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Smith v. Eighth Judicial Dist. Court In and For County of Clark12/17/1997
Original petition for writ of mandamus or prohibition. Petition for writ of mandamus granted.
PER CURIAM:
This original petition for a writ of mandamus or prohibition challenges an order of the district court denying a motion to dismiss a cross-claim for failure to serve the cross- claim within 120 days from the date it was filed.
We have previously stated that we will not exercise our discretion to consider writ petitions that challenge orders of the district court denying motions to dismiss or motions for summary judgment. State ex tel. Dep't Transp. v. Thompson, 99 Nev. 358, 662 P.2d 1338 (1983). We adopted this policy because very few writ petitions warrant extraordinary relief, and this court expends an enormous amount of time and effort processing these petitions. Id. at 361-62, 662 P.2d at 1340.
Nevertheless, we have allowed a very few exceptions where considerations of sound judicial economy and administration militated in favor of granting such petitions. See, e.g., State v. Babayan, 106 Nev. 155, 176, 787 P.2d 805, 819 (1990) (granting a writ of mandamus dismissing an indictment to prevent a "gross miscarriage of Justice" Although we reaffirm the general rule of Thompson, this court will continue to exercise its discretion with respect to certain petitions where no disputed factual issues exist and, pursuant to clear authority under a statute or rule, the district court is obligated to dismiss an action. Additionally, we may exercise our discretion where, as here, an important issue of law requires clarification. The interests of judicial economy, which inspired the Thompson rule, will remain the primary standard by which this court exercises its discretion.
The underlying case arises from an automobile accident that occurred on June 17, 1993. Linda Lee was a passenger in a car driven by real party in interest Ho Ming Chang. The other car involved in the collision was driven by petitioner Allen Smith. Petitioner Joanne MacDougall was the owner of the car driven by Smith.
On March 27, 1995, Lee filed a complaint in district court against petitioners and Chang. The complaint alleged that Lee had been injured in the accident mentioned above, and that petitioners and Chang were responsible for her injuries.
On or about May 3, 1995, Chang, acting through his attorney, Robert M. Ebinger, filed a document in the district court entitled "cross-claim." This purported cross-claim named petitioners as defendants, and alleged that petitioners were responsible for Chang's personal injuries sustained in the accident. Attorney Ebinger did not immediately serve a copy of this cross-claim on petitioners.
Thereafter, on May 24, 1995, Chang, acting through a different attorney, Kenneth A. Cardone, filed an answer to Lee's complaint. On June 17, 1995, the statute of limitations ran on Chang's personal injury claim. NRS 11.190(4)(e). Chang's purported cross-claim for his own personal injuries had not yet been served on petitioners.
The parties then selected an arbitrator. One of Chang's attorneys, Cardone, participated in the selection process, but Chang's other attorney, Ebinger, did not. The arbitrator scheduled an early arbitration conference for September 6, 1995. It was at this conference that petitioners first learned that Chang had other counsel, and that Chang was asserting a claim against them based on his own personal injuries.
Subsequently, on September 6, 1995, Ebinger served Chang's cross-claim on petitioners by mailing a copy of the document to petitioners' counsel. This mailing took place 126 days after the cross-claim was filed in district court. On September 18, 1995, pe
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