Otak Nev. Llc v. the Eighth Judicial Dist. Court of State

• Citation: 260 P.3d 408,127 Nev. Adv. Op. 53
• Decision Date: 08 September 2011
• Docket Number: No. 56065.,56065.
• Parties: OTAK NEVADA, LLC, Petitioner,v.The EIGHTH JUDICIAL DISTRICT COURT OF the STATE of Nevada, In and for the COUNTY OF CLARK, and The Honorable Douglas Smith, District Judge, Respondents,andPacificap Construction Services, LLC; Pacificap Properties Group, LLC; Pacificap Holdings XXIX, LLC; Chad I. Rennaker; Jason Q. Rennaker; Cheyenne Apartments PPG, LP; and Christopher Watkins, Real Parties in Interest.
• Court: Nevada Supreme Court

260 P.3d 408

127 Nev. Adv. Op. 53

OTAK NEVADA, LLC, Petitioner,

v.The EIGHTH JUDICIAL DISTRICT COURT OF the STATE of Nevada, In and for the COUNTY OF CLARK, and The Honorable Douglas Smith, District Judge, Respondents,andPacificap Construction Services, LLC; Pacificap Properties Group, LLC; Pacificap Holdings XXIX, LLC; Chad I. Rennaker; Jason Q. Rennaker; Cheyenne Apartments PPG, LP; and Christopher Watkins, Real Parties in Interest.

No. 56065.

Supreme Court of Nevada.

Sept. 8, 2011.

Weil & Drage, APC, and Jean A. Weil and Thomas A. Larmore, Las Vegas, for Petitioner.Thagard, Reiss & Brown, LLP, and Thomas Friedman, Las Vegas, for Real Party in Interest Pacificap Construction Services, LLC.Lewis Brisbois Bisgaard & Smith LLP and Mark J. Brown and Josh C. Aicklen, Las Vegas, for Real Parties in Interest Pacificap Properties Group, LLC; Pacificap Holdings XXIX, LLC; Chad I. Rennaker; Jason Q. Rennaker; and Cheyenne Apartments PPG, LP.Lewis & Roca LLP and Daniel F. Polsenberg and Joel D. Henriod, Las Vegas; Simon Law Office and Daniel S. Simon, Las Vegas, for Real Party in Interest Christopher Watkins.BEFORE SAITTA, C.J., HARDESTY and PARRAGUIRRE, JJ.

OPINION

By the Court, HARDESTY, J.:

In this extraordinary writ proceeding, we must determine whether NRS 11.259(1) compels dismissal where the initial pleading in an action alleging nonresidential construction malpractice was served without filing the attorney affidavit and expert report required by NRS 11.258(1) and (3). We take this opportunity to extend our analysis and holding in Fierle v. Perez, 125 Nev. ––––, ––––, 219 P.3d 906, 914 (2009) (interpreting NRS 41A.071's expert affidavit requirement in medical malpractice actions) to apply to a defective pleading served in violation of NRS 11.258. Such a pleading is void ab initio and of no legal effect and, thus, cannot be cured by amendment. Therefore, because the initial pleadings ¹ served by certain real parties in interest in this case did not include the attorney affidavit and expert report as required by NRS 11.258, those pleadings were void ab initio, and the district court did not have discretionary authority to allow the parties to amend their pleadings to cure their failure to comply with NRS 11.258. Accordingly, we conclude that writ relief is warranted.

FACTS AND PROCEDURAL HISTORY

This wrongful death and personal injury matter arose out of claims for damages allegedly caused by a defect in street improvements to Cheyenne Avenue in Las Vegas. A vehicle operated by someone who is not a party to this writ proceeding was driving on Cheyenne when it ran into a median and collided with oncoming traffic, killing the driver of the other car and injuring the passenger, real party in interest Christopher Watkins. The decedent's family and Watkins filed suit against the parties involved in the construction project, including the other real parties in interest.

In September 2009, real party in interest Pacificap Construction Services, LLC (PCS), the general contractor, filed a third-party complaint against petitioner Otak Nevada, LLC, the design architect, alleging claims for negligence, breach of contract, breach of express and implied warranties, implied indemnity, express indemnity, equitable indemnity, contribution, and apportionment, and seeking declaratory relief, related to Otak's work on the Cheyenne Avenue construction project that led to the fatal automobile collision. The third-party complaint was served on Otak on September 21, 2009. However, no attorney affidavit or expert report was included with the third-party complaint or filed with the district court before the complaint's service on Otak as required by NRS 11.258. Before Otak filed a responsive pleading, in January 2010, PCS filed an amended third-party complaint that did not include allegations of breach of express or implied warranties, or claims for implied or express indemnity. The amended third-party complaint included for the first time an affidavit from PCS's attorney in which he stated that the claim had a reasonable basis in fact and law, and it also included an expert report opining that Otak's engineering services fell below the standard of care.

Otak filed a motion to dismiss PCS's amended third-party complaint on the grounds that the affidavit and report were not filed concurrently with or before the original third-party complaint, as required by NRS 11.258. Citing this court's holding in Fierle, 125 Nev. at ––––, 219 P.3d at 914 (holding that a medical malpractice complaint filed without the statutorily required expert report is void and cannot be amended), Otak argued that the third-party complaint was void ab initio. The district court conducted a hearing and denied Otak's motion, stating that the holding in Fierle applied only to medical malpractice cases.

After the district court denied Otak's motion to dismiss, real parties in interest Pacificap Properties Group, LLC; Pacificap Holdings XXIX, LLC; Chad I. Rennaker; and Jason Q. Rennaker (collectively, P & R) filed a motion for leave to amend their answer and assert cross-claims against Otak. Similar to its motion to dismiss PCS's amended third-party complaint, Otak opposed P & R's motion to amend for failure to file the required attorney affidavit and expert report and argued that the cross-claim was void ab initio under Fierle. The district court conducted a hearing on this motion as well and granted P & R's motion to amend, and the court further found that P & R could rely on PCS's expert report instead of filing its own expert report. The district court also orally concluded that, based on its ruling that P & R could rely on PCS's expert report, Watkins ² could also rely on PCS's expert report in amending his complaint against Otak. Otak now petitions this court for writ relief.³

DISCUSSION

In its petition, Otak maintains that the district court erred by ruling that PCS's and P & R's pleadings were not void when those parties failed to file an affidavit and expert report, as required by NRS 11.258(1) and (3). This argument raises an issue of first impression in Nevada: Is a construction design malpractice pleading void ab initio if the statutorily required attorney affidavit and expert report are not filed with the court before the initial pleading is served? Because the determination of this issue is not fact-bound and it involves an unsettled question of law that is likely to recur, and because this case is in the early stages of litigation and resolving this question now promotes judicial economy, we conclude that our consideration of this writ petition is warranted. See County of Clark v. Upchurch, 114 Nev. 749, 753, 961 P.2d 754, 757 (1998) (concluding that addressing an issue was appropriate because it would “likely rise again and its resolution might forestall future litigation”); NRS 34.330 (recognizing that a writ of mandamus is available only when no adequate legal remedy exists); International Game Tech. v. Dist. Ct., 124 Nev. 193, 197–98, 179 P.3d 556, 559 (2008) (noting that the right to appeal from a future final judgment is not always an adequate legal remedy precluding writ relief, such as when the case is at early stages of litigation and writ relief would promote policies of sounds judicial administration); Buckwalter v. Dist. Ct., 126 Nev. ––––, ––––, 234 P.3d 920, 921 (2010) (recognizing that while “[n]ormally, this court will not entertain a writ petition challenging the denial of a motion to dismiss [, ] we may do so where ... the issue is not fact-bound and involves an unsettled and potentially significant, recurring question of law”).

This court has original jurisdiction to issue writs of mandamus. Nev. Const. art. 6, § 4. “A writ of mandamus is available to compel the performance of an act that the law requires as a duty resulting from an office, trust, or station, or to control a manifest abuse of discretion.” We the People Nevada v. Secretary of State, 124 Nev. 874, 879, 192 P.3d 1166, 1170 (2008).

The district court based its orders denying Otak's motion to dismiss PCS's third-party complaint and granting P & R's motion to file an amended answer and cross-claim on its interpretation and application of NRS 11.258. “This court reviews a district court's statutory construction determinations de novo.” Fierle, 125 Nev. at ––––, 219 P.3d at 910.

An initial pleading for nonresidential construction defect claims is void ab initio if it is served before an attorney affidavit and expert report are filed with the court

NRS 11.258(1) and (3) ⁴ provide that “the attorney ... shall file [the affidavit and expert report] ... concurrently with the service of the first pleading in the action.” ⁵ Additionally, NRS 11.259(1) provides that the district court “shall dismiss” a party's initial pleading alleging nonresidential construction malpractice if it is served without the party filing the required attorney affidavit and expert report. Because the phrase “shall dismiss” is clear and unambiguous, we must give “ ‘effect to that meaning and will not consider outside sources beyond that statute.’ ” City of Reno v. Citizens for Cold Springs, 126 Nev. ––––, ––––, 236 P.3d 10, 16 (2010) (quoting NAIW v. Nevada Self–Insurers Association, 126 Nev. ––––, ––––, 225 P.3d 1265, 1271 (2010)).

The use of the word “ ‘[s]hall’ imposes a duty to act.” NRS 0.025(1)(d); see also S.N.E.A. v. Daines, 108 Nev. 15, 19, 824 P.2d 276, 278 (1992) ( “ ‘[S]hall’ is mandatory unless the statute demands a different construction to carry out the clear intent of the legislature.”); Washoe Med. Ctr. v. Dist. Ct., 122 Nev. 1298, 1303, 148 P.3d 790, 793 (2006) ( “ ‘[S]hall’ is mandatory and does not denote judicial discretion.”). Thus, the Legislature's use of “shall” in NRS 11.259 demonstrates its intent to prohibit judicial discretion and, consequently, mandates automatic dismissal if the pleading is served without the complaining party concurrently filing the required...