Brion v. Union Plaza Corp.

• Decision Date: 24 October 1988
• Docket Number: No. 18302,18302
• Citation: 763 P.2d 64,104 Nev. 553
• Parties: Larry BRION and Barbara Brion, Appellants, v. UNION PLAZA CORPORATION, dba Union Plaza Hotel and Casino, and Sierra Elevator Company, Respondents.
• Court: Nevada Supreme Court

Page 64

763 P.2d 64

104 Nev. 553

Larry BRION and Barbara Brion, Appellants, v. UNION PLAZA CORPORATION, dba Union Plaza Hotel and Casino and Sierra Elevator Company, Respondents.

No. 18302.

Supreme Court of Nevada.

Oct. 24, 1988.

[104 Nev. 554] John E. Kelly and John E. Stone, Las Vegas, for appellants,

Beckley, Singleton, DeLanoy, Jemison & List and Daniel F. Polsenberg, Las Vegas, for respondent Union Plaza.

OPINION

PER CURIAM:

This is an appeal from an order of the district court, dismissing appellants' lawsuit. For the reasons expressed in this opinion, we affirm the decision as to respondent Union Plaza Corporation (Union Plaza), but reverse as to the second respondent, Sierra Elevator Company.

Larry and Barbara Brion filed their suit against Union Plaza and Sierra Elevator Company to recover damages for injuries sustained in an elevator accident at the Union Plaza Hotel and Casino on January 19, 1985. Union Plaza was served with a summons and complaint on January 20, 1987, and responded by making a demand for a nonresident cost bond on February 6, 1987. NRS 18.130. Appellants did not post the required bond until April 15, 1987, 68 days after the demand was made.

NRS 18.130(4) provides that the court may dismiss the action if the cost bond is not posted within 30 days from the date of the demand. We have held that if such a dismissal is granted, the decision will not be overturned absent an abuse of the court's discretion. Borders Electronic Co. v. Quirk, 97 Nev. 205, 626 P.2d 266 (1981). Appellants did not request an extension of time to post the bond. Union Plaza's motion to dismiss was unopposed, and appellants failed to advise the district court that the bond had been posted before the grant of the dismissal was entered. Appellants did not misunderstand the bond requirement; they simply failed to file it within 30 days. This lapse does not suffice to justify a reversal of the district court's decision. Id. at 207, 626 P.2d at 267.

The order entered by the district court is ambiguous because it does not specifically dismiss appellant's case against Sierra Elevator Company. We note, however, that Union Plaza's motion requested that the suit be dismissed in its entirety. The same request was made during oral argument to this court.

In our opinion, such a result would be unfair to the appellants and would grant an unwarranted benefit to Sierra Elevator Company. The requirement of a cost bond is a statutory right which must be properly invoked by each defendant. Dismissal of one defendant on this ground does not...