Opinion
No. 58456.
03-30-2012
SCHINDLER ELEVATOR CORPORATION, Petitioner, v. The EIGHTH JUDICIAL DISTRICT COURT OF the STATE of Nevada, In and for THe COUNTY OF CLARK; and The Honorable James M. Bixler, District Judge, Respondents, and Rebecca Johnson; and Kenneth Johnson, Real Parties in Interest.
Perry Spann & Westbrook/Las Vegas Christensen Law Offices, LLC
Perry Spann & Westbrook/Las Vegas
Christensen Law Offices, LLC
ORDER GRANTING PETITION
This is an original petition for a writ of mandamus challenging a district court order denying summary judgment.
Petitioner Schindler Elevator Corporation filed a motion for summary judgment in district court that was denied. Schindler now petitions this court to intervene by way of extraordinary writ directing the district court to vacate its order denying summary judgment, and to enter an order granting summary judgment in Schindler's favor.
On June 14, 2011, this court issued an order directing real parties in interest Rebecca and Kenneth Johnson to file an answer to Schindler's writ petition within 30 days of the date of the order. See NRAP 21(b). To date, the Johnsons have failed to file their answer.
A writ of mandamus may be issued to compel the performance of an act that the law requires as a duty resulting from an office, trust, or station, or to remedy a manifest abuse of discretion. See NRS 34.160 ; ANSE, Inc. v. Dist. Ct., 124 Nev. 862, 867, 192 P.3d 738, 741–42 (2008). A writ of mandamus is an extraordinary remedy, and whether a petition for extraordinary relief will be considered is solely within the court's discretion. See ANSE, Inc., 124 Nev. at 867, 192 P.3d at 742. Generally, this court will not consider a petition challenging the district court's denial of a summary judgment motion, unless summary judgment is clearly required by a statute or rule, or an important issue of law requires clarification. D.R. Horton v. Dist. Ct., 125 Nev. 449, 453, 215 P.3d 697, 700 (2009). Moreover, extraordinary relief is available only when petitioner has no plain, speedy, and adequate legal remedy. See NRS 34.170 ; D.R. Horton, 125 Nev. at 453–54, 215 P.3d at 700. The burden is on the petitioner to demonstrate that extraordinary relief is warranted. Pan v. Dist. Ct., 120 Nev. 222, 228, 88 P.3d 840, 844 (2004).
Because a district court's order denying summary judgment is not independently appealable, GES, Inc. v. Corbitt, 117 Nev. 265, 268, 21 P.3d 11, 13 (2001), and because it is this court's view that Schindler's petition raised an important issue of law, this court could exercise its discretion to address the petition on the merits. However, in this case, because the Johnsons failed to file an answer to the writ petition, we elect to treat that failure to answer as a confession of error. Orme v. District Court, 105 Nev. 712, 714, 782 P.2d 1325, 1326 (1989) ; Foster v. District Court, 96 Nev. 4, 5, 604 P.2d 359, 359–60 (1980). Accordingly, we
ORDER the petition GRANTED AND DIRECT THE CLERK OF THIS COURT TO ISSUE A WRIT OF mandamus instructing the district court to vacate its order denying Schindler's motion for summary judgment and to enter summary judgment for Schindler.