*1
667
(1961);
Matthews, 77 Nev.
365
Corp.
242,
Affirmed. JJ., con- J., Zenoff, Batjer, C. Mowbray,
Collins, cur. By KAMINSKI, Minor,
STEVEN Ad His Guardian and STANLEY J. Litem, STANLEY KAMINSKI J. KAMINSKI, Appellants, W. WOOD v. CLARE ROBISON, BURY, CANNON, HELEN DELL H. C. TAYLOR, WILKINSON, C. GLEN C. GEORGE W. MACKIE, as the BROWN and ALICK DONALD J. Board of School Trustees Clark BERGMAN; MELVIN District; School Repondents. DISTRICT, CLARK COUNTY SCHOOL No. 5827 462 P.2d December *2 Thompson, of Wiener, & and 7. Charles Goldwater Galatz Vegas, Appellants. Las for Barker, Melvin and Cromer Vegas, Respondent Las for Morris, Bell and Vegas, Respondent for of Las
Bergman; dark School District. County
OPINION Court, Batjer, the J.: By attending high an industrial class at a junior
While arts 9, Vegas, 1967, on May school in Las Steven Kamin- ski, bowl, the suffered when a appellants, injuries one of lathe, turned, on a the and being was broke lathe away the the injury charge struck him. At time instructor Bergman. Bergman’s immediate supe- class was Melvin were informed of the accident system shortly riors in the school 17, that on after it It is uncontradicted October happened. 1967, a notice of to Howard E. appellants mailed Barrett, of Administration and Ex-Officio Clerk of Director Examiners, the State Board on the same filed a day and of Clark claim with the Board of Commissioners County 29, 1967, Nevada. On November some six months accident, served a after twenty days appellants Brown, a Board notice of claim on C. D. member of the A Trustees of Clark School District. claim the County rejected Clark on October appellants by County the school district on 1968. January 16, 1968, On filed a for April complaint damages against the Board of personal injury Trustees of the Clark School On Bergman. District Melvin June judg- moved for a respondents thereafter, ment. Sometime the trial court entered its order granting judgment to both the board of trustees and *3 however, Bergman, to Melvin a motion upon for reconsidera- tion, the to summary judgment granted order for previously Bergman gives Melvin was the court Although vacated. trial no the specific granting judgment reason for the to summary district, school grounds it is that was the that presumed upon it the notice of claim was filed in accordance with timely not granting NRS 41.036.1 This taken from the appeal is summary judgment. brought 1NRS 41.036: “1. No action be under 41.031 shall NRS against complying requirements a without with the of NRS 244.255, inclusive, against city complying 244.245 or a to without with 268.020, requirements against unincorporated the of NRS or an town 269.085, against complying provisions without with the of NRS or the any agency political state or or the other subdivision of state without complying requirements with the of 3 of section. subsection or this Every against arising “2. claim the state out of contract shall be 353.100,
presented provisions in accordance with the of NRS 353.085 to inclusive, every provisions claim for refund accordance the with 353.125, Every against of NRS 353.110 other claim the to inclusive. any agencies presented state or of its shall be to the ex officio clerk of the state board of examiners within 6 months from the time the cause days of action shall within 10 refer each such claim the accrues. He to appropriate agency, investigation report state office or officer for of findings may brought to the board. No action be unless the board approve days upon to or within to the claim. refuses fails act Every against any political “3. claim other the subdivision of state presented, the of action shall be within 6 months from time the cause accrues, governing body political to the action of that subdivision. No may brought governing body approve or be unless the refuses to fails days within 90 to act the claim.” a erred as matter that the trial court contend appellants the dis- to school granted judgment when of law agree. We trict. of filing that to alleged prior (appellants)
The plaintiffs claim, Revised to the Nevada pursuant notice of complaint, Statutes, the defendant board of trustees. served upon was duly that deny board trustees respondent In their answer defense, “the allege, plain- as an allegation affirmative with the statutes regulatory failed to meet and comply tiffs have the defendants and therefore waiving sovereign immunity filing to precedent have failed to meet with conditions ,” motion for this action. . . and in their gov- a to the alleged that had failed to present “plaintiffs Nevada School erning of the defendant Clark body District, within of the State of political subdivision (6) accrued as alleged cause of action six months after the by statute.” required Brown, member of the board of
The affidavit of C. Donald trustees, on behalf of the states that he was served merely claim. 1967, with a notice of appellants on November district, dated the school The letter January to the and the attached thereto advised document appellants, Steven Kaminski that the claim on behalf of was denied. It does not indicate when the claim was received Nothing or if more than one claim had been received. affidavits, offered in the depositions nature of or exhibits go would that a notice of claim on behalf of the prove appel- (6) lants was not the board of within six trustees presented months of the accrual of their cause of action. hand, Thompson, the affidavit J. Charles the other On alleges that on October
given appellants, on behalf of Barrett, clerk of the to Howard E. ex-officio he mailed examiners, a notice claim. The law requires board of state state appropriate ex-officio clerk refer the claim to that the *4 or officer. office agency, school of trustees of a district is
Although board that is reasonable agency, presumption a state not 52.070), (NRS the notice of claim ex-officio clerk received he board of that referred it to the and a reasonable inference trustees. appellants’ the board of trustees received
Whether 1967, fact 9, is an important question before November be sus- judgment be decided before can summary which must question. silent on this tained. The record is that the of claim be timely NRS 41.036 notice only requires
671
as to
requirement
and
not make any specific
does
‘presented’
made.
how
whom the
is to be
presentation
or by
should
hearing
the motion for The court
against whom it
favorable to the party
view the evidence most
directed,
doubt
his
resolving
and
all
giving
weight
is
it full
all favorable infer-
giving
favor and
the benefit of
party
to
facts
subsidiary
ences that
be drawn from the
may reasonably
on file.
affidavits,
in the
exhibits and depositions
contained
Petricciani,
427,
(1954);
Parman v.
70 Nev.
272
94,
(1963);
Riviera, Inc.,
P.2d
Short v. Hotel
79 Nev.
378
979
(1962);Ramsouer
Diebold, Inc.,
United States
An examination most favorable record in that inferences contrary leads us to believe those drawn the trial court are permissible.
Should it
that the board
develop
of trustees did in fact
receive
appellants’ claim from H. E. Barrett or the board
of county commissioners of Clark
on or before
November
then there is substantial
with
compliance
NRS
State,
41.036.
v.
Rogers
85 Nev.
The order the trial court is reversed the case is remanded for further consideration of the respondents’ motion judgment with full for all opportunity parties to establish whether not or the board of trustees of the Clark School District was presented with the appellants’ notice of claim on or before November 1967. JJ., concur. Mowbray,
Zenoff J., J., agrees, whom C. with dissent- Thompson, Collins, ing: 41.036(1) (3) of NRS were requirements relevant does not reflect that not met. The record the plaintiffs presented of the school district or to one governing body a claim State, P.2d 85 Nev. Rogers of its members [cf. (1969)] six from the time cause within months their *5 that the claim to the Indeed, shows accrued. the record action of claims late. The presentation school district was presented act them are powerless boards who to state substantial description, be any cannot deemed compliance such infer claims permissible or otherwise. Neither is it governing those boards to have been may forwarded right to one’s precondition of the school district since body be Summary must be It is inferred. to sue shown to exist. not to proper. EISENTRAGER, THOMAS A. STATE Petitioner, Respondent. COMMISSIONERS, BOARD OF PAROLE
No.
December Manoukian, Manoukian and for City, Carson Petitioner. Groves, Dickerson, Harvey General, A. Robert Attorney General, Attorney of Carson Deputy City, Respondent.