Hunter v. Gang

132 Nev., Advance Opinion 22
IN THE COURT OF APPEALS OF THE STATE OF NEVADA
RICHARD A. HUNTER, AN No. 59691
INDIVIDUAL,
Appellant,
vs.
WILLIAM GANG, AN INDIVIDUAL,
Respondent.
RICHARD A. HUNTER, AN No. 63804
INDIVIDUAL,
Appellant,
vs.
FILED
WILLIAM GANG, AN INDIVIDUAL, APR 0 7 2016
Respondent.
Consolidated appeals from a final district court order
dismissing appellant's complaint with prejudice for want of prosecution
and a post-judgment order awarding attorney fees and costs. Eighth
Judicial District Court, Clark County; Douglas Smith, Judge.
Reversed in part, vacated in part, and remanded.
Greenberg Traurig, LLP, and Mark E. Ferrario and Tami D. Cowden, Las
Vegas,
for Appellant.
Marquis Aurbach Coffing and Albert G. Marquis and Tye S. Hanseen, Las
Vegas,
for Respondent.
BEFORE GIBBONS, C.J., TAO and SILVER, JJ.
OPINION
By the Court, GIBBONS, C.J.:
These are consolidated appeals from a district court order
dismissing an action with prejudice for want of prosecution and a post-
judgment award of attorney fees and costs. Under the Nevada Rules of
Civil Procedure and the court's inherent authority, a district court may
dismiss an action for want of prosecution. NRCP 41(e); Moore v. Cherry,
90 Nev. 390, 393, 528 P.2d 1018, 1020 (1974). In this opinion, we address
whether the district court abused its discretion in dismissing an action
with prejudice for want of prosecution before the two-year time period in
NRCP 41(e) expired and before the defendant filed an answer or other
responsive pleading under NRCP 12. We also consider whether the
district court erred in reaching its findings of fact on which it based its
conclusions of law and whether the district court abused its discretion in
awarding attorney fees and costs.
Our review of the record does not reveal any evidence to
support the district court's findings of fact on which it based its
conclusions of law and decision to dismiss the action with prejudice. As a
result, we conclude that the district court abused its discretion in
dismissing the action with prejudice. Accordingly, we reverse the district
court's decision to dismiss the action with prejudice, vacate the subsequent
order awarding attorney fees and costs, and remand the matter to the
district court for further proceedings consistent with this opinion.
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FACTS AND PROCEDURAL HISTORY
These consolidated appeals arise out of a property dispute
between neighbors.' In 1980, appellant Richard Hunter acquired his
property. To prevent flooding on his property caused by water run-off
from an adjoining property, he sought his neighbor's permission to build a
berm on her property. According to Hunter, the neighbor agreed, and in
1983, Hunter constructed the berm, which he asserts he continually
maintained thereafter.
Around 2002, respondent William Gang acquired the same
adjoining property with, according to Hunter, knowledge of the berm's
existence. In 2009, Hunter attempted to sell his property, but was
purportedly unsuccessful because of concerns raised by the potential buyer
with regard to encroachments on Gang's property, including the berm. As
a result, a dispute over the berm began, causing Hunter to initiate the
lawsuit underlying this appeal.
Hunter's December 4, 2009, verified complaint asserted claims
to quiet title and for adverse possession and sought injunctive and
declaratory relief regarding the portion of Gang's property where Hunter
built the berm. After Hunter filed the complaint, the parties met to
discuss a possible settlement. During those negotiations, Hunter granted
Gang an open extension of time to respond to the complaint. According to
Gang, settlement negotiations then "broke down" in August 2010.
'We derive the following factual summary from the parties'
pleadings, briefs, and arguments before this court and the district court.
To the extent that any facts are in dispute, the positions of the parties
relative to such facts are set forth herein.
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Despite this claimed lack of progress in settlement
negotiations, Gang asserts that he continued to send settlement
correspondence to Hunter through August 2011. Specifically, Gang claims
he sent settlement correspondence to Hunter on four separate occasions
between September and November 2010. In response to those four
inquiries, Gang asserts Hunter's counsel responded once in November
2010, but the response indicated only that Hunter was traveling and that
counsel would attempt to obtain an answer from him. Gang claims he did
not receive any response thereafter, so he then sent an additional six
settlement inquiries to Hunter between December 2010 and August 2011.
Gang claims Hunter's counsel did not respond until August 2011, and then
only indicated that counsel was on vacation and would not speak to
Hunter until the following week. Gang maintains he did not receive any
further correspondence from Hunter and, as a result, informed Hunter he
would move for dismissal. Hunter disputes Gang's version of events,
asserting that the parties were discussing settlement proposals, and
Hunter was therefore operating under the impression that the parties
would settle the case, up until the time Gang filed his motion to dismiss.
Gang moved to dismiss Hunter's action with prejudice for
want of prosecution on August 11, 2011-20 months after Hunter filed his
complaint. The two-page motion contained a short statement of facts,
claiming settlement negotiations "broke down over a year ago and Hunter
became unresponsive for extended periods of time." Gang further asserted
that he had attempted frequent contact with Hunter but that Hunter had
failed to "resolve the matter or move forward with litigation." Gang did
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not file an affidavit or declaration to support his factual contentions. 2
Further, Gang did not identify the specific legal authority under which he
sought dismissal. He did, however, cite to cases that identify the court's
express authority under NRCP 41(e) to dismiss an action that a plaintiff
has not brought to trial within two years, as well as cases discussing the
court's inherent authority to dismiss an action for want of prosecution.
Hunter opposed the motion, arguing that dismissal was
premature because the two-year time period in NRCP 41(e) had not
passed. Alternatively, Hunter argued that if the district court considered
entertaining the motion to dismiss, it should excuse any delay because he
was having health issues. Specifically, Hunter explained that he had
"been suffering from serious medical conditions that interfere [d] with his
ability to focus on this litigation" and that his ailments "made it
impossible for [him to] pursue th[e] matter until his health improve[d].
Hunter also attached an affidavit from his wife, which stated that since
early 2009, Hunter had "been suffering from a series of health related
problems, including heart problems, a series of mini strokes that resulted
in the temporary loss of eyesight, pneumonia and. . . dangerously high
blood pressure."•
At the hearing on the motion to dismiss, Gang acknowledged
that he was aware of Hunter's ill health 3 but noted that nearly two years
2A party who files a pretrial motion involving factual contentions
must file an affidavit or declaration with the motion to support those
issues. See DCR 13(6); EDCR 2.21.
3 1tis unclear when or how Gang first became aware of Hunter's
health problems.
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had elapsed in the case and argued that Hunter was utilizing the lawsuit
as leverage to pressure Gang into selling his property. Specifically, Gang
asserted that Hunter wanted a portion of his property because a potential
buyer had declined to purchase Hunter's property due to encroachments
on Gang's property. Gang also alleged that Hunter had encroached onto
another neighbor's property, as well as onto Gang's property again after he
filed his complaint. Gang concluded his argument by requesting the
district court to dismiss the case, at a minimum, without prejudice.
In response, Hunter argued that two years had not elapsed in
the action and that Gang failed to cite a single case that supported a
dismissal before two years. Hunter further emphasized his ill health and
his counsel indicated that, because of Hunter's ill health, he had found it
difficult to discuss the case with Hunter. Hunter explained that the sale
with the potential buyer failed because Gang provided inaccurate
information to the buyer regarding certain encroachments and asserted
that he intended to amend his complaint accordingly. Hunter further
questioned why Gang had not pursued any action to remove the alleged
encroachments. Finally, Hunter asked the district court to permit the
case to proceed and suggested a settlement conference in order to facilitate
the process.
The hearing lasted only nine minutes. The district court did
not hear witness testimony or receive any evidence to supplement
Hunter's verified complaint or his wife's affidavit, or to support Gang's
otherwise unsupported assertions. The district court ultimately granted
Gang's motion to dismiss with prejudice and directed Gang to prepare the
findings of fact and conclusions of law.
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Upon receiving the proposed order from Gang, Hunter refused
to approve it because he claimed it contained unsupported findings of fact
and conclusions of law, and essentially granted summary judgment.
Nevertheless, Gang submitted the order, which the court signed, despite
its lack of citation to legal authority and despite the fact that two years
had not elapsed since Hunter filed his complaint. Hunter appealed the
dismissal, which is pending before this court in Docket No. 59691.
Thereafter, Gang moved for attorney fees in the district court
pursuant to NRS 18.010(2)(b), claiming that Hunter brought his claims
without reasonable grounds or to harass, and for costs under NRS 18.020,
as the prevailing party. The motion did not contain evidentiary support
for Gang's substantive claims that Hunter brought the lawsuit without
reasonable grounds or to harass, 4 and the district court did not conduct an
evidentiary hearing. Nonetheless, the district court granted Gang's
motion for attorney fees and costs in full. Hunter then appealed from that
order, which is before us in Docket No. 63804, and the two appeals were
subsequently consolidated.
4 Gang supported his motion with his counsel's affidavit, but the
affidavit only addressed the reasonableness of the fees under Brunzell v.
Golden Gate National Bank, 85 Nev. 345, 455 P.2d 31 (1969). Although
Gang also attached an affidavit of counsel to his reply in support of a fees
award, which set forth the dates on which Gang sent settlement
correspondence to Hunter between September 2010 and August 2011,
Gang provided this information in support of his request for costs and not
as evidence that Hunter brought his claims without reasonable grounds or
to harass.
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ANALYSIS
The basis for the district court's dismissal with prejudice in
this case was Hunter's purported failure to prosecute his action with
diligence. The district court, however, did not specify the source of its
authority when it granted Gang's motion to dismiss. Thus, to aid our
analysis, we begin by discussing the applicable authorities under which
the district court may dismiss an action for want of prosecution and the
parties' arguments in relation to those authorities. After we determine
the source of the district court's authority, we address whether the district
court's findings of fact and the resulting dismissal of Hunter's action were
proper. 5
Dismissal for want of prosecutton
Initially, we must identify the source of the district court's
authority in dismissing the action. District courts in Nevada have two
independent sources of authority under which they may dismiss an action
for want of prosecution. First, district courts have express authority
under NRCP 41(e), which permits dismissal whenever the plaintiff has
failed to bring the action to trial within two years after the action is filed
and requires dismissal if the plaintiff does not bring the action to trial
within five years of filing the action. Second, Nevada district courts have
inherent authority to dismiss an action for want of prosecution, which is
"independent of any authority granted under statutes or court rules."
Moore, 90 Nev. at 393, 528 P.2d at 1020.
5 Sinceour decision on these issues is dispositive of this appeal, we
do not directly consider Hunter's arguments regarding the award of
attorney fees and costs.
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Because the district court dismissed the underlying action
before the two-year time period in NRCP 41(e) had passed, the district
court could not have based the dismissal on its express authority. 6
Therefore, the district court must have dismissed Hunter's action under
its second source of power, its inherent authority. Although the district
court failed to specify that it dismissed the action pursuant to its inherent
authority, under the circumstances of this case, inherent authority is the
only possible justification for the district court's action.
Contrary to Hunter's argument that NRCP 41(e) limits the
district court's inherent authority, the Nevada Supreme Court has held
that the district court's inherent authority is not limited in this regard.
See Harris v. Harris, 65 Nev. 342, 345-50, 196 P.2d 402, 403-06 (1948)
(considering the court's inherent authority in light of a statute that was
substantially the same as NRCP 41(e) and holding that the district court
6 District courts in the Eighth Judicial District also have express
authority to dismiss an action for want of prosecution under local court
rules. See EDCR 1.90(b)(2), (d)(1) (requiring that each department either
dispose of or set for dismissal all civil cases not answered within 180 days
of filing or those that have been pending longer than 12 months and in
which no action has been taken for more than 6 months); EDCR 2.90(a)
(giving the court authority to dismiss any civil action, on its own initiative
and without prejudice, that has been pending for more than 12 months
and in which no action has been taken for more than 6 months). Gang,
however, did not argue that dismissal was proper under these rules, and
thus, Gang has waived these arguments. Accordingly, we do not consider
them. See Old Aztec Mine, Inc. v. Brown, 97 Nev. 49, 52, 623 P.2d 981,
983 (1981) ("A point not urged in the trial court, unless it goes to the
jurisdiction of that court, is deemed to have been waived and will not be
considered on appeal.").
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may exercise its inherent authority to dismiss an action for lack of
prosecution before the statutory time period for dismissal has passed).
Hunter nevertheless argues that a district court's ability to
resort to its inherent authority to dismiss an action for want of prosecution
is restricted by Halverson v. Hardcastle, 123 Nev. 245, 163 P.3d 428(2007), which Hunter argues permits a district court to exercise its
inherent authority only in limited circumstances, such as when an
established method fails or in an emergency situation. See 123 Nev. at
263, 163 P.3d at 441. Hunter thus argues that, because NRCP 41(e)
provides the district court with an established method for dismissing an
action for want of prosecution and because no emergency situation existed,
the district court abused its discretion in resorting to its inherent
authority and disregarding the time period in NRCP 41(e). Hunter's
argument focuses only on Halverson and does not account for related
caselaw regarding the court's ability to resort to its inherent authority.
In particular, in City of Sparks v. Sparks Municipal Court, 129
Nev. „ 302 P.3d 1118, 1129 (2013), the Nevada Supreme Court
reviewed Nevada caselaw discussing inherent authority generally and
concluded that a district court need not justify an exercise of inherent
authority based on emergency circumstances or the failure of an
established method "if [the] action falling under the court's inherent
authority is part of the court's day-to-day functioning or regular
management of its internal affairs." Rather, the court explained that a
district court must justify an exercise of inherent authority only when "the
court's need to exercise its inherent authority arises outside the court's
regular management of its affairs." Id. (emphasis added). Thus, we
continue our analysis with an overview of the sources of the court's
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inherent authority to determine whether the court's resort to its inherent
authority in this case required justification before considering whether its
use of that authority was an abuse of discretion.
"Inherent judicial powers stem from two sources: the
separation of powers doctrine and the power inherent in a court by virtue
of its sheer existence." Id. at 302 P.3d at 1128 (quoting Blackjack
Bonding v. City of Las Vegas Mun. Court, 116 Nev. 1213, 1218, 14 P.3d
1275, 1279 (2000)). Under the separation of powers doctrine, the judiciary
"has inherent powers to administer its affairs, which include rule-making
and other incidental powers reasonable and necessary to carry out the
duties required for the administration of justice." Goldberg v. Eighth
Judicial Dist. Court, 93 Nev. 614, 615-16, 572 P.2d 521, 522 (1977)
(citations omitted). It follows, then, that courts may exercise their
inherent authority under this doctrine to dismiss an action for want of
prosecution "[t]o prevent undue delays and to control their calendars,"
Moore. 90 Nev. at 393, 528 P.2d at 1020, because such prevention and
control is necessary for the courts to be able "to carry out the duties
required for the administration of justice." 7 Goldberg, 93 Nev. at 615-16,
572 P.2d at 522.
also Moore, 90 Nev. at 395, 528 P.2d at 1021 (explaining that
7 See
"Nile elimination of delay in the trial of cases and the prompt dispatch of
court business are prerequisites to the proper administration of justice,
These goals cannot be attained without the exercise by the courts of
diligent supervision over their own dockets" (quoting Sweeney v.
Anderson, 129 F.2d 756, 758 (10th Cir. 1942))); Link v. Wabash R.R., 370
U.S. 626, 630-31 (1962) (providing that the court's authority "to dismiss
sua sponte for lack of prosecution has generally been considered an
'inherent power,' governed not by rule or statute but by the control
continued on next page. . .
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Because the inherent authority to dismiss an action for want
of prosecution is incidental to the duties required for the administration of
justice and the court's management of its day-to-day activities, no
justification is required for the court to resort to this inherent authority.
See Sparks, 129 Nev. at , 302 P.3d at 1129. Accordingly, a district
court need not demonstrate that some specific circumstance exists before
it may resort to its inherent authority to dismiss an action for want of
prosecution. See generally Renown Reg'l Med. Ctr. v. Second Judicial Dist.
Court, 130 Nev. , 335 P.3d 199 (2014) (analyzing the district court's
exercise of inherent authority to enter summary judgment sua sponte
without delving into whether any of the circumstances set forth in
Halverson existed). Nevertheless, Iblecause of their very potency,
inherent powers must be exercised with restraint and discretion."
Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991).
We remind courts that because inherent authority is not
regulated by the Legislature or the people, it is more susceptible to
misuse, and thus should be exercised sparingly. See United States u.
Shaffer Equip. Co., 11 F.3d 450, 461 (4th Cir. 1993) (warning that
inherent power "must be exercised with the greatest restraint and caution,
and then only to the extent necessary"). Having concluded that a district
court may properly exercise its inherent authority to dismiss an action for
. . . continued
necessarily vested in courts to manage their own affairs so as to achieve
the orderly and expeditious disposition of cases"). Cf. NRCP 1 (requiring
that the rules of civil procedure "shall be construed and administered to
secure the just, speedy, and inexpensive determination of every action").
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want of prosecution before the two-year time period in NRCP 41(e) has
passed and without having to justify its use, we now turn to whether the
district court abused its discretion in dismissing Hunter's action. See
Moore, 90 Nev. at 393, 528 P.2d at 1020.
Abuse of discretion
Hunter contends that the district court abused its discretion in
dismissing the action because Gang instigated the delay by requesting an
extension of time to respond to the complaint and because any continued
delay was due to Hunter's ill health. Gang responds that the district court
did not abuse its discretion because Hunter failed to diligently pursue his
claims after settlement negotiations deteriorated. We discuss the
standards for dismissal for want of prosecution in Nevada generally first,
before specifically addressing whether the district court abused its
discretion in dismissing Hunter's action with prejudice.
This court will not disturb the decision of the district court in
dismissing an action for want of prosecution unless the district court
grossly abused its discretion. Moore, 90 Nev. at 395, 528 P.2d at 1021(noting the gross abuse of discretion standard of review in a case that was
dismissed with prejudice for want of prosecution); see also Harris, 65 Nev.
at 350, 196 P.2d at 406 (recognizing the same standard of review for
dismissal for want of prosecution but not specifying if the dismissal in that
case was with or without prejudice). "The element necessary to justify
dismissal for failure to prosecute is lack of diligence on the part of the
plaintiff, whether individually or through counsel." Moore, 90 Nev. at 395,
528 P.2d at 1022.
"The duty rests upon the plaintiff to use diligence and to
expedite his case to a final determination." Id. at 395, 528 P.2d at 1021(internal quotation marks omitted). The plaintiff does not satisfy this
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duty, however, by merely filing a complaint. See Raine v. Ennor, 39 Nev.
365, 372, 158 P. 133, 134 (1916). This is because "'[t]he lack of diligence in
prosecuting [a complaint] after it is brought leads to the same
consequences as delay in bringing it." Id. (quoting Streicher v. Murray, 92
P. 36, 40 (Mont. 1907)). For example:
Witnesses die or disappear, or the facts fade from
memory. The positions of the parties change, or
the subject of the controversy fluctuates in value.
The right sought to be enforced becomes doubtful
or uncertain, or it becomes impossible for the court
to administer equity between the parties with any
degree of certainty.
Id. (quoting Streicher, 92 P. at 40).
Thus, the plaintiff must take action, after filing the complaint,
to show that he is diligently prosecuting the case. See id. If the plaintiff
fails to diligently pursue the case, the court does not abuse its discretion
by invoking its inherent authority to dismiss the action. See id.; Moore, 90
Nev. at 395-96, 528 P.2d at 1021-22. Because the district court dismissed
Hunter's complaint with prejudice, however, we expand our discussion to
include Nevada caselaw regarding dismissals with prejudice. 8
With respect to dismissals entered under the court's inherent
authority, the Nevada Supreme Court has expressed that a "dismissal
8We do not address whether a dismissal without prejudice, under
the circumstances presented by this case, would have been a proper
exercise of the district court's discretion because the parties have not
argued this issue and thus have not presented it on appeal. See Edwards
v. Emperor's Garden Rest., 122 Nev. 317, 330 n.38, 130 P.3d 1280, 1288
n.38 (2006) (providing that an appellate court need not consider claims not
cogently argued or supported by relevant authority).
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with prejudice is a harsh remedy to be utilized only in extreme situations."
Moore, 90 Nev. at 393, 528 P.2d at 1021. "It must be weighed against the
policy of law favoring the disposition of cases on their merits." Id."Because dismissal with prejudice is the most severe sanction that a court
may apply . . . its use must be tempered by a careful exercise of judicial
discretion." Id. at 394, 528 P.2d at 1021 (alteration in original) (internal
quotation marks omitted). While a dismissal under NRCP 41(e) is
presumed to be with prejudice, see Brent G. Theo bald Constr., Inc. v.
Richardson Constr., Inc., 122 Nev. 1163, 1167, 147 P.3d 238, 241 (2006),
abrogated on other grounds by Buzz Stew, LLC v. City of N. Las Vegas, 124
Nev. 224, 228 n.6, 181 P.3d 670, 672 n.6 (2008), the district court has
discretion to dismiss the action with or without prejudice, see Home Say.
Ass'n v. Aetna Gas. & Sur. Co., 109 Nev. 558, 563, 854 P.2d 851, 854
(1993). "Because the law favors trial on the merits, however, dismissal
with prejudice may not be warranted where such delay is justified by the
circumstances of the case." Home Say. Ass'n, 109 Nev. at 563, 854 P.2d at
854. Thus, cases that have analyzed a district court's authority to dismiss
an action with prejudice, under either its express or inherent authority,
suggest that the district court must take into account additional
considerations, other than the lack of diligence.
The Nevada Supreme Court has not identified what
circumstances justify dismissal with prejudice when the district court acts
under its inherent authority, but it has identified several factors that the
district court should consider when contemplating whether to dismiss an
action with prejudice under the five-year provision of NRCP 41(e). Those
factors include (1) "the underlying conduct of the parties," (2) "whether the
plaintiff offers adequate excuse for the delay," (3) "whether the plaintiffs
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case lacks merit," and (4) "whether any subsequent action following
dismissal would not be barred by the applicable statute of limitations."
Monroe v. Columbia Sunrise Hosp. & Med. Ctr., 123 Nev. 96, 103, 158
P.3d 1008, 1012 (2007); see also Home Say. Ass'n, 109 Nev. at 564, 854
P.2d at 854 (holding that district courts should consider the conduct of the
parties, whether the underlying action has merit, and whether there was
an adequate excuse for the delay in deciding whether to dismiss an action
with prejudice under NRCP 41(e)'s mandatory dismissal provision).
We adopt these same factors here, as we find these cases
instructive, especially in light of the fact that dismissals under NRCP
41(e) are permitted for the same reason that the court may dismiss an
action under its inherent authority—for lack of diligence in the
prosecution of an action. See NRCP 41(e) (allowing dismissal "for want of
prosecution"); Moore, 90 Nev. at 393, 528 P.2d at 1020 ("Inherent in courts
is the power to dismiss a case for failure to prosecute . . ."); cf. Volpert V.
Papagna, 85 Nev. 437, 440, 456 P.2d 848, 850 (1969) (utilizing caselaw
regarding a dismissal for want of prosecution under the court's inherent
authority as guidance to determine whether the district court abused its
discretion in dismissing a case for want of prosecution under NRCP 41(e)).
Thus, in determining whether to dismiss an action with
prejudice for want of prosecution under its inherent authority, the district
court should consider the factors set forth above and any other relevant
factors that may be pertinent to the court's consideration, such as the
length and reasonableness of the delay. See Monroe, 123 Nev. at 103, 158
P.3d at 1012; Home Say. Ass'n, 109 Nev. at 564, 854 P.2d at 854. We
emphasize that not all of the factors may be pertinent to every decision to
dismiss an action for want of prosecution entered under the court's
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inherent authority, and thus, each determination will require a case-by-
case examination of appropriate factors. See Monroe, 123 Nev. at 103-04,
158 P.3d at 1012-13 (only considering the statute of limitations factor and
concluding that the district court did not abuse its discretion in dismissing
the complaint with prejudice because the statute of limitations on
appellant's claims had already run when the order was entered, such that
appellant could not file a new complaint even if the district court had
dismissed the previous one without prejudice).
Therefore, in considering whether to uphold a dismissal with
prejudice by a district court entered pursuant to its inherent authority, we
consider the same factors that are pertinent to the district court's exercise
of discretion to dismiss an action with prejudice under NRCP 41(e) and an
appellate court's subsequent review of that decision. Thus, we now
consider the parties' underlying conduct, whether Hunter offered an
adequate excuse for the delay, whether Hunter's claims lacked merit, and
whether the statutes of limitation would have barred any subsequent
action. See id. at 103, 158 P.3d at 1012. Because evaluating these factors
requires us to review the district court's findings of fact and conclusions of
law, we must first address Hunter's arguments regarding the propriety of
those findings and conclusions. Thereafter, we return to our discussion of
the Monroe factors.
The findings and conclusions in the order
Hunter argues that there is no evidence in the record to
support the majority of the district court's findings of fact and conclusions
of law based on those findings. This court defers to the district court's
findings of fact and will not disturb them unless they are clearly erroneous
or not supported by substantial evidence. See Weddell v. H20, Inc., 128
Nev. 94, 101, 271 P.3d 743, 748 (2012). "Substantial evidence is evidence
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that a reasonable mind might accept as adequate to support a conclusion."
Id. (quoting Whitemaine v. Aniskovich, 124 Nev. 302, 308, 183 P.3d 137,
141 (2008)). Counsel's arguments are not evidence establishing the facts
of the case. See Nev. Ass'n Servs. v. Eighth Judicial Dist. Court, 130 Nev.
, 338 P.3d 1250, 1255 (2014). This court reviews the district
court's legal conclusions de novo. See Weddell, 128 Nev. at 101, 271 P.3d
at 748.
When the district court entered its order containing detailed
findings of fact and conclusions of law, the only evidence it had received
consisted of Hunter's verified complaint, see Vaile v. Eighth Judicial Dist.
Court, 118 Nev. 262, 272, 44 P.3d 506, 513 (2002) (providing that a
verified complaint is evidence), addressing only the berm, and Hunter's
wife's affidavit, addressing only Hunter's health issues. 9 The district
court, however, found that Hunter filed his complaint as leverage to
pressure Gang into selling his property, that settlement negotiations
broke down one year prior to when Gang filed his motion to dismiss, that
Hunter had been unresponsive throughout the following year, that Hunter
had staged a construction project on Gang's property during the pendency
of the lawsuit, that Hunter's encroachments encompassed an area of 200
feet by 40 feet and included landscaping in addition to the berm, and that
Hunter had previously encroached on Forest Service property—facts that
neither Gang nor Hunter presented any evidence to support.
Thus, having reviewed the record, we conclude that the
evidence presented to the district court does not support nearly all of the
9 Atthe hearing on the motion to dismiss, neither party offered the
court any additional evidence.
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court's factual findings, and no evidence was presented to sustain its
conclusions that Hunter failed to timely prosecute his case and that
Hunter's claims lacked merit. We now return to the discussion of the
Monroe factors to determine whether the district court abused its
discretion by dismissing Hunter's action with prejudice for want of
prosecution.m See Monroe, 123 Nev. at 103, 158 P.3d at 1012.
The underlying conduct of the parties
We review the conduct of the parties without deference to the
district court's findings because, as discussed above, its findings are
unsupported by any evidence. See Weddell, 128 Nev. at 101, 271 P.3d at
748. Instead, we look to the record to determine whether the underlying
conduct of the parties weighs in favor of dismissal with prejudice. In
considering the conduct of the parties, we consider whether the parties
behaved in accordance with a reasonable and good-faith belief that no
court action was necessary. See Home Say. Ass'n, 109 Nev. at 564, 854
P.2d at 854.
Here, the parties entered into settlement negotiations after
Hunter filed his complaint, and then Hunter granted Gang an extension of
time to file an answer while the parties discussed settlement. Thus,
during the time the parties discussed settlement, it seems reasonable that
Hunter would not continue to pursue litigation, such as by withdrawing
the open extension previously granted or by seeking default. See id.mWe note at the outset that while the district court did not have the
benefit of this opinion when entering its dismissal order, because the
district court's order touched upon the facts that are pertinent to the
decision of whether to dismiss with prejudice, the record shows that the
district court may have considered them, even if not purposefully.
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(concluding the appellant's inaction was reasonable because it believed its
subsidiary corporation was actively asserting its interest in the district
court).
The parties dispute whether settlement negotiations
effectively concluded as a result of inaction or a lack of progress. Gang
argues that settlement negotiations deteriorated in August 2010, and
Hunter claims the parties continued to discuss settlement until Gang filed
his motion to dismiss. Neither party presented any evidence to the district
court to support their position before the district court entered its order of
dismissal. Both parties' behavior, however, suggests that settlement
negotiations were ongoing.
First, Hunter did not seek default or demand Gang to file an
answer. Second, Gang continued to send settlement correspondence to
Hunter after Gang claimed settlement negotiations had deteriorated and
did not seek to further the case by filing an answer." If settlement
negotiations had deteriorated, Gang's sedentary approach is confusing,
considering Gang requested, and Hunter granted, an extension of time to
respond to the complaint only while the parties engaged in settlement
negotiations, and the alleged encroachment would remain on Gang's
property until he obtained affirmative court relief. See id. (concluding
that the parties' conduct weighed in favor of reversing the dismissal with
"We note that Hunter does not dispute that he had granted Gang
an open-ended extension of time to file the answer. Thus, in the absence
of any effort by Hunter to fix a time for Gang to file an answer, the law did
not require Gang to take any action. See Thran v. First Judicial Dist.
Court, 79 Nev. 176, 181, 380 P.2d 297, 300 (1963) ("The defendant is
required only to meet the plaintiff step by step as the latter proceeds.").
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prejudice where the appellant's delay in proceeding with litigation was
justifiable during respondent's appeal of another district court ruling
because that appeal would determine the parties' rights). Therefore,
because the parties' behavior in failing to take court action suggests that
both parties believed settlement remained possible, we conclude this factor
supports a determination that dismissal with prejudice was an abuse of
discretion.
The adequacy of the excuse
The district court found that Hunter failed to provide an
adequate excuse for his lack of diligence. This court will defer to the
district court's finding unless it is clearly erroneous or not supported by
substantial evidence. See Weddell, 128 Nev. at 101, 271 P.3d at 748.
Hunter argues that a series of medical conditions, including heart
problems, mini-strokes, loss of eyesight, pneumonia, and high blood
pressure interfered with his ability to focus on the litigation and that the
district court should have considered this an adequate excuse for the delay
in prosecuting his action. Gang argued that this was not an adequate
excuse to justify the one-year delay.
As evidence, Hunter presented his wife's affidavit to the
district court, which attested to Hunter's illness and its effect on Hunter's
ability to focus on the litigation. Hunter's wife's affidavit, however, stated
that Hunter had been suffering from ill health since early 2009, months
before the litigation began. Neither Hunter nor his wife's affidavit
indicated when his ailments began to interfere with his ability to focus on
the litigation or when they would resolve to allow him to continue to
pursue litigation. Therefore, even in light of Hunter's substantiated claim
that his ill health caused the delay, we conclude sufficient evidence
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supports the district court's finding that Hunter's ill health was
inadequate to excuse a 20-month period in which he failed to take any
court action. See Moore, 90 Nev. at 395, 528 P.2d at 1021.
Moreover, even if adequate, Hunter's illness excuse would not
necessarily extend to his attorney, who could have contacted opposing
counsel, and if necessary, filed for default under NRCP 55 or taken other
legal action. See id. at 395, 528 P.2d at 1022 (providing that counsel's lack
of diligence is sufficient to justify dismissal for want of prosecution); cf.
Walls v. Brewster, 112 Nev. 175, 178-79, 912 P.2d 261, 263 (1996)
(recognizing that while an attorney's illness may be the basis for a claim of
excusable neglect in failing to file an opposition, such excuse does not
extend to cocounsel who could have filed the opposition).
On appeal, Hunter first relies on Jarva v. United States, 280
F.2d 892, 894-95 (9th Cir. 1960), to argue that a plaintiffs illness is
sufficient to justify a delay in prosecution. The facts in Jarva, however,
are distinguishable from the facts of this case. There, the United States
Court of Appeals for the Ninth Circuit vacated an order of dismissal for
lack of prosecution where the plaintiffs four-month hospitalization caused
him to fail to file a certificate of readiness for trial in accordance with
court practice. Id. In vacating the order, the Ninth Circuit explained that
"during the time [the plaintiff] was hospitalized, it would seem grossly
unfair to force him to trial during such a period unless the [defendant] was
suffering some unusual prejudice at the time." Id.Unlike the plaintiff in Jarva, who was hospitalized just before
trial, Hunter began experiencing health problems in early 2009, months
before he initiated his lawsuit. Further, the plaintiffs hospitalization in
Jarva only prolonged the proceedings temporarily. Id. Here, the record
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gave no indication of when, if ever, Hunter would be healthy enough to
continue litigation. In his opposition to Gang's motion to dismiss, Hunter
merely indicated that his ailments "made it impossible for [him to] pursue
this matter until his health improves." (Emphasis added.) Therefore,
when we compare the timing and duration of the plaintiffs illness in
Jarva with that of Hunter's, we conclude Jarva is sufficiently
distinguishable, and thus does not guide our decision in the present case. 12
We emphasize that we do not hold today that a plaintiffs
prolonged illness is never an adequate excuse for a delay in prosecution, as
the Nevada Supreme Court has previously found the illness of both a
plaintiff and his wife to be adequate. See In re McGregor, 56 Nev. 407,
411, 48 P.2d 418, 420 (1935) (recognizing the plaintiffs illness and the
prolonged sickness of his wife as adequate to excuse a delay in the
proceedings based on information contained in the plaintiffs affidavit).
12 Similarly, we find Hunter's reliance on Hevner v. Village East
Towers, Inc., 293 F. App'x 56 (2d Cir. 2008), to argue that this court should
vacate the district court's order if the district court failed to consider the
plaintiffs disability helpful, but not determinative. There, the United
States Court of Appeals for the Second Circuit concluded that because
appellant's disability impaired her performance of many routine tasks,
and because she was not represented by counsel, her delays did not
warrant a dismissal of her complaint. Id. at 58. While this decision may
serve as persuasive authority regarding whether Hunter's illness was an
adequate excuse for the delay, it is not dispositive of the issues before this
court.
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Under the circumstances here, however, Hunter made an
insufficient showing that the delay was excusable due to his illness. 13
Therefore, this factor suggests that dismissal with prejudice was not an
abuse of discretion.
The merit of the claims
While a district court may "consider the merits of the action in
exercising its discretion" to dismiss an action for want of prosecution,
Volpert, 85 Nev. at 441, 456 P.2d at 850 (internal quotation marks
omitted), the district court's order here does not indicate a basis for its
conclusion that "Hunter's claims for quiet title, injunctive relief, adverse
possession, and declaratory relief to attempt to obtain title to the
13A party seeking relief from a delay in prosecution due to ill health
• or a medical condition should normally support its position by providing
medical evidence proving hospitalization or disability to the court. See
Davis v. Operation Amigo, Inc., 378 F.2d 101, 103 (10th Cir. 1967) (noting
that in filing a motion for continuance because of plaintiffs illness, counsel
attached a doctor's letter stating that plaintiff "had been under the
doctor's care since March 19 suffering from virus pneumonitis, was
responding slowly to treatment and could not leave the area for the next
seven to ten days," and concluding that dismissal was too harsh of a
sanction based, in part, on that fact). Additionally, if the party alerts the
court and the opposing party of a medical condition that results in delay,
the party should keep the court and the opposing party apprised of the
progress of the resolution of the medical condition. See Smith v. Gold Dust
Casino, 526 F.3d 402, 403, 405 (8th Cir. 2008) (noting that in requesting a
discovery extension, the plaintiff explained he was experiencing health
problems related to, among other things, cardiac artery disease and
continued to apprise the court of his health progress by informing it he
would undergo heart surgery, and reversing the dismissal of the case, in
part, on that basis).
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Encroachment lack merit." We review these legal conclusions de novo.
See Weddell, 128 Nev. at 101, 271 P.3d at 748.
It appears that the district court based its conclusion that
Hunter's claims lacked merit on Gang's unsupported allegations of Hunter
using the lawsuit as leverage to pressure him into selling his property and
attempting "to amass property that is beyond his own boundaries."
Indeed, at the hearing, the court said, "[w]ell, I just think there's more to
it than he's sitting on his rights right now. I don't think he has a position
and he's just filed a suit in hopes that something sticks if he throws it
against the wall." But, as discussed above, the only evidence presented to
the district court consisted of Hunter's verified complaint, see Vaile, 118
Nev, at 272, 44 P.3d at 513, and Hunter's wife's affidavit, neither of which
contained information that could be viewed as substantial evidence
supporting the district court's findings in this regard. See Weddell, 128
Nev. at 101, 271 P.3d at 748. Accordingly, this would be an improper
basis for the court's conclusion that Hunter's claims lacked merit.
On appeal, Gang argues that this court should affirm the
district court's dismissal with prejudice because Hunter failed to pay or
even plead the payment of property taxes on the property, which he
argues is dispositive of the adverse possession claim. Hunter responds
that the dismissal cannot be justified on the basis of a pleading deficiency
because Gang did not move to dismiss under NRCP 12(b)(5). He further
contends that the silence in the record regarding the payment of taxes
does not warrant an assumption that he did not pay or tender property
taxes and thus permit the conclusion that his claims lack merit on this
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basis. Even assuming Gang is correct and Hunter's failure to plead the
payment of property taxes in accordance with NRS 40.090(1) 14 is
dispositive of his adverse possession claim and the related quiet title
claim, 15 that deficiency would not dispose of Hunter's claims for injunctive
and declaratory relief based on the theories of an implied or prescriptive
easement, irrevocable license, or an agreed boundary by acquiescence
because the payment of taxes is not an element of those claims. 16
14 NRS 40.090(1) specifically requires the party bringing an adverse
possession action to assert in a verified complaint that he personally, or
his predecessor in interest, has "paid all taxes of every kind levied or
assessed and due against the property during the period of 5 years next
preceding the filing of the complaint." See also Potts v. Vokits, 101 Nev.
90, 93, 692 P.2d 1304, 1306 (1985) ("[T]he payment of taxes is an absolute
requirement for claiming land through adverse possession.").
15 See Chapman v. Deutsche Bank Nat'l Tr. Co.. 129 Nev.
302 P.3d 1103, 1106 (2013) (providing that "[a] plea to quiet title does not
require any particular elements, but 'each party must plead and prove his
or her own claim to the property in question' and a 'plaintiffs right to
relief therefore depends on superiority of title" (quoting Yokeno v. Mafnas,
973 F.2d 803, 808 (9th Cir. 1992))).
16 Further,given the procedural posture at the time, Hunter could
have sought leave to amend his complaint. See NRCP 15(a) (providing
that "[a] party may amend the party's pleading once as a matter of course
at any time before a responsive pleading is served. . . . Otherwise a party
may amend the party's pleading only by leave of court or by written
consent of the adverse party; and leave shall be freely given when justice
so requires"). See also Nutton v. Sunset Station, Inc., 131 Nev.
357 P.3d 966, 976 (Ct. App. 2015) (holding that the district court
prematurely concluded that plaintiffs proposed amendment would be
futile under NRCP 56 before a sufficient legal basis existed to warrant
such a conclusion).
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Therefore, this factor suggests the dismissal with prejudice was an abuse
of discretion. 17
Statutes of limitation
Because neither the record nor the parties' briefs include any
information regarding the statutes of limitation applicable to Hunter's
claims, we decline to attempt to assess whether the applicable statutes of
limitation would have precluded a subsequent action following dismissal,
and thus whether a dismissal with prejudice would have been appropriate
on that basis. See Monroe, 123 Nev. at 103-04, 158 F'.3d at 1013.
Accordingly, because we conclude the conduct of the parties
and the merits of the action weigh against dismissal with prejudice, we
conclude the district court abused its discretion in dismissing Hunter's
action with prejudice. See id. at 102-03, 158 P.3d at 1012; Home Say.
Ass'n, 109 Nev. at 565, 854 P.2d at 854 (providing that "a district court
'should be more reluctant to dismiss with prejudice when the underlying
action is meritorious"). In cases where the Nevada Supreme Court has
17 Wealso clarify that, contrary to Gang's assertion during appellate
oral argument, not all dismissals for want of prosecution operate as an
adjudication on the merits and thus a bar to a second suit against the
same defendant on the same claim. NRCP 41(e) states, in pertinent part:
"A dismissal under this subdivision (e) is a bar to another action upon the
same claim for relief against the same defendants unless the court
otherwise provides." (Emphasis added.) Accordingly, "the district court
has discretion under NRCP 41(e) to dismiss with or without prejudice."
Home Say. Ass'n, 109 Nev. at 563, 854 P.2d at 854. And, "unless the
district court states in its order that dismissal is without prejudice,
dismissal with prejudice is presumed and is res judicata and bars any
other suit on the same claim." Theobald Constr., 122 Nev. at 1167, 147
P.3d at 241 (internal footnotes and quotation marks omitted).
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affirmed the district court's dismissal of an action with prejudice prior to
the NRCP 41(e) two-year period, such dismissal came after the plaintiffs
failure to comply with a deadline or appear for trial. See Walls, 112 Nev.
at 178-79, 912 P.2d at 262-63 (holding that dismissal with prejudice for
want of prosecution before two years had passed was appropriate where
plaintiff failed to complete arbitration within one year, as required by
NAR 12(B), and failed to oppose defendant's motion to dismiss after
receiving two extensions); Moore, 90 Nev. at 394-97, 528 P.2d at 1021-23(affirming a dismissal with prejudice for lack of prosecution before two
years had passed where plaintiffs and their attorneys, being aware of the
date and place of the trial, failed to appear for trial or request a
continuance). Neither situation, however, was the case here, nor was the
situation even similar to those two cases.
CONCLUSION
In light of the foregoing, we conclude that the majority of the
district court's findings of fact, on which it based its conclusions of law and
decision to dismiss the action with prejudice, are unsupported by any
evidence in the record. We further determine that the evidence that was
presented does not support a finding that dismissal with prejudice was
warranted. Accordingly, we conclude the district court abused its
discretion 18 in dismissing Hunter's action with prejudice. Therefore, we
reverse the district court's decision to dismiss the action with prejudice,
vacate the order of attorney fees and costs based on that dismissal, and
1-8As defined in Moore, 90 Nev. at 395, 528 P.2d at 1021.
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remand the matter to the district court for further proceedings consistent
with this opinion. 19
Gibbons
Tao
J.
19 We
further deny each party's request for attorney fees on appeal,
see NRAP 38(b) (allowing attorney fees to be awarded on appeal in certain
circumstances), and Hunter's motion to strike Gang's notices of
supplemental authorities.
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