Errico v. Dist. Ct. (Van)

• Court: Nevada Supreme Court
• Decided: May 11, 2016
• Docket: 70147
• Status: Unpublished

Opinion

IN THE SUPREME COURT OF THE STATE OF NEVADA

WILLIAM ERRICO, AN INDIVIDUAL; No. 70147 AND WILLIAM ERRICO AND ASSOCIATES, P.C., A NEVADA PROFESSIONAL CORPORATION, Petitioners, vs. FILED THE EIGHTH JUDICIAL DISTRICT MAY 1 1 2016 COURT OF THE STATE OF NEVADA, MAN IN AND FOR THE COUNTY OF CLARK; SY licliREft f AND THE HONORABLE TIMOTHY C. WILLIAMS, DISTRICT JUDGE, Respondents, and MICHAEL C. VAN, ESQ. AS SUCCESSOR GUARDIAN OF THE ESTATE FOR WILFRED RICHARD- JAMES BOSSERMAN, Real Party in Interest.

ORDER DENYING PETITION FOR WRIT OF MANDAMUS This original petition for a writ of mandamus challenges a January 2016 order denying a motion to dismiss in a legal malpractice action and an August 2015 order denying a motion to stay the proceedings in that same action. Having considered the petition and supporting documents, we are not persuaded that our extraordinary and discretionary intervention is warranted. Pan v. Eighth Judicial Dist. Court, 120 Nev. 222, 228, 88 P.3d 840, 844 (2004); Smith v. Eighth Judicial Dist. Court, 107 Nev. 674, 677, 679, 818 P.2d 849, 851, 853 (1991). With respect to the January 2016 order, and assuming without deciding that petitioners' NRS 11.250 arguments have merit, dismissal of the action would still not be warranted because the record does not "irrefutably demonstrate [I" that Mr. SUPREME COUFrr OF NEVADA

(0) 1947A 944p4,9 - HMS' Bosserman's claims accrued in December 2010. See Winn v. Sunrise Hosp. & Med. Ctr., 128 Nev. 246, 253, 277 P.3d 458, 463 (2012) (recognizing that the date on which a cause of action accrues is normally a question of fact and that "[d]ismissal on statute of limitations grounds is only appropriate when uncontroverted evidence irrefutably demonstrates plaintiff discovered or should have discovered the facts giving rise to the cause of action" (quotation omitted)). We also note that the district court did not dismiss the November 2013 complaint. With respect to the August 2015 order, petitioners have not explained their delay in seeking writ relief, nor have they provided any documentation regarding the status of Mr. Errico's criminal proceeding so that this court could meaningfully determine whether the district court abused its discretion in denying a stay. NRAP 21(a)(4); Pan, 120 Nev. at 228, 88 P.3d at 844; see Aspen Fin. Servs., Inc. v. Eighth Judicial Dist. Court, 128 Nev., Adv. Op. 57, 289 P.3d 201, 205-06 (2012) (reviewing a district court's denial of a stay for an abuse of discretion and recognizing that "[d]etermining whether to grant such a stay is a fact-intensive, case- by-case determination"). Accordingly, we ORDER the petition DENIED. 1

frea.4; Hardesty

Saitta Pickering

'In light of our disposition of this writ petition, petitioners' April 13, 2016, motion for a stay is denied as moot. SUPREME COURT OF NEVADA 2 (0) 1947A cc: Hon. Timothy C. Williams, District Judge Johnson & Gubler, P.C. Shumway Van & Hansen Eighth District Court Clerk

SUPREME COURT OF NEVADA 3 (0) 1947A e