Dekker/Perich/Sabatini Ltd. v. Eighth Judicial Dist. Court of Nev.

• Decision Date: 23 September 2021
• Docket Number: No. 81459,81459
• Citation: 495 P.3d 519
• Parties: DEKKER/PERICH/SABATINI LTD.; Nevada By Design, LLC, d/b/a Nevada By Design; Melroy Engineering, Inc., d/b/a MSA Engineering Consultants; JW Zunino & Associates, LLC ; Ninyo and Moore Geotechnical Consultants; Richardson Construction, Inc.; The Guarantee Company of North America USA; and Jackson Family Partnership LLC, d/b/a Stargate Plumbing, Petitioners, v. The EIGHTH JUDICIAL DISTRICT COURT of the State of Nevada, IN AND FOR the COUNTY OF CLARK; and the Honorable Trevor L. Atkin, District Judge, Respondents, and City of North Las Vegas, Real Party in Interest.
• Court: Nevada Supreme Court

495 P.3d 519

DEKKER/PERICH/SABATINI LTD.; Nevada By Design, LLC, d/b/a Nevada By Design; Melroy Engineering, Inc., d/b/a MSA Engineering Consultants; JW Zunino & Associates, LLC ; Ninyo and Moore Geotechnical Consultants; Richardson Construction, Inc.; The Guarantee Company of North America USA; and Jackson Family Partnership LLC, d/b/a Stargate Plumbing, Petitioners,

v.The EIGHTH JUDICIAL DISTRICT COURT of the State of Nevada, IN AND FOR the COUNTY OF CLARK; and the Honorable Trevor L. Atkin, District Judge, Respondents,andCity of North Las Vegas, Real Party in Interest.

No. 81459

Supreme Court of Nevada.

FILED SEPTEMBER 23, 2021

W&D Law, LLP, and John T. Wendland and Anthony D. Platt, Henderson, for Petitioners Dekker/Perich/Sabatini Ltd. and Nevada By Design, LLC, dba Nevada By Design.

W&D Law, LLP, and Jeremy R. Kilber, Henderson, for Petitioner Melroy Engineering, Inc., dba MSA Engineering Consultants.

Clyde & Co US LLP and Dylan P. Todd and Lee H. Gorlin, Las Vegas, for Petitioner JW Zunino & Associates, LLC.

Wilson Elser Moskowitz Edelman & Dicker, LLP, and Jorge A. Ramirez, Harry Peetris, and Jonathan C. Pattillo, Las Vegas, for Petitioner Ninyo & Moore Geotechnical Consultants.

Parker, Nelson & Associates, Chtd., and Theodore Parker and Jennifer A. DelCarmen, Las Vegas, for Petitioners Richardson Construction, Inc., and The Guarantee Company of North America USA.

Lincoln, Gustafson & Cercos, LLP, and Shannon G. Splaine and Paul D. Ballou, Las Vegas; Resnick & Louis, P.C., and Paul A. Acker, Las Vegas, for Petitioner Jackson Family Partnership LLC, dba Stargate Plumbing.

Snell & Wilmer LLP and Richard C. Gordon, Kelly H. Dove, Aleem A. Dhalla, and Gil Kahn, Las Vegas, for Real Party in Interest.

BEFORE THE SUPREME COURT, PARRAGUIRRE, STIGLICH, and SILVER, JJ.

OPINION

By the Court, SILVER, J.:

In this writ proceeding, petitioning contractors and subcontractors assert that the district court properly dismissed the City of North Las Vegas's construction defect claims against them as precluded by the former six-year statute of repose and that the district court thereafter lacked authority to revive those claims once a statutory amendment extending the repose period became effective, since the original complaint was invalid and, by then, the claims had expired under the extended deadline as well. Because the Legislature expressly directed that the amended statute of repose apply retroactively, and because the City of North Las Vegas's action was filed within the extended deadline and remained pending when the amendment became effective, we conclude that the district court did not manifestly abuse or arbitrarily or capriciously exercise its discretion when it applied the extended repose period and revived the claims.

FACTS AND PROCEDURAL HISTORY

The City of North Las Vegas (CNLV), real party in interest here, hired petitioner Dekker/Perich/Sabatini Ltd. to construct a fire station. Dekker then hired several subcontractors to assist in the construction.¹ On July 13, 2009, CNLV recorded a notice of completion for the fire station.

Years later, CNLV noticed cracks in the building's foundation and walls. A 2017 investigation found that excessive settlement and expansive soil activity had damaged the building. At the time, NRS 11.202 imposed a six-year repose period on construction defect actions. In 2019, however, the Legislature enacted Assembly Bill 421, which extended NRS 11.202 ’s repose period to ten years. 2019 Nev. Stat., ch. 361, § 7, at 2262. On July 11, 2019, after the six-year repose period had expired and before the amendment took effect, CNLV filed the underlying complaint in this case against Dekker.

Dekker immediately moved to dismiss the action, arguing that CNLV's claims were time-barred under NRS 11.202 ’s six-year period of repose. The district court heard the motion on September 30, 2019—the day before A.B. 421's amendment to the repose period took effect—and on October 14, 2019, the court issued a written order dismissing CNLV's complaint based on the six-year statute of repose.

Shortly thereafter, CNLV timely moved to alter the judgment under NRCP 59(e), arguing that the ten-year statute of repose was now in effect and governed its claims. Dekker countered that the claims were statutorily barred when the complaint was filed and thus void ab initio and unrevivable. Dekker also asserted that granting CNLV's motion would violate its due process rights. The district court granted CNLV's motion to alter the judgment, determining that NRS 11.202 applied retroactively and constitutionally, and reinstated the claims. This writ petition followed.

DISCUSSION

We exercise our discretion to entertain the writ petition

"A writ of mandamus is available to compel the performance of an act which the law ... [requires] as a duty resulting from an office, trust or station, or to control a manifest abuse or an arbitrary or capricious exercise of discretion."² Cote H. v. Eighth Judicial Dist. Court , 124 Nev. 36, 39, 175 P.3d 906, 907-08 (2008) (internal quotation marks and footnote omitted) (alterations in original). Mandamus is an extraordinary remedy, available only when there is no "plain, speedy and adequate remedy in the ordinary course of law." NRS 34.170 ; see also Cote H., 124 Nev. at 39, 175 P.3d at 908.

The decision to entertain a petition for a writ of mandamus is within our sole discretion. Smith v. Eighth Judicial Dist. Court , 107 Nev. 674, 677, 818 P.2d 849, 851 (1991). "Because an appeal is ordinarily an adequate remedy, this court generally declines to consider writ petitions challenging interlocutory district court orders." Helfstein v. Eighth Judicial Dist. Court , 131 Nev. 909, 912, 362 P.3d 91, 94 (2015). However, when a writ petition presents an opportunity to clarify an important issue of law and doing so serves judicial economy, we may elect to consider the petition. Id. Similarly, writ relief may be appropriate where the petition presents a matter of first impression and considerations of judicial economy support its review. Humboldt Gen. Hosp. v. Sixth Judicial Dist. Court , 132 Nev. 544, 547, 376 P.3d 167, 170 (2016).

Dekker's writ petition raises an important legal issue of first impression with statewide importance—whether NRS 11.202's 2019 amendment extending the repose period allows a claim to proceed even if the repose period in effect when the claim was filed barred that claim. Additionally, clarifying which version of the statute of repose applies in this situation serves judicial economy, as the action is in its initial stages and, if successful, Dekker's argument would preclude CNLV from pursuing its claims any further. We therefore elect to consider the writ petition.

The district court did not manifestly abuse or arbitrarily or capriciously exercise its discretion by retroactively applying NRS 11.202 ’s ten-year repose period to CNLV's claims

Dekker argues that because CNLV filed suit before NRS 11.202 ’s extended ten-year period took effect, the complaint was void ab initio and the district court erred by reviving it. Dekker further asserts that, in so doing, the district court violated its due process rights under the Nevada Constitution.³ CNLV argues that the district court correctly decided that the claims are timely under the ten-year statute of repose, as retroactively applied, and that Dekker has neither shown a vested right to be free from the claims under the former statute of repose nor demonstrated that the amendment is invalid under a rational basis review.

In the context of a writ petition, we generally review district court orders for manifest abuse or 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). However, "Statutory interpretation is a question of law that we review de novo, even in the context of a writ petition." Id. at 198, 179 P.3d at 559. If the plain meaning of a statute is clear on its face, then this court does not look beyond the statute's language. Zohar v. Zbiegien , 130 Nev. 733, 737, 334 P.3d 402, 405 (2014).

Although statutes are generally applied prospectively only, a statute applies retroactively when legislative intent to do so is clear. See Pub. Emps ’ Benefits Program v. Las Vegas Metro. Police Dep't , 124 Nev. 138, 154-55, 179 P.3d 542, 553 (2008) ("In Nevada, as in other jurisdictions, statutes operate prospectively, unless the Legislature clearly manifests an intent to apply the statute retroactively.... [W]hen the Legislature intends retroactive application, it is capable of stating so clearly."). In amending NRS 11.202. the Legislature explicitly provided that the ten-year repose period applies retroactively. Indeed, A.B. 421 expressly defines the scope of the amendment's application, providing that the amendment ‘appl[ies] retroactively to actions in which the substantial completion of the improvement to the real property occurred before October 1, 2019." 2019 Nev. Stat., ch. 361, § 11(4), at 2268. Notably, too, the Legislature has twice amended NRS 11.202 ’s repose period: once in 2015 to decrease the period from ten to six years, and again in 2019 to reinstate the ten-year repose period.⁴ 2015 Nev. Stat., ch. 2. §§ 17 & 22, at 17 & 21; 2019 Nev. Stat., ch. 361, § 7, at 2262. The 2019 amendment was intended to relieve prejudice to Nevada landowners who were unaware of property damage that did not manifest within the six-year repose period. Hearing on A.B. 421 Before the Senate Committee on Judiciary, 80th Leg. (Nev., May 15, 2019). Applying the statute retroactively thus comports with A.B. 421's express language and legislative intent.

In this case, the fire station's date of substantial completion was July 13, 2009, when the notice of completion issued. See NRS 11.2055 (explaining the date of substantial completion is when the final building inspection is conducted, the notice of completion is issued, or the certificate of occupancy is...