Erickson v. One Thirty-Three, Inc., and Associates

• Decision Date: 30 December 1988
• Docket Number: INC,THIRTY-THRE,No. 18455,18455
• Citation: 766 P.2d 898,104 Nev. 755
• Parties: Ronald ERICKSON, Appellant, v. ONE, AND ASSOCIATES, Respondent.
• Court: Nevada Supreme Court

Page 898

766 P.2d 898

104 Nev. 755

Ronald ERICKSON, Appellant, v. ONE THIRTY-THREE, INC., AND ASSOCIATES, Respondent.

No. 18455.

Supreme Court of Nevada.

Dec. 30, 1988.

D. Michael Clasen, Reno, for appellant.

Hill, Cassas, de Lipkau and Erwin, Reno, for respondent.

OPINION

PER CURIAM:

This is an appeal from a grant of summary judgment by the district court in favor of the respondent. We conclude the district court erred, and therefore reverse its judgment.

The underlying cause of this litigation occurred on December 13, 1980 at the Onslow Hotel and Casino, owned by the respondent. Ronald Erickson, the Onslow's general manager, became involved in a physical confrontation with a patron of the casino, James Jones. Erickson notified the Onslow's security department, and shortly thereafter two guards took charge of the situation and directed Jones into one of the casino's back rooms. Apparently a third guard also participated in the detention of Jones, which finally resulted in his arrest. Erickson asserts he was not involved in the treatment of Jones after the arrival of the guards, other than briefly visiting the back room some five to ten minutes later.

Jones sued the Onslow and Erickson for battery and false imprisonment. None of the three guards were named in the lawsuit. Jones won a judgment of $5,000 in compensatory damages and $25,000 in punitive damages. Respondent's insurance company paid the compensatory damages, but refused to pay the punitive damages because they were not covered by the Onslow's policy. Respondent therefore paid the punitive damages award of $25,000.

Shortly after Jones filed suit, the Onslow answered his complaint and asserted a cross-claim against Erickson for indemnity. This cross-claim was voluntarily dismissed by the respondent on June 9, 1982. Erickson was not served with either the cross-claim or the dismissal. In fact, after dismissing its cross-claim, the Onslow volunteered to provide Erickson with legal representation during the trial. Erickson was not aware of the Onslow's intent to sue him for indemnity until five months after the jury reached a verdict, when he was finally served with the original cross-claim. He hired counsel and answered the cross-claim, completely unaware that a voluntary dismissal had already been entered.

The cross-claim was filed on May 15, 1981. On May 19, 1986, Erickson moved for mandatory dismissal of the case under NRCP 41(e). Instead of granting the dismissal, the district court accepted a stipulation which stated that the action was moot in light of the 1982 voluntary dismissal. The stipulation was faulty, however, as it was signed only by respondent's counsel. ¹

Six weeks later, the Onslow filed a new action in another department of the district court, seeking indemnity from Erickson for the punitive damages award paid to Jones. The Onslow then moved for summary judgment, arguing that Erickson owed it the full amount of punitive damages, plus interest, because his actions had caused Jones' injuries. The district court granted summary judgment in favor of the Onslow, concluding that Erickson should pay the damages as a matter of law. The record reveals serious error, however, which precludes summary judgment for the respondent. We therefore reverse the district court's judgment.

At the time appellant moved to dismiss the action, five years had passed since the filing of the cross-claim and the case had not yet gone to trial. A dismissal is mandatory under such circumstances. See Lindauer v. Allen, 85 Nev. 430, 456 P.2d 851 (1969). The district court erred in not entering the mandatory dismissal. The stipulation submitted by the respondent is of no effect because it was not a stipulation to extend time as required by NRCP 41(e). Johnson v. Harber, 94 Nev. 524, 582 P.2d 800 (1978); Thran v. District Court, 79 Nev. 176, 380 P.2d 297 (1963). A dismissal under NRCP 41(e) is res judicata and bars any other suit based on the same claim, unless otherwise provided by the court. Lighthouse v. Great W. Land & Cattle, 88 Nev. 55, 493 P.2d 296 (1972). The Onslow has failed to provide any reason for the delay, and it is the plaintiff's duty to use diligence at every stage of the proceeding. Thran, supra, 79 Nev. at 181, 380 P.2d at 300. When no adequate excuse is offered for a lengthy delay, injury to the defendant is presumed, and the court may infer that the case lacks merit. Northern Ill. Corp. v. Miller, 78 Nev. 213, 370 P.2d 955 (1962). We conclude that the mandatory dismissal should have been granted, with prejudice, in response to Erickson's 41(e) motion, thereby barring the instant suit.

Summary disposition of this case in favor of Erickson is also justified by the principles of laches. Laches is an equitable doctrine which will be invoked when delay by one party works to the disadvantage of the other, causing a change of circumstances which would make the grant of relief to the delaying party...