Tripi v. Johnson, 011521 NVSC, 79099

Docket Nº:79099, 80747
Party Name:MARILYN TRIPI, AN INDIVIDUAL, AND AS SPECIAL ADMINISTRATOR OF THE ESTATE OF DIGNA OTERO, Appellant, v. PEGGY JOHNSON, AN INDIVIDUAL; AND FAMILY HOME HOSPICE, INC., A NEVADA CORPORATION, Respondents PEGGY JOHNSON, AN INDIVIDUAL, Appellant, v. MARILYN TRIPI, AN INDIVIDUAL AND AS SPECIAL ADMINISTRATOR OF THE ESTATE OF DIGNA OTERO, Respondent.
Judge Panel:Parraguirre, Stiglich, Silver, Judges Hon. Stefany Miley, District Judge Israel Kunin, Settlement Judge
Case Date:January 15, 2021
Court:Supreme Court of Nevada

MARILYN TRIPI, AN INDIVIDUAL, AND AS SPECIAL ADMINISTRATOR OF THE ESTATE OF DIGNA OTERO, Appellant,

v.

PEGGY JOHNSON, AN INDIVIDUAL; AND FAMILY HOME HOSPICE, INC., A NEVADA CORPORATION, Respondents

PEGGY JOHNSON, AN INDIVIDUAL, Appellant,

v.

MARILYN TRIPI, AN INDIVIDUAL AND AS SPECIAL ADMINISTRATOR OF THE ESTATE OF DIGNA OTERO, Respondent.

Nos. 79099, 80747

Supreme Court of Nevada

January 15, 2021

UNPUBLISHED OPINION

ORDER OF AFFIRMANCE (DOCKET NO. 79099) AND REVERSAL AND REMAND (DOCKET NO. 80747)

Docket No. 79099 is an appeal from a district court order dismissing a tort action, and Docket No. 80747 is an appeal from a district court order denying a postjudgment motion for attorney fees and costs.1Eighth Judicial District Court, Clark County; Stefany Miley, Judge. Because the appeals involve the same parties and arise from the same district court case, we elect to consolidate them for disposition. See NRAP 3(b)(2).

The underlying action arises from injuries to decedent Digna Otero, allegedly caused during the course of massage therapist services arranged by respondent Family Home Hospice (Family Home) and performed by respondent/appellant Peggy Johnson. After Digna Otero passed away from unrelated causes, her daughter, appellant/respondent Marilyn Tripi, brought the underlying suit.

Docket No. 79099

Tripi first argues that the district court erred by dismissing the complaint because, despite its mandatory dismissal language, NRCP 41(e) (2019) is not absolute and should not require dismissal where she diligently pursued her case. Reviewing de novo, see Ford v. Branch Banking & Tr. Co., 131 Nev. 526, 528, 353 P.3d 1200, 1202 (2015) ("[W]e review de novo the district court's interpretation of the Nevada Rules of Civil Procedure."), we disagree. The trial here was reset various times via court orders or stipulations that did not mention the five-year rule and the trial was ultimately set beyond the five-year deadline without Tripi's objection. See Thran v. First Judicial Dist. Court, 79 Nev. 176, 181, 380 P.2d 297, 300 (1963) (holding that "in the absence of a written stipulation extending time," a district court must dismiss a trial not brought to trial within five years). "[T]his court has recognized exceptions to the mandatory nature of NRCP 41(e)." DM. Horton, Inc. v. Eighth Judicial Dist. Court, 131 Nev. 865, 872, 358 P.3d 925, 930 (2015); see Prostack v. Lowden, 96 Nev. 230, 231, 606 P.2d 1099, 1099-1100 (1980) (holding that "an oral stipulation [to extend the five-year deadline], entered into in open court, approved by the judge, and spread upon the minutes, is the equivalent of a written stipulation" for purposes of NRCP 41(e), but that such stipulations must nevertheless explicitly address the five-year rule). However, Tripi fails to demonstrate any such exception applies here.

Second, Tripi argues that respondents waived their right to raise NRCP 41(e) by stipulating to reset the trial past the five-year deadline. We disagree, as dismissal pursuant to NRCP 41(e) is a procedural consequence that occurs upon a plaintiffs failure to bring a case to trial within the prescribed time. As we have repeatedly held, "[i]t is the duty of each plaintiff to be sufficiently diligent to preclude entry of a 41(e) dismissal." Johnson v. Harber, 94 Nev. 524, 527, 582 P.2d 800, 801 (1978). And, to the extent that Tripi argues that respondents impliedly stipulated to extending the five-year rule by acceding to the resetting of the trial date, we have repeatedly foreclosed this argument as well.2 See Prostack, 96 Nev. at 231, 606 P.2d at 1099-1100 (rejecting appellant's argument that respondents stipulated to extending the five-year period by stipulating to additional time for discovery because the stipulation did not address the five-year rule); Flintkote Co. v. Interstate Equip. Corp., 93 Nev. 597, 598, 571 P.2d 815, 816 (1977) (rejecting appellant's argument that a stipulation striking a paragraph from the complaint "carried with it a necessary implication that the...

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