IN THE SUPREME COURT OF THE STATE OF NEVADA
SYLVIA NICOLE, No. 79459
Appellant,
vs.
SETERUS, INC.; FEDERAL NATIONAL ALED
MORTGAGE ASSOCIATION; SELENE
FINANCE; AND BRECKENRIDGE MAY 1 k 202i
PROPERTY FUND 2016, ELIZABETH A. BROWN
CLERK • SU COURT
Res e ondents. BY
DEPUTY CLERK
ORDER AFFIRMING IN PART AND REVERSING IN PART
This is an appeal from a district court order granting a motion
to dismiss in a wrongful foreclosure action and from an order denying NRCP
60(b) relief.1 Eighth Judicial District Court, Clark County; Susan Johnson,
Judge.
Respondents Seterus, Inc., Federal National Mortgage
Association, and Selene Finance (the bank respondents) moved to dismiss
appellant's complaint under NRCP 12(b)(5). Appellant did not timely
oppose this motion, and at the bank respondents request, the district court
dismissed appellant's complaint under EDCR 2.20(e). We are not
persuaded that the district court abused its discretion in dismissing
appellant's complaint under this rule. See Las Vegas Fetish & Fantasy
'Respondent Breckenridge Property Fund 2016 argues that this court
has jurisdiction to consider only the appeal from the order denying NRCP
60(b) relief. We conclude that we also have jurisdiction to consider the
appeal from the dismissal order, as we are not persuaded that Breckenridge
was misled by appellant's notice of appeal. See Abdullah v. State, 1.
(2013) C[T]he notice of appeal is not intended
to be a technical trap for the unwary draftsman, [and} this court will not
dismiss an appeal where the intent to appeal from a final judgment can be
reasonably inferred and the respondent is not misled.").
SUPREME COURT
OF
NEvAtta
(o) mon 4611.•
Halloween Ball, Inc. v. Ahern Rentals, Inc.,
(2008) (reviewing for an abuse of discretion a district court's decision to
grant a motion based on the adversarial party's failure to oppose it). In
particular, the district court found that appellant had not been diligent in
updating her mailing address, which is a finding that appellant does not
meaningfully dispute on appeal.2 However, we agree with appellant that
the dismissal should have been without prejudice, particularly given
respondents failure to specifically address this issue. See Hunter v. Gang,
, 455 (Ct. App. 2016) C[A] dismissal with
prejudice is a harsh remedy to be utilized only in extreme situations."
(internal quotation marks omitted)); see also Ozawa v. Vision Airlines, Inc.,
(2009) (recognizing that failure to
respond to an argument can be treated as a confession of error).
Accordingly, we affirm the district court's order dismissing
appellant's complaint in part and reverse it to the extent that it dismissed
the complaint with prejudice.
It is so ORDERED.
Parraguirre
Stiglich Silver
2 For the same reasons, we conclude that the district court was within
its discretion to deny appellant's request for NRCP 60(b) relief. Willard v.
Berry-Hinckley Indus.,
(2020) CWe
review the denial of an NRCP 60(b)(1) motion for an abuse of discretion.").
We therefore affirm that order.
2
cc: Hon. Susan Johnson, District Judge
Pisanelli Bice, PLLC
Wedgewood, LLC
Wright, Finlay & Zak, LLP/Las Vegas
Hutchison & Steffen, LLC/Las Vegas
Eighth District Court Clerk
SUPREME COURT
OF
NEVADA
3
10) 1947A 4WD
