Byrne v. Sunridge Builders, Inc.
| Decision Date | 29 October 2020 |
| Docket Number | No. 77668,77668 |
| Citation | 475 P.3d 38 |
| Parties | Janette BYRNE, AS TRUSTEE OF the UOFM TRUST, Appellant, v. SUNRIDGE BUILDERS, INC., a Nevada Corporation; Lands West Builders, Inc., a Nevada Corporation; Bryant Masonry, LLC, a Nevada Limited Liability Company; DMK Concrete, Inc., a Nevada Corporation; Green Planet Landscaping, LLC, a Nevada Limited Liability Company; Lifeguard Pool Maintenance, d/b/a Lifeguard Pools, a Nevada Corporation; Prestige Roofing, Inc., a Nevada Corporation; Pyramid Plumbing, Inc., a Nevada Corporation; Rivera Framing, Inc., d/b/a Rivera Framers, a Nevada Corporation; and S&L Roofing, Inc., a Colorado Corporation, Respondents. |
| Court | Nevada Supreme Court |
Molof & Vohl and Robert C. Vohl, Reno; Springel & Fink, LLP, and Wendy Walker and Adam Springel, Las Vegas, for Appellant.
Gordon & Rees Scully Mansukhani, LLP, and Robert E. Schumacher and Brian Walters, Las Vegas, for Respondent Lands West Builders, Inc.
Wolfenzon Rolle and Bruno Wolfenzon and Jonathan Rolle, Las Vegas, for Respondent Green Planet Landscaping, LLC.
Resnick & Louis, P.C., and Athanasia E. Dalacas, Las Vegas, for Respondent Sunridge Builders, Inc.
Brown Bonn & Friedman, LLP, and Kevin Brown and Lori Jordan, Las Vegas, for Respondents DMK Concrete, Inc., and Prestige Roofing, Inc.
Keating Law Group and Bryce Buekwalter, Las Vegas, for Respondent Pyramid Plumbing, Inc.
Law Offices of David R. Johnson, PLLC, and David R. Johnson, Las Vegas, for Respondent Rivera Framing, Inc.
Morris Sullivan Lemkul, LLP, and Christopher Turtzo and Matthew Yarling, Las Vegas, for Respondents Bryant Masonry, LLC, and S&L Roofing, Inc.
Stephenson & Dickinson, P.C., and Marsha L. Stephenson, Las Vegas, for Respondent Lifeguard Pool Maintenance.
BEFORE THE COURT EN BANC.
When the Legislature retroactively shortened the statute of repose for construction defect lawsuits with the enactment of Assembly Bill (A.B.) 125 in 2015, it created a grace period for a claimant to "commence" an action even after the statute of repose had run. In this appeal, we clarify that "commence" means a claimant must have filed a lawsuit, not merely served notice of a construction defect pursuant to NRS 40.645, within the grace period to preserve his or her action. Because appellant Janette Byrne failed to file a lawsuit within the grace period and the statute of repose had run, we determine that her action was time-barred and therefore affirm the district court order granting summary judgment in favor of respondents. However, we also determine that the district court abused its discretion in awarding attorney fees to respondent Lands West Builders, Inc., and therefore reverse the district court order granting Lands West's motion for attorney fees and remand for further proceedings.
Respondent Sunridge Builders, Inc., a general contractor, along with numerous subcontractors, substantially completed building a single-family home in Henderson in May 2009. Byrne, as trustee of the UOFM Trust, subsequently purchased the home.
In December 2015, approximately six years and seven months after the home was built, Byrne served notice of a construction defect pursuant to NRS 40.645 (NRS Chapter 40 Notice) on Sunridge and various subcontractors. In August 2016, approximately seven years and three months after the home was built, Byrne filed a construction defect lawsuit against Sunridge, Lands West as Sunridge's alter ego or successor and, subsequently, other subcontractors, who are respondents in this appeal.1 Three months after initially appearing in the case, Lands West offered Byrne a settlement of $10,001. Byrne did not respond to the offer, thereby rejecting it. A few months later, Byrne failed to respond to Sunridge's settlement offer of $50,000.
Sunridge and Lands West moved for summary judgment, arguing that because Byrne's construction defect action was filed more than six years after the home was built, it was barred by the statute of repose. Byrne countered that by serving an NRS Chapter 40 Notice during the statutory grace period, she effectively tolled the case. The district court granted Sunridge and Lands West's motion, concluding that because Byrne failed to file her lawsuit during the grace period and the statute of repose had run, her claim was time-barred.2 It reasoned that although Byrne served an NRS Chapter 40 Notice within the grace period, the provision permitting a claimant's service of an NRS Chapter 40 Notice to toll the statute of repose did not apply because Byrne served such notice after the statute of repose had already expired.3
Sunridge and Lands West independently moved for attorney fees. The district court denied Sunridge's motion but granted Lands West's, explaining that Byrne knew or should have known that Lands West was not the general contractor and therefore did not bring her action against Lands West in good faith. This appeal follows.
We first consider whether the district court erred in granting summary judgment in favor of respondents based on its determination that Byrne's action was time-barred. We then assess whether the district court abused its discretion in awarding attorney fees to Lands West.
The district court did not err in granting summary judgment in favor of respondents because Byrne's action was time-barred
We review a district court order granting summary judgment de novo. Wood v. Safeway, Inc., 121 Nev. 724, 729, 121 P.3d 1026, 1029 (2005). Summary judgment may be granted for a party "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Shadow Wood Homeowners Ass'n, Inc. v. N.Y. Cmty. Bancorp, Inc., 132 Nev. 49, 55, 366 P.3d 1105, 1109 (2016) (quoting former NRCP 56(c) ).
For construction defect actions, a claimant must file a lawsuit within the statute of repose. "[A] statute of repose bars a cause of action after a specified period of time regardless of when the cause of action was discovered or a recoverable injury occurred." FDIC v. Rhodes, 130 Nev. 893, 899, 336 P.3d 961, 965 (2014). Prior to 2015, depending on the category of defect, the statute of repose ranged from 6 to 12 years, as measured from the date of the home's substantial completion. NRS 11.203 -.205 (2014). In February 2015, however, the Legislature enacted A.B. 125 in part to amend the statute of repose for construction defect actions to 6 years for all defects. 2015 Nev. Stat., ch. 2, at 2 (enacting A.B. 125).4
The 6-year statute of repose applied retroactively. 2015 Nev. Stat., ch. 2, § 21(5), at 21. However, the Legislature created a grace period to protect claimants adversely affected by the retroactive change. Id. § 21(6), at 21;5 see also id., Legislative Counsel's Digest, at 4 (). Relevant here, the grace period mandated that the new statute of repose did not limit "an action ... [t]hat accrued before the effective date of [A.B. 125], and was commenced within 1 year after the effective date of [A.B. 125]." Id. § 21(6), at 21 (emphasis added).
Byrne argues that her claim was timely even though she filed it after the grace period expired because, within the grace period, she adequately served an NRS Chapter 40 Notice on the builder. The ultimate goal of statutory construction is to effect the Legislature's intent. Cromer v. Wilson, 126 Nev. 106, 109, 225 P.3d 788, 790 (2010). Where a statute is clear and unambiguous, this court will give effect to the ordinary meaning of the plain language of the text without turning to other rules of construction. Id.
We determine that the grace period's plain language is clear and unambiguous: a claimant must have "commenced" an action—meaning filed a lawsuit within the grace period, not merely served an NRS Chapter 40 Notice—to preserve his or her action. See 2015 Nev. Stat., ch. 2, § 21(6); see also NRS 40.645 (); Commencement of an Action, Black's Law Dictionary (11th ed. 2019) ("The time at which judicial or administrative proceedings begin, typically with the filing of a formal complaint."). There is simply no other reasonable interpretation of the word "commenced" in this context.
Byrne had until May 2015—six years after the home's substantial completion—to file her action under the statute of repose. She did not. Furthermore, Byrne had until February 2016—one year after the effective date of A.B. 125—to file her lawsuit within the grace period. She did not. Byrne's lawsuit filed in August 2016 was therefore time-barred.
Service of an NRS Chapter 40 Notice during the grace period did not toll the statute of repose
Byrne specifically contends that her service of an NRS Chapter 40 Notice on the builder within the grace period tolled the statute of repose. We disagree.
It is true that service of an NRS Chapter 40 Notice can toll the statute of repose. See NRS 40.695(1) (). However, by the time Byrne served an NRS Chapter 40 Notice in December 2015, the statute of repose had already expired. In other words, in December 2015, there was no statute of repose left to toll. Furthermore, the grace period itself did not constitute a new statute of repose subject to tolling. Rather, the grace period was a distinct mechanism established by the Legislature, by which a claimant could have saved his or her claim from being suddenly time-barred due to the shortened, retroactive statute of repose. In order to salvage a claim under the grace period, a claimant had to commence an action.
We also reject Byrne's argument that the grace period's...
To continue reading
Request your trial
- Moore v. State
-
Urban Outfitters, Inc. v. Dermody Operating Co.
... ... of substantial completion, depending on the defect. Byrne ... v. Sunridge Builders, Inc., 475 P.3d 38, 41 (Nev. 2020) ... However, the Nevada ... ...
-
Panorama Towers Condo. Unit Owners' Ass'n, Nonprofit Corp. v. Hallier
...of those defects’ claims in this appeal.4 The district court reached this conclusion before our opinion in Byrne v. Sunridge Builders, Inc., 136 Nev. 604, 475 P.3d 38 (2020), clarified that an NRS Chapter 40 notice cannot toll the statute of repose.5 NRS 11.202(1) is a statute of repose bec......