Smith v. Eighth Judicial Dist. Court In and For County of Clark

Decision Date17 December 1997
Docket NumberNo. 27751,27751
Citation113 Nev. 1343,950 P.2d 280
PartiesAllen SMITH and Joanne MacDougall, Petitioners, v. The EIGHTH JUDICIAL DISTRICT COURT of the State of Nevada, In and For the COUNTY OF CLARK, and the Honorable Joseph T. Bonaventure, District Judge, Respondents, and Ho Ming Chang, Real Party in Interest.
CourtNevada Supreme Court

Joseph T. Bonaventure, District Judge, Respondents,


Ho Ming Chang, Real Party in Interest.

No. 27751.

Supreme Court of Nevada.

Dec. 17, 1997.

Pearson and Patton, Las Vegas, for Petitioners.

Kenneth A. Cardone, Las Vegas, and Robert M. Ebinger, Las Vegas, for Real Party in Interest.



This original petition for a writ of mandamus or prohibition challenges an order of the district court denying a motion to dismiss a cross-claim for failure to serve the cross-claim within 120 days from the date it was filed.

We have previously stated that we will not exercise our discretion to consider writ petitions that challenge orders of the district court denying motions to dismiss or motions for summary judgment. State ex rel. Dep't Transp. v. Thompson, 99 Nev. 358, 662 P.2d 1338 (1983). We adopted this policy because very few writ petitions warrant extraordinary relief, and this court expends an enormous amount of time and effort processing these petitions. Id. at 361-62, 662 P.2d at 1340.

Nevertheless, we have allowed a very few exceptions where considerations of sound judicial economy and administration militated in favor of granting such petitions. See, e.g., State v. Babayan, 106 Nev. 155, 176, 787 P.2d 805, 819 (1990) (granting a writ of mandamus dismissing an indictment to prevent a "gross miscarriage of justice"). Although we reaffirm the general rule of Thompson, this court will continue to exercise its discretion with respect to certain petitions where no disputed factual issues exist and, pursuant to clear authority under a statute or rule, the district court is obligated to dismiss an action. 1 Additionally, we may exercise our discretion where, as here, an important issue of law requires clarification. The interests of judicial economy, which inspired theThompson rule, will remain the primary standard by which this court exercises its discretion.

The underlying case arises from an automobile accident that occurred on June 17, 1993. Linda Lee was a passenger in a car driven by real party in interest Ho Ming Chang. The other car involved in the collision was driven by petitioner Allen Smith. Petitioner Joanne MacDougall was the owner of the car driven by Smith.

On March 27, 1995, Lee filed a complaint in district court against petitioners and Chang. The complaint alleged that Lee had been injured in the accident mentioned above, and that petitioners and Chang were responsible for her injuries.

On or about May 3, 1995, Chang, acting through his attorney, Robert M. Ebinger, filed a document in the district court entitled "cross-claim." This purported cross-claim named petitioners as defendants, and alleged that petitioners were responsible for Chang's personal injuries sustained in the accident. Attorney Ebinger did not immediately serve a copy of this cross-claim on petitioners.

Thereafter, on May 24, 1995, Chang, acting through a different attorney, Kenneth A. Cardone, filed an answer to Lee's complaint. On June 17, 1995, the statute of limitations ran on Chang's personal injury claim. NRS 11.190(4)(e). Chang's purported cross-claim for his own personal injuries had not yet been served on petitioners. 2

The parties then selected an arbitrator. One of Chang's attorneys, Cardone, participated in the selection process, but Chang's other attorney, Ebinger, did not. The arbitrator scheduled an early arbitration conference for September 6, 1995. It was at this conference that petitioners first learned that Chang had other counsel, and that Chang was asserting a claim against them based on his own personal injuries.

Subsequently, on September 6, 1995, Ebinger served Chang's cross-claim on petitioners by mailing a copy of the document to petitioners' counsel. This mailing took place 126 days after the cross-claim was filed in district court. 3 On September 18, 1995, petitioners moved the district court to dismiss Chang's cross-claim. Petitioners argued that the cross-claim was not served within 120 days from the date it was filed as required by NRCP 4(i), and that Chang did not have good cause for the delay in service. Chang opposed the motion, and on October 27, 1995, the district court denied the motion without any discussion. This petition followed.

In this court, petitioners argue that Chang's cross-claim must be dismissed because it was not served within 120 days from the date it was filed as required by NRCP 4(i). Chang counters that his cross-claim is not governed by NRCP 4(i). According to Chang, NRCP 4(i) applies only to original complaints, and other pleadings must be served pursuant to NRCP 5. Thus, Chang asserts that since there are no time limits for service in NRCP 5, his cross-claim could be served at any time on counsel for an opposing party. We conclude that both parties' arguments are incorrect because the arguments are based on a fundamental misunderstanding of the difference between a pleading and a claim.

NRCP 7(a) sets forth a list of the pleadings that are permissible in a civil action in Nevada, as follows:

(a) Pleadings. There shall be a complaint and an answer; a reply to a counterclaim denominated as such; an answer to a cross-claim, if the answer contains a cross-claim; a third-party complaint, if a person who was not an original party is summoned under the provisions of Rule 14; and a third-party answer, if a third-party complaint is served. No other pleading shall be allowed, except that the court may order a reply to an answer or a third-party answer.

(Emphasis added.) Thus, the only pleadings allowed are complaints, answers and replies. A claim is not a pleading; it is "a demand as one's own or as one's right." Black's Law Dictionary 224 (5th ed. 1979). Such a demand, to be legally cognizable, must be asserted in a pleading. Counterclaims and cross-claims are types of claims, not types of pleadings.

This construction of NRCP 7(a) is supported by other rules of civil procedure. For example, NRCP 8 states that "[a] pleading which sets forth a claim for relief, whether an original claim, counterclaim, cross-claim, or third-party claim, shall contain.... [the pleader's] demand for judgment for the relief to which he deems himself entitled." Thus, a claim, however designated, must be set forth in a pleading. Similarly, NRCP 13(a) begins with the phrase "[a] pleading shall state as a counterclaim any claim," and NRCP 13(g) begins with the phrase "[a] pleading may state as a cross-claim any claim."

Counterclaims and cross-claims must be set forth in pleadings authorized by NRCP 7, because "[n]o other pleading shall be allowed." NRCP 7(a); see Langer v. Monarch Life Ins. Co., 966 F.2d 786, 808-11 (3d Cir.1992) (filing a cross-claim as a separate document instead of asserting it in an answer was a violation of Rule 11 warranting sanctions); In Re Cessna Distributorship Antitrust Litigation, 532 F.2d 64, 67 n. 7 (8th Cir.1976) ("A cross-claim must be stated in a pleading. At the same time, it is not itself a pleading."). This concept has been further explained as follows:

The answer must include all compulsory counterclaims against any opposing party, and may include permissive counterclaims against any opposing party and cross-claims against any co-party. New parties may also be joined in counterclaims and cross-claims. Counterclaims and cross-claims are not...

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