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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