from a district court order dismissing a complaint in
intervention. Eighth Judicial District Court, Clark County;
Linda Marie Bell, Judge.
and remanded with instructions.
Offices of Michael F. Bonn, Esq., Ltd., and Michael F. Bonn,
Las Vegas, for Appellant.
Larsen & Wixom and Chet A. Glover and Kent F. Larsen, Las
Vegas, for Respondent.
HARDESTY, PARRAGUIRRE and PICKERING, JJ.
appeal, we determine whether the district court properly
dismissed a complaint in intervention with prejudice when it
dismissed the original action for failure to prosecute
pursuant to NRCP 41(e). We conclude that, while dismissal of
the complaint in intervention was mandatory under NRCP 41(e),
the district court abused its discretion in dismissing the
complaint in intervention with prejudice.
AND PROCEDURAL HISTORY
appeal involves the dismissal of an action contesting
ownership of real property consisting of three separate lots:
Lot 21, Lot 22, and Lot 26 (the Property) in Las Vegas.
Appellant Saticoy Bay LLC Series 2021 Gray Eagle Way
(Saticoy) allegedly obtained title to the Property by way of
a homeowner association foreclosure deed on Lots 21 and 26
recorded on August 26, 2013, and a quitclaim deed from the
same homeowner association on Lot 22 recorded on December 3,
2013. On September 5, 2012, respondent JPMorgan Chase Bank,
N.A. (JPMorgan) was assigned the beneficial interest of a
deed of trust recorded against the Property on January 4,
April 20, 2009, the Canyon Gate Master Association's
(CGMA) foreclosure agent recorded a notice of delinquent
assessment lien against Lots 21, 22, and 26. On September 8,
2009, CGMA recorded a notice of default and election to sell
Lots 21, 22, and 26. On December 15, 2009, Susan Louise
Hannaford filed a complaint against CGMA challenging an
arbitration award relating to the Property.
23, 2013, CGMA recorded a notice of foreclosure sale of Lots
21 and 26 and scheduled the sale for July 18, 2013. Saticoy
appeared at the foreclosure sale and purchased Lots 21 and
26. On August 5, 2013, Saticoy moved to intervene in the
action initiated by Hannaford's complaint. The motion was
unopposed, and the district court entered an order granting
the motion. On September 30, 2013, Saticoy filed its
complaint in intervention seeking injunctive relief, quiet
title, declaratory relief, and issuance of a writ of
October 18, 2013, CGMA recorded a notice of foreclosure sale
of Lot 22. CGMA purchased Lot 22 at the foreclosure sale on
November 21, 2013. Saticoy purportedly purchased Lot 22 from
CGMA by way of a quitclaim deed recorded December 3, 2013.
November 6, 2014, JPMorgan filed an answer to Saticoy's
complaint in intervention. On March 17, 2015, the district
court entered an order to show cause directing the parties to
show why the action should not be dismissed pursuant to NRCP
41(e) for failure to bring the action to trial within five
years after Hannaford's complaint was filed. At the show
cause hearing, the district court determined that the action
should be dismissed, but requested that the parties brief the
issue of whether the dismissal should be with or without
prejudice. After briefing was completed, the district court
entered an order dismissing Hannaford's complaint and
Saticoy's complaint in intervention with prejudice,
finding that (1) neither Hannaford nor Saticoy had
"taken affirmative steps to adequately prosecute [the]
case, " (2) Saticoy's "excuse that it
intervened only nineteen months [before the date of the order
to show ...