Document 5bvyXZL27ea6eq4NKgz0B4ObN

Siili JNE8 > JONES/ GLOS fi BROWN, CHARTERED v;S.xr;..::-i. '> ` - `` '= " :.v;1*:V-. ;i> >; :*Vk..::: - : ' 385^-4202:;:i i*" MESSAGE FROM PANAFAX UF-250: (7021 384-2276 DATE: February 8, 1991 TOS Mr. Paul Merrell 1. AT FAX # (503) 528-7151 2. Bus. phone: (503) 528-7151 AT FAX # Bus. phone: 3. AT FAX # Bus. phone: 4. AT FAX # Bus. phone: FROM: Charles H. McCrea, Sr. CLIENT/MATTER: Nevada Power v. Monsanto CLIENT/MATTER NO. S 11927.2 NUMBER OF PAGES (including cover page): 3 COMMENTS S IF YOU DO NOT RECEIVE ALL OF THIS TRANSMISSION, please call (702) 385-4202 and ask for: Dale February 8, 1991 Paul : In reviewing the February 7 draft just faxed to you, my nagging dissatisfaction with the opening section finally stimulated a response, which I have inserted on page 1. It may not be the final answer, but it. seems to me to have a little more cohesiveness. I do not fully understand the second paragraph; our indemnity claims is valid independent of defendants' fraud and I think it's important to assert this position vigorously. Please think about these changes and massage them in compiling your comments. Carol knows that the bottom margin is just a little too short on some of the pages and is fixing it. Chuck (SL /o M /t/j fe z 6$ y rsi y^O >ud /V)/S rsjorrs&t* la-// **<./ /^r/ut* /p U J & r * ('/nr-J C b s u / j j DISCUSSION 7a J r/ t < e/ * ^ t * < / y - A--- ~ The record in this case shows beyond dispute that defendants (i) are guilty of fraudulent misrepresentation at the time of sale and purchase of their defective PCB-laden equipment, and (ii) actively concealed their fraud, which was not discovered by innocent Nevada Power until 1988. See Def. Br. pg. 23 n. 23 (assuming "assertions concerning the Defendants' knowledge are true"). Defendants do not contend that Nevada Power had actual knowledge before 1988 of their fraudulent sales and their successful concealment of the fraud. Nor can it be said as a matter of law that Nevada Power constructively should have known of defendants' fraudulent sales prior to 1988. . ,, f -/Ao*k n0 / o l/ct ff ci fa*/ 02./+ * J fraud) j z*-- ^&rT Nevada Power's indemnity claim/v^-as^-on -the statute-- el- /j s*/ y 7 t/ i/e /f* a / 'etc / u <->? ^ c -irimitat-ierre-issngpdefendants seek evade-the real-i^sue-of--tlHrS ca s -- wh ieh-4 s-1h e it- fraud. Defendants' brief, like the District Court's opinion below, is premised on legal principles applicable, if anywhere, only outside the forum state of Nevada.1 Under nevada law, a trial is required. A. PRINCIPLES OF DECISION. Defendants address summary judgment's purposes but not its standard. The question before this Court is "whether a jury could reasonably have found that 1 Nevada Power lacks space to itemize a response to each of the 78 case decisions defendants were able to cite. By disregarding FRAP 32(a), they crammed their brief with 51 footnotes, many lengthy, all set inj-ainali type. Westinghouse Elec. Coro, v. NLRB. 809 F-.2d 419, 425 (7th Cir. 1987) (wrong type size in footnotes); Adriana International Corp. v. Thoeren. 913 F.2d 1406, 1417 (9th Cir. 1990)(incorrect line spacing; Anderson v. Aloha Portland Industries. 836 F.2d 1512, 1521 (9th Cir. 1988) (excess footnotes); Flemming v. County of Kane. 855 F.2d 496 (7th Cir. 1988) (general discussion). Because of the volume of defendants' citations, Nevada Power distinguishes defendants' legal theories, and does not catalogue the accompanying citations. 1