DEKKER/PERICH/SABATINI, LTD. VS DIST. CT. (CITY OF N. LAS VEGAS) , 2021 NV 53 ( 2021 )

137 Nev., Advance Opinion 53
IN THE SUPREME COURT OF THE STATE OF NEVADA
DEKKER/PERICH/SABATINI LTD.; No. 81459
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
HLED
CONSULTANTS; RICHARDSON SEP 2 3 2021
CONSTRUCTION, INC.; THE ELI Jr iTH A. &HO' N
CLEF" 0' SUPoqslIE OUr
GUARANTEE COMPANY OF NORTH
BY ,...
AMERICA USA; AND JACKSON 19• F DEPUri CLEM.
FAMILY PARTNERSHIP LLC, D/B/A
STARGATE PLUMBING,
Petitioners,
vs.
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.
Original petition for a writ of mandamus or, alternatively,
prohibition.
Petition denied.
W&D Law, LLP, and John T. Wendland and Anthony D. Platt, Henderson,
for Petitioners Dekker/Pericb/Sabatini Ltd. and Nevada By Design, LLC,
dba Nevada By Design.
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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
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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. 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
11.202s 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
'Many of those subcontractors have joined in the petition, including
Nevada By Design, LLC, Melroy Engineering, Inc., JW Zunino &
Associates, LLC, Ninyo and Moore Geotechnical Consultants, Richardson
Construction, Inc., The Guarantee Company of North America USA, and
Jackson Family Partnership LLC (collectively with Dekker/Perich/Sabatini,
Dekker).
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the amendment took effect, CNLV filed the underlying complaint in this
case against Dekker.
Dekker immediately moved to dismiss the action, arguing that
CNLVs claims were time-barred under NRS 11.202s six-year period of
repose. The district court heard the motion on September 30, 2019—the
day before A.B. 421s amendment to the repose period took effect—and on
October 14, 2019, the court issued a written order dismissing CNLVs
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 CNLVs 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,
2Dekkeralternatively seeks a writ of prohibition. In light of Dekker's
requested relief, we consider Dekker's petition as one for a writ of
mandamus.
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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 11.202s 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 11.202s ten-year repose
period to CNLV's claims
Dekker argues that because CNLV filed suit before NRS
11.202s extended ten-year period took effect, the complaint was void ab
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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, "[s] tatutory 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 statutes 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
3Dekker raises a third argument as well: that CNLV's complaint was
void ab initio for failing to comply with NRS 11.258, which required CNLV
to include with its complaint an attorney affidavit and an expert report
supporting that a reasonable basis for filing the action exists. In finding
the affidavit and expert report CNLV included with its complaint met NRS
11.258s requirements, the district court carefully considered those
documents, and we likewise have reviewed Dekker's arguments concerning
the affidavit and expert report and conclude those documents are sufficient
under the circumstances of this case.
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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." 201.9
Nev. Stat., ch. 361, § 11(4), at 2268. Notably, too, the Legislature has twice
amended NRS 11.202s 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. 421s 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 .cornpletion is when the final building
inspection is conducted, the notice of comoletiOn is issued, or the certificate
of occupancy is issued, whichever occurs later); Sornersett Owhers Ass'n
'Prior to 2015, the repose period varied frorn six to twelve years,
depending on the alleged defect. 1983 Nev. Stat. §§ 1-6, at 1237-39. We
note, however. the Senate Com mittee on Judiciary clarified that the
extended statute of repose did not affect any applicable statutes of
limitations. Hearing on A.B. 42]. Before the Senate Committee on
Judiciary, 80th Leg. (Nev., May 15, 2019).
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Somersett Dev. Co., 137 Nev., Adv. Op. 35, 492 P.3d 534, 535 (2021)
(explaining substantial completion under NRS 11.2055 occurs when the
construction work is "sufficiently complete so that the owner can occupy or
utilize the improvement"). As the retroactivity provision provides that the
2019 amendment applies to actions based on improvements substantially
completed before the amendment went into effect, the extended repose
period applies to this action.
As amended, NRS 11.202(1) provides that Inlo action rnay be
commenced . . . more than 10 years after the substantial completion."
(Emphasis added.) By its plain language, the statute allows an action to
proceed so long as it was filed within ten years of the date of substantial
completion. As an action based on improvements with a July 13, 2009,
substantial completion date, CNLV's July 11, 2019, complaint was timely
filed within the 2019 amendment's ten-year repose period. That complaint
was still pending when the amendment went into effect and thus was
subject to the new law. See, e.g., Gray v. First Winthrop Corp., 989 F.2d
1564, 1571 (9th Cir. 1993) (recognizing that a case is not final but remains
pending until the appellate process has been completed). When the district
court nevertheless dismissed the claims, CNLV properly filed a motion to
alter the judgment under NRCP 59(e). AA Primo Builders, LLC v.
Washington, 126 Nev. 578, 582, 245 P.3d 1190, 1193 (2010) ("Among the
basic grounds for a Rule 59(e) motion are correcting manifest errors of law
or fact, newly discovered or previously unavailable evidence, the need to
prevent manifest injustice, or a change in controlling law." (internal
quotation marks and brackets omitted) (citing 11 C. Wright, A. Miller &
M. Kane, Federal Practice and Procedure § 2810.1, at 124-27 (2d ed.1995))).
Therefore, on its face, the action was not time-barred.
8
The complaint was not void ab initio
Dekker nevertheless argues that dismissal was warranted
because CNLV's complaint was filed when NRS 11.202s six-year repose
period was still in effect, rendering the complaint void ab initio. We
disagree.
Something that is "void ab initie is "[n]ull from the beginning"
and cannot be validly further acted upon. Void ab Initio, Black's Law
Dictionary (11th ed. 2019); see Washoe Med. Ctr. v. Second Judicial Dist.
Court, 122 Nev. 1298, 1304, 148 P.3d 790, 794 (2006) (recognizing that,
when a complaint "is void ab initio, it does not legally exist and thus it
cannot be amended"). Generally, determining whether a court action is void
ab initio "involves the underlying authority of a court to act on a matter":
An order is void ab initio if entered by a court in the
absence of jurisdiction of the subject matter or over
the parties, if the character of the order is such that
the court had no power to render it, or if the mode
of procedure used by the court was one that the
court could "not lawfully adopt."
Singh v. Mooney, 541 S.E.2d 549, 551 (Va. 2001). Similarly, we have
recognized that a complaint alleging professional negligence is void ab initio
when filed without the required supporting affidavit because it is defective
and the courts are without authority to act upon it. See Washoe Med. Ctr.,
122 Nev. at 1303-04, 148 P.3d at 793-94 (concluding NRS 41A.071s
requirement that courts "shall dismiss" medical malpractice complaints
filed without an expert affidavit evidenced the Legislature's intent that
courts have no discretion with respect to a defective complaint's dismissal);
Szydel v. Markman, 121 Nev. 453, 461, 117 P.3d 200, 205 (2005) (explaining
that "NRS 41A.071 is jurisdictional in nature) (Hardesty, J. dissenting).
To the contrary, nothing in NRS 11.202 indicates the repose period is
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jurisdictional and would render an untimely complaint void ab initio. See
Seey, U.S. Dep't of Labor v. Preston, 873 F.3d 877, 880-82 (11th Cir. 2017)
(recognizing that "when, as here, a statute speaks only to a claim's
timeliness, not to a court's power, it should be treated as non-jurisdictional"
(internal quotation omitted) and rejecting the argument that boilerplate
language, such as "No action may be commenced," limits a court's
jurisdiction). Moreover, Dekker fails to point to any authority concluding
that claims filed after expiration of the repose period renders the complaint
void ab initio.
Retroactive application does not violate Dekker's due process rights
Dekker argues that permitting the 2019 amendment to NRS
11.202 to retroactively restore a time-barred claim would violate its due
process rights under the Nevada Constitution. In this, Dekker asserts that
it had a vested right to be free from construction defect claims six years
after the substantial completion date and that the Legislature's removal of
that right violated due process. Nevada's Due Process Clause mirrors its
federal counterpart, see U.S. Const. amends. V and XIV, § 1; Nev. Const.
art. 1, § 8(2), and Dekker thus urges us to look to federal law in resolving
its argument.5 See generally Hernandez v. Bennett-Haron, 128 Nev. 580,
587, 287 P.3d 305, 310 (2012) (recognizing that federal law is informative
as to the scope of Nevada's procedural due process guarantee).
Although several jurisdictions appear to recognize substantive
rights under statutes of repose, Dekker does not point to any Nevada law
5For this reason, although Dekker also points to authority from other
states in which the local constitution affords greater due process protections
than the federal Constitution, we need not consider whether Nevada's
constitution extends greater protections.
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characterizing statutes of repose as awarding an entitlement to be free from
a stale claim. See, e.g.. Police & Fire Ref.. Sys. of City of Detroit u. IndyMac
MBS, Inc., 721 F.3d 95, 109 (2d Cir. 2013); Sepmeyer v. Holman, 642 N.E.2d
1242, 1245 (Ill. 1994); Sch. Bd. of City of Norfolk v. U.S. Gypsum Co., 360
S.E.2d 325, 328 (Va. 1987); cf. Alsenz v. Twin Lakes Vill., Inc., 108 Nev.
1117, 1123, 843 P.2d 834, 838 (1992) (discussing an accrued right of action
as vested and subject to restriction on impairment). Regardless, even
assuming, arguendo, that the running of a statute of repose creates• a vested
right, Dekker's constitutional argument fails. To meet thie process
requirements, the retroactive application of NRS 11.202 must be justified
by a rational legislative purpoSe. See, e.g., Schaeffler Grp. USA, Inc. u.
United States, 786 F.3d 1354, 1362 (Fed. Cir. 2015) (explaining that the
retroactive application of a Statute does not offend due process when it is
supported by a legitimate legislative purpose furthered by a rational
means); 16B Am. Jur. 2d Constitutional Law § 964 (``While retroactive
legislation must meet a burden not faced by legislation that has only future
effects, the burden is met simply by showing that the retroactive application
of the legislation itself is justified by a rational legislative purpose."). As
explained above, the Legislature extended the repose period to reflect the
timeframe in which these types of defects most often materialize and thus
more fairly allow the pursuit of claims based on such defects. Accordingly,
application of NRS 11.202s extended repose period does not offend due
process. Thus, the action was not barred by the statute of repose, and the
district court properly granted the motion to alter the judgment.
CONCLUSION
We conclude that, as amended in 2019, NRS 11.202s extended
ten-year repose period retroactively applies to CNLV's claims against
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shorter repose period prejudiced Nevada residents, and the Legislature
clearly intended the amendment to apply retroactively. Furthermore, as
amended, the plain language of NRS 11.202 allows a claim to be brought so
long as it was filed within ten years after the date of substantial completion
of the construction work, regardless of whether the claim would have been
barred under the previous six-year statute of repose at the time the
complaint was filed. Therefore, we conclude that CNLV's claims were
properly filed within the ten-year statute of repose. Accordingly, we deny
the petition for writ relief.
J.
Silver
We concur:
J.
Parraguirre
/44043CA-P J.
Stiglich
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