Heard v. Fisher's & Cobb Sales & Distributors, Inc.

Decision Date30 October 1972
Docket NumberNo. 6828,6828
Citation502 P.2d 104,88 Nev. 566
PartiesEdward C. HEARD, Appellant, v. FISHER'S AND COBB SALES AND DISTRIBUTORS, INC., doing business as Idaho Safety Sales, Respondent.
CourtNevada Supreme Court

ZENOFF, Chief Justice.

Respondent, plaintiff below, commenced this action on March 27, 1968 alleging breach of contract and misrepresentation. Appellant filed his answer on May 2, 1968 and on August 4, 1969, the case proceeded to trial and was heard by the court sitting without a jury.

At the conclusion of the testimony, on August 5, 1969, both counsel were called into chambers. The court indicated its inclination to find in favor of respondent and it was agreed that the parties would attempt to reach a settlement of the case with a view toward avoiding the entry of judgment by the court. Thereupon, court was reconvened, both counsel formally waived oral argument, and the court took the case under submission.

The parties pursued settlement for over 10 months after the trial. Such negotiations, however, were not successful and judgment for respondent was finally entered on June 11, 1970.

Two months later, on August 11, 1970, appellant moved the trial court pursuant to NRCP 60(b) to enter its order granting relief from judgment on the ground of surprise. It is from the trial court's denial of that motion that this appeal is taken.

Motions under Rule 60(b) are addressed to the sound discretion of the trial court and the exercise of discretion by the trial court in granting or denying such motions is not to be disturbed on appeal absent an abuse of discretion. Ogle v. Miller, 87 Nev. 573, 491 P.2d 40 (1971); Minton v. Roliff, 86 Nev. 478, 471 P.2d 209 (1970); Lentz v. Boles, 84 Nev. 197, 438 P.2d 254 (1968); Hotel Last Frontier Corp. v. Frontier Properties Inc., 79 Nev. 150, 380 P.2d 293 (1963); Blakeney v. Fremont Hotel Inc., 77 Nev. 191, 360 P.2d 1039 (1961); Bryant v. Gibbs, 69 Nev. 167, 243 P.2d 1050 (1952).

We find no abuse of discretion. There was no agreement to withold entry of judgment--only an agreement to negotiate in an attempt to reach a settlement. During the 10 months between the trial and the entry of judgment, appellant was put on notice a number of times that respondent was still pursuing judgment as an alternate method of relief should a satisfactory settlement agreement not be reached. Appellant was not prevented from pesenting his defense and having a full trial on the merits, as was appellant in Voorhees v. Geiser-Hendryx Inv. Co., 52 Or. 602, 98 P. 324 (...

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6 cases
  • Kahn v. Orme
    • United States
    • Nevada Supreme Court
    • August 5, 1992
    ... ... was continued until January 18, 1990, to be heard before Judge Nancy A. Becker ... Heard v. Fisher's & Cobb Sales, 88 Nev. 566, 568, 502 P.2d 104, 105 (1972) ... Bartsas Realty, Inc., 95 Nev. 559, 598 P.2d 1147 (1979); Central ... ...
  • Wal-Mart Stores, Inc. v. County of Clark
    • United States
    • U.S. District Court — District of Nevada
    • December 1, 1999
  • Carlson v. Carlson
    • United States
    • Nevada Supreme Court
    • May 14, 1992
    ... ... Heard v. Fisher's & Cobb Sales & Distrib., Inc., 88 ... ...
  • Darba Enters., Inc. v. Travelers Cas. Ins. Co. of Am., Corp.
    • United States
    • Nevada Court of Appeals
    • March 22, 2018
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