Carstarphen v. Milsner

• Decision Date: 01 March 2012
• Docket Number: No. 51631.,51631.
• Citation: 128 Nev. Adv. Op. 5,270 P.3d 1251
• Parties: John CARSTARPHEN, Appellant, v. Richard L. MILSNER, as a Shareholder and Treasurer of American Medflight, Inc., Respondent.
• Court: Nevada Supreme Court

128 Nev. Adv. Op. 5

270 P.3d 1251

John CARSTARPHEN, Appellant,

v.Richard L. MILSNER, as a Shareholder and Treasurer of American Medflight, Inc., Respondent.

No. 51631.

Supreme Court of Nevada.

March 1, 2012.

King & Russo, Ltd., and J. Scott Russo and Patrick O. King, Minden, for Appellant.

Richard G. Hill, Chartered, and Richard G. Hill and LaRee L. Beck, Reno, for Respondent.

Before the Court En Banc.

OPINION

By the Court, CHERRY, J.:

In this appeal, we address the factors that the district court must consider when determining whether to grant or deny a motion for a preferential trial date to avoid the expiration of NRCP 41(e)'s five-year period. We conclude that, in accordance with our decision in Monroe, Ltd. v. Central Telephone Co., 91 Nev. 450, 456, 538 P.2d 152, 156 (1975), when evaluating such a motion, the district court must consider the time remaining in the five-year period when the motion is filed and the diligence of the moving party and his or her counsel in prosecuting the case. Here, appellant brought his motion for a preferential trial date with more than three months remaining in the five-year period and demonstrated sufficient diligence in prosecuting his case so that it was an abuse of discretion for the district court to deny the motion. Accordingly, we reverse the interlocutory order denying the preferential trial date motion, and, as a result, we further reverse the subsequent order dismissing the complaint under NRCP 41(e). Since the five-year period had expired at the time the complaint was dismissed on that basis, however, we must determine how much time appellant should have, on remand, to bring his case to trial. As this court's body of jurisprudence contains competing lines of precedent with regard to the time a plaintiff has to bring a case to trial, after the reversal and remand of an erroneous judgment or dismissal entered before the commencement of trial, in order to avoid dismissal under NRCP 41(e), we take this opportunity to clarify our precedent addressing this issue and hold that a plaintiff has three years from the date the remittitur is filed in the district court to bring his or her case to trial.

BACKGROUND

NRCP 41(e)'s five-year rule provides that a district court shall dismiss an action not brought to trial within five years of the date on which the plaintiff filed the action, unless the parties stipulate, in writing, that the time for bringing the action to trial may be extended. Here, on August 13, 2007, with less than seven months left in the five-year period, the parties held a status conference during which they stipulated to vacate an October 15, 2007, trial date and stay all discovery and motion practice until further stipulation of the parties or order of the court, in anticipation of settlement negotiations. In accordance with the stipulation, the October trial date was vacated and trial of the matter was reset for May 12, 2008, beyond the expiration date of the five-year period. The district court subsequently entered a written order memorializing the parties' stipulation and the new trial date. No mention of the running of the NRCP 41(e) period was made either at the status conference or in the district court's order.

Appellant, the plaintiff below, was subsequently unable to obtain an agreement to extend the five-year period up to the scheduled trial date. As a result, the district court was ultimately presented with competing motions by appellant that sought to either confirm that the parties' stipulation at the status conference and the order entered thereon acted to toll or extend the five-year period or obtain a preferential trial date before the expiration of the NRCP 41(e) period. Respondent opposed both motions. The district court denied the preferential trial motion, without explanation, and instead granted the motion to confirm that the five-year rule had been tolled or extended. In granting the motion, the district court concluded that “[d]efendants, by stipulating to vacate the October trial date and agreeing to set trial in May 2008, implicitly agreed to extend the five-year rule of NRCP 41(e).”

Despite the grant of appellant's motion to confirm the extension of the five-year rule, on March 5, 2008, shortly after the five-year anniversary of the filing of appellant's complaint, respondent moved the district court to dismiss the action based on appellant's failure to bring the case to trial within five years. Respondent argued that the district court had improperly concluded that an implicit agreement to extend the five-year rule existed. Because the parties' stipulation to reschedule the trial date, as reflected in the transcript of the status conference, made no mention of the five-year period, respondent asserted that no stipulation to extend the period had been made, and thus, the district court was required to dismiss the case pursuant to NRCP 41(e). After full briefing of respondent's motion, the district court entered an order granting the motion and dismissing the underlying case. Finding that the stipulation was in fact silent on the five-year period, the district court concluded that the stipulation was insufficient to toll or extend the running of that period. It further found that “its order [confirming the extension of the five-year period] was ineffective, as it was based upon an error of law.” This appeal followed.

On appeal, appellant primarily argues that the district court's denial of his motion for a preferential trial date was improper, and as a result, the dismissal of his case under the five-year rule should be reversed. Respondent disagrees. Based on the reasoning set forth below, we agree with appellant's contention and therefore reverse the denial of the preferential trial date motion and the resulting dismissal of the case under NRCP 41(e), and we remand the matter to the district court for further proceedings consistent with this opinion.

DISCUSSION

In dismissing the underlying action based on appellant's failure to bring the case to trial within the five-year period, the district court concluded that its order confirming the extension of the NRCP 41(e) period was “ineffective” and “based upon an error of law.” We agree with the district court's conclusion. Indeed, the district court's finding of an implied agreement to toll or extend the NRCP 41(e) period ignored both the plain language of the rule and this court's long-standing authority. See NRCP 41(e) (requiring dismissal for failure to bring a matter to trial within five years of filing the complaint “except where the parties have stipulated in writing that the time may be extended”); see also Prostack v. Lowden, 96 Nev. 230, 231, 606 P.2d 1099, 1099–1100 (1980) (recognizing that “an oral stipulation, entered into in open court, approved by the judge, and spread upon the minutes, is the equivalent of a written stipulation,” but declining to find any agreement to extend the five-year period where the stipulation “was silent as to the expiration of the five year limit, and the judge who heard the motion was not made aware of the problem”); Flintkote Co. v. Interstate Equip. Corp., 93 Nev. 597, 571 P.2d 815 (1977) (rejecting an argument that the parties' stipulation contained an implied waiver of the five-year rule and noting that NRCP 41(e) requires any such stipulation to be in writing); Thran v. District Court, 79 Nev. 176, 181, 380 P.2d 297, 300 (1963) (concluding that “[w]ords and conduct, short of a written stipulation” cannot estop a defendant from seeking dismissal pursuant to the five-year rule). Regardless of whether the infirmity of the implied waiver conclusion was brought to the district court's attention in the course of its consideration of the motion to confirm the extension or that the five-year period had been tolled, the district court should have been aware that no implied waiver could be found and rejected the motion accordingly.

Further compounding its error in granting the motion to confirm the extension of the NRCP 41(e) period, the district court summarily denied appellant's preferential trial motion, ostensibly based on its conclusion that the parties had stipulated to extend the five-year period.¹ In reaching this conclusion, the district court failed to weigh the relevant considerations set forth in Monroe, Ltd. v. Central Telephone Co., 91 Nev. 450, 456, 538 P.2d 152, 156 (1975), for evaluating a motion for a preferential trial date brought to avoid dismissal under NRCP 41(e)'s five-year rule, and thus, we conclude that the denial of appellant's motion was an abuse of discretion. Monroe, 91 Nev. at 456, 538 P.2d at 156 (“Setting trial dates and other matters done in the arrangement of a trial court's calendar is within the discretion of that court, and in the absence of arbitrary conduct will not be interfered with by this court.”).

In Monroe, this court rejected appellant's argument that the district court improperly denied a motion for a preferential trial setting brought to avoid the running of the NRCP 41(e) period. Id. There, the plaintiff brought the preferential trial date motion less than three weeks before the five-year period expired and, with the exception of the dismissal of one defendant based on a settlement shortly after the complaint was filed, nothing took place in the district court until a “note for trial docket” was filed by the plaintiff four years and eleven months after the date the complaint was filed. Id. at 452, 538 P.2d at 153. In concluding that no abuse of discretion occurred in denying the preferential trial motion, the Monroe court emphasized the fact that appellant had delayed filing its application until “just before dismissal would have been required under NRCP 41(e).” Id. at 456, 538 P.2d at 156. The court further held that the diligence required on the part of appellant and its counsel was not reflected in the record, noting that “[n]o valid reason or explanation was given for...