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Olivero v. Love3/24/2000
Companion appeals in connection with a judgment awarding compensatory and punitive damages entered following a bench trial on claims of assault, battery, and intentional infliction of emotional distress. Eighth Judicial District Court, Clark County; Jack Lehman, Judge.
Affirmed in part, reversed in part and remanded.
Peccole & Peccole, Las Vegas, for Appellant/Respondent Olivero.
Law Offices of Robert A. Nersesian, Las Vegas, for Respondent/Appellant Lowe.
OPINION
Montgomery Lowe filed suit in district court against Robert Louis Olivero, alleging separate causes of action for assault, battery, and intentional infliction of emotional distress. Following a bench trial, the district court awarded Lowe compensatory damages totaling $10,000.00, and imposed punitive damages in the amount of $45,000.00. On appeal, in Docket No. 32485, Olivero seeks reversal on several grounds: 1) failure of predicate proof to substantiate any award of compensatory damages; 2) improper review by the district court of companion criminal proceedings; 3) refusal by the district court to allow closing argument; 4) Lowe's failure to serve a trial memorandum submitted to the trial judge per EDCR 7.27; and 5) improper imposition of punitive damages. In Docket No. 32753, Lowe appeals from the district court's order denying attorney's fees under Nevada Arbitration Rule (NAR) 20 and NRCP 37(c).
FACTS
On July 10, 1994, Olivero appeared at a construction site where he was building a home. Olivero confronted Lowe, a laborer on the project, about the fact that construction was behind schedule. Without apparent provocation, Olivero brandished a handgun and punched Lowe in the face. According to Lowe, Olivero then pointed the weapon at Lowe's head, threatened to take Lowe's life, and forced Lowe to dismantle a portion of the completed work.
Lowe claimed at trial that he experienced pain and suffering, contusions and emotional distress as a result of the physical battery upon him. Additionally, Lowe claimed severe emotional distress as a result of the assault with the handgun, and being forced to perform labor under threat to his life. Lowe sought no medical or psychological treatment for the physical and emotional damages claimed in connection with the subject incident.
Both parties participated in court annexed arbitration proceedings. After the arbitrator awarded Lowe $3,500.00, Olivero requested a trial de novo in district court. See NAR 18 and 20.
Following a bench trial, the district court entered findings of fact and conclusions of law, inter alia, that Olivero had committed the torts of battery, assault, and intentional infliction of emotional distress. The district court awarded $5,000.00 on the battery claim, and $5,000.00 in connection with the assault. No additional damages were awarded on the separate claim of intentional infliction of emotional distress on the theory that the damages stemming from that claim were included within the assault and battery awards. The district court also imposed punitive and exemplary damages in the amount of $45,000.00, finding that Olivero had acted with malice and oppression.
DISCUSSION
Docket No. 32485
Compensatory damages
Olivero contends that Lowe failed to present sufficient evidence upon which to base an award of compensatory damages. He places primary reliance on our decision in Barmettler v. Reno Air, Inc., 114 Nev. 441, 956 P.2d 1382 (1998), in which we expanded on our prior decisions discussing independent claims of emotional distress. In Barmettler, we observed:
"To establish a cause of
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