dissenting:
I cannot endorse the rationale through which my brethren here absolve Summa Corporation from paying punitive damages for its misconduct, as ascertained by the respected trial judge.
I note that the majority opinion explicitly recognizes two salient facts. First, my brethren say: “The trial testimony . . . clearly and definitely established the terms of the oral agreement [between Summa and the Greenspuns].” From this, it follows that the doctrine of part performance could be applied, and that the Statute of Frauds therefore constituted no absolute bar to the judgment on appeal. It also appears Summa ignored its clear and definite obligations to the Greenspuns.
Second, my colleagues acknowledge the Greenspuns were both willing and able to perform their part of the bargain breached by Summa. In other words, no default by the Green-spuns excused Summa.
*258My colleagues say, however, that Summa Corporation is no longer liable for punitive damages, because its agent, who acted maliciously on its behalf, has died. The only authority my respected colleagues have cited to support this result, i.e. Allen v. Anderson, 93 Nev. 204, 562 P.2d 487 (1977), does not in fact do so. True, in Allen v. Anderson, we held that an action for punitive damages does not survive the tortfeasor. Thus, we said, punitive damages may neither be recovered from the tortfeasor’s estate, nor from one who, as a family member owning the car driven by the decedent, is made vicariously liable by NRS 41.440 for the tortfeasor’s misconduct. In the instant case, Summa Corporation remains very much alive, and here has been called to account for tortious conduct committed for Summa’s benefit, in regard to Summa’s own obligations.
Neither can I endorse any suggestion that Summa is immune from punitive damages because, by its invasions of the Green-spuns’ property interests, Summa repudiated contractual obligations to the Greenspuns. The fact remains that Summa’s misconduct constituted a direct infringement of the Green-spuns’ vested rights in real property. Summa had a legal duty not to act in regard to the Greenspuns’ property, except in strict accord with its own contractual rights. The Greenspuns’ action based on Summa’s misconduct therefore clearly was “for the breach of an obligation not arising from contract.” NRS 42.010.
Because the trial court could properly find Summa’s misconduct to have been maliciously motivated, Summa’s actions therefore fall within the ambit of Nevada’s punitive damage statute. I would, thus, alfirm the trial court in all respects.