                                                  131 Nev., Advance Opinion              I
                       IN THE SUPREME COURT OF THE STATE OF NEVADA


                LEWIS HELFSTEIN; MADALYN                              No. 65409
                HELFSTEIN; SUMMIT LASER
                PRODUCTS, INC.; AND SUMMIT
                TECHNOLOGIES, LLC,
                Petitioners,
                vs.                                                    F   LED
                THE EIGHTH JUDICIAL DISTRICT
                COURT OF THE STATE OF NEVADA,                           DEC 0 3 2015
                IN AND FOR THE COUNTY OF                                         ■ 7: 17,, AN
                                                                                        CO!'RT
                CLARK; THE HONORABLE ELISSA F.
                                                                                    CLERK
                CADISH, DISTRICT JUDGE; AND THE
                HONORABLE ELIZABETH GOFF
                GONZALEZ, DISTRICT JUDGE,
                Respondents,
                and
                IRA AND EDYTHE SEAVER FAMILY
                TRUST; IRA SEAVER; AND CIRCLE
                CONSULTING CORPORATION,
                Real Parties in Interest.



                            Original petition for a writ of mandamus or prohibition
                challenging district court orders setting an evidentiary hearing on a
                motion to set aside a settlement agreement pursuant to NRCP 60(b) and
                denying a motion to dismiss.
                           Petition granted.

                Foley & Oakes, PC, and J. Michael Oakes, Las Vegas,
                for Petitioners.

                Holley, Driggs, Walch, Fine, Wray, Puzey & Thompson and Jeffrey R.
                Albregts, Las Vegas,
                for Real Parties in Interest.



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                 BEFORE PARRAGUIRRE, DOUGLAS and CHERRY, JJ.


                                                  OPINION
                 By the Court, CHERRY, J.:
                             To resolve this original writ petition, petitioner asks us to
                 consider whether NRCP 60(b) can be used to set aside a voluntary
                 dismissal or a settlement agreement. While NRCP 60(b) imposes a 6-
                 month time limit, real parties in interest filed their NRCP 60(b) motion 40
                 months after filing the voluntary dismissal. Without reaching whether
                 NRCP 60(b) may be used to set aside a voluntary dismissal or a settlement
                 order, we hold that NRCP 60(b)'s 6-month limitation begins running when
                 the order, judgment, or proceeding at issue is filed. Thus, even if NRCP
                 60(b) applies, the motion is time-barred. We therefore grant the petition.
                                  FACTS AND PROCEDURAL HISTORY
                             Real parties in interest Ira Seaver, the Ira Seaver and Edythe
                 Seaver Family Trust, and Circle Consulting Corporation (collectively,
                 Seaver) filed a complaint in the district court against petitioners Lewis
                 and Madalyn Helfstein; Summit Laser Products, Inc.; and Summit
                 Technologies, LLC (collectively, the Helfsteins) and against Uninet
                 Imaging, Inc., and Nestor Saporiti (collectively, Uninet). Seaver alleged
                 contract and tort-based causes of action arising out of agreements between
                 the Helfsteins and Seaver following Uninet's purchase of the Helfsteins'
                 Summit companies. When Uninet purchased Summit, Uninet refused to
                 be liable for the consulting agreement between the Helfsteins and Seaver.
                 Seaver objected to the purchase agreement, but the Helfsteins proceeded
                 with the sale.



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                             Prior to answering the complaint, the Helfsteins settled with
                 Seaver, and Seaver voluntarily dismissed their claims against the
                    lfsteins Fourteen months after voluntarily dismissing the Helfsteins
                 from the suit, Seaver filed a notice of rescission. In the notice, Seaver
                 alleged that the Helfsteins fraudulently induced them to settle and that
                 the Helfsteins failed to inform them of material facts or produce relevant
                 documents, which the Helfsteins were obligated to produce pursuant to
                 their fiduciary duties and discovery obligations.
                             Without the Helfsteins as a party to the litigation, 2 Seaver and
                 Uninet tried the claims between them at a bench trial, and the district
                 court issued findings of fact and conclusions of law that resolved those
                 claims. One year after the bench trial and 26 months after filing the
                 notice of rescission, Seaver filed an NRCP 60(b) motion to set aside the
                 settlement agreement, and, implicitly, the voluntary dismissal and sought
                 to proceed on their claims against the Helfsteins. The Helfsteins opposed
                 the motion claiming, inter alia, that the motion was procedurally



                       'The voluntary dismissal stated that the action was dismissed
                 pursuant to NRCP 41(a)(1)(ii). However, the dismissal is not a stipulation
                 and should have stated that the action was dismissed pursuant to NRCP
                 41(a)(1)(i).

                       2After the Helfsteins settled with Seaver, Uninet answered the
                 complaint, filed a counterclaim, and filed a cross-claim against the
                 Helfsteins. The Helfsteins moved to, inter alia, compel arbitration. That
                 motion was ultimately granted, completely dismissing the Helfsteins from
                 the underlying action. Helfstein v. UI Supplies, Docket No. 56383 (Order
                 of Reversal and Remand, April 7, 2011) (reversing the district court's order
                 denying the motion to compel arbitration and remanding the matter to the
                 district court to enter an order compelling arbitration and dismissing
                 Uninet's causes of action against the Helfsteins).

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                improper. At the hearing on Seaver's motion, the district court ordered an
                evidentiary hearing and permitted discovery. The Helfsteins subsequently
                filed a motion to dismiss, arguing that the district court lacked jurisdiction
                over them and that the NRCP 60(b) motion was procedurally improper.
                The district court denied the motion. Finally, the Helfsteins moved to
                have Judge Gonzalez disqualified from the case, which the district court
                chief judge heard and denied. The Helfsteins then filed the instant
                petition. The district court stayed the evidentiary hearing pending this
                court's resolution of this writ petition.
                                                 DISCUSSION
                              The Helfsteins' petition seeks the following relief: (1) that this
                court order the district court to deny as untimely Seaver's motion to set
                aside the settlement agreement and proceed on the original complaint; (2)
                that this court order the district court to grant their motion to dismiss
                Seaver's original complaint against them because the lower court does not
                have personal jurisdiction over them; and (3) if this court denies their
                requests for the preceding relief, that this court order the district court to
                grant their motion to disqualify Judge Gonzalez. The Helfsteins
                additionally argue that NRCP 60(b) cannot be used to set aside a
                voluntary dismissal or a settlement agreement.
                Writ relief
                              "A writ of mandamus is available to compel the performance of
                an act that the law requires . . . or to control an arbitrary or capricious
                exercise of discretion."    Int'l Game Tech., Inc. v. Second Judicial Dist.
                Court, 124 Nev. 193, 197, 179 P.3d 556, 558 (2008); see also NRS 34.160;
                Humphries v. Eighth Judicial Dist. Court, 129 Nev., Adv. Op. 85, 312 P.3d
                484, 486 (2013). A writ of prohibition may be warranted when a district

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                court acts without or in excess of its jurisdiction. NRS 34.320; Club Vista
                Fin. Servs. v. Eighth Judicial Dist. Court, 128 Nev., Adv. Op. 21, 276 P.3d
                246, 249 (2012); see also Smith v. Eighth Judicial Dist. Court, 107 Nev.
                674, 677, 679, 818 P.2d 849, 851, 853 (1991).
                            Where there is no "plain, speedy, and adequate remedy in the
                ordinary course of law," extraordinary relief may be available. NRS
                34.170; NRS 34.330; see Oxbow Constr., LLC v. Eighth Judicial Dist.
                Court, 130 Nev., Adv. Op. 86, 335 P.3d 1234, 1238 (2014). A petitioner
                bears the burden of demonstrating that the extraordinary remedy of
                mandamus or prohibition is warranted.           Pan v. Eighth Judicial Dist.
                Court, 120 Nev. 222, 228, 88 P.3d 840, 844 (2004). Determining whether
                to consider a petition for extraordinary relief is solely within this court's
                discretion. Smith, 107 Nev. at 677, 818 P.2d at 851.
                            This court has consistently held that an appeal is generally an
                adequate remedy precluding writ relief Pan, 120 Nev. at 224, 88 P.3d at
                841; see also Bradford u. Eighth Judicial Dist. Court, 129 Nev., Adv. Op.
                60, 308 P.3d 122, 123 (2013). Because an appeal is ordinarily an adequate
                remedy, this court generally declines to consider writ petitions challenging
                interlocutory district court orders. Oxbow Constr., 130 Nev., Adv. Op. 86,
                335 P.3d at 1238. But we may consider writ petitions when an important
                issue of law needs clarification and considerations of sound judicial
                economy are served.       Renown Reg'l Med. Ctr. v. Second Judicial Dist.
                Court, 130 Nev., Adv. Op. 80, 335 P.3d 199, 202 (2014). We elect to
                consider this writ petition because consideration of the writ petition will
                serve judicial economy.




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                Standard of review
                            In the context of writ petitions, we review district court orders
                for an arbitrary or capricious abuse of discretion. Ina Game Tech., 124
                Nev. at 197, 179 P.3d at 558. However, we review questions of law, such
                as the interpretation of and interplay between NRCP 41(a)(1) and 60(b),
                de novo, even in the context of writ petitions. Moseley v. Eighth Judicial
                Dist. Court, 124 Nev. 654, 662, 188 P.3d 1136, 1142 (2008).
                NRCP 41(a)(I) and NRCP 60(b)
                            Seaver settled with the Helfsteins and filed a voluntary
                dismissal pursuant to NRCP 41(a)(1)(i). Nevertheless, more than three
                years after filing the voluntary dismissal, Seaver filed a motion to set
                aside the settlement agreement and voluntary dismissal pursuant to
                NRCP 60(b). The district court did not grant the motion, but it ordered an
                evidentiary hearing to determine whether the Helfsteins fraudulently
                induced Seaver to settle.
                            NRCP 60(b) permits a court to set aside a final judgment,
                order, or proceeding in certain circumstances:
                                  On motion and upon such terms as are just,
                            the court may relieve a party or a party's legal
                            representative from a final judgment, order, or
                            proceeding for the following reason[ ]: . . . (3) fraud
                            (whether heretofore denominated intrinsic or
                            extrinsic), misrepresentation or other misconduct
                            of an adverse party. . . . The motion shall be made
                            within a reasonable time, . . not more than 6
                            months after the proceeding was taken or the date
                            that written notice of entry of the judgment or
                            order was served.
                (Emphasis added.) The primary "purpose of Rule 60(b) is to redress any
                injustices that may have resulted because of excusable neglect or the
                wrongs of an opposing party." Nev. Indus, Dev., Inc. v. Benedetti, 103 Nev.
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                360, 364, 741 P.2d 802, 805 (1987). We have not previously considered
                whether a settlement agreement or an NRCP 41(a)(1) voluntary dismissal
                qualifies as a "final judgment, order, or proceeding" that may be set aside
                under NRCP 60(b). However, we need not reach this issue here.
                            An NRCP 60(b) motion must be made "not more than 6
                months after the proceeding was taken or the date that written notice of
                entry of the judgment or order was served." This 6-month period begins to
                run from the date of the challenged proceeding or upon service of "written
                notice of entry" of the challenged judgment or order; nothing in NRCP
                60(b) bases the 6-month time frame on a subsequent judgment, order or
                proceeding. See Union Petrochemical Corp. of Nev. v. Scott, 96 Nev. 337,
                338-39, 609 P.2d 323, 323-24 (1980). We have also previously held that an
                NRCP 60(b) "motion must be made within a reasonable time and that the
                six-month period represents the extreme limit of reasonableness."
                Stoecklein v. Johnson Elec., Inc., 109 Nev. 268, 272, 849 P.2d 305, 308
                (1993). Accordingly, assuming that an NRCP 60(b) challenge may also be
                made to a settlement agreement, such a challenge is also time-barred here
                because it was made well after 6 months had elapsed.
                            In this matter, Seaver voluntarily dismissed the Helfsteins on
                November 23, 2009, and filed his NRCP 60(b) motion 40 months later, far
                beyond the 6-month time limit Thus, if a voluntary dismissal is a final
                judgment, order, or proceeding from which a party may receive relief
                through NRCP 60(b), then the filing of the voluntary dismissal starts the
                6-month clock. Because Seaver filed the motion more than three years
                after he voluntarily dismissed the Helfsteins from the suit, we conclude
                that Seaver's NRCP 60(b) motion is time-barred and that the district court
                erred in scheduling an evidentiary hearing.

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                                                  CONCLUSION
                              Accordingly, we grant the Helfsteins' writ petition. 3 The clerk
                of this court shall issue a writ of prohibition instructing the district court
                to vacate its previous order regarding Seaver's NRCP 60(b) motion and
                enter a new order denying the motion.



                                                                                 , J.


                W,e,concur:


                                             J.
                Parraguirre



                Douglas




                      3 Inlight of our decision, we decline to reach the remaining issues in
                the Helfsteins' petition.
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