Anse, Inc. v. Dist. Ct., 51049.
| Citation | 192 P.3d 738 |
| Decision Date | 25 September 2008 |
| Docket Number | No. 51049.,51049. |
| Parties | ANSE, INC., d/b/a Nevada State Plastering; Del Webb Communities, Inc.; MS Concrete Co., Inc.; Pratte Development Co., Inc.; and Dean Roofing, Inc., Petitioners, v. The EIGHTH JUDICIAL DISTRICT COURT OF the STATE of Nevada, In and for the COUNTY OF CLARK, and The Honorable Allan R. Earl, District Judge, Respondents, and Glenn Hayward; Fred W. Schaefer; Donald T. Barsky; James F. Searcy; Sheldon Factor; John P. Friar; Norman York; Bernard Bronstein; and D.J. Addonizio, Individually, and on Behalf of all Others Similarly Situated, Real Parties in Interest. |
| Court | Supreme Court of Nevada |
Bremer Whyte Brown & O'Meara, LLP, and Peter C. Brown, Jefferey Holland, and Geoffrey W. Hawkins, Las Vegas, for Petitioner Pratte Development Co.
Helm & Associates and Kevin E. Helm and J. Stephen Dolembo, Las Vegas; Lincoln, Gustafson & Cercos and Nicholas S. Salerno and Loren Young, Las Vegas, for Petitioner ANSE, Inc.
Koeller Nebeker Carlson & Haluck, LLP, and Robert C. Carlson, Megan K. Dorsey, and Jason Williams, Las Vegas; Lewis & Roca, LLP, and Daniel F. Polsenberg, Las Vegas, for Petitioner Del Webb Communities.
Springel & Fink and Leonard T. Fink and Aaron M. Young, Henderson, for Petitioner MS Concrete Co., Inc.
Marks & Isaacson, LLP, and Janeen V. Isaacson, Las Vegas; Bennion, Clayson & Marias and Edward R. Lanigar, Las Vegas, for Petitioner Dean Roofing, Inc.
Canepa Riedy & Rubino and Scott K. Canepa, Las Vegas; Sterling Law, LLC, and Beau Sterling, Las Vegas; Wolf, Rifkin, Shapiro, Schulman & Rabkin, LLP, and Barry T. Mitidiere, Tracy Strickland, Michael Schulman, and David Gretsky, Las Vegas, for Real Parties in Interest.
Cisneros & Thompson, Chtd., and Norberto J. Cisneros, Las Vegas, for Amicus Curiae Safe Homes Nevada, Inc.
Feinberg Grant Mayfleld Kaneda & Litt, LLP, and Bruce G. Mayfield and Daniel Clifford, Las Vegas, for Amici Curiae Monarch Estates Homeowners Association, Southpark Condominium Association, and Marquesa Homeowners Association.
Harrison, Kemp, Jones & Coulthard, LLP, and J. Randall Jones, Las Vegas; Robert C. Maddox & Associates and Robert C. Maddox, Reno, for Amicus Curiae Nevada Justice Association.
Before the Court En Banc.
The constructional defect action underlying this original writ proceeding, in which we clarify the scope of NRS Chapter 40, concerns approximately 1,200 residences in the Sun City Summerlin community in Las Vegas, Nevada. Petitioners moved the district court for partial summary judgment with respect to approximately 700 of those residences, arguing that they did not constitute "new residences" for constructional defect purposes under NRS 40.615, which limits NRS Chapter 40 "constructional defect" remedies to "new residence[s]."1
In asserting that certain residences at issue in this case did not constitute "new residence[s]" under NRS 40.615, petitioners primarily relied on our decision in Westpark Owners' Ass'n v. District Court, in which we defined "new residence" for constructional defect purposes as "a product of original construction that has been unoccupied as a dwelling from the completion of its construction until the point of sale."2 According to petitioners, because approximately 700 of the residences at issue below were occupied as dwellings before the residences' subsequent owners obtained title to the homes, the residences did not constitute "new" residences within the scope of NRS 40.615 and therefore were not subject to constructional defect actions under NRS Chapter 40. Petitioners thus contended that they were entitled to summary judgment as to their NRS Chapter 40 liability on claims related to those residences. The district court ultimately denied the summary judgment motion, noting that it was unconvinced that subsequent purchasers of recently constructed homes were precluded from the remedies that NRS Chapter 40 provides, and this original petition for a writ of mandamus followed.
In this original proceeding, then, we clarify whether our definition of "new residence" in Westpark precludes a homeowner who is not the home's first purchaser from seeking the remedies available under NRS Chapter 40 for constructional defects in the home. It does not. To conclude otherwise undermines NRS Chapter 40's purposes to provide an expansive remedy for homeowners and protection for developers and leads to disparate treatment among otherwise similarly situated homeowners. Instead, any home that is a product of original construction, unoccupied as a dwelling from the completion of its construction until the point of its original sale, constitutes a "new residence" for NRS Chapter 40 purposes, and thus, subsequent owners may bring an NRS Chapter 40 action,3 so long as it is instituted within the limitation period provided by the applicable statute of repose.
Primarily alleging that defects existed with respect to the exterior stucco of their residences and the residences of others in the Sun City Summerlin community of Las Vegas, Nevada, real parties in interest instituted the underlying constructional defect action against Sun City Summerlin's developers, including petitioner Del Webb Communities, Inc. Asserting causes of action for negligence, negligence per se, breach of various implied warranties, and willful misconduct, real parties in interest sought, among other remedies, those available under Nevada's residential constructional defect statutes, NRS 40.600 through NRS 40.695.
After answering real parties in interest's complaint, Del Webb instituted a third-party action against various subcontractors with which it had contracted to perform work in the Sun City Summerlin community during its construction, including petitioners ANSE, Inc.; MS Concrete Company; Pratte Development Company, Inc.; and Dean Roofing, Inc.4 In its third-party complaint, Del Webb asserted various tort and contract causes of action and sought, among other remedies, indemnity and contribution for any damages that the district court determined Del Webb owed to real parties in interest.
Thereafter, this court entered an opinion in an unrelated constructional defect case, Westpark Owners' Ass'n v. District Court,5 in which we examined the scope of NRS Chapter 40 residential constructional defect remedies. Specifically, in determining whether NRS Chapter 40 applied to claims of alleged defects in condominium units that were previously rented as apartments, we noted that under NRS 40.615 "constructional defect" is defined as a certain kind of defect in a "new residence." Thus, in Westpark, we primarily addressed what constituted a "new residence" and was thus susceptible to a "constructional defect" under NRS 40.615.6 We ultimately determined that a "new residence" is "a product of original construction that has been unoccupied as a dwelling from the completion of its construction until the point of sale."7
Under that definition, petitioners in the present matter asserted below that NRS Chapter 40 governed only constructional defect matters pertaining to homes that have been continuously owned by the original purchaser. Believing that approximately 700 of the homes at issue in the underlying action had not been continuously owned by the original purchaser and thus did not constitute "new residences" susceptible to constructional defects remediable under NRS Chapter 40, petitioners moved the district court for summary judgment with respect to their NRS Chapter 40 liability regarding those homes. In particular, petitioners asserted that because ownership of those approximately 700 homes had changed since Del Webb sold the homes to the original purchasers, the homes failed to constitute "new residences" for NRS Chapter 40 purposes. Thus, petitioners contended that they were entitled to summary judgment as to their NRS Chapter 40 liability on claims related to those residences.
Real parties in interest opposed petitioners' motion, arguing that in light of Nevada's residential constructional defect statutes' purposes to promote settlement between homeowners and contractors and to provide contractors with an opportunity to repair, this court's definition of "new residence" in Westpark should not be applied to restrict Nevada's residential constructional defect statutes' application to initial purchasers, a purportedly small class of homeowners. According to real parties in interest, Nevada's constructional defect statutes' legislative history and this court's decisional law indicate that the Legislature did not intend to preclude subsequent purchasers from the NRS Chapter 40 remedies. In so arguing, real parties in interest contended that Westpark is factually distinguishable from this case and, thus, inapposite. Real parties in interest, moreover, relied on the definition of a constructional defect "claimant" set forth in NRS 40.610(1), which provides that a "claimant" is "[a]n owner of a residence" and does not distinguish between original and subsequent purchasers of a residence.
The district court ultimately denied petitioners' motion for summary judgment, unconvinced that, in light of NRS 40.610's definition of a constructional defect "claimant" and Westpark's unique facts, subsequent purchasers of recently constructed homes were precluded from the remedies that NRS Chapter 40 provides. This petition for extraordinary mandamus relief followed. Real parties in interest have timely filed their answer, as directed, and three amicus briefs supporting the arguments set forth by real parties in interest have been filed, as permitted.8
A writ of mandamus is available to compel the performance of an act that the law requires, or to control a manifest abuse of discretion.9 To obtain a writ of mandamus, petitioners must demonstrate that they have a sufficient beneficial interest in such relief.10 Mandamus, moreover, is an extraordinary remedy, and the decision to entertain such a petition is addressed...
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