Rg Electric, Inc. v. Cole ( 2016 )

IN THE SUPREME COURT OF THE STATE OF NEVADA
RG ELECTRIC, INC., No. 65043
Appellant,
vs.
DAN ELLIS COLE, INDIVIDUALLY FILED
AND D/B/A COLE WILSON; COLE
FEB 1 2 2016
WILSON; JOHN PAUL WILSON,
INDIVIDUALLY AND D/B/A COLE
WILSON; LCW CONTRACTORS, INC.,
A CALIFORNIA CORPORATION;
TRAVELERS CASUALTY & SURETY, A
SURETY; AND SURETEC INSURANCE
COMPANY, A TEXAS CORPORATION,
Respondents.
ORDER AFFIRMING IN PART AND VACATING IN PART
This is an appeal from a district court order granting a motion
to reconsider an order that rescinded an earlier order dismissing the
action. Eighth Judicial District Court, Clark County; Michelle Leavitt,
Judge.
Appellant argues that because the district court's dismissal
was based on an erroneous finding that the case had been inactive, the
court had authority to correct its error under NRCP 60(a) and reopen the
case, and that reconsideration of its order doing so was therefore
improper. Appellant contends that even if the district court lacked
authority to correct the error under NRCP 60(a), it should have vacated its
October 2011 order staying arbitration because if the case is dismissed,
the district court no longer has jurisdiction over it, and allowing the stay
to remain in place is akin to a permanent injunction on arbitration.
Having considered the parties' arguments and the record, we
conclude that reconsideration was properly granted. AA Primo Builders,
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LLC v. Washington, 126 Nev. 578, 589, 245 P.3d 1190, 1197 (2010)
(applying abuse of discretion standard of review); SFPP, L.P. v. Second
Judicial Dist. Court, 123 Nev. 608, 612,173 P.3d 715, 717 (2007) (noting
that "once a final judgment is entered, the district court lacks jurisdiction
to reopen it, absent a proper and timely motion under the Nevada Rules of
Civil Procedure"). This court has defined clerical error correctable under
NRCP 60(a) as "a mistake in writing or copying," and particularly with
regard to judgments, one that "cannot reasonably be attributed to the
exercise of judicial consideration or discretion." Pickett v. Comanche
Constr., Inc., 108 Nev. 422, 428, 836 P.2d 42, 46 (1992) (citation and
emphasis omitted). Federal courts agree that "if the judgment captures
the original meaning but is infected by error, then the parties must seek
[a] source of authority [other than Rule 60(a)] to correct the mistake."
United States v. Griffin, 782 F.2d 1393, 1396-97 (7th Cir. 1986); see Burton
v. Johnson, 975 F.2d 690, 694 (10th Cir. 1992) (recognizing that Rule 60(a)
may be invoked to make an original order more clearly reflect a court's
contemporaneous intent but the court may not clarify a judgment to reflect
a new and subsequent intent when it perceives its original judgment to be
incorrect); see also Brandon v. Chi. Bd. of Educ., 143 F.3d 293, 295 n.2
(7th Cir. 1998) (concluding that correction under Rule 60(a) was not
appropriate because "the dismissal . . . accurately reflected the court's
intention at the time it was entered. Thus, the error, to the extent there
was one, was not in the transcription, but in the court's decision, a ground
for relief not contained in Rule 60(a)").
Here, the district court's error was in its failure to recognize
that a stay was entered in October 2011, and that EDCR 2.90's inactivity
grounds for dismissal therefore did not apply. While based on erroneous
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factual and legal grounds, the dismissal nevertheless accurately reflected
the district court's intention to dismiss the case at the time it rendered its
decision. Any error in the court's decision to dismiss the case thus was not
the type correctable under NRCP 60(a). Pickett, 108 Nev. at 428, 836 P.2d
at 46; Griffin, 782 F.2d at 1396-97; Brandon, 143 F.3d at 295 n.2. A
decision to the contrary would weaken the policy favoring finality of
judgments and permit circumvention of more restrictive deadlines
contained in rules such as NRCP 60(b). See In re Am. Precision Vibrator
Co., 863 F.2d 428, 429 (5th Cir. 1989); Griffin, 782 F.2d at 1398 (noting
that Rule 60(a) mediates between the interests of finality and accuracy in
the adjudication of rights through a combination of its small scope
("clerical mistakes") and unlimited time, whereas Rule 60(b) has a broader
scope allowing correction of a variety of legal and factual errors, but with a
shorter deadline). Thus, we affirm the district court's reconsideration
order.
As for the October 2011 order staying arbitration, appellant
correctly argues that the district court's dismissal order deprived it of
jurisdiction over the case and that the stay order is no longer effective.
See Bomer v. Ribicoff, 304 F.2d 427, 428-29 (6th Cir. 1962); Lakes v.
Marriott Corp., 448 S.E.2d 203, 205-06 (Ga. 1994) (explaining that
dismissal "deprived the trial court of jurisdiction over the case and left the
parties in the same position as if the suit had never been filed");
Montgomery v. Morris, 745 S.E.2d 778, 780 (Ga. Ct. App. 2013) (noting
that when a case is involuntarily dismissed without prejudice, "any
subsequent order is null and void because the trial court has lost
jurisdiction over the case, which is no longer pending before it"). Here, the
underlying action was dismissed without prejudice, allowing appellant to
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refile the action, which it did. The October 2011 stay order terminated on
dismissal of the action, as lain action dismissed without prejudice leaves
the situation the same as if the suit had never been brought." Bomer, 304
F.2d at 428; see Auto Parts Mfg. Miss., Inc. v. King Constr. of Houston,
L.L. C., 782 F.3d 186, 191 (5th Cir. 2015) (noting that while qpiermanent
injunctions survive dismissal of the case[,] preliminary injunctions do
not"). Thus, we vacate the district court's October 25, 2011, stay order.
It is so ORDERED.'
J.
Gibbons
cc: Hon. Michelle Leavitt, District Judge
Backus, Carranza & Burden
Peel Brimley LLP/Henderson
Eighth District Court Clerk
'Although respondents argue that arbitration should not proceed
based on a provision in the parties' contract, that issue is not before us.
The stay terminated with the dismissal of the underlying case, and any
disputes regarding arbitration should be resolved in the refiled district
court action, which remains pending in Department 3.
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