No. 59691 

No. 63804 

FILED 

APR 0 7 2016 

Tit/KIX K. LINDEMAN 

CL 

BY 

CHI 

132 Nev., Advance Opinion 22. 

IN THE COURT OF APPEALS OF THE STATE OF NEVADA 

RICHARD A. HUNTER, AN 

INDIVIDUAL, 

Appellant, 

vs. 

WILLIAM GANG, AN INDIVIDUAL, 

Respondent. 

RICHARD A. HUNTER, AN 

INDIVIDUAL, 

Appellant, 

vs. 

WILLIAM GANG, AN INDIVIDUAL, 

Respondent. 

Consolidated appeals from a final district court order 

dismissing appellant's complaint with prejudice for want of prosecution 

and a post-judgment order awarding attorney fees and costs Eighth 

Judicial District Court, Clark County: Douglas Smith, Judge. 

Reversed in part, vacated in part, and remanded. 

Greenberg Traurig, LLP, and Mark E. Ferrario and Tami D. Cowden, Las 

Vegas, 

for Appellant. 

Marquis Aurbach Coffing and Albert G. Marquis and Tye S. Hanseen, Las 

Vegas, 

for Respondent. 

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BEFORE GIBBONS, C.J., TAO and SILVER, JJ. 

OPINION 

By the Court, GIBBONS, C.J.: 

These are consolidated appeals from a district court order 

dismissing an action with prejudice for want of prosecution and a postjudgment award of attorney fees and costs. Under the Nevada Rules of 

Civil Procedure and the court's inherent authority, a district court may 

dismiss an action for want of prosecution. NRCP 41(e); Moore v. Cherry, 

90 Nev. 390, 393, 528 P.2d 1018, 1020 (1974). In this opinion, we address 

whether the district court abused its discretion in dismissing an action 

with prejudice for want of prosecution before the two-year time period in 

NRCP 41(e) expired and before the defendant filed an answer or other 

responsive pleading under NRCP 12. We also consider whether the 

district court erred in reaching its findings of fact on which it based its 

conclusions of law and whether the district court abused its discretion in 

awarding attorney fees and costs. 

Our review of the record 'does not reveal any evidence to 

support the district court's findings of fact on which it based its 

conclusions of law and decision to dismiss the action with prejudice. As a 

result, we conclude that the district court abused its discretion in 

dismissing the action with prejudice. Accordingly, we reverse the district 

court's decision to dismiss the action with prejudice, vacate the subsequent 

order awarding attorney fees and costs, and remand the matter to the 

district court for further proceedings consistent with this opinion. 

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FACTS AND PROCEDURAL HISTORY 

These consolidated appeals arise out of a property dispute 

between neighbors.' In 1980, appellant Richard Hunter acquired his 

property. To prevent flooding on his property caused by water run-off 

from an adjoining property, he sought his neighbor's permission to build a 

berm on her property. According to Hunter, the neighbor agreed, and in 

1983, Hunter constructed the berm, which he asserts he continually 

maintained thereafter. 

Around 2002, respondent William Gang acquired the same 

adjoining property with, according to Hunter, knowledge of the berm's 

existence. In 2009, Hunter attempted to sell his property, but was 

purportedly unsuccessful because of concerns raised by the potential buyer 

with regard to encroachments on Gang's property, including the berm. As 

a result, a dispute over the berm began, causing Hunter to initiate the 

lawsuit underlying this appeal. 

Hunter's December 4, 2009, verified complaint asserted claims 

to quiet title and for adverse possession and sought injunctive and 

declaratory relief regarding the portion of Gang's property where Hunter 

built the berm. After Hunter filed the complaint, the parties met to 

discuss a possible settlement. During those negotiations, Hunter granted 

Gang an open extension of time to respond to the complaint. According to 

Gang, settlement negotiations then "broke down" in August 2010. 

'We derive the following factual summary from the parties' 

pleadings, briefs, and arguments before this court and the district court. 

To the extent that any facts are in dispute, the positions of the parties 

relative to such facts are set forth herein. 

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Despite this claimed lack of progress in settlement 

negotiations, Gang asserts that he continued to send settlement 

correspondence to Hunter through August 2011. Specifically, Gang claims 

he sent settlement correspondence to Hunter on four separate occasions 

between September and November 2010. In response to those four 

inquiries, Gang asserts Hunter's counsel responded once in November 

2010, but the response indicated only that Hunter was traveling and that 

counsel would attempt to obtain an answer from him. Gang claims he did 

not receive any response thereafter, so he then sent an additional six 

settlement inquiries to Hunter between December 2010 and August 2011. 

Gang claims Hunter's counsel did not respond until August 2011, and then 

only indicated that counsel was on vacation and would not speak to 

Hunter until the following week. Gang maintains he did not receive any 

further correspondence from Hunter and, as a result, informed Hunter he 

would move for dismissal. Hunter disputes Gang's version of events, 

asserting that the parties were discussing settlement proposals, and 

Hunter was therefore operating under the impression that the parties 

would settle the case, up until the time Gang filed his motion to dismiss. 

Gang moved to dismiss Hunter's action with prejudice for 

want of prosecution on August 11, 2011-20 months after Hunter filed his 

complaint. The two-page motion contained a short statement of facts, 

claiming settlement negotiations "broke down over a year ago and Hunter 

became unresponsive for extended periods of time." Gang further asserted 

that he had attempted frequent contact with Hunter but that Hunter had 

failed to "resolve the matter or move forward with litigation." Gang did 

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not file an affidavit or declaration to support his factual contentions. 2 

Further, Gang did not identify the specific legal authority under which he 

sought dismissal. He did, however, cite to cases that identify the court's 

express authority under NRCP 41(e) to dismiss an action that a plaintiff 

has not brought to trial within two years, as well as cases discussing the 

court's inherent authority to dismiss an action for want of prosecution. 

Hunter opposed the motion, arguing that dismissal was 

premature because the two-year time period in NRCP 41(e) had not 

passed. Alternatively, Hunter argued that if the district court considered 

entertaining the motion to dismiss, it should excuse any delay because he 

was having health issues. Specifically, Hunter explained that he had 

"been suffering from serious medical conditions that interfere[d] with his 

ability to focus on this litigation" and that his ailments "made it 

impossible for [him to] pursue th[e] matter until his health improve[d]." 

Hunter also attached an affidavit from his wife, which stated that since 

early 2009, Hunter had "been suffering from a series of health related 

problems, including heart problems, a "series of mini strokes that resulted 

in the temporary loss of eyesight, pneumonia and. . . dangerously high 

blood pressure." 

At the hearing on the motion to dismiss, Gang acknowledged 

that he was aware of Hunter's ill health 3but noted that nearly two years 

2A party who files a pretrial motion involving factual contentions 

must file an affidavit or declaration with the motion to support those 

issues. See DCR 13(6); EDCR 2.21. 

31t is unclear when or how Gang first became aware of Hunter's 

health problems. 

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had elapsed in the case and argued that Hunter was utilizing the lawsuit 

as leverage to pressure Gang into selling his property. Specifically, Gang 

asserted that Hunter wanted a portion of his property because a potential 

buyer had declined to purchase Hunter's property due to encroachments 

on Gang's property. Gang also alleged that Hunter had encroached onto 

another neighbor's property, as well as onto Gang's property again after he 

filed his complaint. Gang concluded his argument by requesting the 

district court to dismiss the case, at a minimum, without prejudice. 

In response, Hunter argued that two years had not elapsed in 

the action and that Gang failed to cite a single case that supported a 

dismissal before two years. Hunter further emphasized his ill health and 

his counsel indicated that, because of Hunter's ill health, he had found it 

difficult to discuss the case with Hunter. Hunter explained that the sale 

with the potential buyer failed because Gang provided inaccurate 

information to the buyer regarding certain encroachments and asserted 

that he intended to amend his complaint accordingly. Hunter further 

questioned why Gang had not pursued any action to remove the alleged 

encroachments. Finally, Hunter asked the district court to permit the 

case to proceed and suggested a settlement conference in order to facilitate 

the process. 

The hearing lasted only nine minutes. The district court did 

not hear witness testimony or receive any evidence to supplement 

Hunter's verified complaint or his wife's affidavit, or to support Gang's 

otherwise unsupported assertions. The district court ultimately granted 

Gang's motion to dismiss with prejudice and directed Gang to prepare the 

findings of fact and conclusions of law. 

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Upon receiving the proposed order from Gang, Hunter refused 

to approve it because he claimed it contained unsupported findings of fact 

and conclusions of law, and essentially granted summary judgment. 

Nevertheless, Gang submitted the order, which the court signed, despite 

its lack of citation to legal authority and despite the fact that two years 

had not elapsed since Hunter filed his complaint. Hunter appealed the 

dismissal, which is pending before this court in Docket No. 59691. 

Thereafter, Gang moved for attorney fees in the district court 

pursuant to NRS 18.010(2)(b), claiming that Hunter brought his claims 

without reasonable grounds or to harass, and for costs under NRS 18.020, 

as the prevailing party. The motion did not contain evidentiary support 

for Gang's substantive claims that Hunter brought the lawsuit without 

reasonable grounds or to harass, 4and the district court did not conduct an 

evidentiary hearing. Nonetheless, the district court granted Gang's 

motion for attorney fees and costs in full. Hunter then appealed from that 

order, which is before us in Docket No. 63804, and the two appeals were 

subsequently consolidated. 

4Gang supported his motion with his counsel's affidavit, but the 

affidavit only addressed the reasonableness of the fees under Brunzell v. 

Golden Gate National Bank, 85 Nev. 345, 455 P.2d 31 (1969). Although 

Gang also attached an affidavit of counsel to his reply in support of a fees 

award, which set forth the dates on which Gang sent settlement 

correspondence to Hunter between September 2010 and August 2011, 

Gang provided this information in support of his request for costs and not 

as evidence that Hunter brought his claims without reasonable grounds or 

to harass. 

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this case 

diligence. 

authority 

ANALYSIS 

The basis for the district court's dismissal with prejudice in 

was Hunter's purported failure to prosecute his action with 

The district court, however, did not specify the source of its 

when it granted Gang's motion to dismiss. Thus, to aid our 

analysis, we begin by discussing the applicable authorities under which 

the district court may dismiss an action for want of prosecution and the 

parties' arguments in relation to those authorities. After we determine 

the source of the district court's authority, we address whether the district 

court's findings of fact and the resulting dismissal of Hunter's action were 

proper. 5 

Dismissal for want of prosecution 

Initially, we must identify the source of the district court's 

authority in dismissing the action. District courts in Nevada have two 

independent sources of authority under which they may dismiss an action 

for want of prosecution. First, district courts have express authority 

under NRCP 41(e), which permits dismissal whenever the plaintiff has 

failed to bring the action to trial within two years after the action is filed 

and requires dismissal if the plaintiff does not bring the action to trial 

within five years of filing the action. Second, Nevada district courts have 

inherent authority to dismiss an action for want of prosecution, which is 

"independent of any authority granted under statutes or court rules." 

Moore, 90 Nev. at 393, 528 P.2d at 1020. 

5Since our decision on these issues is dispositive of this appeal, we 

do not directly consider Hunter's arguments regarding the award of 

attorney fees and costs. 

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Because the district court dismissed the underlying action 

before the two-year time period in NRCP 41(e) had passed, the district 

court could not have based the dismissal on its express authority. 6 

Therefore, the district court must have dismissed Hunter's action under 

its second source of power, its inherent authority. Although the district 

court failed to specify that it dismissed the action pursuant to its inherent 

authority, under the circumstances of this case, inherent authority is the 

only possible justification for the district court's action. 

Contrary to Hunter's argument that NRCP 41(e) limits the 

district court's inherent authority, the Nevada Supreme Court has held 

that the district court's inherent authority is not limited in this regard. 

See Harris v. Harris, 65 Nev. 342, 345-50, 196 P.2d 402, 403-06 (1948) 

(considering the court's inherent authority in light of a statute that was 

substantially the same as NRCP 41(e) and holding that the district court 

6District courts in the Eighth Judicial District also have express 

authority to dismiss an action for want of prosecution under local court 

rules. See EDCR 1.90(b)(2), (d)(1) (requiring that each department either 

dispose of or set for dismissal all civil cases not answered within 180 days 

of filing or those that have been pending longer than 12 months and in 

which no action has been taken for more than 6 months); EDCR 2.90(a) 

(giving the court authority to dismiss any civil action, on its own initiative 

and without prejudice, that has been pending for more than 12 months 

and in which no action has been taken for more than 6 months). Gang, 

however, did not argue that dismissal was proper under these rules, and 

thus, Gang has waived these arguments. Accordingly, we do not consider 

them. See Old Aztec Mine, Inc. v. Brown, 97 Nev. 49, 52, 623 P.2d 981, 

983 (1981) ("A point not urged in the trial court, unless it goes to the 

jurisdiction of that court, is deemed to have been waived and will not be 

considered on appeal."). 

9 
may exercise its inherent authority to dismiss an action for lack of 

prosecution before the statutory time period for dismissal has passed). 

Hunter nevertheless argues that a district court's ability to 

resort to its inherent authority to dismiss an action for want of prosecution 

is restricted by Halverson v. Hardcastle, 123 Nev. 245, 163 P.3d 428 

(2007), which Hunter argues permits a district court to exercise its 

inherent authority only in limited circumstances, such as when an 

established method fails or in an emergency situation. See 123 Nev. at 

263, 163 P.3d at 441. Hunter thus argues that, because NRCP 41(e) 

provides the district court with an established method for dismissing an 

action for want of prosecution and because no emergency situation existed, 

the district court abused its discretion in resorting to its inherent 

authority and disregarding the time period in NRCP 41(e). Hunter's 

argument focuses only on Halverson and does not account for related 

caselaw regarding the court's ability to resort to its inherent authority. 

In particular, in City of Sparks v. Sparks Municipal Court, 129 

Nev. 302 P.3d 1118, 1129 (2013), the Nevada Supreme Court 

reviewed Nevada caselaw discussing inherent authority generally and 

concluded that a district court need not justify an exercise of inherent 

authority based on emergency circumstances or the failure of an 

established method "if [the] action falling under the court's inherent 

authority is part of the court's day-to-day functioning or regular 

management of its internal affairs." Rather, the court explained that a 

district court must justify an exercise of inherent authority only when "the 

court's need to exercise its inherent authority arises outside the court's 

regular management of its affairs." Id. (emphasis added). Thus, we 

continue our analysis with an overview of the sources of the court's 

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inherent authority to determine whether the court's resort to its inherent 

authority in this case required justification before considering whether its 

use of that authority was an abuse of discretion. 

"Inherent judicial powers stem from two sources: the 

separation of powers doctrine and the power inherent in a court by virtue 

of its sheer existence." Id. at . 302 P.3d at 1128 (quoting Blackjack 

Bonding v. City of Las Vegas Mun. Court, 116 Nev. 1213, 1218, 14 P.3d 

1275, 1279 (2000)). Under the separation of powers doctrine, the judiciary 

"has inherent powers to administer its affairs, which include rule-making 

and other incidental powers reasonable and necessary to carry out the 

duties required for the administration of justice." Goldberg v. Eighth 

Judicial Dist. Court, 93 Nev. 614, 615-16, 572 P.2d 521, 522 (1977) 

(citations omitted). It follows, then, that courts may exercise their 

inherent authority under this doctrine to dismiss an action for want of 

prosecution "[t]o prevent undue delays and to control their calendars," 

Moore, 90 Nev. at 393, 528 P.2d at 1020, because such prevention and 

control is necessary for the courts to be able "to carry out the duties 

required for the administration of justice." 7 Goldberg, 93 Nev. at 615-16, 

572 P.2d at 522. 

'See also Moore, 90 Nev. at 395, 528 P.2d at 1021 (explaining that 

"Mlle elimination of delay in the trial of cases and the prompt dispatch of 

court business are prerequisites to the proper administration of justice. 

These goals cannot be attained without the exercise by the courts of 

diligent supervision over their own dockets" (quoting Sweeney u. 

Anderson. 129 F.2d 756, 758 (10th Cir. 1942))); Link v. Wabash R.R., 370 

U.S. 626, 630-31 (1962) (providing that the court's authority "to dismiss 

sua sponte for lack of prosecution has generally been considered an 

'inherent power,' governed not by rule or statute but by the control 

continued on next page . . . 

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Because the inherent authority to dismiss an action for want 

of prosecution is incidental to the duties required for the administration of 

justice and the court's management of its day-to-day activities, no 

justification is required for the court to resort to this inherent authority. 

See Sparks, 129 Nev. at , 302 P.3d at 1129. Accordingly, a district 

court need not demonstrate that some specific circumstance exists before 

it may resort to its inherent authority to dismiss an action for want of 

prosecution. See generally Renown Reg? Med. Ctr. v. Second Judicial Dist. 

Court, 130 Nev. , 335 P.3d 199 (2014) (analyzing the district court's 

exercise of inherent authority to enter summary judgment sua sponte 

without delving into whether any of the circumstances set forth in 

Halverson existed). Nevertheless, "Psdecause of their very potency, 

inherent powers must be exercised with restraint and discretion." 

Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991). 

We remind courts that because inherent authority is not 

regulated by the Legislature or the people, it is more susceptible to 

misuse, and thus should be exercised sparingly. See United States v. 

Shaffer Equip. Co., 11 F.3d 450, 461 (4th Cir. 1993) (warning that 

inherent power "must be exercised with the greatest restraint and caution, 

and then only to the extent necessary"). Having concluded that a district 

court may properly exercise its inherent authority to dismiss an action for 

. . . continued 

necessarily vested in courts to manage their own affairs so as to achieve 

the orderly and expeditious disposition of cases"). Cf. NRCP 1 (requiring 

that the rules of civil procedure "shall be construed and administered to 

secure the just, speedy, and inexpensive determination of every action"). 

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want of prosecution before the two-year time period in NRCP 41(e) has 

passed and without having to justify its use, we now turn to whether the 

district court abused its discretion in dismissing Hunter's action. See 

Moore, 90 Nev. at 393, 528 P.2d at 1020. 

Abuse of discretion 

Hunter contends that the district court abused its discretion in 

dismissing the action because Gang instigated the delay by requesting an 

extension of time to respond to the complaint and because any continued 

delay was due to Hunter's ill health. Gang responds that the district court 

did not abuse its discretion because Hunter failed to diligently pursue his 

claims after settlement negotiations deteriorated. We discuss the 

standards for dismissal for want of prosecution in Nevada generally first, 

before specifically addressing whether the district court abused its 

discretion in dismissing Hunter's action with prejudice. 

This court will not disturb the decision of the district court in 

dismissing an action for want of prosecution unless the district court 

grossly abused its discretion. Moore, 90 Nev. at 395, 528 P.2d at 1021 

(noting the gross abuse of discretion standard of review in a case that was 

dismissed with prejudice for want of prosecution); see also Harris, 65 Nev. 

at 350, 196 P.2d at 406 (recognizing the same standard of review for 

dismissal for want of prosecution but not specifying if the dismissal in that 

case was with or without prejudice). "The element necessary to justify 

dismissal for failure to prosecute is lack of diligence on the part of the 

plaintiff, whether individually or through counsel." Moore, 90 Nev. at 395, 

528 P.2d at 1022. 

"The duty rests upon the plaintiff to use diligence and to 

expedite his case to a final determination." Id. at 395, 528 P.2d at 1021 

(internal quotation marks omitted). The plaintiff does not satisfy this 

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duty, however, by merely filing a complaint. See Raine v. Ennor, 39 Nev. 

365, 372, 158 P. 133, 134 (1916). This is because '"[t]helack of diligence in 

prosecuting [a complaint] after it is brought leads to the same 

consequences as delay in bringing it." Id. (quoting Streicher v. Murray, 92 

P. 36, 40 (Mont. 1907)). For example: 

Witnesses die or disappear, or the facts fade from 

memory. The positions of the parties change, or 

the subject of the controversy fluctuates in value. 

The right sought to be enforced becomes doubtful 

or uncertain, or it becomes impossible for the court 

to administer equity between the parties with any 

degree of certainty. 

Id. (quoting Streicher, 92 P. at 40). 

Thus, the plaintiff must take action, after filing the complaint, 

to show that he is diligently prosecuting the case. See id. If the plaintiff 

fails to diligently pursue the case, the court does not abuse its discretion 

by invoking its inherent authority to dismiss the action. See id.; Moore, 90 

Nev. at 395-96, 528 P.2d at 1021-22. Because the district court dismissed 

Hunter's complaint with prejudice, however, we expand our discussion to 

include Nevada caselaw regarding dismissals with prejudice. 8 

With respect to dismissals entered under the court's inherent 

authority, the Nevada Supreme Court has expressed that a "dismissal 

8We do not address whether a dismissal without prejudice, under 

the circumstances presented by this case, would have been a proper 

exercise of the district court's discretion because the parties have not 

argued this issue and thus have not presented it on appeal. See Edwards 

V. Emperor's Garden Rest., 122 Nev. 317, 330 n.38, 130 P.3d 1280, 1288 

n.38 (2006) (providing that an appellate court need not consider claims not 

cogently argued or supported by relevant authority). 

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with prejudice is a harsh remedy to be utilized only in extreme situations." 

Moore, 90 Nev. at 393, 528 P.2d at 1021. "It must be weighed against the 

policy of law favoring the disposition of cases on their merits." Id. 

"Because dismissal with prejudice is the most severe sanction that a court 

may apply. . . its use must be tempered by a careful exercise of judicial 

discretion." Id. at 394, 528 P.2d at 1021 (alteration in original) (internal 

quotation marks omitted). While a dismissal under NRCP 41(e) is 

presumed to be with prejudice, see Brent G. Theobald Constr., Inc. v. 

Richardson Constr., Inc., 122 Nev. 1163, 1167, 147 P.3d 238, 241 (2006), 

abrogated on other grounds by Buzz Stew, LLC v. City of N. Las Vegas, 124 

Nev. 224, 228 n.6, 181 P.3d 670, 672 n.6 (2008), the district court has 

discretion to dismiss the action with or without prejudice, see Home Say. 

Ass'n v. Aetna Gas. & Sur. Co., 109 Nev. 558, 563, 854 P.2d 851, 854 

(1993). "Because the law favors trial on the merits, however, dismissal 

with prejudice may not be warranted where such delay is justified by the 

circumstances of the case." Home Say. Ass'n, 109 Nev. at 563, 854 P.2d at 

854. Thus, cases that have analyzed a district court's authority to dismiss 

an action with prejudice, under either its express or inherent authority, 

suggest that the district court must take into account additional 

considerations, other than the lack of diligence. 

The Nevada Supreme Court has not identified what 

circumstances justify dismissal with prejudice when the district court acts 

under its inherent authority, but it has identified several factors that the 

district court should consider when contemplating whether to dismiss an 

action with prejudice under the five-year provision of NRCP 41(e). Those 

factors include (1) "the underlying conduct of the parties," (2) "whether the 

plaintiff offers adequate excuse for the delay," (3) "whether the plaintiffs 

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case lacks merit," and (4) "whether any subsequent action following 

dismissal would not be barred by the applicable statute of limitations." 

Monroe v. Columbia Sunrise Hosp. & Med. Ctr., 123 Nev. 96, 103, 158 

P.3d 1008, 1012 (2007); see also Home Say. Ass'n, 109 Nev. at 564, 854 

P.2d at 854 (holding that district courts should consider the conduct of the 

parties, whether the underlying action has merit, and whether there was 

an adequate excuse for the delay in deciding whether to dismiss an action 

with prejudice under NRCP 41(e)'s mandatory dismissal provision). 

We adopt these same factors here, as we find these cases 

instructive, especially in light of the fact that dismissals under NRCP 

41(e) are permitted for the same reason that the court may dismiss an 

action under its inherent authority—for lack of diligence in the 

prosecution of an action. See NRCP 41(e) (allowing dismissal "for want of 

prosecution"); Moore, 90 Nev. at 393, 528 P.2d at 1020 ("Inherent in courts 

is the power to dismiss a case for failure to prosecute . . . ."); cf. Volpert V. 

Papagna, 85 Nev. 437, 440, 456 P.2d 848, 850 (1969) (utilizing caselaw 

regarding a dismissal for want of prosecution under the court's inherent 

authority as guidance to determine whether the district court abused its 

discretion in dismissing a case for want of prosecution under NRCP 41(e)). 

Thus, in determining whether to dismiss an action with 

prejudice for want of prosecution under its inherent authority, the district 

court should consider the factors set forth above and any other relevant 

factors that may be pertinent to the court's consideration, such as the 

length and reasonableness of the delay. See Monroe, 123 Nev. at 103, 158 

P.3d at 1012; Home Say. Ass'n, 109 Nev. at 564, 854 P.2d at 854. We 

emphasize that not all of the factors may be pertinent to every decision to 

dismiss an action for want of prosecution entered under the court's 

16 
inherent authority, and thus, each determination will require a case-bycase examination of appropriate factors. See Monroe, 123 Nev. at 103-04, 

158 P.3d at 1012-13 (only considering the statute of limitations factor and 

concluding that the district court did not abuse its discretion in dismissing 

the complaint with prejudice because the statute of limitations on 

appellant's claims had already run when the order was entered, such that 

appellant could not file a new complaint even if the district court had 

dismissed the previous one without prejudice). 

Therefore, in considering whether to uphold a dismissal with 

prejudice by a district court entered pursuant to its inherent authority, we 

consider the same factors that are pertinent to the district court's exercise 

of discretion to dismiss an action with prejudice under NRCP 41(e) and an 

appellate court's subsequent review of that decision. Thus, we now 

consider the parties' underlying conduct, whether Hunter offered an 

adequate excuse for the delay, whether Hunter's claims lacked merit, and 

whether the statutes of limitation would have barred any subsequent 

action. See id. at 103, 158 P.3d at 1012. Because evaluating these factors 

requires us to review the district court's findings of fact and conclusions of 

law, we must first address Hunter's arguments regarding the propriety of 

those findings and conclusions. Thereafter, we return to our discussion of 

the Monroe factors. 

The findings and conclusions in the order 

Hunter argues that there is no evidence in the record to 

support the majority of the district court's findings of fact and conclusions 

of law based on those findings. This court defers to the district court's 

findings of fact and will not disturb them unless they are clearly erroneous 

or not supported by substantial evidence. See Weddell v. H20, Inc„ 128 

Nev. 94, 101, 271 P.3d 743, 748 (2012). "Substantial evidence is evidence 

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that a reasonable mind might accept as adequate to support a conclusion." 

Id. (quoting Wh,itematne v. Aniskovich, 124 Nev. 302, 308, 183 P.3d 137, 

141 (2008)). Counsel's arguments are not evidence establishing the facts 

of the case. See Nev. Ass'n Servs. v. Eighth Judicial Dist. Court, 130 Nev. 

, 338 P.3d 1250, 1255 (2014). This court reviews the district 

court's legal conclusions de novo. 

at 748. 

See Weddell, 128 Nev. at 101, 271 P.3d 

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When the district court entered its order containing detailed 

findings of fact and conclusions of law, the only evidence it had received 

consisted of Hunter's verified complaint, see Vaile v. Eighth Judictal Dist. 

Court, 118 Nev. 262, 272, 44 P.3d 506, 513 (2002) (providing that a 

verified complaint is evidence), addressing only the berm, and Hunter's 

wife's affidavit, addressing only Hunter's health issues. 9The district 

court, however, found that Hunter filed his complaint as leverage to 

pressure Gang into selling his property, that settlement negotiations 

broke down one year prior to when Gang filed his motion to dismiss, that 

Hunter had been unresponsive throughout the following year, that Hunter 

had staged a construction project on Gang's property during the pendency 

of the lawsuit, that Hunter's encroachments encompassed an area of 200 

feet by 40 feet and included landscaping in addition to the berm, and that 

Hunter had previously encroached on Forest Service property—facts that 

neither Gang nor Hunter presented any evidence to support. 

Thus, having reviewed the record, we conclude that the 

evidence presented to the district court does not support nearly all of the 

9At the hearing on the motion to dismiss, neither party offered the 

court any additional evidence. 

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court's factual findings, and no evidence was presented to sustain its 

conclusions that Hunter failed to timely prosecute his case and that 

Hunter's claims lacked merit. We now return to the discussion of the 

Monroe factors to determine whether the district court abused its 

discretion by dismissing Hunter's action with prejudice for want of 

prosecution. 1 ° See Monroe, 123 Nev. at 103, 158 P.3d at 1012. 

The underlying conduct of the parties 

We review the conduct of the parties without deference to the 

district court's findings because, as discussed above, its findings are 

unsupported by any evidence. See Weddell, 128 Nev. at 101, 271 P.3d at 

748. Instead, we look to the record to determine whether the underlying 

conduct of the parties weighs in favor of dismissal with prejudice. In 

considering the conduct of the parties, we consider whether the parties 

behaved in accordance with a reasonable and good-faith belief that no 

court action was necessary. See Home Say. Ass'n,, 109 Nev. at 564, 854 

P.2d at 854. 

Here, the parties entered into settlement negotiations after 

Hunter filed his complaint, and then Hunter granted Gang an extension of 

time to file an answer while the parties discussed settlement. Thus, 

during the time the parties discussed settlement, it seems reasonable that 

Hunter would not continue to pursue litigation, such as by withdrawing 

the open extension previously granted or by seeking default. See id. 

1 °We note at the outset that while the district court did not have the 

benefit of this opinion when entering its dismissal order, because the 

district court's order touched upon the facts that are pertinent to the 

decision of whether to dismiss with prejudice, the record shows that the 

district court may have considered them, even if not purposefully. 

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(concluding the appellant's inaction was reasonable because it believed its 

subsidiary corporation was actively asserting its interest in the district 

court). 

The parties dispute whether settlement negotiations 

effectively concluded as a result of inaction or a lack of progress. Gang 

argues that settlement negotiations deteriorated in August 2010, and 

Hunter claims the parties continued to discuss settlement until Gang filed 

his motion to dismiss. Neither party presented any evidence to the district 

court to support their position before the district court entered its order of 

dismissal. Both parties' behavior, however, suggests that settlement 

negotiations were ongoing. 

First, Hunter did not seek default or demand Gang to file an 

answer. Second, Gang continued to send settlement correspondence to 

Hunter after Gang claimed settlement negotiations had deteriorated and 

did not seek to further the case by filing an answer." If settlement 

negotiations had deteriorated, Gang's sedentary approach is confusing, 

considering Gang requested, and Hunter granted, an extension of time to 

respond to the complaint only while the parties engaged in settlement 

negotiations, and the alleged encroachment would remain on Gang's 

property until he obtained affirmative court relief. See id. (concluding 

that the parties' conduct weighed in favor of reversing the dismissal with 

"We note that Hunter does not dispute that he had granted Gang 

an open-ended extension of time to file the answer. Thus, in the absence 

of any effort by Hunter to fix a time for Gang to file an answer, the law did 

not require Gang to take any action. See Thran v. First Judicial Dist, 

Court, 79 Nev. 176, 181, 380 P.2d 297, 300 (1963) ("The defendant is 

required only to meet the plaintiff step by step as the latter proceeds."). 

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prejudice where the appellant's delay in proceeding with litigation was 

justifiable during respondent's appeal of another district court ruling 

because that appeal would determine the parties' rights). Therefore, 

because the parties' behavior in failing to take court action suggests that 

both parties believed settlement remained possible, we conclude this factor 

supports a determination that dismissal with prejudice was an abuse of 

discretion. 

The adequacy of the excuse 

The district court found that Hunter failed to provide an 

adequate excuse for his lack of diligence. This court will defer to the 

district court's finding unless it is clearly erroneous or not supported by 

substantial evidence. See Weddell, 128 Nev. at 101, 271 P.3d at 748. 

Hunter argues that a series of medical conditions, including heart 

problems, mini-strokes, loss of eyesight, pneumonia, and high blood 

pressure interfered with his ability to focus on the litigation and that the 

district court should have considered this an adequate excuse for the delay 

in prosecuting his action. Gang argued that this was not an adequate 

excuse to justify the one-year delay. 

As evidence, Hunter presented his wife's affidavit to the 

district court, which attested to Hunter's illness and its effect on Hunter's 

ability to focus on the litigation. Hunter's wife's affidavit, however, stated 

that Hunter had been suffering from ill health since early 2009, months 

before the litigation began. Neither Hunter nor his wife's affidavit 

indicated when his ailments began to interfere with his ability to focus on 

the litigation or when they would resolve to allow him to continue to 

pursue litigation. Therefore, even in light of Hunter's substantiated claim 

that his ill health caused the delay, we conclude sufficient evidence 

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supports the district court's finding that Hunter's ill health was 

inadequate to excuse a 20-month period in which he failed to take any 

court action. See Moore, 90 Nev. at 395, 528 P.2d at 1021. 

Moreover, even if adequate, Hunter's illness excuse would not 

necessarily extend to his attorney, who could have contacted opposing 

counsel, and if necessary, filed for default under NRCP 55 or taken other 

legal action. See id. at 395, 528 P.2d at 1022 (providing that counsel's lack 

of diligence is sufficient to justify dismissal for want of prosecution); cf. 

Walls v. Brewster, 112 Nev. 175, 178-79, 912 P.2d 261, 263 (1996) 

(recognizing that while an attorney's illness may be the basis for a claim of 

excusable neglect in failing to file an opposition, such excuse does not 

extend to cocounsel who could have filed the opposition). 

On appeal, Hunter first relies on Jarva v. United States, 280 

F.2d 892, 894-95 (9th Cir. 1960). to argue that a plaintiffs illness is 

sufficient to justify a delay in prosecution. The facts in Jarva, however, 

are distinguishable from the facts of this case. There, the United States 

Court of Appeals for the Ninth Circuit vacated an order of dismissal for 

lack of prosecution where the plaintiffs four-month hospitalization caused 

him to fail to file a certificate of readiness for trial in accordance with 

court practice. Id. In vacating the order, the Ninth Circuit explained that 

"during the time [the plaintiff] was hospitalized, it would seem grossly 

unfair to force him to trial during such a period unless the [defendant] was 

suffering some unusual prejudice at the time." Id. 

Unlike the plaintiff in Jarva, who was hospitalized just before 

trial, Hunter began experiencing health problems in early 2009, months 

before he initiated his lawsuit. Further, the plaintiffs hospitalization in 

Jarva only prolonged the proceedings temporarily. Id. Here, the record 

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gave no indication of when, if ever, Hunter would be healthy enough to 

continue litigation. In his opposition to Gang's motion to dismiss, Hunter 

merely indicated that his ailments "made it impossible for [him to] pursue 

this matter until his health improves." (Emphasis added.) Therefore, 

when we compare the timing and duration of the plaintiffs illness in 

Jarva with that of Hunter's, we conclude Jarva is sufficiently 

distinguishable, and thus does not guide our decision in the present case. 12 

We emphasize that we do not hold today that a plaintiffs 

prolonged illness is never an adequate excuse for a delay in prosecution, as 

the Nevada Supreme Court has previously found the illness of both a 

plaintiff and his wife to be adequate. See In re McGregor, 56 Nev. 407, 

411, 48 P.2d 418, 420 (1935) (recognizing the plaintiffs illness and the 

prolonged sickness of his wife as adequate to excuse a delay in the 

proceedings based on information contained in the plaintiffs affidavit). 

12Similarly, we find Hunter's reliance on Hevner v. Village East 

Towers, Inc., 293 F. App'x 56 (2d Cir. 2008), to argue that this court should 

vacate the district court's order if the district court failed to consider the 

plaintiffs disability helpful, but not determinative. There, the United 

States Court of Appeals for the Second Circuit concluded that because 

appellant's disability impaired her performance of many routine tasks, 

and because she was not represented by counsel, her delays did not 

warrant a dismissal of her complaint. Id. at 58. While this decision may 

serve as persuasive authority regarding whether Hunter's illness was an 

adequate excuse for the delay, it is not dispositive of the issues before this 

court. 

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Under the circumstances here, however, Hunter made an 

insufficient showing that the delay was excusable due to his illness. 13 

Therefore, this factor suggests that dismissal with prejudice was not an 

abuse of discretion. 

The merit of the claims 

While a district court may "consider the merits of the action in 

exercising its discretion" to dismiss an action for want of prosecution, 

Volpert, 85 Nev. at 441, 456 P.2d at 850 (internal quotation marks 

omitted), the district court's order here does not indicate a basis for its 

conclusion that "Hunter's claims for quiet title, injunctive relief, adverse 

possession, and declaratory relief to attempt to obtain title to the 

13A party seeking relief from a delay in prosecution due to ill health 

or a medical condition should normally support its position by providing 

medical evidence proving hospitalization or disability to the court. See 

Davis v. Operation Amigo, Inc., 378 F.2d 101, 103 (10th Cir. 1967) (noting 

that in filing a motion for continuance because of plaintiffs illness, counsel 

attached a doctor's letter stating that plaintiff "had been under the 

doctor's care since March 19 suffering from virus pneumonitis, was 

responding slowly to treatment and could not leave the area for the next 

seven to ten days," and concluding that dismissal was too harsh of a 

sanction based, in part, on that fact). Additionally, if the party alerts the 

court and the opposing party of a medical condition that results in delay, 

the party should keep the court and the opposing party apprised of the 

progress of the resolution of the medical condition. See Smith v. Gold Dust 

Casino, 526 F.3d 402, 403, 405 (8th Cir. 2008) (noting that in requesting a 

discovery extension, the plaintiff explained he was experiencing health 

problems related to, among other things, cardiac artery disease and 

continued to apprise the court of his health progress by informing it he 

would undergo heart surgery, and reversing the dismissal of the case, in 

part, on that basis). 

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Encroachment lack merit." We review these legal conclusions de novo. 

See Weddell, 128 Nev. at 101, 271 P.3d at 748. 

It appears that the district court based its conclusion that 

Hunter's claims lacked merit on Gang's unsupported allegations of Hunter 

using the lawsuit as leverage to pressure him into selling his property and 

attempting "to amass property that is beyond his own boundaries." 

Indeed, at the hearing, the court said, "[w]ell, I just think there's more to 

it than he's sitting on his rights right now. I don't think he has a position 

and he's just filed a suit in hopes that something sticks if he throws it 

against the wall." But, as discussed above, the only evidence presented to 

the district court consisted of Hunter's verified complaint, see Vaile, 118 

Nev. at 272, 44 P.3d at 513, and Hunter's wife's affidavit, neither of which 

contained information that could be viewed as substantial evidence 

supporting the district court's findings in this regard. See Weddell, 128 

Nev. at 101, 271 P.3d at 748. Accordingly, this would be an improper 

basis for the court's conclusion that Hunter's claims lacked merit. 

On appeal, Gang argues that this court should affirm the 

district court's dismissal with prejudice because Hunter failed to pay or 

even plead the payment of property taxes on the property, which he 

argues is dispositive of the adverse possession claim. Hunter responds 

that the dismissal cannot be justified on the basis of a pleading deficiency 

because Gang did not move to dismiss under NRCP 12(b)(5). He further 

contends that the silence in the record regarding the payment of taxes 

does not warrant an assumption that he did not pay or tender property 

taxes and thus permit the conclusion that his claims lack merit on this 

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basis. Even assuming Gang is correct and Hunter's failure to plead the 

payment of property taxes in accordance with NRS 40.090(1) 14is 

dispositive of his adverse possession claim and the related quiet title 

claim, 15that deficiency would not dispose of Hunter's claims for injunctive 

and declaratory relief based on the theories of an implied or prescriptive 

easement, irrevocable license, or an agreed boundary by acquiescence 

because the payment of taxes is not an element of those claims. 16 

14NRS 40.090(1) specifically requires the party bringing an adverse 

possession action to assert in a verified complaint that he personally, or 

his predecessor in interest, has "paid all taxes of every kind levied or 

assessed and due against the property during the period of 5 years next 

preceding the filing of the complaint." See also Potts v. Vokits, 101 Nev. 

90, 93, 692 P.2d 1304, 1306 (1985) ("[T]he payment of taxes is an absolute 

requirement for claiming land through adverse possession."). 

1- 5See Chapman v. Deutsche Bank Nat'l Tr. Co.. 129 Nev. 

302 P.3d 1103, 1106 (2013) (providing that "[a] plea to quiet title does not 

require any particular elements, but 'each party must plead and prove his 

or her own claim to the property in question' and a 'plaintiffs right to 

relief therefore depends on superiority of title" (quoting Yoke no v. Mafnas, 

973 F.2d 803, 808 (9th Cir. 1992))). 

16Further, given the procedural posture at the time, Hunter could 

have sought leave to amend his complaint. See NRCP 15(a) (providing 

that "[a] party may amend the party's pleading once as a matter of course 

at any time before a responsive pleading is served. . . . Otherwise a party 

may amend the party's pleading only by leave of court or by written 

consent of the adverse party; and leave shall be freely given when justice 

so requires"). See also Nutton v. Sunset Station, Inc., 131 Nev. 

357 P.3d 966, 976 (Ct. App. 2015) (holding that the district court 

prematurely concluded that plaintiffs proposed amendment would be 

futile under NRCP 56 before a sufficient legal basis existed to warrant 

such a conclusion). 

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Therefore, this factor suggests the dismissal with prejudice was an abuse 

of discretion. 17 

Statutes of limitation 

Because neither the record nor the parties' briefs include any 

information regarding the statutes of limitation applicable to Hunter's 

claims, we decline to attempt to assess whether the applicable statutes of 

limitation would have precluded a subsequent action following dismissal, 

and thus whether a dismissal with prejudice would have been appropriate 

on that basis. See Monroe, 123 Nev. at 103-04, 158 P.3d at 1013. 

Accordingly, because we conclude the conduct of the parties 

and the merits of the action weigh against dismissal with prejudice, we 

conclude the district court abused its discretion in dismissing Hunter's 

action with prejudice. See id. at 102-03, 158 P.3d at 1012; Home Say. 

Ass'n, 109 Nev. at 565, 854 P.2d at 854 (providing that "a district court 

;should be more reluctant to dismiss with prejudice when the underlying 

action is meritorious"). In cases where the Nevada Supreme Court has 

17We also clarify that, contrary to Gang's assertion during appellate 

oral argument, not all dismissals for want of prosecution operate as an 

adjudication on the merits and thus a bar to a second suit against the 

same defendant on the same claim. NRCP 41(e) states, in pertinent part: 

"A dismissal under this subdivision (e) is a bar to another action upon the 

same claim for relief against the same defendants unless the court 

otherwise provides." (Emphasis added.) Accordingly, "the district court 

has discretion under NRCP 41(e) to dismiss with or without prejudice." 

Home Say. Ass'n, 109 Nev. at 563, 854 P.2d at 854. And, "unless the 

district court states in its order that dismissal is without prejudice, 

dismissal with prejudice is presumed and is res judicata and bars any 

other suit on the same claim." Theobald Constr., 122 Nev. at 1167, 147 

P.3d at 241 (internal footnotes and quotation marks omitted). 

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affirmed the district court's dismissal of an action with prejudice prior to 

the NRCP 41(e) two-year period, such dismissal came after the plaintiffs 

failure to comply with a deadline or appear for trial. See Walls, 112 Nev. 

at 178-79, 912 P.2d at 262-63 (holding that dismissal with prejudice for 

want of prosecution before two years had passed was appropriate where 

plaintiff failed to complete arbitration within one year, as required by 

NAR 12(B), and failed to oppose defendant's motion to dismiss after 

receiving two extensions); Moore, 90 Nev. at 394-97, 528 P.2d at 1021-23 

(affirming a dismissal with prejudice for lack of prosecution before two 

years had passed where plaintiffs and their attorneys, being aware of the 

date and place of the trial, failed to appear for trial or request a 

continuance). Neither situation, however, was the case here, nor was the 

situation even similar to those two cases. 

CONCLUSION 

In light of the foregoing, we conclude that the majority of the 

district court's findings of fact, on which it based its conclusions of law and 

decision to dismiss the action with prejudice, are unsupported by any 

evidence in the record. We further determine that the evidence that was 

presented does not support a finding that dismissal with prejudice was 

warranted. Accordingly, we conclude the district court abused its 

discretion 1- 8in dismissing Hunter's action with prejudice. Therefore, we 

reverse the district court's decision to dismiss the action with prejudice, 

vacate the order of attorney fees and costs based on that dismissal, and 

18As defined in Moore, 90 Nev. at 395, 528 P.2d at 1021. 

28 
remand the matter to the district court for further proceedings consistent 

with this opinion. 19 

Gibbons 

C3e- eprlau,K; 

J. 

Tao 

I- 9We further deny each party's request for attorney fees on appeal, 

see NRAP 38(b) (allowing attorney fees to be awarded on appeal in certain 

circumstances), and Hunter's motion to strike Gang's notices of 

supplemental authorities. 

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