Bell & Gossett Co. v. Oak Grove Investors

843 P.2d 351, 108 Nev. 958, 1992 Nev. LEXIS 183
CourtNevada Supreme Court
DecidedDecember 3, 1992
DocketNo. 21288
StatusPublished
Cited by3 cases

This text of 843 P.2d 351 (Bell & Gossett Co. v. Oak Grove Investors) is published on Counsel Stack Legal Research, covering Nevada Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bell & Gossett Co. v. Oak Grove Investors, 843 P.2d 351, 108 Nev. 958, 1992 Nev. LEXIS 183 (Neb. 1992).

Opinion

[959]*959OPINION

Per Curiam:

This lingering controversy arose from problems with a hot water plumbing system installed in a large Reno apartment complex. Various subcontractors contributed to the plumbing system that improperly combined the domestic hot water system with the hot water heating system and utilized monoflow plumbing fittings manufactured by appellant Bell & Gossett Company. Allegedly, the fittings supplied by Bell & Gossett were inappropriate for the apartment complex plumbing system, and increased the water velocity beyond safe limits, causing erosion and corrosion. The hot water pipes began to leak, and it became necessary to redesign and replace the hot water plumbing system.

Respondent Oak Grove Investors purchased the apartment complex in January, 1979, and soon discovered extensive water damage caused by the problems with the plumbing and heating system. On February 15, 1980, Oak Grove brought suit in Nevada state court against several companies which participated in the project, alleging negligence, breach of warranty and strict products liability. The defendants filed various cross-claims against each other, including a July 1, 1980 cross-claim by Raypak, Inc. seeking contribution from Bell & Gossett.

Before trial, the district court granted Bell & Gossett’s motion for summary judgment and dismissed all claims against it based on the determination that no defect existed in the Bell & Gossett product that was used in the apartment complex plumbing system. Raypak later obtained an amended summary judgment order which dismissed Oak Grove’s direct claim against Bell & Gos-sett, but reinstated Raypak’s cross-claim.

With the exception of Raypak, the remaining defendants settled with Oak Grove and obtained releases in exchange for a combined payment of $1.1 million. Oak Grove proceeded to trial against Raypak alone in November, 1981. The jury returned a verdict against Raypak for $2,750,896.60 on December 16, 1981. Later, the district court added costs and interest to the judgment, bringing the total judgment against Raypak to $3,156,487.46. In the March 19, 1982 final judgment, Raypak received credit for the $1.1 million paid by the settling defendants.

On September 21, 1983, Oak Grove received $1,600,000 on behalf of Raypak. Oak Grove in turn released Raypak and Ray-pak’s seven insurance carriers (but specifically excluded Bell & Gossett from the release). In the same release, Raypak assigned to Oak Grove its cross-claim against Bell & Gossett. On May 30, 1984, Oak Grove filed a satisfaction of judgment.

[960]*960Meanwhile, Oak Grove appealed the summary judgment in favor of Bell & Gossett. We determined that summary judgment had been improperly granted and reversed the district court’s order. Oak Grove Inv. v. Bell & Gossett Co., 99 Nev. 616, 668 P.2d 1075 (1983). We concluded that even if Bell & Gossett’s product was not manufactured defectively, a question remained as to whether the product was defective due to lack of a proper warning about hazards which could result from its improper use. Id. at 624, 668 P.2d at 1080. Our opinion was issued on August 31, 1983, and the remittitur was filed in the district court on October 12, 1983,

After remand, Oak Grove attempted to prosecute a direct claim against Bell & Gossett. However, on October 15, 1985, the district court dismissed Oak Grove’s claim on the basis that it had been extinguished in 1984 when Oak Grove filed its satisfaction of judgment. See NRS 17.235.1 The court’s order did, however, allow Oak Grove to pursue Raypak’s cross-claim for contribution against Bell & Gossett as Raypak’s assignee.

Bell & Gossett subsequently moved to dismiss the assigned cross-claim for failure to bring the matter to trial within five years. The district court denied the motion on August 20, 1986, concluding that under NRCP 41(e), Oak Grove had three years from the date of the filing of the remittitur within which to bring the assigned cross-claim to trial.

Thereafter, Bell & Gossett filed a petition in this court for a writ of mandamus, challenging the district court’s denial of its motion to dismiss. We stayed the proceedings on September 30, 1986 (twelve days before the three-year statutory period in which to bring the action to trial after remittitur expired) in order to consider Bell & Gossett’s position. On December 4, 1986, we denied the petition and lifted the stay, based upon our decision in State ex rel. Department of Transportation v. Thompson, 99 Nev. 358, 662 P.2d 1338 (1983), to no longer entertain petitions for extraordinary relief challenging district court orders denying motions to dismiss.

On December 10, 1986, the case was set for trial to commence on December 17, 1986. However, the three-year statutory period expired on December 16, 1986. On December 17, 1987, in open court, Bell & Gossett filed a motion to dismiss for want of prosecution. The district court denied the motion and began the [961]*961trial on the assigned cross-claim over Bell & Gossett’s objection. After one witness was sworn and briefly examined, the trial was continued to an unspecified future date.

On February 22, 1989, Oak Grove filed a complaint for declaratory judgment in federal court. On October 2, 1989, the federal district court entered an order certifying twelve questions to this court, which we have entertained.2 For the reasons discussed below, we advise the federal court that under Nevada law, no cause of action remains to be pursued against Bell & Gossett.

We deal first with the timeliness issue. NRCP 41(e) requires a cause of action not brought to trial within five years after it is filed to be dismissed. The provisions of Rule 41 are applicable to cross-claims. NRCP 41(c); Great W. Land & Cattle Corp. v. District Court, 86 Nev. 282, 284, 467 P.2d 1019, 1021 (1970). The December 17, 1986 trial date was well beyond the five-year limit. However, we agree with the district court that when Oak Grove obtained a reversal of the summary judgment granted to Bell & Gossett, a new three-year time limit within which to bring the action to trial commenced.

NRCP 41(e) provides in part:

When in an action after judgment, an appeal has been taken and judgment reversed with cause remanded for a new trial . . . , the action must be dismissed by the trial court on motion of any party after due notice to the parties, or of its own motion, unless brought to trial within three years from the date upon which remittitur is filed by the clerk of the trial court.

The above language specifically addresses the situation when a cause is remanded for a new trial, but we have held that a district court may accord the same three-year limit in which to bring an action to trial in the first instance after remand. McGinnis v. Consolidated Casinos Corp., 97 Nev. 31, 623 P.2d 974 (1981).

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Cite This Page — Counsel Stack

Bluebook (online)
843 P.2d 351, 108 Nev. 958, 1992 Nev. LEXIS 183, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bell-gossett-co-v-oak-grove-investors-nev-1992.