Br Constr., LLC v. Dist. Ct. (Holbrook Beef and Cattle Co., LLC)

Here, there is no dispute that when BR Construction filed its motion to dismiss in December 2014, five years had passed since the filing of Holbrook's complaint on July 31, 2009. Rather, Holbrook argues that the parties' settlement agreement stayed the action until December 10, 2013, when the district court lifted the stay, and that the stay operated to toll the five-year period. Further, Holbrook argues that BR Construction's "subterfuge" in asking to vacate the trial date and then not filing for bankruptcy as indicated should toll the period. Finally, Holbrook asks that any dismissal be entered without prejudice. Because the district court did not order the stay and the parties did not explicitly agree to extend the five-year period, the five-year period was not tolled. Boren v. City of N. Las Vegas, 98 Nev. 5, 5-6, 638 P.2d 404, 404 (1982) (holding that court-ordered stays extend the five-year period); Prostack v. Lowden, 96 Nev. 230, 231, 606 P.2d 1099, 1099-1100 (1980) (explaining that a stipulation must expressly extend the five-year deadline; a stipulation to continue the trial date that makes no mention of the five-year rule does not suffice, and a defendant's "(w)ords and conduct, short of a written stipulation' cannot estop a defendant from asserting the mandatory dismissal rule" (quoting Thran v. First Judicial Dist. Court, 79 Nev. 176, 181, 380 P.2d 297, 300 (1963))). Accordingly, the district court was required to dismiss the action. With regard to Holbrook's request that any dismissal be entered without prejudice, "the district court has broad discretion in determining whether an NRCP 41(e) dismissal should be with or without prejudice." Home Say. Ass'n v. Aetna Cas. & Sur. Co., 109 Nev. 558, 563- 64, 854 P.2d 851, 854 (1993). The district court has not yet considered this proposal, and thus, this court's intervention would be premature as to that

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issue. See Kochendorfer v. Bd. of Cnty. Comm'rs., 93 Nev. 419, 422, 566 P.2d 1131, 1133 (1977) (explaining that mandamus cannot be used to control the proper exercise of discretion or to substitute the judgment of this court for that of the district court). Thus, without deciding the prejudice issue, mandamus is warranted, NRS 34.160 (providing that mandamus will issue to compel an act enjoined by law); Smith v. Eighth Judicial Din. Court, 113 Nev. 1343, 1344-45 & n.1, 1348, 950 P.2d 280, 281 & n.1, 283 (1997), and we ORDER the petition GRANTED AND DIRECT THE CLERK OF THIS COURT TO ISSUE A WRIT OF MANDAMUS instructing the district court to grant the motion to dismiss under NRCP 41(e).

,J. Parraguirre

cc: Chief Judge, The Ninth Judicial District Court Hon. David R. Gamble, Senior Judge James J. Rankl Oshinski & Forsberg, Ltd. Douglas County Clerk

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