NDOT v. Eighth Jud. Dist. Ct.

132 Nev., Advance Opinion 1
IN THE SUPREME COURT OF THE STATE OF NEVADA
THE STATE OF NEVADA No. 67465
DEPARTMENT OF
TRANSPORTATION,
Petitioner,
vs. FILED
THE EIGHTH JUDICIAL DISTRICT
COURT OF THE STATE OF NEVADA, FEB 2 5 2016
IN AND FOR THE COUNTY OF IE K. LINDEMAN
CLARK; AND THE HONORABLE
SUSAN SCANN, DISTRICT JUDGE,
Respondents,
and
JORGENSON & KOKA, LLP, A
NEVADA LIMITED LIABILITY
PARTNERSHIP; PWREO EASTERN
AND ST. ROSE, LLC, A NEVADA
LIMITED LIABILITY COMPANY; AND
CITY OF HENDERSON, A MUNICIPAL
CORPORATION,
Real Parties in Interest.
Original petition for a writ of prohibition or mandamus
challenging a district court order denying a motion to dismiss.
Petition denied.
Adam Paul Laxalt, Attorney General, and Roger K. Miles, Deputy
Attorney General, Carson City,
for Petitioner.
Josh M. Reid, City Attorney, and Nancy D. Savage, Assistant City
Attorney, Henderson,
for Real Party in Interest City of Henderson.
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Lee, Hernandez, Landrum & Garofalo and David S. Lee and Charlene N.
Renwick, Las Vegas,
for Real Parties in Interest PWREO Eastern and St. Rose, LLC.
Reisman Sorokac and Robert R. Warns, III, Las Vegas,
for Real Party in Interest Jorgenson & Koka, LLP.
BEFORE THE COURT EN BANC.
OPINION
By the Court, HARDESTY, J.:
In this original writ proceeding, we are asked to consider
whether a complaint alleging professional negligence in an action filed
against petitioner State of Nevada Department of Transportation (NDOT)
must be accompanied by an attorney affidavit and an expert report
pursuant to NRS 11.258. Because we conclude that NDOT is not a design
professional as envisioned by the Legislature in NRS 11.2565(1)(a), we
further conclude that the requirements of NRS 11.258 are inapplicable to
NDOT since the action would not statutorily qualify as "an action
involving nonresidential construction." NRS 11.258(1). Accordingly, we
deny this petition.
FACTS AND PROCEDURAL HISTORY
Real party in interest Jorgenson & Koka, LLP (J&K) filed suit
against NDOT and real parties in interest PWREO Eastern and St. Rose,
LLC (collectively, PWREO) and the City of Henderson. PWREO owned a
commercial shopping center in Henderson, Nevada, and leased a portion of
the shopping center to J&K for an urgent care facility. In its amended
complaint, J&K alleged that water entered its premises on two separate
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occasions and that NDOT failed to prevent the flooding. J&K asserted a
claim of negligence against NDOT for failing to properly design, construct,
maintain, and/or repair a state highway located adjacent to J&K's
premises. PWREO filed a cross-claim against NDOT and the City,
asserting claims of negligence, equitable indemnity, implied indemnity,
contribution, and declaratory relief.
NDOT filed motions to dismiss the amended complaint and
the cross-claim for failure to comply with NRS 11.256-.259. The district
court denied the motions after finding that NDOT is not "primarily
engaged in the practice of professional engineering" and, as such, all
claims brought against NDOT are not subject to the mandatory filing
requirements of NRS 11.256-.259. This petition for writ relief followed.
DISCUSSION
Writ relief is appropriate
"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 an arbitrary or capricious exercise of discretion."
Humphries v. Eighth Judicial Dist. Court, 129 Nev., Adv. Op. 85, 312 P.3d
484, 486 (2013) (quoting Int? Game Tech., Inc. v. Second Judicial Dist.
Court, 124 Nev. 193, 197, 179 P.3d 556, 558 (2008)); NRS 34.160.
Generally, "[w]rit relief is not available. . . when an adequate and speedy
legal remedy exists." Int'l Game Tech., 124 Nev. at 197, 179 P.3d at 558.
"While an appeal generally constitutes an adequate and speedy remedy
precluding writ relief, we have, nonetheless, exercised our discretion to
intervene 'under circumstances of urgency or strong necessity, or when an
important issue of law needs clarification and sound judicial economy and
administration favor the granting of the petition." Cote H. v. Eighth
Judicial Dist. Court, 124 Nev. 36, 39, 175 P.3d 906, 908 (2008) (footnote
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omitted) (quoting State v. Second Judicial Dist. Court, 118 Nev. 609, 614,
55 P.3d 420, 423 (2002))."
Although NDOT appears to have a plain, speedy, and
adequate remedy in the form of an appeal from any judgment rendered
against it, we exercise our discretion to consider this petition because the
applicability of NRS 11.258 to NDOT raises an important legal issue in
need of clarification. Furthermore, the interests of sound judicial economy
and administration favor resolving this writ petition.
NRS 11.258 does not apply to NDOT
NRS 11.258(1) provides that
in an action involving nonresidential construction,
the attorney for the complainant shall file an
affidavit with the court concurrently with the
service of the first pleading in the action stating
that the attorney:
(a) Has reviewed the facts of the case;
(b) Has consulted with an expert;
(c) Reasonably believes the expert who was
consulted is knowledgeable in the relevant
discipline involved in the action; and
'Alternatively, NDOT seeks a writ of prohibition. A writ of
prohibition is applicable when a district court acts "without or in excess of
[its] jurisdiction." NRS 34.320; see also Club Vista Fin. Servs., LLC v.
Eighth Judicial Dist. Court, 128 Nev., Adv. Op. 21, 276 P.3d 246, 249
(2012). A writ of prohibition is inappropriate here because the district
court had jurisdiction to rule on the motions to dismiss. See Goicoechea v.
Fourth Judicial Dist. Court, 96 Nev. 287, 289, 607 P.2d 1140, 1141 (1980)
(explaining that we will not issue a writ of prohibition "if the court sought
to be restrained had jurisdiction to hear and determine the matter under
consideration").
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(d) Has concluded on the basis of the review
and the consultation with the expert that the
action has a reasonable basis in law and fact.
Pursuant to NRS 11.258(3), the attorney's affidavit must also be
accompanied by an expert report. NRS 11.2565(1) defines an "[a]ction
involving nonresidential construction" as one that:
(a) Is commenced against a design
professional; and
(b) Involves the design, construction,
manufacture, repair or landscaping of a
nonresidential building or structure, of an
alteration of or addition to an existing
nonresidential building or structure, or of an
appurtenance, including, without limitation, the
design, construction, manufacture, repair or
landscaping of a new nonresidential building or
structure, of an alteration of or addition to an
existing nonresidential building or structure, or of
an appurtenance.
The district court concluded that the claims against NDOT are not actions
concerning nonresidential construction pursuant to NRS 11.2565(1), thus
an affidavit and expert report were not necessary. "We review the district
court's legal conclusions de novo." Buzz Stew, LLC v. City of N. Las Vegas,
124 Nev. 224, 228, 181 P.3d 670, 672 (2008).
NDOT is not a design professional
NDOT argues that it is a design professional because its
employees hold professional engineering licenses and it primarily engages
in professional engineering. We disagree. NRS 11.2565(2)(b) defines
"[d]esign professional" as "a person who holds a professional license or
certificate issued pursuant to chapter 623 [Architecture, Interior Design
and Residential Design], 623A [Landscape Architects] or 625 [Professional
Engineers and Land Surveyors] of NES or a person primarily engaged in
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the practice of professional engineering, land surveying, architecture or
landscape architecture." (Emphasis added.)
Not all NDOT employees are statutorily required to be
licensed professional engineers. See NRS 408.106 (setting forth the
makeup and qualifications of the NDOT board of directors but not
requiring members to solely be licensed• professional engineers); NRS
408.163 (setting forth the qualifications for the NDOT director but not
requiring the director to be a licensed professional engineer); NRS
408.178(1)-(2) (setting forth the qualifications for NDOT deputy directors
and the chief engineer and requiring the chief engineer to "be a licensed
professional engineer"). Moreover, it cannot be said that NDOT is
"primarily engaged in the practice of professional engineering." NRS
11.2565(2)(b). NRS 625.050(1) defines "professional engineering" as
(a) Any professional service which involves
the application of engineering principles and data,
such as surveying, consultation, investigation,
evaluation, planning and design, or responsible
supervision of construction or operation in
connection with any public or private utility,
structure, building, machine, equipment, process,
work or project, wherein the public welfare or the
safeguarding of life, health or property is
concerned or involved.
(b) Such other services as are necessary to
the planning, progress and completion of any
engineering project or to the performance of any
engineering service.
NDOT engages in several of these activities. See, e.g., NRS
408.200(1), (3) (stating that NDOT director's duties include investigating
the best approach for highway construction and maintenance throughout
the state and consulting with county officials regarding streets and
highways in their counties); NRS 408.233(2)(c) (providing that NDOT
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planning division's duties include "evaluat[ing] the [department's] policies,
plans, proposals, systems, programs and projects"); NRS 408.234(2)(i), (k)
(stating that NDOT planning division shall "[finvestigate possible sources
of money" for promotion of and participation in programs for bicycle
transportation on state roadways). However, NDOT's board of directors is
the "custodian of the state highways and roads," NRS 408.100(5), and its
director's duties include "construction, reconstruction, improvement,
maintenance and repair of all highways" in Nevada, NRS 408.195. Thus,
while some NDOT employees may be engaged in areas of professional
engineering, we cannot conclude that NDOT is "primarily engaged in the
practice of professional engineering" as contemplated by NRS
11.2565(2)(b). 2
Finally, NRS 11.2565(2)(b) defines "[d]esig-n professional" as "a
person who holds a professional license or certificate . . . or a person
primarily engaged in the practice of professional engineering." (Emphases
added.) "Person" is defined as "a natural person, any form of business or
social organization and any other nongovernmental legal entity including,
but not limited to, a corporation, partnership, association, trust or
unincorporated organization. The term does not include a government,
governmental agency or political subdivision of a government." NRS
0.039. As a government entity, NDOT does not fall within this definition.
2Alternatively, NDOT argues that it primarily engages in
architecture, landscape architecture, and land surveying. However,
identical to our analysis above, these activities are also only a portion of
the activities in which NDOT engages. Thus, this argument lacks merit.
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Accordingly, for the reasons set forth above, we conclude that
NDOT is not a design professional as envisioned by the Legislature in
NRS 11.2565(1)(a). 3 As such, the requirements of NRS 11.258 are
inapplicable to NDOT since the action would not statutorily qualify as "an
action involving nonresidential construction." NRS 11.258(1). Because
NRS 11.258 is inapplicable to NDOT, we conclude that the district court
did not err in denying NDOT's motion to dismiss, and we thus deny this
petition. 4
,
Hardesty
J.
Parraguirre Douglas
J.
Cherry Saitta
J.
3 Becauseboth subsections of NRS 11.2565(1) must be met in order
for a claim to be classified as an "[a]ction involving nonresidential
construction" and we have determined that NDOT does not qualify as a
design professional under subsection (a), we need not consider whether
subsection (b) has been satisfied.
4 NDOTalso argues that NRS 11.259 mandates dismissal with
prejudice. Because we conclude that the district court did not err in
denying NDOT's motions to dismiss, we do not address this argument.
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