country, State was not obliged to prove that accused was
not Indian, but, rather, accused was required to shoulder burden of establishing his Indian ancestry.
3. Jury.
Because jurors could make affirmation in lieu of taking oath to God, those who did not believe in God or
who believed in different supreme being were not systematically excluded from jury service. NRS
169.115.
Evidence was sufficient to sustain conviction of possessing controlled substance.
In prosecution for possession of controlled substance, substantial evidence supported trial court's finding
that seizure of marijuana from trunk of car was with voluntary consent of defendant. U.S.C.A.Const.
Amend. 4.
OPINION
Per Curiam:
The appellant contends that the district court was without jurisdiction to entertain the
charge against him, that of possessing a controlled substance, since the State failed to
prove that he was not an Indian and his offense occurred in Indian country; that the trial
jury was unconstitutionally impaneled because the jurors were required to take an oath
to God, thereby systematically excluding from jury service those who do not believe in
God or believe in a different supreme being; that the court should have advised the jury to
return a not guilty verdict; and that the controlled substance, marijuana, was illegally
seized from the trunk of his car in violation of his Fourth Amendment rights.
94 Nev. 679, 680 (1978) Jones v. State
jurisdiction to entertain the charge against him, that of possessing a controlled substance,
since the State failed to prove that he was not an Indian and his offense occurred in Indian
country; that the trial jury was unconstitutionally impaneled because the jurors were required
to take an oath to God, thereby systematically excluding from jury service those who do not
believe in God or believe in a different supreme being; that the court should have advised the
jury to return a not guilty verdict; and that the controlled substance, marijuana, was illegally
seized from the trunk of his car in violation of his Fourth Amendment rights. Consequently,
we are asked to annul his conviction. We decline to do so since his contentions of error are
without merit. We turn to explain why this is so.
[Headnotes 1, 2]
1. An offense committed in Indian country by one who is not an Indian is punishable by
the State. State v. Jones, 92 Nev. 116, 546 P.2d 235 (1976). However, the State is not obliged
to prove that the accused is not an Indian. Rather, the accused must shoulder the burden of
establishing his Indian ancestry if he seeks to challenge state court jurisdiction. State v.
Mendez, 57 Nev. 192, 61 P.2d 300 (1936). The accused did not offer evidence to show that
he is an Indian. His attack upon the state court jurisdiction therefore must fail.
[Headnote 3]
2. Statute commands that when a jury has been impaneled in a criminal case its members
shall take an oath to God.
1
It is asserted that the statute is unconstitutional since it effectively
excludes from jury service in a criminal case all who do not believe in God. Schowgurow v.
State, 213 A.2d 475 (Md. 1965). The contention would be persuasive but for NRS 169.115
which declares that oath includes an affirmation. Where an affirmation is permitted in lieu
of an oath, a juror's freedom of religion is not violated. State v. Albe, 460 P.2d 651
(Ariz.App. 1969); Jenke v. State, 487 S.W.2d 347 (Tex.Crim.App. 1972).
[Headnote 4]
3. NRS 175.381 allows the court to advise the jury to acquit the defendant if the court
deems the evidence insufficient. In this case the court refused to so advise the jury and this
discretionary ruling is asserted to be error. A review of the record reveals sufficient evidence
to support the jury verdict. The court did not abuse its discretion. Geer v. State, 92 Nev. 221,
548 P.2d 946 (1976).
____________________

1
NRS 175.111: When the jury has been impaneled, the court shall administer the following oath:
Do you and each of you solemnly swear that you will well and truly try this case, now pending before
the court, and a true verdict render according to the evidence given, so help you God.'
94 Nev. 679, 681 (1978) Jones v. State
[Headnote 5]
4. Since the record contains substantial evidence that the seizure of marijuana from the
trunk of the car was with the voluntary consent of the accused, he has waived any right now
to assert a Fourth Amendment violation. McIntosh v. State, 86 Nev. 133, 466 P.2d 656
(1970).
Affirmed.
____________
94 Nev. 681, 681 (1978) Pickard v. State
GEORGE STANLEY PICKARD, Appellant, v. THE
No. 10003
November 10, 1978 585 P.2d 1342
Appeal from judgment of conviction, Fifth Judicial District Court, Mineral County;
William Beko, Judge.
Defendant was convicted in the district court of giving less than one ounce of marijuana to
a minor, was sentenced to life imprisonment, and he appealed. The Supreme Court,
Gunderson, J., held that: (1) after the exhaustion of the 59-member jury panel, the court was
not required to obtain the defendant's consent before ordering 40 new names drawn from the
jury box; (2) the trial court's refusal to grant defendant's discovery request to examine the
juvenile records of the principal prosecution witnesses was harmless error under the
circumstances, and (3) the sentence did not constitute cruel or unusual punishment.
Affirmed.
Horace R. Goff, State Public Defender, J. Thomas Susich, Deputy Public Defender, and J.
Gregory Damm, Deputy Public Defender, Carson City, for Appellant.
Larry G. Bettis, District Attorney, Mineral County, for Respondent.
Dean Breeze, National Organization for the Reform of Marijuana Laws, Las Vegas,
Amicus Curiae.
1. Jury.
After exhaustion of 59-member jury panel, court was not required to obtain defendant's consent before
ordering 40 new names drawn from jury box. NRS 6.080, subd. 2.
2. Criminal Law.
In prosecution for giving controlled substance to minor, failure to grant defendant's discovery request to
examine juvenile records of principal prosecution witnesses was error where defendant desired records to
show bias and prejudice, because prosecuting witnesses were not charged for their
participation in criminal scheme; however, error was harmless in light of defendant's
extensive cross-examination of witnesses concerning their relationship with
prosecution and possibility of immunity grants.
show bias and prejudice, because prosecuting witnesses were not charged for their participation in criminal
scheme; however, error was harmless in light of defendant's extensive cross-examination of witnesses
concerning their relationship with prosecution and possibility of immunity grants.
3. Criminal Law.
Imposition of life sentence for first offense of giving less than one ounce of marijuana to minor did not
constitute cruel and unusual punishment. NRS 453.321, subd. 2(a)(2); U.S.C.A.Const. Amend. 8.
4. Criminal Law.
Punishment may be constitutionally impermissible under Eighth Amendment not only because of its
nature or mode, but also because of its severity or harshness. U.S.C.A.Const. Amend. 8.
OPINION
George Stanley Pickard appeals his conviction for sale of a controlled substance to a
minor, contending the district court (1) lacked authority to empanel additional jurors without
his consent, and (2) erroneously refused to permit discovery of prosecution witnesses'
juvenile records. Pickard additionally attacks his mandatory life sentence imposed under NRS
453.321(2)(a)(2) as violative of the cruel and unusual punishment proscriptions of the federal
constitution.
Pickard was initially charged with four counts of sale of a controlled substance to a minor.
Testimony at trial revealed Pickard gave less than one ounce of marijuana to a minor, Lloyd
DeMars. The jury found Pickard guilty on only one count, and the district court sentenced
him to a life sentence as mandated by the statute then in existence.
[Headnote 1]
1. Before trial the district court drew 60 names from the Mineral County jury box to
serve on the jury panel. Trial commenced one month later with 59 members of the jury panel
present. After the first day of jury selection, the panel was exhausted. The court then ordered
40 new names drawn from the jury box, despite appellant's objections. Appellant claims the
district court lacked authority to select additional panel members without his consent
pursuant to NRS 6.080(2).
1
We believe the consent requirement of NRS 6.080(2) is only
applicable to the manner of selection of the initial jury panel. Consent is not required when
the particular panel selected for trial is exhausted.
____________________

1
OPEN VENIRE. It shall at all times be in the discretion of the court, with the consent of all parties litigant
to the action or actions to be tried thereby, either to draw the names of the jurors from the box or to issue an
open venire directed to the sheriff, . . .
In counties with a population in excess of 100,000, the jury commissioner selects the
yearly list of jurors called the jury box. See NRS 6.045; NRS 6.090. In all other counties
each board of county commissioners selects names from the qualified electors to constitute
the jury box. See NRS 6.050; NRS 6.060. A jury panel is then chosen from the jury box for
use at any particular trial. See NRS 6.090. In the event the district court decides to abandon
the procedure for selection of a regular panel of jurors, Ibid., the court is then given
discretion to instruct the sheriff to summon an open venire, but only with the consent of all
parties litigant. NRS 6.080(2); cf. State v. McFadden, 43 Nev. 140, 182 P. 745 (1919). The
district court was, therefore, not required to obtain appellant's consent after the initial 59
members of the jury panel were exhausted.
[Headnote 2]
2. Appellant next contends the district court committed constitutional error in refusing to
grant his discovery request to examine the juvenile records of the principal prosecution
witnesses. The district court denied the request pursuant to NRS 62.270(1).
2

In Davis v. Alaska, 415 U.S. 308 (1974), the Supreme Court held that a state's policy
interest in protecting the confidentiality of a juvenile offender's records, must yield to the
right of effective cross-examination to test the credibility of a witness under the Sixth
Amendment of the federal constitution. In Davis the state of Alaska was required to surrender
the juvenile records of the prosecution witness, so that the defendant could show the
existence of possible bias or prejudice which the witness may have felt because of his then
current status as a juvenile on probation. However, Davis does not require the discovery of
juvenile records to impeach the general credibility of a witness through cross-examination
about his past delinquency adjudications or criminal convictions. (Emphasis added.) See
Ibid. at 321, concurring opinion of J. Stewart.
3
Here, it appears that appellant desired the
records to show bias and prejudice, because the prosecuting witnesses were not charged for
their participation in the criminal scheme, and therefore, that the district court arguably erred
by denying the requested discovery. However, we believe any such error must be deemed
harmless, because the court permitted appellant to cross-examine the witnesses extensively
concerning their relationship with the prosecution and the possibility of an immunity
grant.
____________________

2
The court shall make and keep records of all [juvenile] cases brought before it . . . [T]he records shall be
open to inspection only by order of the court to persons having a legitimate interest therein.

3
NRS 50.095(4) is consistent with the Davis holding. It provides: Evidence of juvenile adjudications is
inadmissible [to attack the credibility of a witness].
cross-examine the witnesses extensively concerning their relationship with the prosecution
and the possibility of an immunity grant. See State v. Deffenbaugh, 536 P.2d 1030 (Kan.
1975).
[Headnote 3]
3. At the time of appellant's conviction and sentence, NRS 453.321(2)(a)(2) mandated life
imprisonment.
It provided:
2. Any person 21 years of age or older who . . . gives away a controlled or counterfeit
substance . . . classified in:
(a) Schedule I . . . to a person who is:
. . .
(2) Under 21 years of age shall be punished by imprisonment in the state
prison for life with the possibility of parole and may be further punished by a fine of not
more than $5,000. Eligibility for parole begins when a minimum of 7 years has been
served. . . . 1977 Nev. Stats. 1411.
In 1977 the legislature amended the statute to read:
1. [I]t is unlawful for any person to . . . give away . . . a controlled or counterfeit substance
. . .
2. If any person violates subsection 1, and the controlled substance is [marijuana], he shall
be punished:
(a) For the first offense, by imprisonment in the state prison for life or for a definite
term of not less than 1 year nor more than 20 years and may be further punished by a
fine of not more than $5,000. (Emphasis added.) NRS 453.321.
Appellant contends the imposition of a mandatory life sentence for the first offense of
giving less than one ounce of marijuana to a minor is cruel and unusual punishment in
violation of the Eighth Amendment of the federal constitution, and that he should be
resentenced under the new statute. We do not agree.
[Headnote 4]
Punishment may be constitutionally impermissible under the Eighth Amendment not only
because of its nature or mode, but also because of its severity or harshness. In Coker v.
Georgia, 433 U.S. 584, 592 (1977), the Supreme Court reaffirmed its prior holding in Gregg
v. Georgia, 428 U.S. 153 (1976), that a punishment is excessive' and unconstitutional if it
(1) makes no measurable contribution to acceptable goals of punishment and hence is nothing
more than the purposeless and needless imposition of pain and suffering; or (2) is grossly out
of proportion to the severity of the crime. A punishment might fail the test on either
ground."
the test on either ground. Although it is distinctly arguable that appellant's sentence in this
case is grossly out of proportion to the severity of the crime, this court would feel
unjustified in so concluding, upon the record before us.
Accordingly, although we affirm appellant's conviction, we have ordered appellant's case
placed on the agenda for consideration at the next meeting of the Nevada Board of Pardons.
____________
94 Nev. 685, 685 (1978) Dutt v. Warren
VIRGIL D. Dutt, Appellant, v. VELDA WARREN,
now known as Veld Britton, Respondent.
No. 9544
November 10, 1978 585 P.2d 1344
Appeal from judgment in favor of defendant, Second Judicial District Court, Washoe
County; Grant L. Bowen, Judge.
Assignee of California judgment brought action against judgment debtor to enforce
judgment. The district court entered judgment in favor of judgment debtor, and assignee
appealed. The Supreme Court held that: (1) trial court did not err in considering judgment
debtor's testimony that attorney recited in California judgment as appearing for her lacked
authority to do so, and (2) debtor's testimony that she never hired an attorney to represent her
in California and did not know that one appeared there for her together with the corroborating
testimony of co-debtor was sufficient to support trial court's judgment.
Affirmed.
Cunningham and Williams, Chartered, Reno, for Appellant.
Echeverria and Osborne, Chartered, Reno, for Respondent.
1. Judgment.
In action to enforce California judgment, trial court did not err in considering judgment debtor's
testimony that attorney recited in California judgment as appearing for her lacked authority to do so.
2. Judgment.
Where assignee of California judgment presented no proof as to service of summons and compliant but
relied solely on judgment recital of appearance of counsel for judgment debtor as conclusive that California
court had jurisdiction and judgment debtor offered evidence showing that at time service was purportedly
made she was living in Nevada and knew nothing about California action and testified she never hired
attorney to represent her in California and did not know that one appeared there for her and judgment
debtor's testimony was corroborated by that of co-debtor who had actually hired attorney and
whose testimony was contrary to his own pecuniary interest, trial court did not err in
entering judgment for debtor in action to enforce judgment.
94 Nev. 685, 686 (1978) Dutt v. Warren
co-debtor who had actually hired attorney and whose testimony was contrary to his own pecuniary interest,
trial court did not err in entering judgment for debtor in action to enforce judgment.
OPINION
Per Curiam:
Appellant Virgil D. Dutt, assignee of a California judgment against respondent Velda
Warren, brought an action in Nevada to enforce the California judgment. Finding that the
California court lacked jurisdiction over the respondent in the earlier action, the trial court
entered judgment in her favor. Dutt appeals claiming (1) that in collateral review of the
foreign judgment the trial court erred by considering respondent's testimony that the attorney
recited in the California judgment as appearing for her lacked authority to do so; and (2) that
the evidence was insufficient to support the judgment. We disagree.
1. Appellant contends that where the defendant is aware of a foreign judgment reciting the
appearance of an attorney for the defendant, and that judgment is not first directly attacked,
the court is bound by the judgment roll and may not otherwise examine the attorney's
authority upon collateral review of the judgment.
In Barber v. Barber, 47 Nev. 377, 222 P. 284 (1924), this court stated that the recital in a
foreign judgment of an attorney's appearance created a conclusive presumption that the
appearance was authorized. Thus, in a collateral attack upon a foreign judgment containing
such a recital, the court would not review the attorney's authority. However, Barber was
expressly overruled in Nevada Credit Rating Bu. v. Zarker, 82 Nev. 89, 411 P.2d 478 (1966),
where we held that collateral review of the jurisdiction of a foreign judgment is proper.
Zarker permits a defendant to testify that he was not personally served with process in the
foreign action even though the judgment record contains an affidavit of service of process on
the defendant. We explicitly negated any different result based on a record reflecting the
appearance of an attorney; the forum court has the right to examine the attorney's authority to
determine whether jurisdiction over the party existed in the original action, and defendant's
testimony on this issue is properly considered. Appellant in effect contends that we overruled
Zarker and revived Barber in a footnote appearing in Deros v. Stern, 87 Nev. 148, 483 P.2d
648 (1971).
[Headnote 1]
The body of the Deros opinion states correctly that a direct attack upon a domestic
judgment obtained against a defendant who was not served with process, but whose
unauthorized appearance was entered in the action through counsel, will be entertained if
a timely and appropriate post-judgment motion is filed.
94 Nev. 685, 687 (1978) Dutt v. Warren
appearance was entered in the action through counsel, will be entertained if a timely and
appropriate post-judgment motion is filed. To contrast this rule the footnote states: A
collateral attack upon a foreign judgment, Barber v. Barber, [cited above], or a domestic
judgment, Deegan v. Deegan, 22 Nev. 185, 197 (1894), will not be entertained since the
recital in the judgment of the attorney's appearance creates a presumption that the appearance
was authorized, which presumption cannot be overcome by evidence aliunde. Id. at 150.
(Emphasis added.) Obviously, the footnote forms no basis for the opinion but is merely
explanatory. Moreover, at the time the Deros decision was written, the Barber case had been
expressly overruled. Accordingly, the footnote incorrectly stated the law with respect to
foreign judgments. Zarker, cited above, is controlling; the trial court properly considered
respondent's testimony that the attorney in the California action was not authorized to appear
for her.
[Headnote 2]
2. The record amply supports the judgment below. Appellant presents no proof as to
service of summons and complaint on respondent, but relies solely on the judgment recital of
appearance of counsel for respondent as conclusive that the court had jurisdiction. The record
reveals evidence that at the time service was purportedly made, respondent was living in
Reno, Nevada, and knew nothing about the California action. Respondent testified she never
hired an attorney to represent her in California, and did not know that one was appearing
there for her. This testimony was corroborated by that of a co-debtor on the California
judgment, who had actually hired the attorney, and whose testimony was in fact contrary to
his own pecuniary interest.
Affirmed.
____________
94 Nev. 687, 687 (1978) Martin v. State
BRETT DAYNE MARTIN, Appellant, v. THE
No. 10860
November 10, 1978 585 P.2d 1346
Appeal from an order denying appellant's challenge to certification as an adult pursuant to
provisions of the Juvenile Court Act. Eighth Judicial District Court, Clark County; Carl J.
Christensen, Judge.
Following certification to district court for trial as adult on charges of robbery, kidnapping
and grand larceny, juvenile sought to have case remanded to juvenile court.
sought to have case remanded to juvenile court. The district court denied remand, and
juvenile appealed. The Supreme Court held that: (1) where juvenile court carefully considered
each of elements to be utilized in determining whether to certify juvenile as adult, decision to
certify juvenile to district court was not abuse of discretion; (2) where juvenile was certified
to district court for criminal proceedings, original jurisdiction vested with district court and
district court was empowered to rule upon juvenile's challenge to certification order, and (3)
where record failed to disclose existence of requisite exceptional circumstances, remand to
juvenile division was properly denied.
Affirmed.
Mike Harrison, of Las Vegas, for Appellant.
Robert List, Attorney General, George E. Holt, District Attorney, and H. Leon Simon,
Chief Appellate Deputy, Clark County, for Respondent.
1. Infants.
Where juvenile court judge carefully considered each of elements to be utilized in determining whether to
certify juvenile as adult, court did not abuse discretion in certifying juvenile to district court to stand trial as
adult on charges of robbery, kidnapping and grand larceny. NRS 62.080, 200.310, 260.380, 205.220.
2. Infants.
Statute governing certification was not ambiguous as to standards which must be met in certification
cases for purposes of certifying juvenile for criminal proceeding in court which would have trial
jurisdiction of such offense if committed by adult. NRS 62.080.
3. Infants.
Where adult certification order issued by juvenile court reflected that defendant was certified to district
court, original jurisdiction was vested with district court and district court was empowered to rule upon
defendant's challenge to certification order. NRS 62.080.
4. Infants.
Where there was no showing of requisite exceptional circumstances, district court properly denied remand
to juvenile division of defendant who had been certified for trial in district court on charges of robbery,
kidnapping and grand larceny. NRS 62.080.
OPINION
Per Curiam:
Brett Dayne Martin, a 17-year-old at the commencement of these proceedings, was
initially placed before the juvenile division of the Eighth Judicial District Court on the basis
of petitions alleging his commission of robbery, kidnapping, and grand larceny in
contravention of NRS 200.380, 200.310 and .
205.220. Subsequent to a full investigation and hearing, appellant was certified to stand trial
as an adult on these charges in accordance with NRS 62.080.
1
The matter was set before the
Justice Court for Las Vegas Township wherein the criminal complaint was filed and
arraignment was had.
Thereafter, appellant's attempts to have his case returned to the juvenile court were denied
in both the justice court and the district court. We are now urged to alter this result upon
various rationales.
Nevertheless, an examination of the record and relevant authorities compels us to conclude
that the decision of the district court must be affirmed. We turn now to see why this is so.
1. Appellant contends that it was an abuse of discretion for the juvenile court to certify
him to the district court to stand trial as an adult. The contention is meritless.
[Headnote 1]
As the record amply demonstrates, the juvenile judge carefully considered each of the
elements established in Kent v. United States, 383 U.S. 541 (1966), which are to be utilized
in determining whether to certify a juvenile as an adult. The Kent criteria were adopted in
Nevada through our decision in Lewis v. State, 85 Nev. 889, 478 P.2d 168 (1970).
Accordingly, we are unable to find the alleged abuse of discretion.
[Headnote 2]
Nor can we agree with appellant's argument that the law in this state is ambiguous as to the
standards which must be met in certification cases. As it was stated in Lewis, supra, We feel
that the necessary standards are set forth in the general purpose clause of the Juvenile Court
Act, NRS 62.290, . . . . 86 Nev. at 893. See also State v. Doyal, 286 P.2d 306 (N.M. 1955);
State, In Interest Of Salas, 520 P.2d 874 (Utah 1974).
2. It is also claimed by appellant that NRS 62.080 offends rudiments of due process by
granting the lower court an unfettered authority to expose minors to the adult criminal court
system without adequate standards. The exact issue was raised in the Lewis case and flatly
rejected therein. We perceive no reason to deviate from that decision.
____________________

1
NRS 62.080: If a child 16 years of age or older is charged with an offense which would be a felony if
committed by an adult, the juvenile division of the district court, after full investigation, may in its discretion
retain jurisdiction or certify the child for proper criminal proceedings to any court which would have trial
jurisdiction of such offense if committed by an adult; but no child under 16 years of age may be so certified.
After such a child has been certified for proper criminal proceedings and his case has been transferred out of the
juvenile division, original jurisdiction of the person rests with the court to which the child has been certified and
the child may thereafter petition for transfer back to the juvenile division only upon a showing of exceptional
circumstances.
[Headnote 3]
3. Reversal is sought on the additional basis that the district court was without jurisdiction
to rule on appellant's petition for transfer back to the juvenile court. The adult certification
order issued by the juvenile division clearly reflected that the appellant was to be certified to
the Eighth Judicial District Court for proper criminal proceedings as an adult. However,
appellant maintains that the justice court was possessed of sole jurisdiction to determine the
petition since the matter was set on the justice court calendar, the criminal complaint was
filed in justice court, and the arraignment was conducted in the justice court.
We feel the following language from NRS 62.080 is dispositive of the issue: After such a
child has been certified for proper criminal proceedings and his case has been transferred out
of the juvenile division, original jurisdiction of the person rests with the court to which the
child has been certified . . . . Original jurisdiction being vested with the district court, it was
empowered to rule upon appellant's challenge to the certification order.
[Headnote 4]
4. Lastly, appellant asserts an abuse of discretion by the district court for its refusal to
remand the case to the juvenile division. Upon certification, NRS 62.080 authorizes a petition
by the juvenile for transfer back to the juvenile division only in the case of exceptional
circumstances. Since the record fails to disclose the existence of the requisite exceptional
circumstances, we conclude that the district court properly denied a remand to the juvenile
division.
Affirmed.
____________
94 Nev. 690, 690 (1978) Walton v. District Court
CLAUDE WALTON and NORMA WALTON, Petitioners, v. THE EIGHTH JUDICIAL
DISTRICT COURT OF THE STATE OF NEVADA, IN AND FOR THE COUNTY OF
CLARK, and the HONORABLE PAUL S. GOLDMAN, Judge, Department X of the Eighth
Judicial District Court of the State of Nevada, in and for the County of Clark, Respondents.
No. 10784
November 10, 1978 586 P.2d 309
Original proceeding in mandamus. Eighth Judicial District Court, Clark County; Paul S.
Goldman, Judge.
Plaintiffs in negligence action brought proceeding in mandamus to compel the district
court to grant them jury trial and to permit testimony of their expert witness at trial.
to permit testimony of their expert witness at trial. The Supreme Court held that: (1) question
of whether court abused discretion in excluding expert opinion testimony was not properly
addressed in petition for writ of mandate; (2) where plaintiffs failed to establish that timely
and proper demand for jury trial had been made, they failed to establish that they were
entitled to writ of mandamus to compel granting of jury trial, and (3) where plaintiffs relied
on defendant's trial docket note as demand for jury trial, negligence action was suitable for
jury determination and case had been scheduled for jury trial so that no delay, confusion,
surprise or prejudice would have resulted, allowing plaintiffs to apply for enlargement of time
for filing jury demand would secure just, speedy and inexpensive determination of action,
notwithstanding that plaintiffs were not entitled to writ of mandamus to compel granting of
jury trial.
Petition for Mandamus Dismissed; Remanded with Instruction.
Jones, Jones, Bell, Close & Brown, Las Vegas, for Petitioners.
Beckley, Singleton, DeLanoy & Jemison, Chartered, Las Vegas, for Respondents.
1. Mandamus.
Whether trial court abused discretion in decision whether to admit or exclude expert opinion testimony is
not properly addressed in petition for writ of mandate to compel introduction of such testimony.
2. Jury.
In ruling upon request for jury trial, court's discretion is not unlimited. NRCP 39(a).
3. Jury.
Rule governing demand for jury trial requires filing of written demand separate from court form for trial
dockets, and that such paper be filed in accordance with rule governing filing of papers. NRCP 5(d),
38(b), (d).
4. Mandamus.
Where petitioners failed to establish that timely and proper demand for jury trial had been made in
accordance with rule governing demand for jury trial, petitioners failed to establish that they were entitled
to writ of mandamus to compel jury trial in that only when timely and proper demand had been made could
trial court be found to have exceeded limits of discretion in denying jury trial. NRCP 38, 39(a), (b).
5. Jury.
Where plaintiffs in personal negligence action failed to file timely demand for jury trial in reliance on
trial docket note filed by defendant, negligence action was suitable for jury determination and case had
already been scheduled for jury trial to that no delay, confusion, surprise or prejudice could have resulted,
remand of case to allow plaintiffs to apply for order enlarging time period in which to file jury trial demand
would secure just, speedy and inexpensive determination of action, notwithstanding that plaintiffs
were not entitled to writ of mandamus to compel jury trial.
that plaintiffs were not entitled to writ of mandamus to compel jury trial. NRCP 1, 6(b), 38, 39(a), (b).
OPINION
Per Curiam:
This is an original proceeding in mandamus. The petitioners, Claude and Norma Walton,
seek a peremptory writ directing the respondent, Honorable Paul S. Goldman, District Judge,
to grant them a jury trial and to permit the testimony of their expert witness, Dr. James
Wilson Mosley, in the trial, the proffered testimony to be presented by video taped
deposition.
1. The Waltons commenced the underlying action against Blood Services of Texas to
recover damages allegedly resulting from Blood Services' negligent screening of blood
donors.
A Note for Trial Docket signed by counsel for Blood Services was filed with the clerk.
That note contained a form inquiry, Is jury demanded?, which was answered
affirmatively.
The Waltons did not file a demand for a jury trial, claiming reliance on the note filed by
Blood Services, which had been served on them. They state in the instant petition that two
years later they learned that there had been no separate demand for a jury trial by Blood
Services and that Blood Services had failed to advance the appropriate jury fees as required
by NRCP 38(b), (c) and (d).
Thereafter, the Waltons filed in the district court a Request for Clarification of
Defendant's [Blood Services] Demand for Jury Trial, or, in the Alternative, Motion for Trial
by Jury on All Issues. Blood Services opposed the motion on the ground that no timely
demand for a jury had been made in accordance with NRCP 38, supra. Judge Goldman
agreed and denied the Walton's motion. Judge Goldman also, summarily and without
explanation, granted Blood Services' motion in limine to exclude the testimony of the
Waltons' expert witness, Dr. James W. Mosley.
2. A writ of mandate will be issued only to compel the performance of an act which the
law especially enjoins as a duty resulting from office (NRS 34.160), and it is not the
province of an extraordinary writ, such as prohibition or mandamus, to control the judicial
discretion of a district court. Houston Gen. Ins. Co. v. District Court, 94 Nev. 247, 578 P.2d
750, 751 (1978); accord, Pinana v. District Court, 75 Nev. 74, 334 P.2d 843 (1959).
In the case at hand, petitioners seek to challenge Judge Goldman's ruling excluding the
testimony of their expert witness, on the ground that the witness should have been found
competent to testify, pursuant to NRS 50.275.1 "The determination of the competency of
an expert witness is largely in the discretion of the trial judge."
to testify, pursuant to NRS 50.275.
1
The determination of the competency of an expert
witness is largely in the discretion of the trial judge. Levine v. Remolif, 80 Nev. 168, 172,
390 P.2d 718, 720 (1964).
Petitioners rely heavily upon Brown v. Colm, 522 P.2d 688 (Cal. 1974). In Brown, the
Supreme Court of California found an abuse of discretion justifying reversal in the exclusion
of an expert witness. The case was, however, decided on appeal from an order granting a
defendant's motion for nonsuit, and not on a petition for mandamus. In fact, that same court
has held: Neither a writ of prohibition nor a writ of mandate may be used to resolve an issue
as to the admissibility of evidence. Ballard v. Superior Court of San Diego County, 410 P.2d
838, 841 (Cal. 1966). As Mr. Justice Peters noted in explanation of the rule: It is elementary
that a trial judge has the jurisdiction to decide matters before him erroneously as well as
correctly. That is one reason why we have appellate courts. People v. Superior Court, 289
P.2d 813, 814 (Cal.App. 1955), quoted in Ballard v. Superior Court of San Diego County,
supra.
Petitioners rely on Dzack v. Marshall, 80 Nev. 345, 393 P.2d 610 (1964), directing an
entry of summary judgment, for the proposition that, in certain instances, this court will
consider an abuse of discretion by a district judge as an appropriate basis for issuance of a
writ of mandate. Petitioners' reliance is misplaced. Dzack does not represent a departure from
the general rule enunciated above. This court there held that under certain circumstances
NRCP 56(e) makes it the duty of the district court to enter summary judgment in favor of [a]
defendant. Its act, therefore, in ruling on a motion for summary judgment under these
circumstances is not discretionary. Id., 80 Nev. at 349, 393 P.2d at 612 (emphasis added).
[Headnote 1]
Petitioners have cited no rule or case which would indicate that the decision of a trial court
to admit or exclude expert opinion testimony is not discretionary. Whether that discretion has
been abused is not, under the prior holdings of this court, a question properly addressed in a
petition for a writ of mandate.
[Headnote 2]
3. On the other hand, it is clear that in ruling upon a request for a jury trial, the court's
discretion is not unlimited. The Nevada Rules of Civil Procedure provide: When a trial by
jury has been demanded as provided in Rule 38, the action shall be designated as a jury
action."
____________________

1
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.
shall be designated as a jury action. NRCP 39(a) (emphasis added). Petitioners' contention
that such a demand was made in this case must therefore be addressed on the merits. See
Goldblatt v. Inch, 203 F.2d 79 (2d Cir. 1953).
NRCP 38(b) provides: Any party may demand a trial by jury of any issue triable of right
by a jury by serving upon the other parties a demand therefor in writing at any time after the
commencement of the action and not later than the time of the entry of the order first setting
the case for trial. Subsection (d) of NRCP 38 further provides, in pertinent part:
The failure of a party to serve a demand as required by this rule and to file it as required
by Rule 5(d)[2] and to deposit the fees required by this rule constitutes a waiver by him
of trial by jury. At the time a demand is filed as required by Rule 5(d), the party
demanding the trial by jury shall deposit with the clerk an amount of money equal to
the fees to be paid the trial jurors for their services for the first day of the trial. . . .
Petitioners do not contend that they have met the requirements of NRCP 38 by filing such
a demand for a jury trial. Instead, they suggest that Blood Services' response on the Note for
Trial Docket, made before the case was first set for trial and served upon petitioners, should
be deemed a timely demand within the requirements of NRCP 38. They urge the court to
apply the rule that a party is entitled to rely upon the demand of any other party to a jury in an
action, and need not make a separate demand for a jury trial. See Calnetics Corp. v.
Volkswagen of America, Inc., 532 F.2d 674 (9th Cir.), cert. denied, 429 U.S. 940 (1976);
DePinto v. Provident Security Life Insurance Co., 323 F.2d 826 (9th Cir. 1963), cert. denied,
376 U.S. 950 (1964); 9 Wright & Miller, Federal Practice and Procedure: Civil 2318, at 85
(1971); 5 Moore's Federal Practice 38.39[1], at 312 (2d ed. 1978).
[Headnote 3]
However, Blood Services' notation on the court form for trial docket does not meet the
requirements of NRCP 38. No fees were ever deposited by Blood Services as specified in
NRCP 38(d). Such an omission has been held fatal to an allegation of compliance with
similar statutes in other jurisdictions. See Bargreen v. Little, 177 P.2d 85 (Wash. 1947); Py v.
Pleitner, 161 P.2d 393 (Cal.App. 1945) (failure to deposit fees on time). Moreover, the clear
import of the rule is that a separate paper be filed in accordance with NRCP 5{d).
____________________

2
NRCP 5(d) provides:
All papers after the complaint required to be served upon a party shall be filed with the court either before
service or within a reasonable time thereafter, except as otherwise provided in rule 5(b).
paper be filed in accordance with NRCP 5(d). See Nev. Advis. Comm. Note, NRS Annot.,
NRCP 38(b).
[Headnote 4]
Since petitioners have failed to establish that a timely and proper demand for a jury trial
was made, in accordance with NRCP 38, they have failed to establish that they are entitled to
a writ of mandamus. It is only when such a demand has been made that the trial court may be
found to have exceeded the limits of its discretion under the mandatory language of NRCP
39(a) in denying a jury trial. When, as here, no party has made such a timely and proper
demand, NRCP 39(b) provides that notwithstanding the failure of a party to demand a jury
in an action in which such a demand might have been made of right, the court in its discretion
upon motion may order a trial by a jury of any or all issues. (Emphasis added.) Therefore,
under the facts presented, the propriety of the exercise of judicial discretion is not properly
addressed by a petition for an extraordinary writ.
[Headnote 5]
The circumstances of the case at hand appear to present the strongest possible suggestion
for the discretionary granting of such a motion. The underlying personal negligence action is
suitable for jury determination. Since the case had already been scheduled for jury trial, no
delay or confusion would have resulted for the court. Nor would any surprise or prejudice
have resulted to the defendant-respondent, who had agreed to have the case set for jury trial
three times before advancing an objection thereto. In view of such settings, and of the trial
docket note, reliance by counsel for petitioners is at least understandable. See De Remer v.
Anderson, 41 Nev. 287, 169 P. 737 (1918) (better policy to set aside waiver of jury trial
when no material injury or delay would be caused); Swofford v. B. & W., Inc., 336 F.2d 406
(5th Cir. 1964); 9 Wright & Miller, supra, 2334, at 115-16.
In Petsel v. Riley, 192 F.2d 954 (8th Cir. 1951), the federal court of appeals denied
mandamus petitions of the plaintiff, and one defendant who had relied upon the other
plaintiff's demand for a jury trial, because that demand did not fully comply with FRCP 38(b)
and 81(c). The court found, however, that petitioners could reasonably have believed that
they were entitled to a jury trial because of the plaintiff's demand, and further found that the
objecting defendant was advised by that demand that the plaintiff desired a trial of the case
by a jury. 192 F.2d at 955. In light of these circumstances, the court denied the mandamus
petitions, but without prejudice to the application by the plaintiff and the defendant
[petitioner] to District Court for an enlargement of the time for filing a demand for a jury
trial in that court and a motion to restore the case to the jury list."
demand for a jury trial in that court and a motion to restore the case to the jury list. 192 F.2d
at 1956. See NRCP 6(b)
3
.
We believe that such reasoning is consistent with fairness and the orderly disposition of
litigation, and that in the instant case, it will secure the just, speedy and inexpensive
determination of this action. NRCP 1.
Consequently, the petition for mandamus must be denied but without prejudice to the
petitioners-plaintiffs to apply to the District Court for an order enlarging the time period in
which plaintiffs may file a demand for a jury trial.
It is so ordered.
____________________

3
NRCP 6(b) provides:
When by these rules or by a notice given thereunder or by order of court an act is required or allowed to be
done at or within a specified time, the parties, by written stipulation of counsel filed in the action, may enlarge
the period, or the court for cause shown may at any time in its discretion (1) with or without motion or notice
order the period enlarged it request therefor is made before the expiration of the period originally prescribed or
as extended by a previous order or (2) upon motion made after the expiration of the specified period permit the
act to be done where the failure to act was the result of excusable neglect; but it may not extend the time for
taking any action under rule 50(b), 52(b), 59(b), (d) and (e) and 60(b), except to the extent and under the
conditions stated in them.
____________
94 Nev. 696, 696 (1978) Simons v. Donrey, Inc.
WILLIAM SIMONS, Appellant, v. DONREY, INC., a Nevada corporation, dba DONREY
OUTDOOR ADVERTISING CO., Respondent.
No. 9333
November 10, 1978 582 P.2d 795
Appeal from judgment, Second Judicial District Court, Washoe County; Peter I. Breen,
Judge.
Property owner brought action to enjoin defendant from removing a billboard which
defendant had placed on plaintiff's property. The district court entered judgment permitting
defendant to remove billboard, and plaintiff appealed. The Supreme Court held that evidence
sustained finding that billboard had been erected, through mutual mistake, on plaintiff's
property and that defendant was the owner of the sign and entitled to remove it.
Affirmed.
Thornton, Stephens, Atkins & Kellison, and Phyllis Halsey Atkins and Steven R. Kosach,
James R. Brooke, Reno, for Respondent.
94 Nev. 696, 697 (1978) Simons v. Donrey, Inc.
Injunction.
In action brought by property owner to enjoin defendant from removing a billboard which defendant had
placed on plaintiff's property, evidence sustained finding that billboard had been erected, through mutual
mistake, on plaintiff's property and that defendant was the owner of the sign and entitled to remove it.
OPINION
Per Curiam:
Appellant commenced this action seeking damages and to enjoin respondent from
removing a billboard which respondent had placed on appellant's property.
At the conclusion of a trial without jury, the district court concluded (1) the billboard had
been erected, through mutual mistake, on appellant's property; and (2) respondent was the
owner of the sign and entitled to remove it. The district court also ordered respondent to pay
appellant $400.00 as reasonable rental fees for the ground upon which the sign was erected.
Appellant contends the evidence adduced at trial fails to support the district court's
Where, as here, there is substantial evidence to support factual determinations made by a
trial court sitting without a jury, those determinations will not be disturbed on appeal. NRCP
52(a); Landex, Inc. v. State ex rel. List, 94 Nev. 469, 582 P.2d 786 (1978).
____________
94 Nev. 697, 697 (1978) Daniel v. Barengo
ELIZABETH WEBSTER DANIEL, Appellant, v.
ROSMINO NATALE BARENGO, Respondent.
No. 9131
November 10, 1978 585 P.2d 1348
Appeal from order granting injunction, Second Judicial District Court, Washoe County;
William N. Forman, Judge.
Judgment debtor brought action to enjoin sale of property for which judgment creditor had
obtained writ of execution and levy. The district court issued permanent injunction enjoining
sheriff and judgment creditor from selling the subject property, and judgment creditor
appealed. The Supreme Court held that six-year statute of limitations for enforcement of
judgments requires only that judgment creditor seeking enforcement of judgment obtain writ
of execution at any time within six years after entry of the judgment, and thus where
judgment creditor timely obtained writ of execution, but did not levy upon debtor's property
until after six years from date of entry of judgment, such writ of execution was
enforceable.
not levy upon debtor's property until after six years from date of entry of judgment, such writ
of execution was enforceable.
[Rehearing denied December 7, 1978]
Laub, Clark & Hall, Ltd., Reno, for Appellant.
Halley and Halley, Reno, for Respondent.
Execution.
Six-year statute of limitations for enforcement of judgments requires only that judgment creditor seeking
enforcement of judgment obtain writ of execution at any time within six years after entry of the judgment,
and thus where judgment creditor timely obtained writ of execution, but did not levy upon debtor's property
until after six years from date of entry of judgment, such writ of execution was enforceable. NRS 21.010,
21.040.
OPINION
Per Curiam:
On December 3, 1969, appellant obtained a judgment against respondent in the amount of
$11,035.80. Nearly six years later, on November 26, 1975, appellant sought, and was issued,
a writ of execution on the judgment pursuant to NRS 21.010.
1
The writ commanded the
Sheriff of Washoe County to satisfy the judgment out of certain real property owned by
respondent in Washoe County, Nevada. On December 3, 1975, the judgment lien expired. On
January 15, 1976, the Sheriff levied upon respondent's property in Washoe County.
The sale of this property was postponed until March 11, 1976, and, on that date,
respondent sought an injunction to stop the sale contending the writ of execution was not
enforceable because the levy occurred after the expiration of the statutory judgment lien and
after an action on the judgment became barred by the six-year statute of limitations. See NRS
17.150; NRS 11.190. The district court agreed and issued a permanent injunction enjoining
the sheriff and appellant from selling the subject property.
Appellant contends the district court erred because NRS 21.010 does not require her to
levy on the property prior to the expiration of the judgment lien, but rather, requires only that
she obtain a writ of execution at any time within 6 years after the entry of the judgment. We
agree.
NRS 21.010 cannot be construed to require all proceedings under the writ of execution to
be completed prior to the expiration of the six-year period.
____________________

1
As prescribed in this chapter, the party in whose favor judgment is given may, at any time within 6 years
after the entry thereof, issue a writ of execution for its enforcement.
under the writ of execution to be completed prior to the expiration of the six-year period. See
Alonso Investment Corporation, Inc. v. Doff, 551 P.2d 1243 (Cal. 1976). Cf. In re Jackman's
Estate, 124 S.W.2d 1189 (Mo. 1939). We approve the rationale of the Missouri Supreme
Court in Wayland v. Kansas City, 12 S.W.2d 438, 441 (Mo. 1928) where the Court stated:
When the Legislature said that an execution could issue at any time within [six]
years after the rendition of the judgment, it meant that an execution, with all subsequent
proceedings usually attending thereon, could issue on the last day of the [six]-year
period and be just as effective in respect to property seized under its levy as if such
execution had issued immediately after the rendition of the judgment. As we construe
[NRS 21.010], the validity of a sale under the levy of an execution is not determined by
the date of such sale, but by the date of the issuance of the execution under which such
sale is had. . . .
Were we to adopt respondent's interpretation of NRS 21.010, a writ validly issued on the last
day of the six-year period would have to be carried into execution instantaneously or it could
not be enforced at all. The clear language of NRS 21.010 permits issuance of a writ at any
time within the six-year period. Since NRS 21.040 provides that the writ may not be returned
earlier than 10 days after its receipt by the sheriff, [i]t follows . . . that if the time for actual
levy and sale was included in the [six]-year period, a writ issued within 10 days of the end of
that period, though valid at the outset, would be unenforceable. . . . There is no indication the
Legislature intended such a . . . result. Alonso Investment Corporation, Inc. v. Doff, supra at
1244-45.
The judgment is reversed and this case remanded for proceedings consistent with this
opinion.
____________
94 Nev. 699, 699 (1978) Allstate Ins. Co. v. Maglish
ALLSTATE INSURANCE COMPANY, Appellant, v. ROBERT E. MAGLISH, KAYLIN
MAGLISH, NEVADA INDUSTRIAL COMMISSION, JULES WILBERT ABBOTT,
Respondents.
No. 9508
November 10, 1978 586 P.2d 313
Appeal from decision and summary judgment, Eighth Judicial District Court, Clark
County; James A. Brennan, Judge.
An automobile liability insurer providing uninsured motorist coverage brought suit for
declaratory judgment, and appealed from an adverse judgment of the district court. The
Supreme Court, Gunderson, J., held that a single insurance policy on two automobiles
provided two $15,000 uninsured motorist coverages, totaling $30,000.
from an adverse judgment of the district court. The Supreme Court, Gunderson, J., held that a
single insurance policy on two automobiles provided two $15,000 uninsured motorist
coverages, totaling $30,000.
Affirmed.
Thorndal & Liles, and Leland Eugene Backus, Las Vegas, for Appellant.
Cochrane, Lehman, Nelson & Rose, and Frank A. King, Las Vegas, for Respondents.
1. Insurance.
Where automobile liability policy clause limiting uninsured motorist coverage was contrary to public
policy, it was void.
2. Insurance.
It violates public policy to allow insurer to collect premium for certain protection and then take it away
by a limiting clause, and such principle applies where two premiums are paid to provide uninsured motorist
coverage for two vehicles within same policy. NRS 690B.020, 690B.020, subd. 1.
3. Insurance.
Once insured pays premium for uninsured motorist coverage, he and others insured within policy
definition are entitled to uninsured motorist protection under policy whether or not they are occupying or
driving insured vehicle when injured.
4. Evidence.
Sound judicial policy favors determining insured's rights face of policy or documents which form part of
bargain, and recourse records not accessible to insured cannot be allowed to limit his rights, and thus
insurer alleging that insured paid one premium as coverage for two vehicles would not be allowed to prove
such fact by its bookkeeping records. NRS 485.010 et seq., 690B.020, 690B.026, subd. 1.
OPINION
Allstate Insurance Co. appeals a summary judgment determining that a single insurance
policy on two automobiles provided two $15,000 uninsured motorist coverages, totaling
$30.000. Appellant claims the policy provided only one uninsured motorist coverage of
$15,000. We affirm the judgment.
On May 30, 1975, while riding a motorcycle pursuant to his duties as a police officer,
respondent Robert E. Maglish sustained injuries in an accident negligently caused by an
uninsured motorist. Subsequently, Maglish obtained a $55,000 default judgment against the
motorist. It is uncontested that before the accident, Allstate had sold Maglish a single policy
covering two automobiles, and containing uninsured motorist provisions. However, whether
the policy provided two UM coverages, which may be stacked, is disputed.
Maglish demanded $30,000 from Allstate. Allstate maintained the appropriate figure to be
$15,000, and sought declaratory relief to determine the applicable policy limit.
The policy declares protection in amounts of $15,000 for one person and $30,000 for one
accident on each vehicle insured.
1
Maglish moved for summary judgment on the theory that
since two cars are insured, the coverages may be stacked so that the policy limit is $30,000
where one person is injured. A clause appearing in the separate UM provision of the policy
purports to limit liability as follows:
The limit of liability stated in the declarations as applicable to each person is the
limit of Allstate's liability for all damages . . . suffered by one person as the result of
any one accident and, . . . the limit of liability stated in the declarations as applicable to
each accident is the total limit of Allstate's liability for all damages . . . sustained by
two or more persons as the result of any one accident.
The district court was aware of the split of authority in this country on the issue of stacking
UM coverage. After determining that the public policy of this state favors stacking, the court
granted summary judgment, awarding Maglish $30,000. In making its determination, the
court considered the relevant decisions of this court on the issue of stacking.
In United Services Auto. Ass'n v. Dokter, 86 Nev. 917, 478 P.2d 583 (1970), we held that,
where the insurer issues two automobile policies containing uninsured motorist coverage,
the extent of coverage is the combined total amount of such policies, and actual damages
sustained by the insured are recoverable to the full extent of the combined limits of both
policies. Id. at 920.
In State Farm Mut. Auto. v. Christensen, 88 Nev. 160, 494 P.2d 552 (1972), the insured
owned five vehicles, each insured under a separate policy issued by State Farm. We allowed
the insured to recover the combined UM coverages of the five policies. Christensen
reaffirmed the Dokter holding that policies issued by the same company [can] be stacked.
Id. at 163. We explained in Dokter, supra, that in stacking coverages of separate policies, the
insured does not receive a windfall since he paid two separate premiums for the indemnity
of two separate policies. Dokter, supra at 920.
In State Farm Mut. Auto. Ins. v. Hinkel, 87 Nev. 478, 488 P.2d 1151 (1971), we examined
the effect and intent of our UM statutes. Although stacking was not dealt with in that case, the
principles employed in the decision are relevant to the issue now before us.
____________________

1
This declaratory provision of the policy is absent from the record. However, it is stated as a fact in the lower
court's decision and is not disputed on appeal. Additionally, this is the minimum bodily injury liability coverage
required by NRS Chapter 485.
principles employed in the decision are relevant to the issue now before us. The plaintiff in
Hinkel suffered injuries resulting from the negligence of an uninsured motorist. At the time of
the accident, plaintiff was an insured under the terms of a State Farm Automobile insurance
policy owned by plaintiff's father and providing UM coverage. However, when injured,
plaintiff was operating his own vehicle, which was not insured by his father's policy. By its
express terms, the policy excluded coverage for bodily injury to an insured while occupying
a . . . vehicle owned by [an] insured . . . if such vehicle is not an insured automobile. State
Farm urged that this exclusionary clause precluded recovery by plaintiff. We determined that
An insurance company may limit [UM] coverage only if the limitation does not contravene
public policy. Id. at 481. Although presented with contrary views of appropriate public
policy in other jurisdictions, we chose in Hinkel to construe our UM statutes in favor of
recovery by the insured. We held that the exclusionary clause was an effort by the insurance
company to restrict the protection to which the insured was statutorily entitled. As such, it
was contrary to public policy and void.
In this appeal Allstate claims that Dokter and Christensen are not authority for stacking
UM coverage where multiple vehicles are insured in a single policy, and that the liability
limiting clause unequivocally restricts UM coverage to $15,000, and is consistent with public
policy. We disagree.
[Headnotes 1, 2]
Some jurisdictions profess that the analysis used to allow stacking coverages of separate
policies is inappropriate when considering the single multi-vehicle policy situation. Morrison
Assurance Company, Inc. v. Polak, 230 So.2d 6 (Fla. 1969). In our view, however, the public
policy underlying Dokter and Christensen is that the insured is entitled to recover damages to
the full extent of personal coverage for which he has paid premiums.
2
This principle applies
with equal force where two premiums are paid to provide UM coverage for two vehicles
within the same policy.
Although we question whether the liability limiting clause is unequivocal as alleged by
Allstate, we need not address that issue since the clause is void if contrary to public policy.
State Farm Mut. Auto. Ins. v. Hinkel, cited above. In Hinkel, an exclusionary clause was
voided under this rule because it was not the intent of the legislature to require [the insurer]
to offer protection with one hand and then [allow the insurer to] take a part of it away with
the other. Id. at 481, 482. Similarly, it violates public policy to allow the insurer to collect a
premium for certain protection and then take it away by a limiting clause.
____________________

2
Cf. Staten v. State Farm Mut. Auto. Ins., 94 Nev. 283, 579 P.2d 766 (1978) (where insured was entitled to
recover actual damages suffered under UM coverage despite partial recovery under no-fault provision of policy).
premium for certain protection and then take it away by a limiting clause. See Great Central
Ins. Co. v. Edge, 298 So.2d 607 (Ala. 1974); Employers Liability Assur. Corp., Ltd. v.
Jackson, 270 So.2d 806 (Ala. 1972); Wilkinson v. Firemans Fund Insurance Co., 298 So.2d
915 (La.App. 1974); Cunningham v. Insurance Company of North America, 189 S.E.2d 832
(Va. 1972).
We therefore adopt the view expressed by Chief Justice Heflin for the Alabama Supreme
Court that where the insurer issue[s] a policy providing uninsured motorist coverage and
collect[s] a premium with respect to more than one automobile the insurer can not preclude a
recovery based on each premium by a limiting clause. Great Central Insurance Company v.
Edge, cited above, at 608.
This holding is consistent with our UM statutes and achieves a just result.
NRS 690B.020 does not restrict an insured to the minimum UM coverage, and nowhere
does it limit an insured to one coverage where multiple vehicles are insured.
3
Moreover, an
insured owning two automobiles is clearly entitled to buy from the insurer a separate policy
for each vehicle and thereby automatically have two coverages available for recovery. United
Services Auto. Ass'n v. Dokter, cited above; State Farm Mut. Auto. v. Christensen, cited
above.
It is reasonable to expect the same coverage where comparable premium dollars are paid to
insure the same two cars, for convenience, under a single policy. A combination coverage
should not be the predicate for an exclusion of coverage. Tucker v. Government Employees
Insurance Co., 288 So.2d 238 (Fla. 1973). Such a result would allow a simple change in form
to defeat the insured's reasonable expectation, as well as the substance of the law.
[Headnote 3]
Allstate seeks to avoid this result by suggesting that in a single multi-vehicle policy, the
additional UM premiums are not consideration for an increased amount of UM coverage, but
for the same amount of coverage with added protection for persons while occupying the
additional vehicle. This contention is without merit. In our state, once an insured pays a
premium for UM coverage, he and others insured within the policy definition are entitled
to UM protection under the policy regardless of whether they are occupying or driving an
"insured vehicle" when injured.
____________________

3
NRS 690B.020 provides:
1. No policy . . . shall be delivered . . . in this state with respect to any motor vehicle . . . unless [UM]
coverage is provided therein . . . . (Emphasis added.)
2. The amount of [UM] coverage to be provided shall be not less than [$15,000 for one person and $30,000
for two or more persons, injured in any one accident] but may be in an amount not to exceed the bodily injury
liability insurance purchased by the policyholder.
definition are entitled to UM protection under the policy regardless of whether they are
occupying or driving an insured vehicle when injured. State Farm Mut. Auto. Ins. v.
Hinkel, cited above.
Allstate argues alternatively that if the number of premiums is determinative, the cause
should be remanded for the trial court to determine that issue of fact. Allstate alleges that
Maglish paid one premium as coverage for the two vehicles, and that it can prove that
fact by its bookkeeping records.
[Headnote 4]
In passing, we note that the phrase one premium as coverage for the two vehicles is
ambiguous, and would not in any event convince us that the district court overlooked a
genuine issue of material fact.
4
However, even if Allstate had alleged and could prove that
only one UM premium was paid, sound judicial policy favors determining an insured's rights
from the face of the policy or documents which form part of the bargain. Thus, we think
recourse to records not accessible to an insured cannot be allowed to limit his rights. This
principle is fortified with respect to UM coverage, by the legislative mandate of such
coverage unless expressly rejected in writing by the insured.
5

Here, Allstate does not contend that Maglish rejected in writing either of the UM
coverages legally available to him upon the purchase of policies (or a policy) covering his
automobiles. Nor does Allstate contend that, upon such rejection, any appropriate limitation
of coverage was unequivocally stated in the document issued to him. Absent any suggestion
that such facts could be shown, the district court properly determined there was present no
genuine issue of fact.
____________________

4
Doubtless, for nearly every insurance policy issued, the insured tenders only one check as a lump sum
payment of the several premiums charged. In the single-vehicle policy, this method of payment does not negate
the distinct premiums charged for various optional blocks of coverage. Similarly, in the multi-vehicle policy,
payment of one premium as coverage for the vehicles insured thereunder does not signify that only one UM
premium was paid. Allstate has never alleged that Maglish paid only one UM premium.

5
NRS 690B.020(1) mandates UM coverage but no such coverage shall be required. . .where rejected in
writing on a form furnished by the insurer describing the coverage being rejected, by an insured named therein.
____________
94 Nev. 705, 705 (1978) City of Las Vegas v. City of N. L. V.
CITY OF LAS VEGAS, NEVADA, a Municipal Corporation, Appellant, v. CITY OF
NORTH LAS VEGAS, NEVADA, a Municipal Corporation, Respondent.
No. 9462
November 10, 1978 585 P.2d 1349
Appeal from summary judgment, Eighth Judicial District Court, Clark County; Joseph S.
Pavlikowski, Judge.
In suit between two cities, the district court entered summary judgment, from which appeal
was taken. The Supreme Court held that holding, in another suit, that city could retain tax
revenues derived before annexation was declared void because de facto annexation had
occurred was controlling in the suit between two cities, notwithstanding appellant city's
contention that it should not be bound by the determination of de facto annexation due to fact
that city had not technically been a party to suit in which that determination was made.
Affirmed.
Albright & McGimsey, Las Vegas, for Appellant.
John P. Fadgen, City Attorney, North Las Vegas, for Respondent.
Judgment.
Holding that city could retain tax revenues derived before annexation was declared void because de facto
annexation had occurred was controlling in suit between such city and second city, contrary to second city's
contention that it should not be bound by the determination of de facto annexation due to fact that such city
had not technically been a party to suit in which that determination was made.
OPINION
Per Curiam:
In County of Clark v. City of North Las Vegas, 89 Nev. 10, 504 P.2d 1326 (1973), this
court declared void an attempt by North Las Vegas to annex certain property. In Sunrise
Manor v. City of North Las Vegas, 91 Nev. 713, 541 P.2d 1102 (1975), this court determined
that because de facto annexation had occurred, North Las Vegas could nevertheless retain tax
revenues derived before we declared the annexation void.
In our view, the latter holding controls this case. Although appellant City of Las Vegas
here argues that it was not technically a party, when we made our determination of de facto
annexation, and therefore was not bound by it, we do not believe the facts appellant now
offers to prove would or should alter our prior ruling in any event.
94 Nev. 705, 706 (1978) City of Las Vegas v. City of N. L. V.
Accordingly, the district court's order granting summary judgment is affirmed.
____________
WILLIAM EDWARD MYERS and BEVERLY ANN PARKER PURPURA, Appellants, v.
SHERIFF, CLARK COUNTY, NEVADA, Respondent.
No. 11138
November 10, 1978 585 P.2d 1350
District Court; John F. Mendoza, Judge.
Petitioner, who was charged with attempt to sell controlled substance, filed pretrial
petition for writ of habeas corpus. The district court denied habeas, and petitioner appealed.
The Supreme Court held that certain evidence was insufficient to support a charge of
attempted sale of controlled substance.
Reversed.
Goodman, Oshins, Brown & Singer, and Stephen Stein, Las Vegas, for Appellants.
Robert List, Attorney General, Carson City; George E. Holt, District Attorney, and M.
Douglas Whitney, Deputy, Clark County, for Respondent.
Drugs and Narcotics.
Evidence that defendant was in company of two persons when one of such persons provided undercover
narcotic agent with two tennis ball cans containing cocaine was insufficient to support a charge that
defendant attempted to sell controlled substance.
OPINION
Per Curiam:
Beverly Ann Parker Purpura filed a pretrial petition for a writ of habeas corpus challenging
count I of an indictment which charged her, inter alia, with an attempt to sell a controlled
substance on December 3, 1977, in Las Vegas, Nevada. Habeas was denied and in this appeal
Purpura contends the district judge committed reversible error.
1
We agree.
The only evidence in the record that purports to connect Purpura with the charged crime is
that during the evening of December 3, 1977, she was in the company of William Myers
and another person in the Las Vegas Hilton Hotel when an undercover narcotic agent
allegedly met with and received from Myers two tennis ball cans that contained cocaine, a
controlled substance.
____________________

1
Although William Myers is named as an appellant in the record which has been docketed, there is no
cognizable issue involving him.
December 3, 1977, she was in the company of William Myers and another person in the Las
Vegas Hilton Hotel when an undercover narcotic agent allegedly met with and received from
Myers two tennis ball cans that contained cocaine, a controlled substance.
Although the evidence regarding Purpura's association with Myers may constitute some
transgression of the law, we deem such evidence insufficient to support a charge of attempted
sale. Accordingly, the district judge should have granted Purpura's habeas challenge to count I
of the indictment which charged her with that crime. See Palombo v. Sheriff, 93 Nev. 492,
568 P.2d 580 (1977). See also Ursino v. Sheriff, 91 Nev. 409, 537 P.2d 316 (1975).
Reversed.
____________
94 Nev. 707, 707 (1978) State Dep't Commerce v. Carriage House
STATE OF NEVADA, DEPARTMENT OF COMMERCE, DIVISION OF REAL ESTATE,
Appellant, v. CARRIAGE HOUSE ASSOCIATES, a Nevada Limited Partnership,
Respondent.
No. 9324
November 10, 1978 585 P.2d 1337
Appeal from judgment granting permanent injunction, Eighth Judicial District Court; J.
Affirmed.
Resort condominium operators sought to enjoin and restrain the Real Estate Division of
the State Department of Commerce from exercising jurisdiction over and regulating the
operators' marketing of vacation licenses. The district court granted the injunction sought,
and the Department appealed. The Supreme Court held that where purchasers of vacation
licenses acquired contractual right to reserve for occupancy at resort condominium, for
aggregate of seven days each year, suite of designated type and location during designated
season, but not a specific suite, and where the right extended for useful life of resort and such
licenses were irrevocable and transferable, such vacation license was neither license nor
lease, and thus Real Estate Division could neither exercise jurisdiction over, nor regulate,
such contracts under statutes requiring licenses to sell leasehold interests or interests in
subdivisions.
Robert List, Attorney General, and Robert E. Edmondson, Deputy Attorney General,
Carson City, for Appellant.
Beckley, Singleton, DeLanoy, Jemison & Reid, and Rex A. Jemison, Las Vegas, for
Respondent.
Licenses.
Where purchasers of vacation licenses acquired contractual right to reserve for occupancy at resort
condominium, for aggregate of seven days each year, suite of designated type and location during
designated season, but not a specific suite, and where the right extended for useful life of resort and such
licenses were irrevocable and transferable, such vacation license was neither license nor lease, and thus
Real Estate Division of State Department of Commerce could neither exercise jurisdiction over, nor
regulate, such contracts under statutes requiring licenses to sell leasehold interests or interests in
subdivisions. NRS 119.110, 119.130, 645.020, 645.230.
OPINION
Per Curiam:
Respondent sought to enjoin and restrain the Real Estate Division of the Nevada
Department of Commerce from exercising jurisdiction over and regulating respondent's
marketing of vacation licenses. Appellant opposed the injunction contending respondent's
sale of vacation licenses was subject to the licensing requirements of NRS ch. 119 and
NRS ch. 645.
1
After a hearing on the matter the district court granted a permanent injunction
concluding the vacation licenses neither constitute nor convey an interest in real property
and, thus, persons engaged in the marketing of vacation licenses do not have to comply
with the licensing requirements of NRS ch. 119 and NRS ch. 645.
The thrust of appellant's argument in this appeal is that a vacation license is both (1) a
leasehold interest in real estate, as defined by NRS 645.020, and therefore, persons selling
such interest must be licensed in accordance with NRS 645.230; and (2) an interest in a
subdivision, as defined by NRS 119.110, and therefore, persons who sell such interests
must be licensed in accordance with NRS 119.130.
2
We disagree.
____________________

1
NRS ch. 119 and NRS ch. 645 provide basic jurisdiction for regulation of the sale of real property.

2
As used in this chapter, real estate' means every interest or estate in real property including but not limited
to freeholds, leaseholds and interests in condominiums, townhouses or planned unit developments, whether
corporeal of incorporeal, and whether the real property is situated in this state or elsewhere.
1. After June 1, 1947, it shall be unlawful For any person, copartnership association or corporation to
engage in the business of, act in the capacity of, advertise or assume to act as, a real estate broker or real estate
salesman within
Respondent owns and operates a 192-unit resort complex in Las Vegas, Nevada, known as
the Carriage House. In July, 1975, respondent commenced its marketing of vacation
licenses in Las Vegas. The vacation license is a form of time-sharing which divides the
occupancy rights to resort units among multiple parties. Under the Carriage House program,
the purchaser acquires the contractual right to reserve for occupancy at the Carriage House,
for an aggregate of seven days each year, a suite of a designated type and location during a
designated season of the year. This right extends for the useful life of the Carriage House,
which is stated to be not less than 40 years nor more than 60 years from January 1, 1976.
Purchasers of the vacation licenses are not entitled to make reservations for any particular
date or any specific suite. The vacation licenses are irrevocable and may be transferred by
gift or devise or with the written approval of Carriage House Associates. However, the
purchasers may neither rent nor sub-license their accommodations and receive no deed or
other indicia of title or interest in the property.
In consideration of the purchase price, respondent agrees to operate and maintain the
property as a luxury resort condominium and to provide regular hotel maid service, towels,
linens and kitchenware for the resort units.
Under these circumstances, we are constrained to agree with the district court's conclusion
that a vacation license is a mere contractual right which fails to achieve the status of an
interest in real property. Indeed, it is not a license, as defined by the law of real property,
because it is irrevocable and transferable. See Fisher v. General Petroleum Corp., 267 P.2d
841 (Cal.App. 1954); Lehman v. Williamson, 533 P.2d 63 (Colo.App. 1975). Nor is it a lease
because it is not definite as to its duration or description of the property involved. Beckett v.
City of Paris Dry Goods Co.,
____________________
the State of Nevada without first obtaining a license as a real estate broker or real estate salesman from the real
real estate division as provided for in this chapter.
Subdivision' means any land or tract of land in another state, in this state or in a foreign country from which
a sale is attempted, which is divided or proposed to be divided over any period into 35 or more lots, parcels,
units or interests, including but not limited to undivided interests, which are offered, known, designated or
advertised as a common unit by a common name or as a part of a common promotional plan of advertising and
sale.
Except as provided in NRS 119.120, no subdivision or lot, parcel, unit or interest in any subdivision shall in
any way be offered or sold in this state by any person or broker until:
. . . .
2. Such person or broker has received a license under NRS 119.160.
v. City of Paris Dry Goods Co., 96 P.2d 122 (Cal. 1939). See Club v. Investment Co., 64 Nev.
312, 182 P.2d 1011 (1947).
We are persuaded by the district court's analysis of this case:
It's really an anomaly. It doesn't fit neatly into any nice legal terminology. But I cannot
reach the conclusion that an individual entering into the contract with [Carriage House]
acquires an interest in real estate. He just simply does not acquire an interest in real
property and accordingly I feel that if the Legislature wishes to regulate this kind of
business, they're going to have to either amend Chapter 119 or they're going to have to
create a new chapter.
I don't think that it was the intent of the Legislature looking at the land sales act to
regulate the kind of vacation license that is presented in this case.
[3]

We perceive no error in the district court judgment and, accordingly, it is affirmed.
____________________

3
Cf. Woofter v. O'Donnell, 91 Nev. 756, 542 P.2d 1396 (1975); Seaborn v. District Court, 55 Nev. 206, 29
P.2d 500 (1934); State v. Woodbury, 17 Nev. 337 (1883).
____________
94 Nev. 710, 710 (1978) Kerley v. Aetna Cas. & Sur. Co.
TOMMY D. KERLEY, Appellant, v. THE AETNA CASUALTY
AND SURETY COMPANY, Respondent.
No. 9534
November 10, 1978 585 P.2d 1339
Appeal from judgment dismissing suit with prejudice, First Judicial District Court, Douglas
County; Stanley A. Smart, Judge.
Following plaintiff's failure to comply with order directing discovery, the district court
entered judgment dismissing plaintiff's suit with prejudice, and plaintiff appealed. The
Supreme Court held that decision of the district court was not abuse of discretion where
defendant moved for order compelling plaintiff to produce certain specified documents, the
motion was served upon counsel for plaintiff, plaintiff's counsel never sought protective
order, and plaintiff's counsel did not contend that he had valid objections to discovery sought
by defendant.
Affirmed.
Ralph M. Crow, Carson City, for Appellant.
Leggett and Hamilton, Reno, for Respondent.
94 Nev. 710, 711 (1978) Kerley v. Aetna Cas. & Sur. Co.
Proper method for raising objection to discovery ordered under rule permitting motion to compel
production of specified documents is by motion under rule allowing entry of protective order. NRCP
26(c), 34(b), 37(a).
Decision of the district court to dismiss plaintiff's action with prejudice for willful failure to comply with
order of the district court directing discovery was not abuse of discretion where defendant moved for order
compelling plaintiff to produce certain specified documents, the motion was served upon counsel for
plaintiff, plaintiff's counsel never sought protective order, and plaintiff's counsel did not contend that he
had valid objections to discovery sought by defendant. NRCP 26(c), 34(b), 37(a).
OPINION
Per Curiam:
Appellant, plaintiff below, appeals from a judgment dismissing his suit with prejudice, for
willful failure to comply with the district court's order directing discovery.
[Headnote 1]
As authorized by NRCP 34(b), respondent moved for an order under NRCP 37(a),
compelling appellant to produce certain specified documents. The motion was served upon
counsel for appellant, who failed to comply or to raise any objection thereto. The method for
raising an objection to such discovery is by motion for a protective order under NRCP 26(c).
See 8 Wright & Miller, Federal Practice and Procedure: Civil 2291, at 810-11 (1970); Fed.
Advis. Comm. Notes, 4 Moore's Federal Practice 26.01[18] (2d. ed. 1976). Appellant's
counsel, however, never sought such an order, nor does he now contend that he has valid
objections to the discovery sought by respondent.
[Headnote 2]
After a full evidentiary opportunity hearing, the court below found that appellant's failure
to comply with the court's order was willful, and the court, therefore, entered the judgment of
dismissal. We find, after reviewing the record, that there is no showing of an abuse of
discretion in the court's decision to dismiss which was completely proper under NRCP
37(b)(2)(C). Lange v. Hickman, 92 Nev. 41, 544 P.2d 1208 (1976); Riverside Casino v. J. W.
Brewer Co., 80 Nev. 153, 390 P.2d 232 (1964). See National Hockey League v. Metropolitan
Hockey Club, Inc., 427 U.S. 639 (1976).
Accordingly, the judgment is affirmed, with costs to respondent.
____________
94 Nev. 712, 712 (1978) Bruno v. Schoch
RENE BRUNO, Appellant, v. DORIS
DIANNE SCHOCH, Respondent.
No. 9520
November 10, 1978 582 P.2d 796
Appeal from order denying motion to vacate default judgment, and from subsequent order
denying motion for rehearing. Eighth Judicial District Court, Clark County; Michael J.
Wendell, Judge.
Mother sued putative father for breach of promise to contribute to child's support. The
district court denied the putative father's motion to vacate a default judgment against him and
he appealed. The Supreme Court held that: (1) the Uniform Illegitimacy Act was not the
exclusive procedure for obtaining an award of child support, but the mother could sue for
breach of contract, and (2) the trial court abused its discretion in denying the putative father's
motion to vacate the default judgment on the grounds of mistake, surprise or excusable
neglect.
Robert K. Dorsey, Las Vegas, for Appellant.
Orin G. Grossman, Las Vegas, for Respondent.
1. Bastards.
Putative father's alleged promise to contribute to support of illegitimate child was valid basis for suit,
independent of statutory remedy which might be available to mother or illegitimate child under Uniform
Illegitimacy Act. NRS 126.010 et seq., 126.030, 126.080.
Decision refusing to vacate default judgment should be reversed where neither policy of favoring
decision of each case upon merits nor any other significant policy is served by decision refusing to vacate
default judgment. NRCP 60(b)(1).
3. Judgment.
In suit against putative father for breach of promise to contribute to child's support, default judgment
should have been vacated where mother did not seek default judgment against the putative father until
almost 11 months after entry of default, after entry of default, parties had stayed together, had relations
from time to time, and had contemplated marriage, mother had assured putative father that suit had been or
would be dropped, and there was every reason to believe that putative father was surprised by entry of
default judgment. NRCP 60(b)(1).
4. Bastards.
Putative father's admission of paternity was not conclusive in suit for breach of promise to contribute to
illegitimate child's support, because putative father had available all ordinary defenses to contract action.
OPINION
Per Curiam:
Rene Bruno has appealed from an order of the district court denying his motion to vacate a
default judgment.
1. On October 14, 1975, respondent, Doris Dianne Schoch, filed a complaint alleging that
appellant had acknowledged his paternity of respondent's illegitimate daughter, born October
19, 1974, and had promised to contribute to her support. Respondent sought medical
expenses and support for the daughter and a second child expected some months later, as well
as costs and attorney's fees. Appellant, Bruno, was personally served with summons and
complaint on October 18, 1975. Default was entered on November 17, 1975. Almost 11
months later, on October 8, 1976, respondent caused default judgment to be entered against
appellant for $4,478.50 in medical expenses, $800 in attorney's fees and costs, and $250 per
month child support from October 14, 1975.
Appellant filed the instant motion to vacate the judgment accompanied by an affidavit
asserting that appellant had a meritorious defense. The motion was denied. Hence, this
appeal.
[Headnote 1]
2. Appellant contends that the judgment was void because the exclusive procedure for
obtaining an award of support for an illegitimate child is delineated in NRS ch. 126, the
Uniform Illegitimacy Act. As stated by the trial court, however, NRS 126.080 explicitly
provides that the statutory procedures to compel support contained in NRS ch. 126 shall not
be exclusive of other proceedings that may be available on principles of law or equity.
In this case, respondent's complaint was not based upon the statutory obligation of support
imposed upon parents of illegitimate children by NRS 126.030, but upon the allegation that
appellant had incurred a contractual obligation of support by virtue of his explicit promise.
Such a contractual obligation is a valid basis for suit, independent of any statutory remedies
which may be available to the mother or the illegitimate child. See Schumm v. Berg, 231 P.2d
39 (Cal. 1951); Plunkett v. Atkins, 371 P.2d 727 (Okla. 1962); Peterson v. Eritsland, 419
P.2d 332 (Wash. 1966); 10 Am.Jur.2d Bastards 70-73 (1963).
The lower court's determination that the judgment was not void for failure of respondent to
comply with the procedural requirements of NRS ch. 126 was therefore correct.
[Headnote 2]
3. We do find, however, that the trial court abused its discretion in denying appellant's
motion to vacate default judgment on the grounds of mistake, surprise or excusable neglect.
NRCP 60(b)(1). As we explained in Minton v. Roliff, 86 Nev. 478, 482, 471 P.2d 209, 211
(1970), the basic policy of this court is to favor a decision of each case upon the merits. Hotel
Last Frontier Corp. v. Frontier Properties, Inc., 79 Nev. 150
Last Frontier Corp. v. Frontier Properties, Inc., 79 Nev. 150, 380 P.2d 293 (1963). When
neither this policy, nor any other significant policy is served by a decision refusing to vacate
default judgment, such decision should be reversed. Adams v. Lawson, 84 Nev. 687, 448
P.2d 695 (1968)
[Headnote 3]
Respondent did not seek a default judgment against appellant until almost 11 months after
entry of default. In support of his motions to vacate judgment, and for rehearing thereon,
appellant submitted uncontradicted affidavits asserting that after the entry of default, the
parties had stayed together, had relations from time to time, and had contemplated marriage.
It was further asserted that in June, 1976, respondent had assured appellant, in the presence of
a third party, that the suit had been or would be dropped.
Appellant first learned of the judgment on November 22, 1976. His motion to vacate
judgment was filed the following week. Under these circumstances, there is every reason to
believe that appellant was surprised by respondent's entry of judgment.
In the past, we have not hesitated to reverse orders denying motions to vacate default
judgments in similar factual settings involving the resumption of intimate relations between
parties in circumstances which would reasonably lead appellants to believe that no further
action would be taken. Lowrance v. Lowrance, 87 Nev. 503, 489 P.2d 676 (1971); Cipolla v.
Cipolla, 85 Nev. 43, 449 P.2d 258 (1969). We find no reason to do otherwise here.
[Headnote 4]
Respondent contends that, nevertheless, the decision of the trial court must be upheld, on
the ground that appellant could not have a meritorious defense, in light of his admission of
paternity. This contention ignores the posture of respondent's action. As noted above,
respondent is excused from compliance with the requirements of NRS ch. 126 precisely
because this is a suit in contract, rather than a statutory action for support of an illegitimate
child. Consequently, appellant has available any of the ordinary defenses to a contract action,
regardless of his admission of paternity. See, e.g., Schumm v. Berg, supra, 10 Am.Jur.2d
Bastards, supra.
Therefore, the order of the trial court is reversed, and the case is remanded for further
proceedings in accordance with this opinion.
____________
94 Nev. 715, 715 (1978) Maes v. Sheriff
BIBIAN BONAFACIO MAES, Appellant, v. SHERIFF,
No. 10833
November 10, 1978 582 P.2d 793
Appeal from order denying a pretrial petition for a writ of habeas corpus; Eighth Judicial
District Court, Clark County; Howard W. Babcock, Judge.
The supreme Court, Mowbray, J., held that at preliminary hearing on charge of sexual
assault upon a minor, state met its burden of proving probable cause that a crime had been
committed, notwithstanding that record did not expressly show that defendant had put boy's
penis in his mouth, as state had alleged, but only that defendant had licked it in committing
the sexual assault, and thus sexual penetration, within meaning of statute, was established.
Affirmed.
Morgan D. Harris, Public Defender, and Kirk B. Lenhard, Deputy Public Defender, Clark
Robert List, Attorney General, Carson City; George E. Holt, District Attorney, and James
V. Lavelle, III, Deputy District Attorney, Clark County, for Respondent.
Criminal Law.
At preliminary hearing on charge of sexual assault upon a minor, state met its burden of proving probable
cause that a crime had been committed, notwithstanding that record did not expressly show that defendant
had put boy's penis in his mouth, as state had alleged, but only that defendant had licked it in committing
the sexual assault, and thus sexual penetration, within meaning or statute, was established. NRS
200.364, subd. 2, 200.366, subd. 1.
OPINION
An information, filed March 8, 1978, charged Bibian Bonafacio Maes with sexual assault
(NRS 200.364; NRS 200.366) and lewdness with a minor (NRS 201.230). After Maes was
arraigned, he challenged the sexual assault charge by filing a pretrial petition for a writ of
habeas corpus. Habeas was denied and Maes has appealed.
The claim below, which is reasserted here, was that the charge must fail because the State
failed to prove the necessary element of sexual assault in that the record of the preliminary
hearing does not establish "sexual penetration" within the meaning of the statute.
hearing does not establish sexual penetration within the meaning of the statute. We
disagree and affirm the order below.
The testimony of the 12-year-old victim, at this stage of the proceedings, stands
unchallenged and undisputed. It is to the effect that the defendant, in a men's rest room in an
amusement park in Las Vegas, first forced the victim to fondle the defendant's genitals. Then
the defendant zipped open the young boy's trousers and licked the boy's groin and penis
until the defendant reached a sexual climax. Immediately afterwards, the defendant departed
the park, and the boy telephoned the police, who later apprehended the defendant. The
appellant challenges the sexual assault charge because the record does not expressly show
that he put the boy's penis in his mouth, as the State has allegedonly that he licked it, in
committing the sexual assault.
NRS 200.366(1) defines as guilty of sexual assault [a] person who subjects another
person to sexual penetration, or who forces another person to make a sexual penetration on
himself or another. . . .
The preceding statute, NRS 200.364(2), says: Sexual penetration' means cunnilingus,
fellatio or any intrusion, however slight, of any part of a person's body or any object
manipulated or inserted by a person into the genital or anal openings of the body of another,
including sexual intercourse in its ordinary meaning. (Emphasis added.)
Black's Law Dictionary (Rev. 4th ed. 1957), characterizes fellatio as an offense
committed with the male sexual organ and the mouth.
Webster's Third New International Dictionary (Unabridged, 1968) defines the act as the
practice of obtaining sexual satisfaction by oral stimulation of the penis.
1
The record at this
juncture supports the finding that this occurred in the instant case. And since the definition of
sexual penetration as used in NRS 200.364(2), supra, is in the disjunctive, including
fellatio, the State has met its burden of proving probable cause that a crime has been
committed. Therefore, the appellant must answer in district court. NRS 171.206.
Batjer, C. J., and Thompson and Manoukian, JJ., concur.
____________________

1
Texas holds that penetration of the mouth is not an essential element of the use of the mouth on the sexual
parts of another human being for the purpose of having carnal copulation. Sinclair v. State, 311 S.W.2d 824
(Tex.Crim.App.1958); McDonald v. State, 513 S.W.2d 44 (Tex.Crim.App. 1974).
A federal court in North Carolina has held that fellatio is [s]exual stimulation per os. Perkins v. State of
North Carolina. 234 F.Supp. 333, 335, n. 4, (W.D.N.C. 1964).
Both NRS 200.366(1) and NRS 200.364(2), under which defendant was charged, are
directed to forceable sexual penetration.
1
Thus, obviously aware of this, the State charged
that defendant had committed sexual penetration, to-wit: fellatio, by placing the penis of [the
victim], against his will, in the mouth of said Defendant. However, although the State totally
failed to prove such sexual penetration as alleged, the defendant was bound over for trial on
that charge, as well as on the charge of lewdness with a minor which, of course, the
evidence amply justified.
Whether the acts established would warrant more than one lewdness count, and
therefore more than one penalty, is not before us. What is before us is this question: Shall this
court redefine sexual penetration so as to make sexual penetration unnecessary?
As noted, the sexual penetration allegedly committed by Maes was fellatio. See NRS
200.364(2). Fellatio is defined as [a]n act of sexual perversion in which the penis is
introduced into the mouth of another;. . . Blakiston's New Gould Medical Dictionary 441 (2d
ed. 1956). Courts have long recognized the analogy between [acts of] sodomy and rape,. . .
and that the principles of law applicable to rape apply to sodomy. Hopper v. State, 302 P.2d
162, 165 (Okl.Cr. 1956). Penetration, however slight, must be shown. People v. Hickok, 216
P.2d 140 (Cal.App. 1950); People v. Angler, 112 P.2d 659 (Cal.App. 1941); Hopper, cited
above; see State v. Alkhowarizmi, 421 P.2d 871 (Ariz. 1966); State v. Shambo, 322 P.2d 657
(Mont. 1958); State v. Charley, 291 P.2d 673 (Wash. 1955); cf. People v. Milo, 201 P.2d 556
(Cal.App. 1949); People v. Coleman, 127 P.2d 309 (Cal.App. 1942).
2
A mere contact of the
mouth with the sexual organ of another, either by a kissing' or a licking,' cannot be
construed as a sexual assault. Angier, cited above at 660.
Therefore, because the record shows Maes did not place the penis of the said [victim] . . .
in the mouth of said Defendant, as charged in the information, an element necessary to
Count I was not shown by the State. NRS 171.206. Accordingly, the district court should
have granted appellant's habeas challenge to that charge, allowing the "lewdness" count
to proceed to trial. Cf. Sheriff v. Dearing, S9 Nev. 255
____________________

1
NRS 200.366(1), provides, in pertinent part:
A person who subjects another person to sexual penetration . . . against the victim's will . . . is guilty of
sexual assault. See also NRS 201.193 which provides: Any sexual penetration, however slight, is sufficient to
complete the crime against nature.

2
See Fields v. Sheriff, 93 Nev. 640, 572 P.2d 213 (1977), where we rejected a constitutional challenge to the
sexual assault statute.
district court should have granted appellant's habeas challenge to that charge, allowing the
lewdness count to proceed to trial. Cf. Sheriff v. Dearing, 89 Nev. 255, 510 P.2d 874
(1973).
____________
94 Nev. 718, 718 (1978) Bowyer v. Davidson
JAMES IRVING BOWYER, d/b/a GENERAL REFRIGERATION SERVICE, Appellant, v.
JOEL DAVIDSON, VICTOR SCHILLER, and R. D. HARGRAVE, Respondents.
No. 9269
November 15, 1978 584 P.2d 686
Appeal from summary judgment; Eighth Judicial District Court; Thomas J. O'Donnell,
Judge.
Subcontractor, who did part of air conditioning and sheet metal work on construction
project, brought action against general contractor and owners to recover for labor and
materials. The district court granted owners summary judgment and awarded subcontractor
judgment against general contractor, and subcontractor appealed. The Supreme Court held
that: (1) mere fact that one of the owners signed his name on subcontractor's rebid, which was
made for purpose of reflecting certain modifications made by general contractor in plans and
specifications, did not indicate the existence of any contract between owners and
subcontractors, and (2) the enrichment, if any, resulting to owners from subcontractor's labors
and materials was not unjust.
Affirmed.
Vargas, Bartlett & Dixon, Las Vegas, for Appellant.
Galatz, Earl & Biggar, Las Vegas, for Respondents.
Appealing from summary judgment following final judgment was proper, in light of fact that the
summary judgment did not contain certification, and, thus, had been interlocutory in nature and not
immediately appealable. NRCP 54(b).
2. Judgment.
In determining propriety of summary judgment, all evidence favorable to party who lost on the motion
must be accepted as true.
3. Contracts.
Mere fact that one of the owners signed his name on rebid of subcontractor, who contracted with general
contractor to perform air conditioning and sheet metal work on construction project and who submitted
the rebid for purpose of reflecting certain modifications made by general contractor
in plans and specifications, did not indicate the existence of any contract between
owners and subcontractor.
the rebid for purpose of reflecting certain modifications made by general contractor in plans and
specifications, did not indicate the existence of any contract between owners and subcontractor.
4. Work and Labor.
In light of fact that owners paid general contractor substantially all the money due on the prime contract
for construction of medical center and that subcontractor, who had done some of the air conditioning and
sheet metal work on the construction project and who assertedly had not been paid for his labor and
materials, could have protected himself by exercising his lien rights against the property, the enrichment, if
any, resulting to owners as result of subcontractor's labors and materials was not unjust. NRS 108.222.
OPINION
Per Curiam:
Appellant contends the district court erroneously granted summary judgment in favor of
respondents since issues remained as to the existence of a contract between the parties and as
to whether respondents were unjustly enriched. Accordingly, he asks that the judgment be
vacated. We think the summary judgment was properly entered and affirm.
In 1970, G.H.N. Building Corporation, then a licensed general contractor, contracted with
the joint venture of respondents for construction of the H.S.D. Ltd. Medical Center in Las
Vegas. G.H.N. subsequently entered a subcontract with appellant for the air conditioning and
sheet metal work.
On January 31, 1971, appellant, at G.H.N.'s request, submitted a proposed rebid to reflect
certain modifications G.H.N. had made in the plans and specifications. Respondent Hargrave
reviewed the rebid and signed his name to it. Appellant was advised by Hargrave and the
construction superintendent of G.H.N. that the rebid was accepted and that he should
continue work on the project.
Sometime later, G.H.N. hired a new construction superintendent who offered appellant
$1,000.00 for a release of all claims arising out of labor and materials theretofore supplied.
Although appellant refused the offer, G.H.N. nevertheless resolicited bids and hired another
subcontractor to complete the work.
[Headnote 1]
Bowyer filed suit against G.H.N. and the respondent owners in June, 1971, seeking
$3,144.60 for labor and materials. On July 28, 1976, the district court entered summary
judgment in favor of respondents and dismissed the complaint as to them, with prejudice. On
November 16, 1976, appellant was awarded judgment against G.H.N. for $3,484.25 but, as
G.H.N. is no longer doing business, the judgment remains unsatisfied.
longer doing business, the judgment remains unsatisfied. Claiming the district court
improperly granted respondents summary judgment, Bowyer appeals.
1

[Headnote 2]
In determining the propriety of the summary judgment all evidence favorable to appellant
who lost on the motion must be accepted as true. Potter v. Mutual Benefit Life Ins. Co., 93
Nev. 90, 560 P.2d 914 (1977); Zuni Constr. Co. v. Great Am. Ins. Co., 86 Nev. 364, 468 P.2d
980 (1970).
[Headnote 3]
Appellant contends respondent Hargrave's signature on the rebid proposal raises a factual
issue as to the existence of a contract. We do not agree. Appellant's contract was with G.H.N.
The rebid was requested by G.H.N., and it was to G.H.N. that the proposal was addressed.
Without more, Hargrave's signature is insufficient to raise an issue of contractual intention.
Smith v. Recrion Corp., 91 Nev. 666, 541 P.2d 663 (1975); Air Conditioning Engineers v.
O'Neal Electric Co., 212 F.2d 915 (5th Cir. 1954). At no time did respondents ever promise
to pay appellant, nor did the parties ever contemplate that the owners would assume liability
to the subcontractors in the event of G.H.N.'s default. Cf. Bond v. Stardust, Inc., 82 Nev. 47,
410 P.2d 472 (1966).
[Headnote 4]
Nor is there a genuine issue that respondents were unjustly enriched at appellant's expense.
Zalk-Josephs v. Wells Cargo, 77 Nev. 441, 366 P.2d 339 (1961); see also, Annot., 62
A.L.R.3d 2, 294. Respondents paid G.H.N. substantially all the amount due on the prime
contract.
2
Cf. Paschall's Inc. v. Dozier, 407 S.W.2d 150 (Tenn. 1966). Moreover, appellant
could have protected himself by the exercise of his lien rights against the property. NRS
108.222. Under these circumstances, the enrichment, if any, resulting to respondents from
appellant's labor and materials is not unjust.
The district court correctly ruled as a matter of law that appellant is not entitled to recover
from these respondents.
3

____________________

1
Since the summary judgment entered July 28, 1976, did not contain the certification provided by NRCP
54(b), it was interlocutory in nature and not immediately appealable. Appeal following the final judgment of
November 16, 1976, was therefore proper. Aldabe v. Evans, 83 Nev. 135, 425 P.2d 598 (1967); Donoghue v.
Rosepiler, 83 Nev. 251, 427 P.2d 956 (1967).

2
Of the total $128,000.00 contract price, respondents withheld $2,700.00 for work allegedly improperly and
poorly done.

3
The Governor designated Michael E. Fondi, Judge of the First Judicial District, to sit in the place of the
Honorable E. M. Gunderson, Justice, who was disqualified. Nev. Const. art. 6, 4.
____________
94 Nev. 721, 721 (1978) Stuart v. State
EARL DOUGLAS STUART, Jr., Appellant, v. THE
No. 9715
December 5, 1978 587 P.2d 33
Appeal from judgment of conviction, Sixth Judicial District Court, Humboldt County;
Llewellyn A. Young, Judge.
Defendant was convicted in the district court of possession of a controlled substance and
of escape from lawful custody, and he appealed. The Supreme court held that: (1) officer,
who observed missing trunk lock on vehicle with out-of-state license plates and, based on
training he had received at highway patrol academy, inferred that vehicle might be stolen,
acted reasonably in so concluding and was justified in stopping vehicle for routine
questioning and investigation, and (2) since officer lawfully attained position from which he
observed marijuana in plain view on floor in front seat of vehicle, he had a right to seize it
and, therefore, it was not improper to admit marijuana in evidence.
Affirmed.
Horace R. Goff, Nevada State Public Defender, J. Thomas Susich, Chief Deputy Public
Defender, and J. Gregory Damm, Deputy Public Defender, Carson City, for Appellant.
Robert List, Attorney General, Carson City; William Macdonald, District Attorney, and
James Fallman, Assistant District Attorney, Humboldt County, for Respondent.
1. Arrest.
In order to justify a stop and detention, police officer must be able to point to specific and articulable
facts which, taken together with rational inferences from those facts, lead officer reasonably to conclude, in
light of his experience, that criminal activity may be afoot. NRS 171.123, subd. 1.
2. Arrest.
Officer, who observed missing trunk lock on vehicle with out-of-state license plates and, based on
training he had received at highway patrol academy, inferred that vehicle might be stolen, acted reasonably
in so concluding and was justified in stopping vehicle for routine questioning and investigation. NRS
171.123, subd. 1.
3. Criminal Law; Drugs and Narcotics.
Since officer lawfully attained position from which he observed marijuana in plain view on floor in front
seat of vehicle, he had a right to seize it; therefore, it was not improper to admit marijuana in evidence in
subsequent prosecution for possession of a controlled substance. NRS 453.336.
OPINION
Per Curiam:
Appellant stands convicted, by jury verdict, of possession of a controlled substance {NRS
453.336) and escape from lawful custody {NRS 212.090).
a controlled substance (NRS 453.336) and escape from lawful custody (NRS 212.090). His
sole contention in this appeal is that the district court erred by denying his motion to suppress
evidence of the contraband.
On September 12, 1975, a Nevada Highway Patrol officer observed a 1969 Ford Galaxie
500 automobile with Oregon license plates near the Button Point interchange on Interstate 80
east of Winnemucca, Nevada. The officer noticed that the trunk lock on the vehicle was
missing and stopped the vehicle to ascertain whether it was stolen. The officer approached the
vehicle and asked appellant, the driver, for his driver's license and vehicle registration. During
this investigation the officer noticed what appeared to be marijuana seeds on the floor in the
front seat of the vehicle and detected an odor of marijuana in the car. Appellant was then
arrested for possession of a controlled substance.
Appellant contends evidence of the marijuana should have been suppressed because the
vehicle was stopped without probable cause and any evidence obtained as a direct result of
this unlawful police conduct is inadmissible. We disagree.
[Headnote 1]
NRS 171.123(1) authorizes a police officer to detain any person whom such officer
encounters under circumstances which reasonably indicate that such person has committed . .
. a crime. Pursuant to this standard, in order to justify a stop and detention, the police officer
must be able to point to specific and articulable facts which, taken together with rational
inferences from those facts, lead the officer reasonably to conclude, in light of his experience,
that criminal activity may be afoot. See Terry v. Ohio, 392 U.S. 1 (1968); Jackson v. State, 90
Nev. 266, 523 P.2d 850 (1974).
[Headnote 2]
The officer, in this case, had observed the missing trunk lock and, based upon training he
had received at the Highway Patrol Academy, inferred that the vehicle might be stolen.
1
Under these circumstances, we believe the officer's conclusion was reasonable and he was
justified in stopping the vehicle for routine questioning and investigation. See Washington v.
State, 94 Nev. 181, 576 P.2d 1126 (1978); Jackson v. State, supra. Cf. United States v. Leal,
460 F.2d 385 (9th Cir. 1972); People v. Chapman, 109 Cal.Rptr. 840 (Cal.App. 1973); People
v. Perez, 52 Cal.Rptr. 514 (Cal.App. 1966).
____________________

1
The officer's training included classroom instruction on material in an Academy pamphlet entitled
Detection and the Development of Probable Cause in Stolen Automobile investigations. the pamphlet
provided, in pertinent part:
[Headnote 3]
Since the officer had lawfully attained the position from which he observed the marijuana
in plain view, he had a right to seize it and, therefore, the marijuana was properly admitted
into evidence. Woerner v. State, 85 Nev. 281, 453 P.2d 1004 (1969). See State v. Taras, 504
P.2d 548 (Ariz.App. 1972). Cf. Harris v. United States, 331 U.S. 145 (1947).
Accordingly, the district court properly denied appellant's motion to suppress.
Affirmed.
____________________
Evidence of damage to a deck lid, indicating forced entry into the trunk of an automobile, is particularly
indicative of irregularity. Certainly few, if any, owners resort to willful damage to gain entry to a locked trunk
compartment. This condition is easily recognizable, even at a considerable distance. Occasionally, thieves gain
entry to trunk compartments by drilling, punching or forcefully removing or damaging the deck lid, lock cylinder
or handle. The damage or complete absence of a trunk cylinder is easily observed and invited suspicion.
(Emphasis added.)
____________
94 Nev. 723, 723 (1978) County of Esmeralda v. Grogan
THE COUNTY OF ESMERALDA and NATHAN L. MERRITT, Jr., Chairman of the Liquor
Board for the County of Esmeralda, HENRY DAHLSTROM, ROBERT HARTMAN, and
KENNETH E. SIRI, Members of the Liquor Board for the County of Esmeralda, Appellants,
v. JAMES PATRICK GROGAN, dba SANTA FE CLUB, Respondent.
No. 9147
JAMES PATRICK GROGAN, dba SANTA FE CLUB, Appellant, v. THE COUNTY OF
ESMERALDA and NATHAN L. MERRITT, Jr., Chairman of the Liquor Board for the
County of Esmeralda, HENRY DAHLSTROM, ROBERT HARTMAN, AND KENNETH E.
SIRI, Members of the Liquor Board for the County of Esmeralda, Respondents.
No. 9356
December 6, 1978 587 P.2d 34
Consolidated appeal and cross-appeal from judgment, Fifth Judicial District Court,
Esmeralda County; Carl J. Christensen, Judge.
Following remand of liquor licensee's action to obtain writ of mandamus to compel county
liquor board to reinstate his revoked license, 91 Nev. 728, 541 P.2d 1101 (1975), licensee
moved for attorney fees and damages for lost profits allegedly resulting from wrongful
revocation of his liquor license.
moved for attorney fees and damages for lost profits allegedly resulting from wrongful
revocation of his liquor license. The district court dismissed the licensee's claim for lost
profits but awarded him damages of $1,000 in attorney fees, and the board appealed the
award of attorney fees and the licensee crossappealed from dismissal of his claim. The
Supreme Court held that: (1) the board was immune from licensee's claim for damages
resulting from wrongful revocation, and (2) attorney fees could not be awarded to the
licensee.
Alan R. Harter, District Attorney, Esmeralda County, for Appellants and
Cross-Respondents.
Eric Zubel, Las Vegas, for Respondent and Cross-Appellant.
1. Counties.
Revocation of liquor license by county liquor board was discretionary act, and thus such action by the
board was immune from claim for wrongful revocation asserted by the licensee against the county and
county liquor board members. NRS 41.032.
2. Counties.
Although attorney fees may be awarded as element of special damages, such fees could not be awarded in
action on liquor licensee's claim for wrongful revocation by county liquor board since the board was
statutorily immune from all damages. NRS 41.032.
OPINION
Per Curiam:
On February 18, 1975, James Patrick Grogan, doing business as the Santa Fe Saloon in
Goldfield, Nevada, was asked to appear before the Esmeralda County Liquor Board to show
cause why his liquor license should not be revoked. Grogan appeared and requested a
postponement of the hearing. His request was denied and Grogan voluntarily left the hearing
which continued and, based upon the evidence presented, the Board revoked Grogan's liquor
license. Grogan subsequently petitioned the district court for a writ of mandamus to compel
the Board to reinstate his license. The petition was denied and Grogan appealed. In Grogan v.
County of Esmeralda, 91 Nev. 728, 541 P.2d 1101 (1975), we remanded the case to the
district court with instructions to grant Grogan's petition for mandamus because the Board
had failed to file its answering brief on appeal.
Upon remittitur, Grogan moved for attorney's fees and damages for lost profits allegedly
resulting from the wrongful revocation of his liquor license. The Board moved to dismiss
Grogan's claim contending it was immune from liability, pursuant to NRS 41.032, because
its revocation of the license was a discretionary act.1 The district court agreed with the
Board's argument and dismissed Grogan's claim for lost profits, but nevertheless awarded
Grogan damages of $1,000 in attorney's fees.
Grogan's claim contending it was immune from liability, pursuant to NRS 41.032, because its
revocation of the license was a discretionary act.
1
The district court agreed with the Board's
argument and dismissed Grogan's claim for lost profits, but nevertheless awarded Grogan
damages of $1,000 in attorney's fees. The Board has appealed the award of attorney's fees and
Grogan has cross-appealed from the dismissal of his claim for lost profits.
[Headnote 1]
1. We have consistently held that the granting, with-holding, or revoking of a liquor
license is a discretionary act. Kochendorfer v. Board of Co. Comm'rs, 93 Nev. 419, 566 P.2d
1131 (1977); Gragson v. Toco, 90 Nev. 131, 520 P.2d 616 (1974). Accordingly, the district
court properly concluded that the Board was immune from a damage claim arising from its
exercise of discretion and the portion of the district court's judgment dismissing Grogan's
claim for damages is affirmed. See Hagblom v. State Dir. of Motor Vehicles, 93 Nev. 599,
571 P.2d 1172 (1977); LaFever v. City of Sparks, 88 Nev. 282, 496 P.2d 750 (1972).
[Headnote 2]
2. Although attorney's fees may be awarded as an element of special damages, cf. City of
Las Vegas v. Cragin Industries, 86 Nev. 933, 478 P.2d 585 (1970), such fees could not be
awarded here because the Board was statutorily immune from all damages. See NRS 41.032.
Therefore, the portion of the district court's judgment awarding attorney's fees is reversed.
____________________

1
No action may be brought under NRS 41.031 or against an officer or employee of the state or any of its
agencies or political subdivisions which is:
1. Based upon an act or omission of an officer or employee, exercising due care, in the execution of a statute
or regulation, whether or not such statute or regulation is valid, if such statute or regulation has not been
declared invalid by a court of competent jurisdiction; or
2. Based upon the exercise or performance or the failure to exercise or perform a discretionary function or
duty on the part of the state or any of its agencies or political subdivisions or of any officer or employee of any
of these, whether or not the discretion involved is abused.
____________
94 Nev. 726, 726 (1978) Scott v. Warden
ALBERT O'NEAL SCOTT, Appellant, v. WARDEN,
No. 10776
December 7, 1978 587 P.2d 36
Appeal from denial of post-conviction relief; Eighth Judicial District Court; J. Charles
Thompson, Judge.
After his convictions of first-degree murder and attempted murder were affirmed on
appeal, petitioner sought post-conviction relief. The district court denied relief, and petitioner
appealed. The Supreme Court held that: (1) petitioner was not entitled to relief where
assignments of error relied on or could have been raised in direct appeal and good cause was
not shown for failure to do so, and (2) record established that petitioner's prior appointed
appellate counsel was not inadequate or ineffective.
Affirmed.
Horace R. Goff, Nevada State Public Defender, and J. Gregory Damm, Chief Trial
Deputy, Carson City, for Appellant.
Leon Simon, Chief Deputy District Attorney, Las Vegas, for Respondent.
1. Criminal Law.
Petitioner was not entitled to post-conviction relief where assignments of error relied on could have been
raised in direct appeal and good cause was not shown for failure to do so. NRS 177.375, subd. 2.
2. Criminal Law.
Record established that petitioner's prior appointed appellate counsel was not inadequate or ineffective,
so as to entitle him to post-conviction relief.
OPINION
Per Curiam:
[Headnote 1]
A jury convicted Albert O'Neal Scott of the first degree murder of Lynette Blake and the
attempted murder of Janice Crisp. He was sentenced to consecutive terms of life
imprisonment and twenty years in state prison, with the possibility of parole. His conviction
was affirmed in Scott v. State, 92 Nev. 552, 554 P.2d 735 (1976).
1
Scott later sought
post-conviction relief, pursuant to NRS 177.315-177.3S5, alleging certain errors were
committed during the course of his trial and on appeal.
____________________

1
Scott's subsequent petition to the U.S. District Court for federal habeas corpus relief was dismissed without
prejudice to his refiling upon the exhaustion of his state remedies.
94 Nev. 726, 727 (1978) Scott v. Warden
relief, pursuant to NRS 177.315-177.385, alleging certain errors were committed during the
course of his trial and on appeal. The district court considered each of the assignments but
denied relief on the ground that they were or could have been raised in the direct appeal and
good cause has not been shown for the failure to do so. NRS 177.375(2);
2
Cf. Stewart v.
Warden, 92 Nev. 588, 555 P.2d 218 (1976). We agree with the district court and affirm.
[Headnote 2]
Scott asserts that his prior appointed appellate counsel was inadequate and ineffective. Our
examination of the record demonstrates that this contention is wholly without merit. Sullivan
v. Warden, 91 Nev. 563, 540 P.2d 112 (1975); Warden v. Lischko, 90 Nev. 221, 523 P.2d 6
(1974); Sheriff v. Povey, 87 Nev. 603, 491 P.2d 84 (1971); Bean v. State, 86 Nev. 80, 465
P.2d 133 (1970), cert. denied 400 U.S. 844 (1970).
The additional issues tendered by appellant are likewise without merit.
____________________

2
If the petitioner's conviction was the result of a trial, all claims for post-conviction relief are waived which
were or could have been:
(a) Presented to the trial court;
(b) Raised in a prior petition for post-conviction relief; or raised in any other proceeding that the petitioner has
taken to secure relief from his conviction or sentence unless the court finds good cause shown for the failure to
present such claims.
____________
94 Nev. 727, 727 (1978) Lewis v. State
GREGORY LEWIS, Appellant, v. THE STATE
No. 9850
SAMUEL CULVERSON, Appellant, v. THE STATE
No. 9994
December 7, 1978 588 P.2d 541
Consolidated appeals from judgments of conviction, Eighth Judicial District Court, Clark
County; Michael J. Wendell, Judge.
Defendants were convicted before the district court of robbery and of having used a deadly
weapon in the commission of that crime, and they appealed. The Supreme Court held that
defendants were not entitled to a new trial because three jurors discussed the testimony and
evidence adduced at trial before the case had been submitted to them for deliberation, where
the three jurors, at hearing on new trial motion, testified that his or her decision was
based solely on the evidence presented at trial, and where the record failed to indicate
that the discussion either affected the jurors' deliberations or otherwise prejudiced
defendants' right to a fair trial.
94 Nev. 727, 728 (1978) Lewis v. State
three jurors, at hearing on new trial motion, testified that his or her decision was based solely
on the evidence presented at trial, and where the record failed to indicate that the discussion
either affected the jurors' deliberations or otherwise prejudiced defendants' right to a fair trial.
Affirmed.
[Reporter's note: Lewis v. State, Adv. Op. 183, filed September 29, 1978, was vacated
November 1, 1978.]
Houston & Moran, Las Vegas, for Appellant Lewis.
Swanson & Momot, Ltd., Las Vegas, for Appellant Culverson.
Leon Simon, Chief Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
Defendants failed to present any facts to support their contentions that the prosecuting attorney
knowingly allowed perjured testimony to be admitted at trial, and suppressed material evidence which
would have impeached the robbery victim's testimony.
2. Criminal Law.
Where the giving of an instruction to a jury does not constitute plain error, the failure to object precludes
appellate consideration.
3. Criminal Law.
Defendants were not entitled to a new trial because three jurors discussed the testimony and evidence
adduced at trial before the case had been submitted to them for deliberation, where the three jurors, at
hearing on new trial motion, testified that his or her decision was based solely on the evidence presented at
trial, and where the record failed to indicate that a discussion either affected the jurors' deliberations or
otherwise prejudiced defendants' right to a fair trial.
OPINION
Per Curiam:
Appellants stand convicted, by jury verdict, of robbery (NRS 200.380) and having used a
deadly weapon in the commission of that crime (NRS 193.165).
1
Appellants contend we are
compelled to reverse their convictions because (1) their constitutional rights to due process of
law were violated; (2) the district court erred in instructing the jury; and, (3) the district court
erred in denying their motions for a new trial. We disagree.
____________________

1
Pursuant to stipulation of counsel, these cases were consolidated for appeal.
94 Nev. 727, 729 (1978) Lewis v. State
[Headnote 1]
1. Appellants contend (a) they were denied due process of law because the prosecuting
attorney knowingly allowed perjured testimony to be admitted at trial and, (b) the prosecuting
attorney suppressed material evidence which would have impeached the victim's testimony.
Appellants have failed to present any facts to support these contentions.
[Headnote 2]
2. Appellants failed to object to the alleged improper instruction at the time it was given
to the jury. Where, as here, the giving of an instruction to the jury does not constitute plain
error, the failure to object precludes appellate consideration. Cutler v. State, 93 Nev. 329, 566
P.2d 809 (1977).
[Headnote 3]
3. Finally, appellants contend they were entitled to a new trial because three jurors
discussed the testimony and evidence adduced at trial before the case had been submitted to
them for deliberation.
At the hearing on the motion for a new trial, the three jurors each testified that his or her
decision was based solely upon the evidence presented at trial. In addition, the record fails to
indicate that the discussion either affected the jurors' deliberations or otherwise prejudiced
appellants' right to a fair trial. Under these circumstances, we perceive no abuse of the trial
court's discretion in denying appellants' motion for a new trial. See Atwell v. State, 354 So.2d
30 (Ala.Crim.App. 1977). Cf. Sorce v. State, 88 Nev. 350, 497 P.2d 902 (1972).
The judgments are affirmed.
____________
94 Nev. 729, 729 (1978) Wallis v. Sheriff
SHARON MADGE WALLIS, Appellant, v. SHERIFF,
No. 11198
December 7, 1978 587 P.2d 37
District Court; John F. Mendoza, Judge.
Defendant who was charged with attempted sale of a controlled substance filed a pretrial
petition for writ of habeas corpus. The district court denied relief and the defendant appealed.
The Supreme Court held that evidence that the defendant was in the company of her husband
and another man when an undercover narcotic agent met with and received a quantity of
phencyclidine from her husband was insufficient to support a charge of attempted sale.
94 Nev. 729, 730 (1978) Wallis v. Sheriff
man when an undercover narcotic agent met with and received a quantity of phencyclidine
from her husband was insufficient to support a charge of attempted sale.
Reversed.
Morgan D. Harris, Public Defender, and Thomas L. Leen, Deputy Public Defender, Clark
Robert List, Attorney General, Carson City; George E. Holt, District Attorney, and Steven
J. Parsons, Deputy District Attorney, Clark County, for Respondent.
Evidence that defendant was in the company of her husband and another man when an undercover
narcotic agent met with and received a quantity of phencyclidine from her husband was insufficient to
support indictment charging the defendant with attempted sale of a controlled substance.
OPINION
Per Curiam:
Sharon Madge Wallis filed a pretrial petition for a writ of habeas corpus challenging the
portion of an indictment which charged her with the sale of a controlled substance on May 4,
1978, in Las Vegas, Nevada. Habeas was denied and in this appeal Wallis contends the
district judge committed reversible error. We agree.
The only evidence in the record that purports to connect Wallis with the charged crime is
that on May 4, 1978, she was in the company of Lewis Jackson Wallis (her husband) and
another man when an undercover narcotic agent allegedly met with and received from Lewis
Jackson Wallis a quantity of phencyclidine (PCP), a controlled substance.
Although the evidence regarding appellant's association with the two men may constitute
some transgression of the law, we deem such evidence insufficient to support a charge of
attempted sale. Accordingly, the district judge should have granted the habeas challenge to
the count of the indictment which charged Sharon Madge Wallis with that crime. See
Palombo v. Sheriff, 93 Nev. 492, 568 P.2d 580 (1977). See also Ursino v. Sheriff, 91 Nev.
409, 537 P.2d 316 (1975).
Reversed.
____________
94 Nev. 731, 731 (1978) Green v. State
HILTON GREEN, Appellant, v. THE STATE OF
NEVADA, Respondent.
No. 10194
December 7, 1978 587 P.2d 38
Appeal from judgment upon jury verdict; Eighth Judicial District Court, Clark County;
Defendant was convicted in the district court of robbery and use of deadly weapon in
commission of a crime and he appealed. The Supreme Court held that: (1) evidence sustained
conviction, and (2) evidence of robbery committed by defendant on day before robbery for
which he was being tried was admissible, over objection, as relevant to prove identity, on
basis that probative value of evidence outweighed its prejudicial effect, where proof of the
other robbery was clear and convincing, primary defense was mistaken identity and State's
evidence to prove identity was not conclusive, since two of three eyewitnesses were unable
positively to identify accused.
Affirmed.
Morgan D. Harris, Public Defender, and Robert P. Dickerson, Deputy Public Defender,
George E. Holt, District Attorney, and H. Leon Simon, Chief Appellate Deputy District
Attorney, Clark County, for Respondent.
1. Robbery; Weapons.
Evidence sustained conviction of robbery and use of deadly weapon in commission of a crime. Const.
art. 6, 4.
2. Criminal Law.
Evidence of robbery committed by defendant on day before robbery for which he was being tried was
admissible, over objection, as relevant to prove identity, on basis that probative value of evidence
outweighed its prejudicial effect, where proof of other robbery was clear and convincing, primary defense
was mistaken identity and State's evidence to prove identity was not conclusive, since two of three
eyewitnesses were unable positively to identify accused. NRS. 48.045, subd. 2.
3. Criminal Law.
Defendant was not prejudiced by prosecutor's remarks during summation What you just heard was the
mistaken identity defense which is commonly referred to by the defense community as the so-d defense. It
stands for somebody ______, where meaning of the so-d defense was never expressed.
OPINION
Per Curiam:
We are requested to set aside the appellant's conviction for robbery and for the use of a
deadly weapon in the commission of a crime.
94 Nev. 731, 732 (1978) Green v. State
of a crime. He asserts that the evidence of his guilt is insufficient; that evidence of another
crime was improperly admitted; and that remarks of the prosecutor during argument were
prejudicial.
[Headnote 1]
1. His first contention, that of insufficient proof, is rejected summarily since the evidence
clearly allowed the jury conclusion of guilt and presented a fact determination beyond our
power to disturb. Nev. Const. art. 6, 4; Washington v. State, 94 Nev. 181, 576 P.2d 1126
(1978).
[Headnote 2]
2. Evidence of another robbery committed by the defendant-appellant the day before the
robbery for which he was being tried was received, over objection, as relevant to prove
identity. NRS 48.045(2). Proof of the other robbery was clear and convincing, thus satisfying
the mandate of Tucker v. State, 82 Nev. 127, 412 P.2d 970 (1966). We cannot conclude that
the court erred in receiving such evidence since the defendant's primary defense was that of
mistaken identity, and the State's evidence to prove identity was not conclusive since two of
the three eyewitnesses were unable positively to identify the accused. Consequently, it was
permissible for the court to reason that the probative value of the evidence outweighed its
prejudicial effect. Jones v. State, 85 Nev. 4, 448 P.2d 702 (1969); Bails v. State, 92 Nev. 95,
545 P.2d 1155 (1976).
[Headnote 3]
3. During summation the prosecutor said: What you just heard was the mistaken identity
defense which is commonly referred to by the defense community as the so-d defense. It
stands for somebody ______. Objection was interposed and sustained. The meaning of the
so-d defense was never expressed. To assume that the innocuous statement, unexplained, was
in some fashion prejudicial to the rights of the accused is an assumption we are unwilling to
entertain.
Affirmed.
____________
94 Nev. 733, 733 (1978) Farmers Ins. v. Civil Serv. Emp. Ins.
FARMERS INSURANCE EXCHANGE, Appellant, v. CIVIL SERVICE EMPLOYEES
INSURANCE COMPANY, Respondent.
No. 10145
December 7, 1978 587 P.2d 420
Appeal from summary judgment; Eighth Judicial District Court, Clark County; James A.
Brennan, Judge.
Insurer commenced interpleader action, depositing into court sum of $50,000 representing
limits of insurance policy issued by it to its insured, who was named as defendant in a
wrongful death action, for distribution between interpled defendants. After interested parties
entered into a settlement stipulation directing payment of $40,000 to plaintiffs in wrongful
death action and remaining $10,000 in accordance with court's resolution of defendant
insurer's subrogation claim against plaintiff insurer, the district court ordered payment of
$10,000 to defendant insurer, and plaintiff insurer appealed. The Supreme Court, Thompson,
J., held that plaintiff insurer was not entitled to any part of moneys which it deposited into
court for distribution among interpled defendants and, accordingly, it was not aggrieved by
trial court's ruling and was thus not entitled to challenge said ruling on appeal.
Appeal dismissed.
[Rehearing denied January 11, 1979]
Lorin D. Parraguirre and Paul C. Parraguirre, of Las Vegas, for Appellant.
Bell, Young & Barney, Ltd., of Las Vegas, for Respondent.
1. Interpleader.
Interpleader is an equitable proceeding to determine rights of rival claimants to property held by a third
person having no interest therein; indeed, by bringing such action, plaintiff waives any defense it might
have had to claims of interpled defendants.
2. Interpleader.
Plaintiff insurer was not entitled to any part of monies, representing limits of an insurance policy issued
by it, which it deposited in court for distribution among interpled defendants, and, accordingly, it was not
aggrieved by trial court's ruling ordering payment of portion of funds to defendant insurer, pursuant to
latter's subrogation claim, and was thus not entitled to challenge it on appeal. NRAP 3A(a).
OPINION
Farmers Insurance Exchange commenced this action to require Civil Service Employees
Insurance Company and the heirs of Mary Catherine Hurley to interplead their claims to
the sum of $50,000 representing the limits of an insurance policy issued by Farmers to
one James Schell.1
require Civil Service Employees Insurance Company and the heirs of Mary Catherine Hurley
to interplead their claims to the sum of $50,000 representing the limits of an insurance policy
issued by Farmers to one James Schell.
1

Earlier, the heirs of Hurley had instituted a wrongful death action against Schell. It was
apparent to Farmers that the damages sustained by the heirs exceeded Schell's insurance
coverage of $50,000 and that Schell's liability for the accident was clear. Moreover, Civil
Service had paid $10,000 basic reparation benefits to one of the heirs, and had notified
Farmers of its claim for reimbursement. Since the Hurleys had demanded $50,000, the policy
limit, to settle their claims, and since Civil Service would not waive its claimed right of
subrogation, Farmers selected interpleder as the appropriate course of action. In doing so, it
explicitly disclaimed any interest in the $50,000, deposited that sum of money with the court,
and asked the court to distribute that fund between interpled defendants. One would expect
the contest thereafter to be between the interpled defendants without any intrusion by
Farmers. Cf. Balish v. Farnham, 92 Nev. 133, 546 P.2d 1297 (1976). This, however, did not
happen. All interested parties entered into a settlement stipulation which directed $40,000 of
the money on deposit with the court be paid to the Hurleys, and the remaining $10,000 paid
in accordance with court resolution of the subrogation claim of Civil Service against Farmers.
The court ordered that sum paid to Civil Service. This appeal, by Farmers, is from that order.
[Headnotes 1, 2]
In so far as Farmers is concerned, the settlement stipulation is wholly inconsistent with the
interpleder action it had commenced. By that action Farmers disclaimed any interest in the
$50,000. As noted in Balish v. Farnham, supra, interpleader is an equitable proceeding to
determine the rights of rival claimants to property held by a third person having no interest
therein. Indeed, by bringing such an action, the plaintiff waives any defense it might have had
to the claims of the interpled defendants. Doering v. Buechler, 146 F.2d 784 (8th Cir. 1945).
We presume that the district court had these principles in mind when it ruled that Farmers
was not entitled to any part of the fund it had deposited in court for distribution among the
interpled defendants. In such circumstances Farmers is not "aggrieved" by the court ruling
and, therefore, not entitled to challenge it by appeal.
____________________

1
NRCP 22: Persons having claims against the plaintiff may be joined as defendants and required to
interplead when their claims are such that the plaintiff is or may be exposed to double or multiple liability. . . .
aggrieved by the court ruling and, therefore, not entitled to challenge it by appeal. NRAP
3A(a).
Appeal dismissed.
____________
94 Nev. 735, 735 (1978) Eads v. City of Boulder City
ROBERT E. EADS, Appellant, v. CITY OF BOULDER
CITY, et al., Respondents.
No. 9961
December 7, 1978 587 P.2d 39
Appeal from judgment denying mandamus; Eighth Judicial District Court, Clark County;
Joseph S. Pavlikowski, Judge.
Mandamus was sought to compel civil service commission of city to hear appeal from
action of city manager terminating petitioner's employment as director of public works. The
district court dismissed the petition, and petitioner appealed. The Supreme Court, Thompson,
J., held that: (1) since office of director of public works was created by city ordinance, duties
of director were therein defined, and position declared to be that of an officer of the city,
director was a public officer, and under city's civil service rules, was excluded from civil
service protection, and (2) where tenure of director was not specified by ordinance nor did
ordinance or charter state that he could be discharged only for cause, director was subject to
removal at will by the appointing authority.
Affirmed.
Charles M. Damus and Mark R. Eads, of Las Vegas, for Appellant.
John P. Fadgen, of Las Vegas, for Respondents.
1. Officers.
Public officer is invested with some portion of the sovereign functions of government, while a mere
employee is not. NRS 281.005, subd. 1.
2. Officers.
Since office of director of public works of boulder City was created by city ordinance and the duties of
the Director were therein defined, and since Director was declared to be an officer of the city, he was a
public officer, and thus where city's civil service rules did not mention public officers, but only
employees, Director was excluded from civil service protection.
Where tenure of director of public works of city was not specified by ordinance, nor did ordinance or
charter state that he could be discharged only for cause, director was subject to removal at will by
appointing authority, and removal could occur without notice and without necessity of providing a formal
procedure therefor. Const. art. 15. 11.
4. Officers.
Absent a specified term of office, incumbent public officer may, be removed at will by the appointing
authority.
OPINION
In the district court Robert Eads sought mandamus to compel the Civil Service
Commission of Boulder City to hear his appeal from the action of the City Manager
terminating his employment as the Director of Public Works.
1
The district court dismissed
his petition and this appeal followed. That court was of the opinion that Eads was not within
the Civil Service Rules as he was not a classified employee. We affirm that determination.
1. The Boulder City Charter requires the Civil Service Commission to adopt rules to
govern the selection and appointment of all employees (art. VII, 69,1), and to establish
procedures through which an employee may appeal a disciplinary action to the Commission
(art. VII, 69,5).
2

The City Manager, as the Chief Executive Officer, is given the authority to Appoint all
officers and employees of the City, and when necessary for the good of the service, remove
any officer or employee of the City except as otherwise provided by this charter. . . . Art. III,
28,1. And art. III, 30, 1 and 2, provide that there shall be such administrative departments
as may be established by ordinance, and at the head of each department shall be a director,
who shall be an officer of the city and shall have supervision and control of the department
subject to the City Manager.
A city ordinance established the Department of Public Works and defined the duties of its
director. By virtue of the express language of art.
____________________

1
Eads also sought reinstatement and damages for wrongful discharge from employment. The district court
declined to rule on these issues and limited its decision to the single question: whether the Civil Service
Commission possessed jurisdiction to entertain the Eads appeal.

2
Section 5 of Rule XI, promulgated by the commission provides: Within ten (10) days after a reduction in
pay, suspension, demotion or dismissal by the City Manager, the employee affected by such action may appeal
to the Commission by filing with the Commission a notice of appeal. The notice of appeal shall be signed by the
employee, and shall clearly state the name and address of such employees.
express language of art. III, 30,2, such director is an officer of the City. Whether such
director also is an employee within the meaning of the rules governing civil service is the
issue tendered to us.
[Headnotes 1, 2]
2. The distinction between a public officer and an employee has been a subject for the
consideration of this court from time to time. State v. Cole, 38 Nev. 215, 148 P. 551 (1915);
St. Ex Rel. Mathews v. Murray, 70 Nev. 116, 258 P.2d 982 (1953); Mullen v. Clark County,
89 Nev. 308, 511 P.2d 1036 (1973).
3
In Mathews, supra, the court wrote: Upon one point at
least the authorities uniformly appear to concur. A public office is distinguishable from other
forms of employment in that its holder has by the sovereign been invested with some portion
of the sovereign functions of government. Id. at 120-121. On the other hand, the sovereign
function of government is not delegated to a mere employee. Indeed, statute tells us that a
public officer is a person elected or appointed to a position which is established by the
constitution or a statute of this state, or by a charter or ordinance of a political subdivision,
and which involves the continuous exercise of a public power, trust, or duty. NRS
281.005(1).
Since the office of Director of Public Works was created by city ordinance, the duties of
the director therein defined, and the position declared to be that of an officer of the city, it is
apparent that the director is invested with some portion of the sovereign functions of
government. He is a public officer.
The Civil Service Rules do not mention public officers. Those rules only mention
employees. The established distinction between an employee who is not a public officer and
one who is compels us to conclude, as did the district court, that public officers intentionally
were excluded from civil service protection.
3. The petition for mandamus tendered other issues to the district court which were not
considered. It was alleged that the dismissal was without cause, without notice of charges,
and without an opportunity to be heard.
____________________

3
State v. Cole, supra, the office of exposition commissioner of the State of Nevada for the Panama-Pacific
and Panama-California expositions was held not to be a public office since none of the sovereign power of the
state was entrusted to him, and his compensation, and details of his duties were matters of contract with the
board of directors.
St. Ex Rel. Mathews v. Murray, supra, the director of the Drivers License Division of the Public Service
Commission was held not to be a public officer since the position was created by the administrator and not by
law, and his duties also were specified by the administrator.
Mullen v. Clark County, supra, the director of Juvenile Court Services was held not to be a public officer
since the functions of sovereignty reposed in his superiors, no tenure attached to his position and he was wholly
subordinate to the judge.
dismissal was without cause, without notice of charges, and without an opportunity to be
heard. Those allegations lack substance and meaning if the city manager, as the appointing
authority, was empowered to dismiss the Director of Public Works at will. This presents a
question of law which we now should resolve rather than to remand for initial district court
determination with the consequent delay which inevitably would flow from that course of
action.
[Headnotes 3, 4]
The tenure of the Director of Public Works is not specified by ordinance, nor does
ordinance or charter state that he may be discharged only for cause. Cf. Richardson v. Bd.
Regents, 70 Nev. 347, 269 P.2d 265 (1954); Oliver v. Spitz, 76 Nev. 5, 348 P.2d 158 (1960);
Paulson v. Civil Service Commission, 90 Nev. 41, 518 P.2d 148 (1974). Absent a specified
term of office, the incumbent may be removed at will by the appointing authority. Leeper v.
Jamison, 32 Nev. 327, 108 P. 1 (1910). Indeed, Nev. Const. art. 15, 11, so provides. It
states:
The tenure of any office not herein provided for may be declared by law, or, when
not so declared, such office shall be held during the pleasure of the authority making
the appointment, . . . . In the case of any officer or employee of any municipality
governed under a legally adopted charter, the provisions of such charter with reference
to the tenure of office or the dismissal from office of any such officer or employee shall
control.
In such circumstances removal may occur without notice and without the necessity of
providing a formal procedure therefor. Mitchell v. Town of Eaton, 491 P.2d 587 (Colo.
1971).
Affirmed.
____________
94 Nev. 739, 739 (1978) Nye County v. Plankinton
NYE COUNTY, NEVADA, a political subdivision of the State of Nevada, and THE BOARD
OF COUNTY COMMISSIONERS OF NYE COUNTY, NEVADA, ANDREW M. EASON,
ROBERT H. CORNELL, and DONALD J. BARNETT; and POMEROY NEIGHBORS, in
his capacity as COUNTY ADMINISTRATOR; PETER L. KNIGHT, in his capacity as
DISTRICT ATTORNEY OF NYE COUNTY; and J. HOWARD, in his capacity as SHERIFF
OF NYE COUNTY, Appellants, v. WALTER R. PLANKINTON and DOUGLAS E.
HARKALIS, Respondents.
No. 10638
December 11, 1978 587 P.2d 421
Appeal from order granting permanent injunction, Fifth Judicial District Court, Nye
County; Stanley A. Smart, Judge.
After county commissioners declared owners' house of prostitution to be a nuisance per se
and ordered it abated, owners commenced action seeking declaratory and injunctive relief.
The district court permanently enjoined commissioners from abating owners' house of
prostitution as a nuisance per se, and commissioners appealed. The Supreme Court, Batjer, C.
J., held that applicable statutes manifest a statutory licensing scheme for houses of
prostitution outside of incorporated cities and towns and such licensing scheme was
repugnant to and, by plain and necessary implication, repealed common-law rule that a house
of prostitution constituted a nuisance per se, and thus trial court properly permanently
enjoined county commissioners from abating, as a nuisance per se, owners' house of
prostitution, which was situated on property located outside both incorporated and
unincorporated areas of county.
Affirmed.
Peter L. Knight, District Attorney, Nye County, for Appellants.
Smith & Maurer, Las Vegas, for Respondents.
Injunction; Nuisance.
Applicable statutes manifest a statutory licensing scheme for houses of prostitution outside of
incorporated cities and towns and such licensing scheme was repugnant to and, by plain and necessary
implication, repealed common-law rule that a house of prostitution constituted a nuisance per se, and thus
trial court properly permanently enjoined county commissioners from abating, as a
commissioners from abating, as a nuisance per se, owners' house of prostitution, which
was situated on property located outside both incorporated and unincorporated areas of
county. NRS 244.345, subds. 1, 8.
OPINION
Respondents are the owners of a house of prostitution in Nye County, Nevada, known as
the Chicken Ranch. The house is situated on property owned by respondents and is located
outside both the incorporated and unincorporated areas of the county.
On November 21, 1977, appellant Pomeroy Neighbors, Administrator of Nye County, filed
a complaint, pursuant to NRS 244.360, alleging respondents' operation of a house of
prostitution constituted a nuisance per se under the provisions of the Nevada Supreme Court
decision in Cunningham v. Washoe County.
1
See Cunningham v. Washoe County, 66 Nev.
60, 203 P.2d 611 (1949), approving the common law rule that a house of prostitution was
illegal and, thus, constituted a public nuisance.
Respondents were served with a notice of nuisance hearings to be conducted by the Nye
County Commissioners. At the conclusion of those hearings, the Commissioners declared the
Chicken House a nuisance per se and ordered it abated.
On January 19, 1978, respondents commenced this action in the Fifth Judicial District
Court seeking declaratory and injunctive relief. After careful consideration of the matter, the
district court concluded that NRS 244.345 had repealed the common law rule that a house of
prostitution was a nuisance. Accordingly, the court permanently enjoined appellants from
abating respondents' house of prostitution as a nuisance per se. Appellants contend this was
error. We disagree.
The thrust of appellants' argument is that Cunningham is controlling in the present case. In
Cunningham, respondent sought to enjoin appellant from operating a house of prostitution
within the city of Reno. Respondent alleged that appellant was in violation of both the
common law, declaring prostitution illegal, as well as statutes proscribing the maintenance
and operation of a house of prostitution either within 400 yards of a school or church, or
in any house fronting on a principal business street in any town in Nevada.2 Appellant
contended the subject statutes had repudiated the common law rule and, further, that the
outlawing of houses of prostitution within 400 yards of a school or church or on the main
street of a town necessarily implied that they were lawful in other areas.
____________________

1
1. Whenever a written complaint is filed with the county clerk alleging the existence of a nuisance, as
defined in NRS 40.140, within the county, the county clerk shall notify the board of county commissioners, who
. . . shall . . . fix a date to hear the proof of the complainant. . . .
Anything which is injurious to health, or indecent and offensive to the senses . . . so as to interfere with the
comfortable enjoyment of life or property is a nuisance. . . .
operation of a house of prostitution either within 400 yards of a school or church, or in any
house fronting on a principal business street in any town in Nevada.
2
Appellant contended
the subject statutes had repudiated the common law rule and, further, that the outlawing of
houses of prostitution within 400 yards of a school or church or on the main street of a town
necessarily implied that they were lawful in other areas. This court rejected appellant's
argument, concluding the statutes had neither constructively nor impliedly repealed the
common law and, thus, appellant's operation of a house of prostitution was properly enjoined.
Since our decision in Cunningham, NRS 244.345(8) was enacted.
3
This provision, when
read in conjunction with NRS 244.345(1), manifests a statutory licensing scheme for houses
of prostitution outside of incorporated cities and towns.
4
In our view, this licensing scheme
is repugnant to and, by plain and necessary implication, repeals the common law rule that a
house of prostitution constitutes a nuisance per se. See West Indies v. First Nat. Bank, 67
Nev. 13, 214 P.2d 144 (1950); Cunningham v. Washoe County, supra. Cf. NRS 1.030.
Accordingly, the judgment is affirmed.
Mowbray, Thompson and Manoukian, JJ., concur.
So far as I can see, by enacting NRS 244.345(8), the Legislature at most intended to permit
commissioners in Nevada's less populated counties to determine, through licensing
procedures, that at a prescribed location and under defined conditions a house of
prostitution will not necessarily impinge upon the general public as a nuisance.
____________________

2
The pertinent statutes in Cunningham were NCL 10193 and NCL 10194.
NCL 10193 provided, in pertinent part:
It shall be unlawful for any . . . person to keep any house of ill-fame, or to . . . rent to any person
whomsoever, for any length of time whatever, to be kept or used as a house of ill-fame, or resort for the purposes
of prostitution, any house, room or structure situated within four hundred yards of any school house or . . .
church. . . .
NCL 10194 provided, in pertinent part:
It shall be unlawful for any . . . person to keep . . . or rent . . . any house fronting on the principal business
street . . . of any of the towns of this state, for the purpose of prostitution. . . .

3
NRS 244.345(8) provides, in pertinent part:
In any county having a population of 200,000 or more, . . . the license board shall not grant any license . . .
for the purpose of operating a house of ill fame or repute or any other business employing any female for the
purpose of prostitution.

4
Every person . . . wishing to engage in the business of conducting a . . . place of amusement, entertainment
or recreation, outside of an incorporated city or incorporated town, shall:
(a) Make application by petition to the license board. . . .
(b) File the application with the required license fee with the county license collector. . . .
that at a prescribed location and under defined conditions a house of prostitution will not
necessarily impinge upon the general public as a nuisance.
Of course, purpose to repeal the common law should not be merely a matter of
speculation. Cf. West Indies v. First Nat'l Bank, 67 Nev. 13, 214 P.2d 144 (1950). With all
respect, I can perceive no intent in the new statute to vest unlicensed brothels with status
more exalted than before.
____________
94 Nev. 742, 742 (1978) Arnold v. State
JAMES DAVID ARNOLD, Appellant, v. STATE
No. 10058
December 14, 1978 587 P.2d 423
Appeal from judgment of conviction, Eighth Judicial District Court, Clark County; Carl J.
Christensen, Judge.
Defendant was convicted before the district court of burglary, and he appealed. The
Supreme Court held that: (1) statute providing that every person who unlawfully breaks and
enters any house shall be deemed to have broken and entered with intent to commit a felony
therein is constitutional; (2) district attorney's opportunity to elect from competing statutes
did not deny defendant's right to due process; (3) statute making it a felony for any person to
enter a vehicle with the intent to commit larceny or any felony has not been superseded or
impliedly repealed, and (4) instruction on claim of tampering with a vehicle was properly
refused.
Affirmed.
Morgan D. Harris, Public Defender, and Peter J. Christiansen, Deputy Public Defender,
Robert List, Attorney General, Carson City; George E. Holt, District Attorney, H. Leon
Simon, Chief Deputy District Attorney, and Stanley W. Parry, Deputy District Attorney, Clark
1. Burglary.
Statute providing that every person who unlawfully breaks and enters any house shall be deemed to have
broken and entered with intent to commit a felony therein is constitutional. NRS 205.065.
In prosecution for burglary, district attorney's opportunity to elect from competing statutes did not deny
defendant's right to due process. U.S.C.A.Const. Amends. 5, 14.
3. Burglary.
Statute making it a felony for any person to enter a vehicle with the intent to commit larceny or any
felony has not been superseded or impliedly repealed. NRS 205.060, subd. 1.
4. Criminal Law.
In prosecution for burglary, in which prosecution met its burden of proof on burglary charge and in which
there was no evidence at trial tending to reduce that crime, instruction on claim of tampering with a vehicle
was properly refused. NRS 205.060, 205.274, subd. 2.
OPINION
Per Curiam:
After being convicted of the crime of burglary by jury verdict and sentenced to seven years
in the Nevada State Prison, James David Arnold perfected this appeal contending (1) the
statutory presumption embodied in NRS 205.065 is unconstitutional because it presumes an
essential element of the crime; (2) the district attorney's opportunity to elect from competing
statutes constitutes a denial of the appellant's right to due process; (3) the portion of NRS
205.060(1) making it a felony for any person to enter a vehicle with the intent to commit
larceny or any felony has been superseded or impliedly repealed; and (4) the trial court erred
in failing to instruct the jury on the crime of tampering with a vehicle as a lesser included
offense.
[Headnotes 1-3]
1. Arnold previously advanced the first three (3) assignments of error in his appeal from
an order denying a pretrial petition for a writ of habeas corpus (case No. 9510, styled:
Arnold v. Sheriff). That appeal was summarily dismissed March 9, 1977, because Arnold
failed to demonstrate reversible error. Even if we assume he is entitled to again advance those
claims, we still deem them to be without merit. Cf. Theriault v. State, 92 Nev. 185, 547 P.2d
668 (1976); Graves v. State, 84 Nev. 262, 439 P.2d 476 (1968). Accordingly, they are
summarily rejected.
[Headnote 4]
2. Although the acts committed by appellant may well constitute the crime of tampering,
NRS 205.274(2), they also constitute the crime of burglary, NRS 205.060. Since the
prosecution met its burden of proof on the burglary charge and there was no evidence at trial
tending to reduce that crime, an instruction on the crime of tampering with a vehicle was
properly refused. Holbrook v. State, 90 Nev. 95, 518 P.2d 1242 (1974); McGuire v. State, 86
Nev. 262, 468 P.2d 12 (1970); Lisby v. State, 82 Nev. 183, 414 P.2d 592 (1966).
There being substantial evidence to support the jury's verdict, the judgment is affirmed.
1

____________________

1
The Chief Justice designated the Honorable David Zenoff, Chief Justice (Retired), to sit in this case. Nev.
Const. art. 6, 19.
____________
94 Nev. 744, 744 (1978) Cooper v. State
CHARLES ARTHUR COOPER, Appellant, v. THE
No. 10235
December 20, 1978 587 P.2d 1318
Appeal from conviction and sentence of the Eighth Judicial District Court, Clark County;
Paul S. Goldman, Judge.
Defendant was convicted in the district court of use of a deadly weapon in the commission
of a crime, attempted murder and assault with a deadly weapon, and he appealed. The
Supreme Court held that evidence that defendant, while running in an attempt to escape with
money taken from cafe, twice turned around and fired gunshots in the direction of the victim
who was pursuing him was sufficient to allow jury to reasonably infer that defendant
specifically intended to kill the victim.
Affirmed.
Morgan D. Harris, Public Defender, Las Vegas, for Appellant.
Robert List, Attorney General, Carson City, and George Holt, District Attorney, Las
Vegas, for Respondent.
Homicide.
In attempted murder prosecution, evidence that defendant, while running in an attempt to escape with
money taken from cafe, twice turned and fired gunshots in the direction of the victim who was pursuing
him was sufficient to allow jury to reasonably infer that defendant specifically intended to kill victim.
OPINION
Per Curiam:
Charles Arthur Cooper stands convicted of use of a deadly weapon in the commission of a
crime, attempted murder and assault with a deadly weapon, stemming from the December 2,
1976 robbery of the El Burrito Cafe on Fremont Street, Las Vegas. Cooper appeals, claiming
the evidence was insufficient to support a finding of the specific intent required for a
conviction of attempted murder.
94 Nev. 744, 745 (1978) Cooper v. State
to support a finding of the specific intent required for a conviction of attempted murder. This
contention is meritless.
While running in an attempt to escape with money taken from the cafe, appellant twice
turned and fired gunshots in the direction of the victim, who was pursuing him. The first shot
was from a distance of about twenty feet; the second, from twenty-five to thirty-five feet.
Appellant had a straight clear shot at the victim, who heard a bam, and heard a bullet whiz
by him.
Appellant concedes these facts establish an overt act, but claims specific intent to kill
cannot be inferred from facts constituting an overt act, but must be proved by evidence of
facts other than those of the overt act. He predicates this contention on Graves v. State, 82
Nev. 137, 413 P.2d 503 (1966).
In Graves, we explained that when a defendant is charged with attempted murder, an
instruction on general intent is improper because, unlike a murder case, no homicide has
occurred and therefore no foundation exists from which to presume the accused intended the
natural and probable consequences of his act. Although Graves may be read to prohibit
presuming the specific intent required for attempted murder, Graves did not, as appellant
claims, prohibit the jury from drawing reasonable inferences of specific intent from facts
provedthough some facts also establish an overt act by the defendant. The law directs that a
presumption be raised, while an inference typically is merely permissible.
From the facts of this case, the jury could reasonably infer that defendant specifically
intended to kill the victim.
Affirmed.
____________
94 Nev. 745, 745 (1978) Cooke v. Safeco Ins. Co.
WILLIAM F. COOKE, Appellant, v. SAFECO INSURANCE
COMPANY OF AMERICA, a Corporation, Respondent.
No. 10692
December 20, 1978 587 P.2d 1324
Appeal from summary judgment; Second Judicial District Court, Washoe County; Peter
Breen, Judge.
Insured brought action against insurer pursuant to no-fault provisions of automobile policy
covering insured's two vehicles. The district court entered summary judgment for insurer, and
insured appealed. The Supreme Court, held that despite limits of liability clause and claim
that separate premiums paid were for no-fault coverage on two separate vehicles, Nevada
Motor Vehicle Insurance Act did not preclude stacking of two obligations to pay basic
reparation benefits as long as payment did not entail recovery for same items of damage.
stacking of two obligations to pay basic reparation benefits as long as payment did not entail
recovery for same items of damage.
Peter Chase Neumann, Reno, for Appellant.
Hibbs and Newton, and Frank H. Roberts, Reno, for Respondent.
1. Insurance.
Public policy of state prevents insurance company from limiting its liability to a single recovery where
insured has paid two premiums for two separate no-fault coverages.
2. Insurance.
Despite limitation of liability clause and fact that separate premiums insured paid were for no-fault
coverage on two separate vehicles, Nevada Motor Vehicle Insurance Act would not preclude stacking two
obligations to pay basic reparation benefits as long as payment did not entail recovery for same items of
damage. NRS 698.010 et seq.
OPINION
Per Curiam:
Appellant's wife was severely injured in an automobile accident in November, 1976, and
as a result of those injuries, she died. Appellant claims to have incurred medical expenses in
excess of $23,000.00 on account of his wife's injuries.
Pursuant to the no-fault provisions of an automobile insurance policy covering appellant's
two vehicles, respondent paid basic reparation benefits of $10,000.00.
Appellant contends respondent owes an additional $10,000.00 in basic reparation benefits
because the policy insured two vehicles and charged a separate premium for each.
Respondent on the other hand argues a limits of liability clause precludes this type of
stacking of no-fault coverage.
1
We disagree.
In Travelers Insurance Co. v. Lopez, 93 Nev. 463, 567 P.2d 471 (1971), we held that the
Nevada Motor Vehicle Insurance Act, Chapter 698, NRS, did not preclude stacking two or
more obligations to pay basic reparation benefits where two policies insuring the same
vehicle were on the same level of priority, but that the Act merely precluded recovery for the
same items of damage.
____________________

1
A provision of respondent's Nevada Basic Reparation Benefits Endorsement reads as follows:
f. LIMITS OF LIABILITY
Regardless of the number of persons insured, policies or bonds applicable, claims made, or insured motor
vehicles to which this coverage applies, the company's liability for all basic reparation benefits with respect to
bodily injury sustained by any one eligible insured person in any one motor vehicle accident shall not exceed
$10,000.00 in the aggregate.
damage. Both policies issued to Lopez provided for payment of basic reparation benefits of
$10,000.00 and both contained other insurance clauses purporting to limit the maximum
amount recoverable from all sources to $10,000.00. Lopez was involved in an accident with
an uninsured motorist and incurred medical expenses in excess of $20,000.00. Travelers
denied liability on the ground that the insured had already received benefits of $10,000.00
from Ambassador Insurance Co., Lopez' other insurer. We had little difficulty in declaring the
other insurance clause null and void.
2
Travelers was required to pay $10,000.00 under the
basic reparations provision of its policy.
Respondent attempts to distinguish Lopez on the grounds that (1) the limitation of
liability clause herein involved is valid, and (2) the separate premiums Cooke paid were for
no-fault coverage on two separate vehicles. These distinctions do not require a contrary result.
Compare, Travelers Indem. Co. v. Wolfson, 348 S.2d 661 (Fla.App. 1977); Chappelear v.
Allstate Ins. Co., 347 S.2d 477 (Fla.App. 1977); and Fla. Stat. Ann. 627-736 which
specifically limits the maximum amount of no-fault benefits recoverable to $5,000.00.
[Headnote 1]
Here, appellant paid two premiums for two separate no-fault coverages. The public policy
of this state prevents the insurance company from limiting its liability to a single recovery
under such circumstances. Allstate Insurance Co. v. Maglish, 94 Nev. 699, 586 P.2d 313
(1978); Travelers Insurance Co. v. Lopez, supra. The insured is entitled to the protection he
may reasonably expect for the premiums he pays.
[Headnote 2]
Recently, in Allstate Insurance Co. v. Maglish, supra, we permitted stacking of uninsured
motorist coverage where a single policy insured two vehicles. Separate premiums were
charged for the coverage and we declared the liability limiting clause in that case contrary to
public policy.
3
Respondent offers no compelling reason why the same result should not
obtain in the instant case regarding no-fault coverage.
____________________

3
The Court held:
Accordingly, the better view favors [Lopez'] position that an insured is entitled to payment in full up to the
policy limit with respect to each policy under which coverage is afforded, and that other insurance clauses and
similar clauses which purport to limit liability are void. [Citations omitted.] Travelers Insurance Co. v. Lopez,
supra, 93 Nev. at 468.

3
The clause provided:
The limit of liability stated in the declarations as applicable to each person' is the limit of Allstate's liability
for all damages . . . suffered by one person as the result of any one accident and, . . . the limit of liability stated in
the declarations as applicable to each accident' is the total limit of Allstate's liability for all damages . . .
sustained by one or more persons as the result of any one accident.
offers no compelling reason why the same result should not obtain in the instant case
regarding no-fault coverage. See also, State Farm Mut. Auto. Ins. v. Hinkel, 87 Nev. 478, 488
P.2d 1151 (1971); United Services Auto. Ass'n v. Dokter, 86 Nev. 917, 478 P.2d 583 (1970).
Accordingly, we reverse the summary judgment and remand to the district court for further
proceedings consistent with our opinion.
____________
94 Nev. 748, 748 (1978) Tsouras v. Southwest Plumbing & Heating
GEORGE TSOURAS and AVALON TSOURAS, Appellants, v. SOUTHWEST PLUMBING
& HEATING, J.C. JONES, an Individual; J.C. JONES, Doing Business as OWNERS
BUILDERS SUPPLY CO.; LONNIE SMITH, an Individual; LONNIE SMITH, Doing
Business as OWNERS BUILDERS SUPPLY CO.; TRAVELERS INDEMNITY CO.,
Respondents.
No. 10508
December 20, 1978 587 P.2d 1321
This is an appeal from a judgment of dismissal, Eighth Judicial District Court, Clark
County; Joseph S. Pavlikowski, Judge.
Homeowners brought action against plumbing and heating company and its owner and
their surety for alleged breach of oral contract to perform certain home improvement work.
The district court entered judgment of dismissal, and homeowners appealed. The Supreme
Court held that: (1) scope of authority of employee under statute concerning technical and
administrative decisions and authority to hire, superintend, promote, transfer, lay off,
discipline or discharge other employees does not include the authority to enter contracts with
nonemployees on behalf of an employer; (2) conduct of plumbing and heating company or its
owner could not be construed as holding alleged employee out as an employer with power to
make contracts for company, and representations to the contrary by alleged employee were
merely hearsay and however much homeowners, who claimed oral contract to perform
certain home improvement work, may have been lured into relying upon them, they did not
affect the rights of the company or its owner, and (3) neither plumbing and heating company
nor its owner, or their surety, could be held liable for breach of alleged oral contract, absent
evidence on the theory that alleged employee had been acting under actual or apparent
authority when he contracted with homeowners.
employee had been acting under actual or apparent authority when he contracted with
homeowners.
Affirmed.
Al Massi, Las Vegas, for Appellants.
Robert W. Lueck, Las Vegas, Pat J. Fitzgibbons, Las Vegas, for Respondents.
Scope of authority of employee under statute concerning technical and administrative decisions and
authority to hire, superintend, promote, transfer, lay off, discipline or discharge other employees does not
include the authority to enter contracts with nonemployees on behalf of an employer. NRCP 41(b); NRS
624.260.
Conduct of plumbing and heating company or its owner could not be construed as holding alleged
employee out as an employer with power to make contracts for company, and representations to the
contrary by alleged employee were merely hearsay and however much homeowners, who claimed oral
contract to perform certain home improvement work, may have been lured into relying upon them, they did
not affect the rights of the company or its owner.
Testimony of one homeowner that alleged employee of home improvement company had offered her a
business card with name of company printed thereon, absent evidence that company or owner had printed
or issued the card, or that it purported to define the powers of alleged employee, was entitled to no
probative weight on issue of alleged employee's authority to contract for home improvement repairs.
Neither plumbing and heating company, nor its owner, or their surety, could be held liable for breach of
alleged oral contract to perform certain home improvement work for owners, absent evidence, on theory
that alleged employee had been acting under actual or apparent authority when he contracted with
homeowners.
OPINION
Per Curiam:
This is an appeal from an order dismissing appellant-plaintiffs' complaint pursuant to
NRCP 41(b). We affirm.
1. This case originated with a complaint filed by George and Avalon Tsouras, alleging
breach of an oral contract to perform certain home improvement work. The complaint alleged
that the plaintiffs had entered a contract with respondent-defendant, Southwest Plumbing and
Heating, a business owned by respondent-defendant, J.C. Jones and one Lonnie Smith.
1
Respondent-defendant, Travelers Indemnity Company, was also named a defendant as surety
for Southwest Plumbing and Heating under a contractor's license bond.
At the trial below, plaintiffs called Jones, who testified that he was the owner of the
business known as Southwest Plumbing and Heating, and that Lonnie Smith had at one
time been a qualified employee of Southwest.
____________________

1
Smith did not answer or appear in this action, and default was entered against him prior to the hearing.
he was the owner of the business known as Southwest Plumbing and Heating, and that
Lonnie Smith had at one time been a qualified employee of Southwest. He further testified
that Smith had no authority to enter contracts for Southwest or for Jones, and that he (Jones)
had never discussed any improvement contract with the plaintiffs.
Avalon Tsouras testified that she was contacted by Lonnie Smith in regard to the
completion of the remodeling work on their home, which had been begun by another
construction company, then bankrupt. She testified that such work as was thereafter done was
done by Smith, and that the only money expended by the Tsourases in connection with the
work had been directly paid to Smith.
2. A motion for involuntary dismissal pursuant to NRCP 41(b) admits the truth of
plaintiff's evidence and all inferences that reasonably can be drawn therefrom and that the
evidence must be interpreted in the light most favorable to plaintiff and most strongly against
[a] defendant. Corn v. French, 71 Nev. 280, 285, 289 P.2d 173, 176 (1955). However, as in
the case at hand, when the plaintiff has failed to produce evidence which would permit
recovery, the granting of such a motion must be sustained. Wolf v. Bonanza Investment Co.,
77 Nev. 138, 360 P.2d 360 (1961).
[Headnote 1]
Appellants suggest that sufficient evidence was produced to show that Smith had actual
authority to enter a contract for Southwest Plumbing and Heating because he had been listed
by Jones as a qualifying employee under NRS 624.260. We disagree. Even if no weight is
accorded Jones' testimony that Smith was no longer so employed at the time of the contract
with plaintiffs, the statute itself provides no support for appellants' contention. It merely
provides that such employee
shall exercise and be in a position to exercise authority in connection with his principal
or employer's contracting business in the following manner:
(a) To make technical and administrative decisions.
(b) To hire, superintend, promote, transfer, lay off, discipline or discharge other
employees and to direct them, either by himself or through others, or effectively
recommend such action on behalf of his principal or employer.
NRS 624.260, subs. 3. The scope of such authority does not include the authority to enter
contracts with non-employees on behalf of an employer. See Rankin v. New England M. Co.,
4 Nev. 78 (1868).
Appellants also contend that they presented sufficient evidence of apparent or ostensible
authority to permit recovery against respondents, or, alternatively, that they were
improperly prevented from doing so when the trial court refused to permit Avalon Tsouras
to testify regarding representations made by Smith.
against respondents, or, alternatively, that they were improperly prevented from doing so
when the trial court refused to permit Avalon Tsouras to testify regarding representations
made by Smith. These contentions are meritless.
This court has repeatedly ruled that [a]pparent authority (when in excess of actual
authority) proceeds on the theory of equitable estoppel; it is in effect an estoppel against [the
alleged principal] to deny agency when by his conduct he has clothed the agent with apparent
authority to act. Ellis v. Nelson, 68 Nev. 410, 418, 233 P.2d 1072, 1076 (1951). Accord,
Rankin v. New England M. Co., supra, Mirodias v. S.P. Co., 38 Nev. 119, 145 P. 912 (1914);
Schlitz Brew. Co. v. Grimmon, 28 Nev. 235, 81 P. 43 (1905); Hacienda Gift S. v. L.V.
Hacienda, 76 Nev. 86, 349 P.2d 613 (1960); Nevada Nat'l Bank v. Gold Star Meat Co., 89
Nev. 427, 514 P.2d 651 (1973). As the court explained in Ellis,
It is indispensable to keep in mind here that, as against the principal, there can be
reliance only upon what the principal himself has said or done, or at least said or done
through some authorized agent. The acts of the agent in question can not be relied upon
as alone enough to support an estoppel. If his acts are relied upon there must also be
evidence of the principal's knowledge and acquiescence in them.
Moreover, in any case, the reliance must have been a reasonable one, consistent with
the exercise of reasonable prudence, and the party who claims reliance must not have
closed his eyes to warning or inconsistent circumstances. Authority is not apparent'
simply because the party claiming has acted upon his conclusions. It is not apparent' in
contemplation of law, simply because it looked so to him. . . .
68 Nev. at 419, 233 P.2d at 1076. Quoting 1 Mecham On Agency 725, 726, at 513 (2d ed.
1903).
[Headnote 2]
The Tsourases failed to present any evidence of conduct on the part of Jones or Southwest
Plumbing and Heating which could be construed as holding Smith out as an agent with power
to make contracts for Southwest Plumbing. Any representations to the contrary by Smith
were merely hearsay, and, however much the [appellants] may have been lured into relying
upon them, they did not affect the rights of the [respondents]. Schlitz Brew. Co. v.
Grimmon, supra, 28 Nev. at 249, 81 P. at 46.
[Headnote 3]
Likewise, the testimony of Avalon Tsouras that Smith offered her a business card with
"Southwest Plumbing and Heating" printed thereon, in the absence of any evidence that
respondents printed or issued the card, or that it purported to define the powers of Smith,
is entitled to no probative weight on this issue. Id., 2S Nev. at 249-50, S1 P. at 46.
offered her a business card with Southwest Plumbing and Heating printed thereon, in the
absence of any evidence that respondents printed or issued the card, or that it purported to
define the powers of Smith, is entitled to no probative weight on this issue. Id., 28 Nev. at
249-50, 81 P. at 46.
[Headnote 4]
Because there was no evidence presented by appellants which would have permitted
recovery against respondents, Jones, Southwest Plumbing and Heating, or their surety, on the
theory that Smith was acting under their actual or apparent authority, the judgment of
dismissal is affirmed.
____________
94 Nev. 752, 752 (1978) State ex rel. Sweikert v. Briare
STATE OF NEVADA, ex rel. WILLIAM E. SWEIKERT, Jr., Appellant, v. WILLIAM
BRIARE, Mayor; CITY OF LAS VEGAS; RON LURIE, MYRON LEAVITT, PAUL
CHRISTENSEN and ROY WOOFTER, City Commissioners; THE CITY COMMISSION
and THE CIVIL SERVICE BOARD OF THE CITY OF LAS VEGAS, Consisting of DON
ASHWORTH, AMOS KNIGHTEN, WALTER MARTINI, DR. JOHN MONTGOMERY
and MELVIN B. WOLZINGER, Respondents.
No. 10453
December 20, 1978 588 P.2d 542
Appeal from judgment upholding administrative action. Eighth Judicial District Court,
Clark County; Howard W. Babcock, Judge.
Terminated city building inspector sought judicial review after city civil service board
affirmed termination. The district court held that there was substantial evidence upon which
to premise the termination and plaintiff appealed. The Supreme Court, Manoukian, J., held
that: (1) danger to public from structural and fire hazards resulting from casino remodeling
approved by inspector were sufficient extraordinary and exigent circumstances to warrant
immediate termination of inspector, so that subsequent posttermination hearing with respect
to termination satisfied due process considerations, and (2) substantial evidence was
produced to warrant the termination.
Affirmed.
[Rehearing denied February 6, 1979]
Larry C. Johns, Las Vegas, for Appellant.
M. H. Sloan, City Attorney, and John H. Howard, Jr., Deputy City Attorney, Las Vegas,
for Respondents.
Any public employee who has obtained property interest in his employment is entitled to due process
constitutional protections. U.S.C.A.Const. Amends. 5, 14.
Generally, public employee who can only be discharged for cause has due process property right in his
employment. U.S.C.A.Const. Amends. 5, 14.
Public employee with property interest in his employment is entitled by due process provisions to
pretermination hearing, absent extraordinary or exigent circumstances. U.S.C.A.Const. Amends. 5, 14.
4. Constitutional Law; Municipal Corporations.
Danger to public from structural and fire hazards resulting from casino remodeling approved by inspector
were sufficient extraordinary and exigent circumstances to warrant immediate termination of inspector, so
that subsequent posttermination hearing with respect to termination satisfied due process considerations.
U.S.C.A.Const. Amends. 5, 14.
Adequacy of notice of termination of public employee entitled to due process constitutional protection is
determined at time notice is tendered, not after hearing has been held. U.S.C.A.Const. Amends. 5, 14.
City building inspector was responsible for all construction projects within specific territory assigned to
him and he had authority to stop construction not conforming to code or undertaken without building
permits, together with authority to approve conforming projects; thus inspector who approved for
occupancy a casino construction project which resulted in several serious structural and fire hazards was
not entitled to avoid termination of his employment on basis that he had neither inspected nor approved the
casino construction so that his behavior was not culpable.
Terminated city building inspector who was willing to have civil service commission reconsider his
termination based on evidence produced at hearing on remand was not entitled to complain, after second
unfavorable decision, that it was error to utilize transcript and findings of fact associated with hearing on
remand rather than the initial hearing. NRS 233B.010 et seq., 233B.020, 233B.125, 233B.140.
Substantial evidence was produced to warrant termination of city building inspector on ground that he
had approved for occupancy a casino construction project involving several serious structural and fire
hazards.
OPINION
Appellant Sweikert was employed by the City of Las Vegas as a building inspector and
assigned a specific territory in which to exercise his authority. This territory included the
Jolly Trolley Casino, which at the time Sweikert was assigned to that area, was engaged in
some construction work pursuant to building permits already obtained.
area, was engaged in some construction work pursuant to building permits already obtained.
These permits specified the performance of interior remodeling at an estimated cost of
$1,100.
The construction project at the Casino was called to Sweikert's attention on November 8,
1976, approximately three weeks subsequent to his assignment to that area. The building
permit was not posted at the construction site, and Sweikert requested to see one. A
maintenance person who was performing construction work produced the permit. Sweikert
radioed his supervisor who confirmed that a permit was issued and that the building
contractor was legitimate.
Apparently, however, the Casino personnel produced one of the permits issued for a
smaller construction job occurring in the backroom. The construction which Sweikert was
investigating was much more substantial in scale, involving the kitchen area and subsequently
the dining area. With the exception of this initial inquiry, Sweikert never further ascertained
the precise scope of the building permits issued, although he made at least 25 inspections and
investigations of the construction during the next two months.
The Casino eventually completed the kitchen area and had knocked a hole into the wall of
an adjoining building in which it had an interest. Sweikert was later called to approve the
construction. Although the kitchen had no apparent exits to any dining area which it was to
service, Sweikert made no inquiry as to the purpose of the kitchen before approving it.
Further, the Casino requested Sweikert's approval of the area for occupancy, although there
was no indication of precisely what dining area was to be occupied. The Casino told Sweikert
that it wanted to turn on the gas and electricity to its large kitchen appliances to check them
out and that it was thus necessary for him to approve the construction. Sweikert admitted that
it would have been more appropriate to approve the building permit rather than to approve
for occupancy.
Once the Casino had its approval for occupancy, its construction crew worked on a
weekend to enlarge the hole into the adjacent building and to convert the adjoining room into
a dining area. This construction work resulted in several serious structural and fire hazard
defects. Another City employee noticed the defects and advised the supervisors in the City
building department who immediately investigated the project to determine why a
construction job with such serious defects was approved for occupancy. Sweikert participated
in this investigation. On February 4, 1977, he was suspended with pay pending further
investigation and one week later was terminated.
Sweikert filed a timely appeal with the City Civil Service Board and a post-termination
hearing was held in which Sweikert was represented by counsel. The Board affirmed the
termination, and Sweikert sought judicial review in the district court. The lower court
remanded the proceedings to the Board for clarification of the permit-issuing process and
Sweikert's responsibilities. Another hearing was held, and the district court again assumed
jurisdiction. The court held that there was substantial evidence upon which to premise the
termination and Sweikert now appeals that decision.
Three issues confront us: (1) Was appellant denied due process; (2) did the lower court err
in remanding the matter for further proceedings, and (3) was there substantial evidence to
sustain the termination?
1. Due process claims: Appellant contends that his constitutional due process rights were
violated because he was not afforded a pre-termination hearing, his termination notice did not
specify the charges against him, and the findings of fact made by the Civil Service Board
were defective.
[Headnotes 1, 2]
Any employee who has obtained a property interest in his employment is entitled to due
process constitutional protections. Perry v. Sindermann, 408 U.S. 593 (1972); Board of
Regents v. Roth, 408 U.S. 564 (1972). Appellant was dismissed for cause. Generally, an
employee who can only be discharged for cause has a property right in his employment with
the concomitant entitlements to constitutional protections. Bishop v. Wood, 426 U.S. 341
(1976); Arnett v. Kennedy, 416 U.S. 134 (1974).
[Headnote 3]
The inquiry then arises as to precisely what process is due. There are no inflexible rules in
the application of this constitutional protection. Due process has a flexibility determined by
time, place, and circumstances. Morrissey v. Brewer, 408 U.S. 471 (1972). An employee with
a property interest in his employment is entitled by due process to a pre-termination hearing
absent extraordinary or exigent circumstances. Fuentes v. Shevin, 407 U.S. 67 (1972).
[Headnote 4]
In the instant case, extraordinary and exigent circumstances did exist permitting a
post-termination rather than a pre-termination hearing. Appellant, as a building inspector, was
responsible to assure that construction projects in his assigned area conformed to the building
code. The danger to the public from structural collapse and fire hazards are sufficient
extraordinary and exigent circumstances to warrant immediate termination.
immediate termination. Here, the subsequent post-termination hearing satisfied due process
considerations.
[Headnote 5]
Appellant next claims that the Notice of Termination failed to specify the charges against
him. Suffice it to say that the allegations contained in the notice of termination were specific,
comprehensive and plainly put appellant on notice of his several purported Civil Service Rule
violations. Sweikert concedes that the Notice contains specific allegations, but contends that
because he allegedly disproved the specific allegations contained in the Notice of
Termination, the remaining general allegations are insufficient to give the required notice.
The argument is specious. The adequacy of notice is determined at the time notice is tendered
not after a hearing has been held.
[Headnote 6]
Appellant's argument that he in fact rebutted the specific charges is without substance.
Sweikert suggests that because he neither inspected nor approved the casino construction, his
behavior is not culpable. This contention is unpersuasive. Sweikert, as a building inspector
assigned to a specific territory, was responsible for all the construction projects within his
territory. He had authority to stop construction on projects not conforming to code or
undertaken without building permits, together with authority to approve conforming projects.
If his defense were logically extended, a building inspector could be less vigilant, permit
construction in defiance of code throughout the city and defend termination allegations with
the fact that he neither inspected nor approved the projects.
Sweikert was terminated precisely because he failed to properly inspect and investigate the
casino construction project, but he uses this failure as his defense.
Appellant further challenges the findings of fact entered by the Civil Service Board
contending the findings are in violation of NRS 233B.125 pertaining to explicit statements of
fact. The Administrative Procedures Act, NRS Chapter 233B, is by its terms limited to all
agencies of the executive department of the state government. NRS 233B.020. Even if any
of the Act were adopted as establishing guidelines with which to evaluate the Las Vegas Civil
Service rule, the findings are factually related. Appellant concedes that finding number five is
adequate. That finding is the actual basis and rationale for Sweikert's dismissal and reads:
the illegal construction and code violation noted at the Jolly Trolley Casino occurred
during the period of time in which William E. Sweikert, Jr., had the sole and direct
responsibility for the construction and the remodeling of the interior and exterior of
the main casino building and the two {2) adjacent buildings.
the interior and exterior of the main casino building and the two (2) adjacent buildings.
[Headnote 7]
Sweikert complains that respondent utilized the transcript and findings of fact associated
with the hearing on remand rather than the initial hearing. The objection is without merit.
Appellant was willing to have the Civil Service Commission reconsider his termination based
on the evidence produced at the second hearing. Now after a second unfavorable decision he
wishes to utilize only the initial transcript. The court remanded for further proceedings and
the transcript of that hearing provides valid evidence. Appellant was not denied any right to
due process.
2. The Remand. The trial court remanded this matter to the Civil Service Board for
further proceedings pursuant to NRS 233B. 140. Although the Administrative Procedures Act
is not applicable, the district court apparently utilized it as a guide and we find no error in its
decision to do so.
3. Substantial Evidence: Appellant claims that there was not substantial evidence to
warrant his dismissal. However, in addition to our preliminary statement of facts, the record
shows that in an area over which Sweikert had complete responsibility, nearly $30,000 of
casino construction was completed without permits and in non-conformance to code. There
was evidence that while Sweikert initially inquired of his supervisor whether the casino had
permits, the record reflects that Sweikert never personally examined the permits to determine
the exact scope and approximate value of the construction project. The evidence further
shows that Sweikert never made responsible inquiry into the exact nature of the construction
project, although he had visited the job site some 27 times during the construction period.
[Headnote 8]
Testimony revealed that Sweikert in the presence of another inspector was not very
concerned about the obvious code violations. Most importantly, Sweikert finaled off the
kitchen construction as approved for occupancy, although there existed no dining room to
occupy. Additionally, there was testimony that over 100 violations existed. Subsequently, the
dining area construction involved several serious structural and fire hazards. Appellant even
informed construction workers how to build a certain structure which was in violation of
code. Sweikert contends that he never inspected and approved the defective construction and
thus committed no wrong. The construction, however, occurred in Sweikert's territory and
generally while he was making frequent inspections and investigations of the project.
Confronted with this devastating evidence, Sweikert contends that respondents never
proved a duty which he allegedly breached.
evidence, Sweikert contends that respondents never proved a duty which he allegedly
breached. Sweikert's duty, however, was precisely his sole responsibility for all the
construction projects in his assigned territory. This Court in No. Las Vegas v. Pub. Serv.
Comm'n, 83 Nev. 278, 281, 429 P.2d 66, 68 (1967), stated the scope of judicial review of
administrative decisions:
The function of this court is the same when reviewing the action of the district court
in such a matter. Thus neither the trial court, nor this court, should substitute its
judgment for the administrator's determination. We should not pass upon the credibility
of witnesses or weigh the evidence, but limit the review to a determination that the
board's decision is based upon substantial evidence. (Citations deleted.)
There was substantial evidence produced to warrant his termination and the district court
correctly upheld the administrative decision.
The judgment of the lower court is affirmed.
Beko, D. J.,
1
concurring:
I concur in the result reached by the majority. To avoid the possibility that this opinion be
construed to condone or encourage post-termination of employment hearings, I feel
compelled to express my reservations.
Admittedly, there are valid grounds, most of which involve moral turpitude, to justify
termination of employment without hearing. Such grounds do not appear here. While
post-termination procedures may not offend constitutional due process standards, hearings
after termination assume the posture of ratification of an accomplished result, completely
ignoring any possibility of utilizing less harsh alternatives such as suspension without pay,
supplemental training, reassignment to other duties, analysis of job procedures or standards,
adequacy of supervision and instruction, etc. I have serious doubts that this result would have
been reached if pre-termination hearings had been conducted, on this record.
Gunderson. J., dissenting:
The building inspector in question apparently is an experienced, generally capable man. In
this instance, he overlooked violations he arguably should have observed; however, I
cannot endorse my brethren's statement that "danger to the public from structural
collapse and fire hazards are sufficient extraordinary and exigent circumstances to
warrant immediate termination" without allowing the inspector a pre-termination
hearing.
____________________

1
The Governor designated William P. Beko, Judge of the Fifth Judicial District, to sit in the place of the
Honorable John Mowbray, who was disqualified. Nev. Const. art. 6, 4.
violations he arguably should have observed; however, I cannot endorse my brethren's
statement that danger to the public from structural collapse and fire hazards are sufficient
extraordinary and exigent circumstances to warrant immediate termination without allowing
the inspector a pre-termination hearing. Our attention has been directed to nothing which
justifies the conclusion such danger characteristically results from the inspector's work.
For related reasons, it does not appear to me that termination was justified in any event.
The inspector's honesty does not appear to be questioned. His culpability is grounded solely
in that, in this instance, he arguably should have perceived and reported the violations in
question. There is no question but that the City's deficient procedures, apparently corrected
now as a result of this case, were in fact the root cause of the entire problem.
1

____________________

1
As appellant's counsel correctly points out in his opening brief:
The question was whether Petitioner was justified in relying upon a permit [sic] supplied him on November
8, 1976, by Dave Berry. Petitioner had called Mr. Hymer [Assistant Supervisor, Division of Building and
Safety], on that date and confirmed that there was such a permit for Interior Remodel. Petitioner called Mr.
Hymer, which is the accepted procedure. (See the very operation Rules # 10 relied upon by the City as well as
the testimony of Mr. Bailey and the 4 other inspectors.)
That it was the very procedures which were defective rather than the Petitioner is admitted in a memo from
Mr. Hymer to office personnel dated February 10, 1977. (Appendix exhibit 7). Although Mr. Hymer denied that
Petitioner's circumstance brought about the Memo, Mr. Bailey and everyone else knew that it did. The
memorandum stated:
In the past we have not had the full amount of information we need on the commercial permit forms,
and plans. This leaves the field inspector more or less in the dark as to the amount of work the permit
covers and which plans he is to follow.
Effective February 14, 1977, no commercial permits are to be issued which simply states (Interior
REmodel).' [sic]
The new order became effective the day Petitioner was terminated. It is apparent that Petitioner was in the
dark' relying upon accepted procedures which were inadequate. He had a permit which stated only Interior
Remodel' (Appendix Exhibit 6). Petitioner cannot be punished for relying upon inadequate permit procedures.
The responsibility for any illegal construction falls squarely upon those who adopted and for years operated
under defective rules, which could only result in difficulties. But, the inspector in the dark' is not the one who
should pay with his livelihood.
____________
94 Nev. 760, 760 (1978) Simpson v. State
LELAND CALVIN SIMPSON, Appellant, v. THE
No. 10297
December 20, 1978 587 P.2d 1319
Appeal from judgment of conviction and sentence; Eighth Judicial District Court, Clark
Defendant was convicted by a jury in the district court of lewdness with his minor
stepdaughter and attempt infamous crime against nature. Defendant appealed. The Supreme
Court held that trial court did not abuse its discretion in admitting, as proof of a common
scheme or plan, testimony of defendant's other minor stepchildren concerning his prior illicit
sexual conduct with them, inasmuch as incidents were close in time, ranging from one month
to four years prior to charged offense, and occurred within family household.
Affirmed.
Criminal Law.
In prosecution for lewdness with defendant's minor stepdaughter and attempt infamous crime against
nature, trial court did not abuse its discretion in admitting, as proof of a common scheme or plan, testimony
of defendant's other minor stepchildren concerning his prior illicit sexual conduct with them, inasmuch as
incidents were close in time, ranging from one month to four years prior to charged offense, and occurred
within family household. NRS 48.035, 48.045, subd. 2, 201.190, 201.230, 208.070.
OPINION
Per Curiam:
Leland Calvin Simpson was convicted of Lewdness with his minor stepdaughter in
violation of NRS 201.230 and Attempt Infamous Crime Against Nature in violation of NRS
201.190, 208.070. He was sentenced to concurrent terms of ten years for the Lewdness and
twenty years for the Attempt. Appellant now seeks a reversal on the ground that the district
court erred in admitting the testimony of appellant's other minor stepchildren concerning his
prior illicit sexual conduct with them.
94 Nev. 760, 761 (1978) Simpson v. State
We recently considered and rejected a similar claim in Willett v. State, 94 Nev. 620, 584
P.2d 684 (1978). Willett was convicted of three counts of an Infamous Crime Against Nature.
The evidence showed he had committed several acts of oral copulation on a minor boy. On
appeal, Willett complained the trial court erred in admitting testimony from another minor
boy upon whom he had also allegedly committed similar acts. Emphasizing that the similar
acts were committed close in time, within a month, and under similar circumstances, while
Willett was working as a volunteer in a home for boys, we held the testimony admissible to
show a common scheme or plan. NRS 48.045(2); in accord, see, Nestor v. State, 75 Nev.
41, 334 P.2d 524 (1959). Compare, Findley v. State, 94 Nev. 212, 577 P.2d 867 (1978);
McMichael v. State, 94 Nev. 184, 577 P.2d 398 (1978).
In the instant case, the minor victim testified to the acts giving rise to the criminal
complaint. Her testimony was corroborated by her younger sister who was present and
witnessed appellant's sexual misconduct. Out of the presence of the jury, the court then heard
argument to determine whether the prosecution would be allowed to introduce evidence of
Simpson's continuing course of illicit sexual conduct upon his minor stepchildren.
Recognizing the prejudicial effect of such testimony, the district judge nevertheless admitted
the testimony as proof of a common scheme or plan. NRS 48.035, 48.045(2). The victim and
her siblings were then allowed to testify to appellant's prior illicit sexual conduct with them
and other members of the family.
As the incidents were close in time, ranging from one month to four years prior to the
charged offense, and occurred within the family household, the trial court did not abuse its
discretion in admitting the evidence. Willett v. State, supra. Accordingly, the judgment of
conviction and sentence are affirmed.
____________
94 Nev. 762, 762 (1978) Sidote v. State
JOHN JAY SIDOTE, Appellant, v. STATE
No. 10226
December 20, 1978 587 P.2d 1317
Appeal from judgment of guilty and sentence imposed for manslaughter and robbery, First
Judicial District Court, Douglas County; Stanley A. Smart, Judge.
The Supreme Court held that failure of defendant to timely present to trial court
jurisdictional argument that robbery charge was barred by statute of limitations operated to
preclude defendant from presenting argument for first time on appeal.
Affirmed.
Horace R. Goff, Public Defender, and J. Thomas Susich, Chief Deputy Public Defender,
Carson City, for Appellant.
Robert List, Attorney General, Carson City; and Steven McMorris, District Attorney,
Douglas County, for Respondent.
1. Criminal Law.
Defendant may not consciously invite district court action perceived as favorable to him and then claim it
as error on appeal.
2. Criminal Law.
Jurisdictional issues, if intent exists to litigate them, should be presented in first instance to district judge
who is capable of resolving any factual questions which may develop.
3. Criminal Law.
Failure of defendant to timely present jurisdictional argument that robbery charge was barred by statute
of limitations operated to preclude defendant from presenting argument for first time on appeal.
OPINION
Per Curiam:
To avoid prosecution for murder, appellant pleaded guilty to manslaughter and robbery.
The district court imposed a 10-year sentence for manslaughter, with a 15-year consecutive
sentence for robbery. After his plea bargaining below, appellant contends on appeal, for the
first time, that the district court erred in sentencing him for robbery. He premises this
contention on the argument that the robbery charge was barred by the statute of limitations,
which he styles as jurisdictional. We affirm the district court.
[Headnotes 1-3]
We do not believe the appellant may consciously invite district court action perceived as
favorable to him, and then claim it as error on appeal.
94 Nev. 762, 763 (1978) Sidote v. State
it as error on appeal. Normally, if intent exists to litigate them, even possible jurisdictional
issues should be presented in the first instance to the district judge, who is capable of
resolving any factual questions which may develop. As we said in Junior v. State, 91 Nev.
439, 537 P.2d 1204 (1975): Thus, we feel that [appellant's] failure to timely challenge the
information, and his tacit acceptance of it as a valid pleading on behalf of the State, precludes
a challenge now, for the first time, on appeal. 91 Nev. at 441.
Affirmed.
____________
94 Nev. 763, 763 (1978) Nevada St. Apprenticeship v. Joint Appren.
NEVADA STATE APPRENTICESHIP COUNCIL; STATE OF NEVADA and STANLEY
P. JONES, LABOR COMMISSIONER OF THE STATE OF NEVADA and STATE
DIRECTOR OF APPRENTICESHIP, Appellants, v. JOINT APPRENTICESHIP AND
TRAINING COMMITTEE FOR THE ELECTRICAL INDUSTRY, Respondents.
No. 9631
December 20, 1978 587 P.2d 1315
Appeal from order reversing a decision of the Nevada State Apprenticeship Council,
Eighth Judicial District Court, Clark County; James A. Brennan, Judge.
The Joint Apprenticeship and Training Committee petitioned for judicial review of order
of the Labor Commissioner of State affirming determination by the Nevada State
Apprenticeship Council which ordered apprentice, previously terminated by the Joint
Apprenticeship and Training Committee, reinstated. The district court reversed the Labor
Commissioner finding that the State Council had failed to require apprentice to file detailed
complaints, and State Council and Labor Commissioner appealed. The Supreme Court held
that the statutory and due process requirements for notice were satisfied when the Joint
Apprenticeship and Training Committee received a copy of apprentice's letter of appeal,
notice of time and place of appeal hearing, and request that it should present a justification for
apprentice's termination.
Reversed.
[Rehearing denied February 8, 1979]
Robert List, Attorney General; Donald C. Hill, Jr., Deputy Attorney General; Michael W.
Dyer, Deputy Attorney General, Carson City, for Appellants.
John Peter Lee, and James C. Mahan, Las Vegas, for Respondents.
1. Apprentices.
Nothing in the Nevada Revised Statutes or the Nevada State Apprenticeship Council Rules of Practice
and Procedure requires an apprentice, who appeals termination of his or her indentureship, to file a
complaint where statutory and due process requirements of notice otherwise are satisfied. NRS
233B.121, 610.140, subds. 1(c), 2; U.S.C.A.Const. Amends. 5, 14.
Modern trend in administrative pleadings is that due process requirements of notice are satisfied where
parties are sufficiently apprised of nature of proceedings so that there is no unfair surprise and the crucial
element is adequate opportunity to prepare. U.S.C.A.Const. Amends. 5, 14.
3. Apprentices; Constitutional Law.
Both statutory and due process requirements for notice of case wherein termination of apprentice's
indentureship is contested were satisfied when the Joint Apprenticeship and Training Committee, which
terminated the indentureship of apprentice, received copy of apprentice's letter of appeal, notice of time
and place of appeal hearing, and a request that it should present its justification for apprentice's
termination. NRS 233B.121; U.S.C.A.Const. Amends. 5, 14.
OPINION
Per Curiam:
On March 11, 1976, respondent, the Joint Apprenticeship and Training Committee
(JATC), terminated the indentureship of an apprentice, John Brooks, Jr. Brooks appealed to
the Nevada State Apprenticeship Council (NSAC). After conducting a hearing, the NSAC
reversed the JATC termination, concluding that it was decided on the basis of erroneous
information, and ordered Brooks reinstated. On appeal by the JATC, the Labor Commissioner
affirmed the NSAC determination and order of reinstatement. The JATC then petitioned for
judicial review. The district court reversed the Labor Commissioner, concluding that the
NSAC violated its own rules and regulations, provisions of Nevada Revised Statutes, and
due process guarantees of the Fourteenth Amendment of the United States Constitution by
failing to require [Brooks] to file a detailed complaint stating with particularity his charges
against the JATC and the factual bases for those charges and serving the same upon the
JATC, thereby giving the latter proper notice as to the charges it would face at the hearing . . .
and the opportunity to prepare a defense to those charges.
The NSAC and the Labor Commissioner appeal, claiming that the district court erred in
finding that the JATC lacked proper notice of the hearing. We agree and reverse the district
court's order.
Brooks, in a letter to the NSAC, styled his action an appeal from the JATC decision
terminating his indentureship. The Rules of Practice and Procedure for the NSAC do not
specifically provide for any pleading captioned an appeal. On judicial review, the JATC
argued, and the district apparently agreed, that Brooks' letter must be considered a
complaint and meet the particular requirements of NSAC Rule 5.4.
1

[Headnote 1]
However, NRS 610.140(2) provides that [t]he activities of local or state joint
apprenticeship committees are, at all times subject to appeal to the state apprenticeship
council. (Emphasis added.) Nothing in the Nevada Revised Statutes or the NSAC Rules of
Practice and Procedure requires an apprentice, who appeals the termination of his/her
indentureship, to file a complaint where statutory and due process requirements of notice
otherwise are satisfied.
[Headnote 2]
NRS 233B.121 requires notice in a contested case, to be reasonable and include a short
and plain statement of the matters asserted. Although there are differing views, the modern
trend in administrative pleadings is that due process requirements of notice are satisfied
where the parties are sufficiently apprised of the nature of the proceedings so that there is no
unfair surprise. The crucial element is adequate opportunity to prepare. 1 K. Davis,
Administrative Law 8.04 and 8.05 (1958). See Expert Electric, Inc. v. Levine, 399 F.Supp.
893 (S.D.N.Y. 1975); North State Tel. Co., Inc. v. Alaska Public Util. Com'n, 522 P.2d 711
(Alaska 1974); Ford v. Bay County School Board, 246 So.2d 119 (Fla.App. 1970);
Department of Revenue v. Jamb Discount, 301 N.E.2d 23 (Ill.App. 1973).
[Headnote 3]
In our opinion both NRS 233B.121 and due process requirements were satisfied when the
JATC received a copy of Brooks' letter of appeal, notice of the time and place of the
appeal hearing and a request that it should present its "justification" for Brooks'
termination.
____________________

1
Rule 5.4 provides:
COMPLAINTS TO COUNCILUpon the complaint of any interested person, or upon the initiative of any
Council member, the Council may investigate possible violations of the terms of apprenticeship agreements
made under made under Chapter 610 of Nevada Revised Statutes. The complaint of any person shall be stated
with sufficient particularity to enable the respondent to prepare a defense thereto. The complaint shall be in
writing and shall be signed and verified by the person making it and eight (8) copies shall be filed with the
Council within twenty-four (24) months after the commission of the last act complained of. If from the sworn
complaint or from other official records of the Council, it is made to appear that the charges may be well
founded, in fact, then the Council shall cause written notice itemizing such charges and notice of a hearing date
to be served by certified mail upon the person charged at least fourteen (14) days before the date fixed for the
hearing.
letter of appeal, notice of the time and place of the appeal hearing and a request that it should
present its justification for Brooks' termination.
The JATC knew that its decision terminating Brooks was being challenged.
2
It, better
than Brooks, knew and had access to the factual data upon which its decision was based.
3
Moreover, the JATC suffered no prejudice. Subsequent to the hearing, it had an opportunity
to present to the Labor Commissioner any material evidence which it may have been
prevented from introducing at the hearing because of inadequate notice. Yet, to date, the
JATC has offered no evidence explaining the erroneous information.
4

Reversed.
5

____________________

2
The record shows that from the outset the JATC in fact expected Brooks' appeal.

3
We also note that NRS 610.140(1)(c) requires the JATC to submit to the State Apprenticeship Council,
within ten days after the termination of the indenture of any apprentice, a notice of the reason for termination.
The record does not indicate whether the JATC complied with the requirement, but we think the provision
indicates that the reasons for termination, including the accuracy of the underlying information, are expected to
be examined on appeal.

4
On appeal to the Labor Commissioner, and in its petition for judicial review, the JATC might well have
argued that the erroneous information was harmless error; that its decision terminating Brooks was clearly
justified despite the erroneous information, and that therefore the NSAC reversal and order of reinstatement was
not supported by substantial evidence. Instead, however, the JATC chose to continue its appeal based on the
theory of inadequate notice.

5
The Chief Justice designated Hon. David Zenoff, Senior Justice, to sit in this case in place of the Hon. John
Mowbray, Justice, who was disqualified. Nev. Const. art. 6, 19; SCR 243.
____________
94 Nev. 766, 766 (1978) General Elec. Supply v. Mt. Wheeler Power
GENERAL ELECTRIC SUPPLY CO., a Division of General Electric Company, a New York
Corporation, Appellant, v. MT. WHEELER POWER, INC., a Nevada Corporation,
Respondent.
No. 9369
December 20, 1978 587 P.2d 1312
Appeal from judgment, Fourth Judicial District Court, Elko County; Joseph O. McDaniel,
Judge.
Damages were sought allegedly resulting from breach of contract. The district court
concluded that defendant had breached its contract to supply material to plaintiff and entered
judgment for plaintiff. On appeal, the Supreme Court held that: (1) evidence supported trial
court's findings that defendant had breached contract by failing to make timely deliveries of
materials and that plaintiff gave defendant notice of breach within reasonable time, and
{2) evidence was sufficient to support award of lost profits.
breached contract by failing to make timely deliveries of materials and that plaintiff gave
defendant notice of breach within reasonable time, and (2) evidence was sufficient to support
award of lost profits.
Affirmed.
Guild, Hagen & Clark, Ltd., Reno, for Appellant.
Vaughan, Hull, Marfisi & Miller, Ltd., Elko, for Respondent.
Where trial court, sitting without a jury, makes factual determinations based upon conflicting evidence,
those determinations will not be disturbed where they are supported by substantial evidence.
2. Damages.
Rule barring recovery of uncertain lost profits is directed against uncertainty as to the existence of profits
rather than as a measure or extent.
3. Damages.
Rule barring recovery of lost profits because of uncertainty was not applicable in breach of contract
action brought by plaintiff, which took over and expanded upon two long-established businesses.
4. Damages.
In breach of contract action involving defendant's alleged failure to supply materials to plaintiff, evidence
was sufficient to support an award of lost profits.
OPINION
Per Curiam:
Respondent sought damages resulting from appellant's breach of contract. At the
conclusion of a trial without jury, the district court concluded appellant had breached its
contract to supply material to respondent and awarded respondent costs, plus damages in the
amount of $164,460.30.
1
Appellant's only cognizable contentions are (1) the evidence
adduced at trial fails to support the district court's findings; and, (2) the district court erred in
awarding damages. We disagree.
1. Appellant contends the district court erred in finding (a) it had breached the contract by
failing to make timely deliveries of the material and, (b) respondent had given appellant
notice of such breach within a reasonable time, as required by NRS 104.2607(3)(a).
[Headnote 1]
Where a trial court, sitting without a jury, makes factual determinations based upon
conflicting evidence, those determinations will not be disturbed where, as here, they are
supported by substantial evidence.
____________________

1
This sum was reduced by a $35,000 settlement with another party to the action in district court.
determinations based upon conflicting evidence, those determinations will not be disturbed
where, as here, they are supported by substantial evidence. Havas v. Engebregson, 94 Nev.
336, 580 P.2d 122 (1978).
[Headnotes 2, 3]
2. Appellant also contends the district court erred by awarding lost profits because
respondent was engaged in a new business with no prior history of profits and, thus, lost
profits were too speculative, uncertain, and remote. The rule barring recovery of uncertain
lost profits is directed against uncertainty as to the existence of [profits] rather than as to
measure or extent. Fireman's Fund Ins. v. Shawcross, 84 Nev. 446, 453, 442 P.2d 907, 912
(1968). The record indicates that respondent was an electrical cooperative corporation which
took over and expanded upon the electrical services previously provided by two
long-established electrical companiesEly Light and Power Co. and Eureka Light and Power
Co. Under these circumstances, we perceive no uncertainty as to the existence of lost profits
and, accordingly, the rule barring recovery is not applicable.
[Headnote 4]
Further, appellant argues that the evidence was insufficient to support the award of lost
profits. The district court found lost profits were reasonably foreseeable and within the
contemplation of the parties at the time the contract was entered into. This finding is
supported by the evidence and, thus, it will not be disturbed on appeal. Eaton v. J. H. Inc., 94
Nev. 446, 581 P.2d 14 (1978).
____________
94 Nev. 768, 768 (1978) Hosvepian v. Hilton Hotels Corp.
JACK HOSVEPIAN and BILLIE HOSVEPIAN, Appellants, v. HILTON HOTELS
CORPORATION, a Nevada Corporation, d/b/a LAS VEGAS HILTON HOTEL, Respondent.
No. 9570
December 20, 1978 587 P.2d 1313
Appeal from summary judgment, Eighth Judicial District Court, Clark County; Howard
W. Babcock, Judge.
Employee and her husband brought action seeking damages for injuries suffered by
employee at construction site on defendant's property. The district court entered summary
judgment in favor of defendant, and plaintiffs appealed. The Supreme Court held that where
uncontroverted facts in record demonstrated that defendant performed function of
principal contractor, including exercise of supervisory control over work on project,
subcontractor's employee, who received compensation for injuries from Industrial
Commission, was not entitled to recover damages against defendant.
Supreme Court held that where uncontroverted facts in record demonstrated that defendant
performed function of principal contractor, including exercise of supervisory control over
work on project, subcontractor's employee, who received compensation for injuries from
Industrial Commission, was not entitled to recover damages against defendant.
Affirmed.
Jolley, Urga & Wirth, Las Vegas, for Appellants.
Cromer, Barker & Michaelson, and James R. Olson, Las Vegas, for Respondent.
Owner of property who functions as his own principal contractor will be deemed an employer under
Industrial Insurance Act, and such a determination is to be made with regard to particular purposes of Act
and without reference to technical requirements of contract or licensing statutes. NRCP 56; NRS
616.085.
Where uncontroverted facts in record demonstrated that defendant performed function of principal
contractor, including exercise of supervisory control over work on construction project, subcontractor's
employee, who sustained injuries while working at construction site and who received compensation for
those injuries from Industrial Commission, was precluded from recovering damages against defendant.
NRCP 56; NRS 616.085.
OPINION
Per Curiam:
Appellants, Jack and Billie Hosvepian, brought this action for damages resulting from
injuries suffered by Jack Hosvepian at a construction site on the property of respondent.
Hosvepian, whose immediate employer was W. J. Thompson, Inc., received compensation for
those injuries from the Nevada Industrial Commission. Respondent, Hilton Hotels
Corporation, moved for summary judgment, contending that as the principal contractor of its
own construction project, it was insulated from common law liability under the Nevada
Industrial Insurance Act, NRS ch. 616.
1
The district court agreed, granting summary
judgment for respondent and dismissing the complaint of appellants on the merits. NRCP 56.
On appeal, appellants contend that the record fails to demonstrate that respondent had
sufficient control of the project to entitle it to the status of an employer under the NIIA.
2
This contention is without merit.
____________________

1
See particularly, NRS 616.270(3), 616.370(1), and 616.085.

2
Appellants conceded in oral argument that their challenge to the constitutionality of the NIIA has been
conclusively answered by our holding in Cavagnaro v. Statewide Investigations, 94 Nev. 467, P.2d 859 (1978).
[Headnote 1]
The NIIA provides that [s]ubcontractors and their employees shall be deemed to be
employees of the principal contractor. NRS 616.085. Under prior decisions of this court, we
have held that an owner of property who functions as his own principal contractor will be
deemed an employer under the act. Simon Service v. Mitchell, 73 Nev. 9, 307 P.2d 110
(1957); Titanium Metals v. District Court, 76 Nev. 72, 349 P.2d 444 (1960). Such a
determination is to be made with regard to the particular purposes of the NIIA, Antonini v.
Hanna Industries, 94 Nev. 12, 573 P.2d 1184 (1978), and without reference to the technical
requirements of contractor licensing statutes. Simon Service v. Mitchell, supra.
[Headnote 2]
A review of the uncontroverted facts in the record shows that, as in Simon Service and
Titanium Metals, respondent contracted directly with numerous subcontractors, including W.
J. Thompson, Inc. No one of these subcontractors performed more than 20 percent of the
work on the project. Respondent retained, directly or through its authorized agent, general
supervisory control over the progress of work and the purchase of materials. In addition, the
record demonstrates that respondent retained and exercised control of the details of the work.
Appellant Hosvepian himself averred that an employee of the agent of respondent gave direct
instructions to his crew, instructed his foreman as to changes and completely handled all
supervision of the project. See Restatement, Agency (Second) 5 (1958). Cf. Weaver v.
Shell Oil Co., 91 Nev. 324, 535 P.2d 787 (1975); Alsup v. E. T. Legg & Co., 94 Nev. 297,
579 P.2d 769 (1978).
Since uncontroverted facts in the record demonstrate that respondent performed the
function of principal contractor, including the exercise of supervisory control over the work
on the project, respondent was entitled to summary judgment and the decision of the district
court must be affirmed.
____________
94 Nev. 771, 771 (1978) Mercado v. Sheriff
JORGE FRANCO MERCADO, Appellant, v. SHERIFF,
No. 11310
December 20, 1978 587 P.2d 1327
District Court, Clark County; Joseph S. Pavlikowski, Judge.
Petitioner who was indicted for feloniously attempting to buy stolen property filed pretrial
habeas corpus petition claiming that indictment was impermissible and that there was
insufficient proof of value of merchandise for offense to attain felony status. The district
court denied habeas, and petitioner appealed. The Supreme Court held that: (1) where district
attorney was granted permission to refile, it was implicit that neither of notice conditions
precluding refiling of charges were present, and (2) there was evidence that property was
worth more than $100 so as to support charges, despite fact that petitioner did not actually
pay over $100 for the property.
Affirmed.
Bell, Leavitt & Green, Las Vegas, for Appellant.
Robert List, Attorney General, Carson City; George E. Holt, District Attorney, and Ernest
D. Roark, III, Deputy District Attorney, Clark County, for Respondent.
Once a charge is dismissed, it is not true that there are no circumstances that will permit refiling.
Where district attorney is granted permission to refile after initial indictment is dismissed due to
inadvertent impropriety in original grand jury proceeding, it is implicit that dismissal was not caused by
wilful failure to comply with or conscious indifference to important procedural rules, conditions for
preclusion from refiling charges.
Criterion for establishing value where accused is charged with buying stolen property is the fair market
value. NRS 205.275, 208.070.
Fair market value test of establishing value where accused is charged with buying stolen property applies
to an attempt. NRS 205.275, 208.070.
Value of stolen property is factor independent of intent of any individual buyer; rather, it is composite of
value that would be placed on any object by many hypothetical buyers. NRS 205.275, 208.070.
In prosecution for feloniously attempting to buy stolen property, there was evidence to support finding
that property was worth more than $100, despite fact that defendant did not actually pay
over $100 for the property.
$100, despite fact that defendant did not actually pay over $100 for the property. NRS 205.275,
208.070.
OPINION
Per Curiam:
An indictment, filed August 16, 1978, charged that on three (3) separate occasions Jorge
Franco Mercado feloniously attempted to buy stolen property, violations of NRS 205.275 and
NRS 208.070. A prior indictment charging the identical offenses had been dismissed.
A pretrial habeas corpus petition contended (1) the present indictment is impermissible;
and, (2) there was insufficient proof of value of the merchandise for the offenses to attain
felony status. Habeas was denied and Mercado has appealed.
[Headnote 1]
The initial indictment was dismissed because of inadvertent impropriety in the original
grand jury proceeding. The dismissal specifically authorized the district attorney to refile.
Mercado has neither suggested nor shown that he was prejudiced by the fact that the charges
were submitted to the same grand jury which issued the original indictment. Rather, he
erroneously argues that once a charge is dismissed, there are no circumstances that would
permit refiling. This is simply not the law.
[Headnote 2]
1. This court has previously held that where, as here, evidence may be reviewed for
sufficiency, the danger of a prejudiced grand jury is not a problem. Bonnenfant v. State, 86
Nev. 393, 469 P.2d 401 (1970). We have also held that the district attorney is precluded from
refiling charges only where the dismissal was caused by a willful failure to comply with, or a
conscious indifference to, important procedural rules. See McNair v. Sheriff, 89 Nev. 434,
514 P.2d 1175 (1973), and cases cited therein. Here, there are no such circumstances. Where,
as here, the district attorney is granted permission to refile, it is implicit that neither of the
noted conditions are present. Luckett v. Sheriff, 93 Nev. 429, 566 P.2d 1129 (1977).
[Headnotes 3-6]
2. There is evidence that the property was worth more than $100. Mercado argues that
because he did not actually pay over $100 for the property, that the state has failed to
demonstrate the specific intent required to establish a prima facie felony attempt to receive
stolen property. See Darnell v. State, 92 Nev. 680, 558 P.2d 624 (1976). We disagree. The
criterion for establishing value where the accused is charged with buying stolen property is
the fair market value.
stolen property is the fair market value. See Bain v. Sheriff, 88 Nev. 699, 504 P.2d 695
(1972), and cases cited therein. The same test applies to an attempt. Such value is a factor
independent of the intent of any individual buyer; rather, it is the composite of value that
would be placed on any object by many hypothetical buyers. Other courts have carefully
noted that a distinction must be made between the fair market value of property and the value
of property to an individual when making he determination of whether a theft offense is a
misdemeanor or a felony. See, for example, People v. Pena, 135 Cal. Rptr. 602 (Cal.App.
1977), and cases cited therein. Mercado's argument would allow an individual to set the
market value; and, it ignores the realities of the marketplace, particularly the fact that a thief
may often be compelled to sell stolen property at far below its market value. In Pena, cited
above, the court noted that fair market value is the value property would be sold for in the
open market if neither buyer nor seller was under any urgent necessity to either buy or
sell. . . . Id. at 603. Here, the record establishes that the property was sold under duress.
Therefore, the price paid was not the fair market value and cannot be determinative of
whether the offense was a felony or a misdemeanor.
Affirmed.
____________
94 Nev. 773, 773 (1978) Ortega v. Sheriff
ARTHUR RICHARD ORTEGA, Appellant, v. SHERIFF,
No. 11250
December 20, 1978 587 P.2d 1326
Petitioner, who was charged with five counts of robbery, six counts of first-degree
kidnapping and use of a deadly weapon in the commission of each of those offenses, sought
writ of habeas corpus. The district court denied the habeas challenge, and petitioner appealed.
The Supreme Court held that: (1) in a habeas corpus challenge to information court is not
concerned that evidence in record may not support conviction, but (2) kidnapping charges
could not stand.
Morgan D. Harris, Public Defender, and E. David Stoebling, Deputy Public Defender,
94 Nev. 773, 774 (1978) Ortega v. Sheriff
Robert List, Attorney General, Carson City; George E. Holt, District Attorney and H. Leon
Simon, Chief Deputy District Attorney, Clark County, for Respondent.
1. Habeas Corpus.
In a habeas corpus challenge to a criminal information, court is not concerned that evidence in record
may not support conviction.
2. Kidnapping.
Information charging kidnapping could not stand.
OPINION
Per Curiam:
An information charged Arthur Richard Ortega with (1) five counts of robbery (NRS
200.380); (2) six counts of first degree kidnapping (NRS 200.310); and, (3) having used a
deadly weapon in the commission of each of those offenses (NRS 193.165). Ortega petitioned
the district court for a writ of habeas corpus contending, inter alia, that the evidence before
the magistrate does not support the charges. The district judge denied the habeas challenge
and Ortega has appealed.
[Headnote 1]
1. The challenge to the five counts charging robbery with the use of a deadly weapon is
without merit. NRS 171.206. See State v. von Brincken, 86 Nev. 769, 476 P.2d 733 (1970).
See also Robertson v. Sheriff, 85 Nev. 681, 462 P.2d 528 (1969). At this juncture we are not
concerned that the evidence presently in the record may not support a conviction for robbery.
See McDonald v. Sheriff, 89 Nev. 326, 512 P.2d 774 (1973).
[Headnote 2]
2. On the authority of, and for the same reasons stated in, our decision in Wright v. State,
94 Nev. 415, 581 P.2d 442 (1978), the kidnapping charges cannot stand.
Accordingly, the portion of the district court's order denying habeas as to charges of
robbery with the use of a deadly weapon is affirmed. The portion of the order denying habeas
on the kidnapping charges is reversed and the district court is instructed to dismiss those
charges from the information.
____________
94 Nev. 775, 775 (1978) State, Dep't Motor Vehicles v. Stone
STATE OF NEVADA, DEPARTMENT OF MOTOR VEHICLES, Appellant, v. ANN
WILLIAMS STONE, Respondent.
No. 11213
December 20, 1978 587 P.2d 1325
Appeal from judgment, Second Judicial District Court, Washoe County; Grant L. Bowen,
Judge.
The district court reversed decision of hearing officer for Department of Motor Vehicles
who determined that respondent's refusal to submit to a breathalyzer machine test violated
Implied Consent Law and suspended her driving privileges for six months, and Department
appealed. The Supreme Court held that where appellant, alleging unexplained and unexcused
procedural derelictions by respondent, filed and served on respondent a motion to reverse
district court's judgment, and respondent, in addition to her previous omissions, neither
opposed motion to reverse nor tendered any reason for failure to do so, the Supreme Court
would elect to treat respondent's conduct as a confession of error.
Robert List, Attorney General, and Bryan M. Nelson, Deputy Attorney General, Carson
City, for Appellant.
W. H. Tobeler, Reno, for Respondent.
Appeal and Error.
Where appellant, alleging unexplained and unexcused procedural derelictions by respondent, filed and
served on respondent a motion to reverse district court's judgment and respondent, in addition to her
previous omissions, neither opposed motion to reverse nor tendered any reason for her failure to do so, the
Supreme Court would elect to treat respondent's conduct as a confession of error. NRAP 31(c).
OPINION
Per Curiam:
This appeal is from a judgment entered September 5, 1978, reversing the decision of a
Hearing Officer for the Department of Motor Vehicles. The Hearing Officer had determined
that the refusal of Ann Williams Stone to submit to a breathalyzer machine test violated
Nevada's Implied Consent Law. Stone's driving privileges were ordered suspended for a
period of six (6) months.
Appellant, alleging unexplained and unexcused procedural derelictions by respondent has
filed, and served on respondent, a "motion to reverse [the district court's] judgment."
94 Nev. 775, 776 (1978) State, Dep't Motor Vehicles v. Stone
a motion to reverse [the district court's] judgment. In support of the motion, appellant
argues respondent's failure to comply with the Appellate Rules should be treated as a
confession of error under NRAP 31(c), and our decision in Kitchen Factors, Inc. v. Brown, 91
Nev. 308, 535 P.2d 677 (1975). We agree.
In addition to respondent's previous omissions, she has neither opposed the motion to
reverse, nor tendered any reason for her failure to do so. Under these circumstances, we elect
to treat respondent's conduct as a confession of error. See Kitchen Factors, Inc. v. Brown,
cited above.
The judgment in respondent's favor is reversed and the district court is instructed to
dismiss, with prejudice, the petition for review of order of suspension, Ann Williams Stone
filed in the district court May 22, 1978.
____________
94 Nev. 776, 776 (1978) Hynds Plumbing v. Clark Co. Sch. Dist.
HYNDS PLUMBING & HEATING CO., Appellant, v.
CLARK COUNTY SCHOOL DISTRICT, Respondent.
No. 9568
December 26, 1978 587 P.2d 1331
Appeal from order dismissing complaint with prejudice; Eighth Judicial District Court,
Clark County; Thomas J. O'Donnell, Judge.
Subdivider's successor appealed from an order of district court which dismissed with
prejudice his complaint to quiet title to a parcel of land. The Supreme Court, Thompson, J.,
held that complaint, which alleged that school district did not accept dedication of parcel nor
use parcel for purposes intended by dedication in subdivision map, so as to cause reversion,
was sufficient to state claim upon which relief could be granted.
Robert Clive Jones, of Las Vegas, for Appellant.
Robert L. Petroni, of Las Vegas, for Respondent.
When tested by a motion to dismiss for failure to state a claim upon which relief can be granted,
allegations of complaint must be accepted as true. NRCP 12(b)(5).
2. Dedication.
Inscription of word school in recorded subdivision map evidenced owner's intention to dedicate parcel
to school district.
3. Dedication.
A dedication under statute governing dedications of public places within subdivisions is sufficient to vest
a fee for the uses therein named or intended and a fee so vested is a determinable fee simply which may be
continued forever, but is likely to be determined by some future event, such as abandonment or vacation, in
which case title will revert. NCL 1345.
4. Quieting Title.
In quiet title action, complaint of subdivider's successor, which alleged that school district did not accept
dedication of parcel nor use parcel for purposes intended by dedication in subdivision map, so as to cause
reversion to subdivider, was sufficient to state claim upon which relief could be granted. NCRP 12(b)(5);
NCL 1345.
OPINION
This appeal is from an order of the district court dismissing with prejudice the complaint
of Hynds Plumbing & Heating Co., to quiet title to a parcel of land. Hynds is the successor in
interest to C. H. Elstner and Theo M. Elstner who, as owners, recorded a subdivision map or
plat of Elstner Estates Subdivision in which the parcel in issue was designated as school.
It appears from the complaint that the defendant Clark County School District has never
taken possession of, improved, used or exercised dominion over said parcel; that the parcel is
not suitable as a school site since it is located at the north end of runways for the North Las
Vegas Airport; and that the School District never accepted the purported dedication.
Moreover, it is asserted that Clark County has continued to assess said parcel as private
property and that Hynds and its predecessors in interest have, since the filing of said plat, paid
all taxes assessed against that land. Alternatively, it is alleged that, assuming a valid
dedication, title to the parcel reverted to Hynds as successor to the dedicators, since it is not
practicable to use the parcel for school purposes.
[Headnote 1]
When tested by a NRCP 12(b)(5) motion to dismiss for failure to state a claim upon which
relief can be granted the allegations of the complaint must be accepted as true.
Hansen-Neiderhauser v. Nev. Tax Comm'n, 81 Nev. 307, 312, 402 P.2d 480 (1965). For
reasons hereafter expressed we believe that a claim for relief is stated and, therefore, reverse
the dismissal entered below.
The subdivision map or plat of the Elstner Estates Subdivision was recorded in 1953. At
that time statute required a designated school site in every recorded subdivision plan covering
forty or more acres of land.1 The district court ruled that upon recordation of the
subdivision plat the School District became the owner in fee of the parcel in question.
forty or more acres of land.
1
The district court ruled that upon recordation of the subdivision
plat the School District became the owner in fee of the parcel in question. Impliedly, the court
also held that the School District need not accept the dedication, nor utilize the property for
the purposes intended in order to avoid a reversion thereof. Apparently, the district court was
of the opinion that Charleston Plaza, Inc. v. Bd. Educ., 79 Nev. 476, 387 P.2d 99 (1963),
NCL 1342(1) and 1345 were dispositive of all issues tendered by the complaint. We do not
agree.
[Headnote 2]
1. The issue in Charleston Plaza was whether the dedicator by inscribing the words
School Site on the recorded plat evidenced an intention to dedicate. We held that such an
inscription was evidence of an intention to dedicate. Similarly, in the case at hand the
inscription of school on the recorded plat is evidence of an intention to dedicate.
Acceptance of the dedication was found in Charleston Plaza because the recording of the plat
was followed by the sale of a number of lots, occupation of the land by the school district,
and use as a playground for school children. Here, the complaint alleges that the dedication
was not accepted by the school district, nor was the parcel ever used for school purposes. As
already noted, these allegations must be accepted as true when tested by a motion to dismiss
for failure to state a claim upon which relief may be granted.
[Headnotes 3, 4]
2. NCL 1345 was in effect when the plat of the Elstner subdivision was recorded.
2
A
dedication under that statute is sufficient to vest the fee for the uses therein named or
intended. The fee so vested is a determinable fee simple which may be continued forever,
but is likely to be determined by some future event, such as abandonment or vacation, in
which case title shall revert. Peterson v. City of Reno, 84 Nev. 60, 436 P.2d 417 {196S).
____________________

1
NCL 1342(1): . . ., and every map or plat of ground so laid out shall, if it covers forty or more acres of
land, show one block for every quarter-section of land in the parcel of ground so mapped or platted, and the
block so designated upon the map shall be forever devoted and dedicated to the uses of the public school system
of the district in which it is located; provided, that whenever any such dedicated lands shall become unsuitable,
undesirable or impractical for any school uses or purposes, the school board of the particular district shall
proceed to appraise such lands and offer the same for sale. . . .

2
NCL 1345: Such maps and plats when made, acknowledged, filed and recorded with the county recorder,
shall be a dedication of all such avenues, streets, lanes, alleys, commons, or other public places or blocks, and
sufficient to vest the fee of such parcels of land as are therein expressed, named, or intended, for public uses for
the inhabitants of such town and for the public for the uses therein named or intended.
P.2d 417 (1968). One contention of the plaintiff-appellant is that the parcel reverted since the
School District has never used it for the purposes intended.
Accordingly, we conclude that the district court erred in dismissing the complaint, and
remand for further proceedings below.
Batjer, C. J., and Mowbray and Manoukian, JJ., and Zenoff, S. J.,
3
concur.
____________________

3
The Chief Justice designated Hon. David Zenoff, Senior Justice, to sit in this case in place of the Hon. E. M.
Gunderson, Justice, who was disqualified. Nev. Const. art. 6, 19; SCR 243.
____________
94 Nev. 779, 779 (1978) Number One Rent-A-Car v. Ramada Inns
NUMBER ONE RENT-A-CAR, a Nevada Corporation, Appellant, v. RAMADA INNS,
INC., a Delaware Corporation; ECONO-CAR OF LAS VEGAS; and TRANS WORLD
AIRLINES, INC., a Foreign Corporation, Respondents.
No. 9807
December 26, 1978 587 P.2d 1329
Appeal from order dissolving temporary restraining order, Eighth Judicial District Court,
Clark County; Howard W. Babcock, Judge.
In action for declaratory and preliminary injunctive relief, a temporary restraining order
was dissolved by the district court and plaintiff appealed. The Supreme Court held that
plaintiff, which had not alleged that it had performed all terms, covenants and conditions of
an agreement on its part, failed to show, for such reason and for other reasons, that it was
likely to prevail on the merits, and thus denial of preliminary injunctive relief was not an
abuse of discretion.
Affirmed.
Allan D. Bray, Las Vegas, for Appellant.
John Peter Lee, Ltd., and James C. Mahan, Las Vegas, for Respondent Ramada Inns, Inc.
Thorndal, Gentner, Backus, Lyles and Maupin, Ltd., Las Vegas, for Respondent Trans
World Airlines, Inc.
1. Injunction.
Preliminary injunction to preserve status quo is normally available upon showing that party
seeking it enjoys reasonable probability of success on merits and that defendant's
conduct, if allowed to continue, will result in irreparable harm for which
compensatory damages is inadequate remedy.
upon showing that party seeking it enjoys reasonable probability of success on merits and that defendant's
conduct, if allowed to continue, will result in irreparable harm for which compensatory damages is
inadequate remedy.
2. Injunction.
Plaintiff which had not alleged that it had performed all terms, covenants and conditions of agreement on
its part failed to show, for such reason and for other reasons, that it was likely to prevail on merits, and thus
denial of preliminary injunctive relief was not abuse of discretion.
OPINION
Per Curiam:
In December, 1974, the parties entered an exclusive licensing agreement whereby
appellant acquired the right to provide car rental services to Ramada customers in Las Vegas.
Pursuant to a contract between Ramada and TWA, purchasers of TWA package tours were
referred to appellant by Ramada for rental vehicles. In this manner, nearly two-thirds of
appellant's business was derived from TWA customers. Disputes arose as to payment of
certain licensing fees and Ramada instructed its customers, including TWA referrals, that
effective January 1, 1977, Econo-Car would henceforth be its car rental agent.
On December 30, 1976, Number One obtained an ex parte temporary restraining order
prohibiting respondents from any violation of its licensing agreement. Thereafter, on January
3, 1977, appellant filed its complaint for declaratory and permanent injunctive relief. Ramada
answered, alleging appellant's license had been revoked for failure to pay the licensing fees.
Accordingly, Ramada counterclaimed for damages.
TWA answered the complaint and moved to dissolve the temporary restraining order on
the grounds that no contractual relations existed between it and appellant and that in any
event, appellant has an adequate remedy at law. The district judge granted respondents'
motion to dissolve the temporary restraining order. Complaining the trial judge abused his
discretion by denying the equitable relief, Number One perfected this appeal.
As the grant or denial of a preliminary injunction is a question addressed to the discretion
of the district court, our task on appeal is to search the record to determine whether the lower
court exceeded the permissible bounds of judicial discretion. Nevada Escrow Service, Inc. v.
Crockett, 91 Nev. 201, 533 P.2d 471 (1975), and cases cited therein.
[Headnote 1]
A preliminary injunction to preserve the status quo is normally available upon a showing
that the party seeking it enjoys a reasonable probability of success on the merits and that the
defendant's conduct, if allowed to continue, will result in irreparable harm for which
compensatory damages is an inadequate remedy.
defendant's conduct, if allowed to continue, will result in irreparable harm for which
compensatory damages is an inadequate remedy. Memory Gardens v. Pet Ponderosa, 88 Nev.
1, 492 P.2d 123 (1972).
[Headnote 2]
In the instant case, we cannot say that the trial court abused its discretion as a matter of
law. First, money damages is an adequate remedy for the vindication of appellant's right.
Even if the substitution of Econo-Car as Ramada's licensee should force appellant into
bankruptcy, the trustee could bring the damages suit in its behalf. Second, Number One has
not alleged that it has performed all the terms, covenants and conditions of the agreement on
its part. Thus, it has not shown that it is reasonably likely to succeed on the merits. See Life of
the Land v. Ariyoshi, 577 P.2d 1116 (Hawaii 1978); Alaska Pub. Util. C. v. Greater
Anchorage A. Bor., 534 P.2d 549 (Alaska 1975); Continental Baking Company v. Katz, 439
P.2d 889 (Cal. 1968). Indeed, appellant has admitted that it has not paid the required $100.00
licensing fee for some of the cars in its fleet.
Finally, appellant has failed to state any theory by which it would be entitled to relief
against TWA or Econo-Car. The contract between Ramada and TWA did not create the rights
of a third party beneficiary in appellant. See Olson v. Iacometti, 91 Nev. 241, 533 P.2d 1360
(1975). Neither has appellant shown any wrongdoing on the part of Econo-Car.
The trial court properly denied appellant's motion for preliminary injunctive relief.
Accordingly, we affirm.
1

____________________

1
The Chief Justice designated Hon. David Zenoff, Senior Justice, to sit in this case in place of the Hon. John
Mowbray, Justice, who was disqualified. Nev. Const. art. 6, 19; SCR 243.
____________

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