Av Builder Corp. v. the Law Offices of Craig D. Fuller C/W 62934

 business or acting in the capacity of a contractor
shall bring or maintain any action in the courts of
this State for the collection of compensation for the
performance of any act or contract for which a
license is required by this chapter without alleging
and proving that such person, firm, copartnership,
corporation, association or other organization, or
any combination of any thereof, was a duly
licensed contractor at all times during the
performance of such act or contract and when the
job was bid.
(Emphases added.) AV Builder argued that NRS 624.320 did not bar its
suit because it substantially complied with the licensure statutes and
Fuller would be unjustly enriched if the statute were applied.
During a hearing on the motion, the district court expressed
its belief that NRS 624.320's plain meaning required it to grant summary
judgment in favor of Fuller. When presented with Nevada caselaw that
provided exceptions to NRS 624.320's requirements, the district court
conveyed that it was bound by the statute's language and that the caselaw
that suggested otherwise was "dangerous" precedent that would permit a
district court to use an "equitable doctrine" and its "own discretion" to
determine "when and how to enforce a statute that's so clear." It also
reasoned that if the evidence that Fuller submitted as part of a motion for
judicial notice was "accurate," then AV Builder could not prevail on its
substantial compliance theory. Accordingly, the district court granted
summary judgment in favor of Fuller. In its order, the district court made
findings based on the evidence proffered by the parties.
On appeal, AV Builder contends that the district court erred
in granting summary judgment. Pursuant to our de novo review of the
summary judgment, caselaw, and statutory language, we agree. See Liu v.
Christopher Homes, LLC, 130 Nev. , 321 P.3d 875, 877 (2014)
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(reviewing the meaning and the district court's application of caselaw de
novo); Ransdell v. Clark Cnty., 124 Nev. 847, 854, 192 P.3d 756, 761 (2008)
(stating that issues of statutory interpretation are reviewed de novo).
The effect of Nevada precedent on NRS 624.320
NRS 624.320 conditions "any action .. . for the collection of
compensation" by any person or entity "engaged in the business or acting
in the capacity of a contractor" on that person or entity maintaining a
valid contractor's license "during the performance of such act or contract
and when the job was bid." Much like the district court's interpretation of
the statute, Fuller reads NRS 624.320 as prohibiting an action by an
unlicensed contractor regardless of whether the contractor substantially
complied with the licensing statutes or if unjust enrichment might result.
In ascertaining the meaning of a statute, we consider the
decisions of this court that inform the statute's meaning and application.
See Miller v. Lockett, 457 N.E.2d 14, 17 (Ill. 1983) ("When this court
interprets a statute, . . . that interpretation is considered as a part of the
statute itself unless and until the legislature amends it contrary to the
interpretation."); Karl v. Uptown Drink, LLC, 835 N.W.2d 14, 17 (Minn.
2013) ("Once we interpret a statute, our interpretation becomes part of the
statute as though written therein." (internal quotations omitted)); Fechtig
v. City of Albany, 946 P.2d 280, 286 (Or. Ct. App. 1997) (providing that the
state "Supreme Court's statutory interpretations are considered to be part
of the statutes themselves, subject only to subsequent legislative change");
cf. Silvera v. Emp'rs Ins. Co. of Nev., 118 Nev. 105, 109, 40 P.3d 429, 432
(2002) (explaining that when this court interprets a statute and the
Legislature subsequently amends the statute without changing the
interpreted language, it is presumed that the Legislature approved of this
court's interpretation). Furthermore, a district court is not free to
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disregard this binding precedent. See, e.g., Eulitt ex rel. Eulitt v. Maine,
Dep't of Educ., 386 F.3d 344, 349 (1st Cir. 2004) (holding that a district
court must follow binding precedent "unless it has unmistakably been cast
into disrepute by supervening authority").
Here, in granting summary judgment to Fuller, the district
court disregarded established Nevada precedent demonstrating that,
although NRS 624.320 prohibits direct recovery for compensation, an
unlicensed contractor may nonetheless be able to recover under certain
alternative theories, such as unjust enrichment or substantial compliance.
See Day v. W. Coast Holdings, Inc., 101 Nev. 260, 265, 699 P.2d 1067, 1071
(1985) (applying an unjust enrichment exception to NRS 624.320's
requirements); Nev. Equities, Inc. v. Willard Pease Drilling Co., 84 Nev.
300, 302-03, 440 P.2d 122, 123 (1968) (holding that NRS 624.320 does not
bar an improperly licensed contractor's claim where the contractor
substantially complied with the licensure statutes); Magill v. Lewis, 74
Nev. 381, 387, 333 P.2d 717, 720 (1958) (holding that NRS 624.320 does
not bar an unlicensed contractor's unjust enrichment claim based on the
defendant's fraud); see also Leven v. Frey, 123 Nev. 399, 406-07, 168 P.3d
712, 717 (2007) (providing that this court determines whether substantial
compliance with a statute is permissible based on a statute's provisions,
policy, and equity).
Since our cases interpreting NRS 624.320 are binding
precedent, the district court erred in granting summary judgment without
considering these cases. See, e.g., Eulitt, 386 F.3d at 349. In addition to
holding that the district court erroneously failed to consider this court's
precedent, we address whether the district court erred in finding no
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genuine issue of material fact as to when AV Builder lost its contractor's
license.
The evidence on which the district court relied
In determining whether the district court erred in granting
summary judgment, we consider whether genuine issues of material fact
remained with respect to AV Builder's claims and theories of liability,
such that "a rational trier of fact could return a verdict for the nonmoving
party." Wood v. Safeway, Inc., 121 Nev. 724, 731, 121 P.3d 1026, 1031
(2005). The party who moves for summary judgment has the burden of
showing the absence of genuine issues of material fact. Cuzze v. Univ. &
Gmty. Coll. Sys. of Nev., 123 Nev. 598, 602, 172 P.3d 131, 134 (2007). If
that party does not bear the burden of persuasion at trial, he or she may
satisfy this burden by pointing to "an absence of evidence to support the
nonmoving party's case." Id. at 602-03, 172 P.3d at 134 (quoting Celotex
Corp. v. Cat rett, 477 U.S. 317, 325 (1986)). Generally, to defeat the motion
for summary judgment, the nonmoving party must submit admissible
evidence to show a genuine issue of material fact. Id. at 603, 172 P.3d at
134.
This matter presents a unique set of circumstances that
warrants a remand for an inquiry into the genuine issues of material fact.
The dates of AV Builder's licensure are significant to its action against
Fuller, as the dates are relevant to AV Builder's claims and theories of
liability that presuppose the presence or absence of a license at the times
it contracted with Fuller and rendered its services. Indicating a genuine
issue of material fact about when AV Builder had and subsequently lost
its license, AV Builder submitted its manager's declaration, which stated
that it lost its license "at some point in 2004" and gained a new license in
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June 2005. Possibly indicating that the time period for which AV Builder
lacked a license was not a genuine issue of material fact, Fuller requested
judicial notice of information in letters drafted by the Nevada Contractors
Board, which identified that the expiration date for AV Builder's license
was in August 2003 and that its license was suspended by January 2,
2004. AV Builder contested this motion, disputing whether the
information in the letters was suitable for judicial notice and challenging
the letters' admissibility.
The district court left the motion for judicial notice and the
objections to the letters unresolved. During a hearing, the district court
expressed that AV Builder could not prevail on its substantial compliance
theory if the information in the Board's letters was "accurate," and in its
summary judgment order, the district court based its findings on the
evidence presented at the hearing. Thus, in making its findings, the
district court relied on objected-to evidence and information that was
subject to an unresolved motion for judicial notice.
Granting summary judgment involves evaluating the presence
or absence of admissible evidence and whether it establishes genuine
issues of material fact. See Cuzze, 123 Nev. at 602-03, 172 P.3d at 134.
Furthermore, when deciding a summary judgment motion, all evidence
must be viewed in a light most favorable to the nonmoving party. Wood,
121 Nev. at 729, 121 P.3d at 1029. Here, the district court's evaluation was
incomplete, as it failed to resolve the admissibility and the judicial notice
of the evidence and information on which it relied for its determination.
In light of its incomplete evaluation of this evidence and the presence of
evidence suggesting that AV Builders had a license during some portion of
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the time relevant to its claims, the district court erred by concluding that a
genuine issue of material fact did not exist.
Conclusion
For the reasons discussed above, we conclude that the district
court erred by granting summary judgment without properly considering
relevant caselaw and despite the presentation of conflicting evidence.'
Therefore, we
ORDER the judgment of the district court REVERSED AND
REMAND this matter to the district court for proceedings consistent with
this order. 2
Piekftw f
'
Pickering
j.
Parra,guirr,e
J.
Saitta
1 Bydirecting the district court to binding precedent, we are not
commenting on whether the present situation fits within any of the
alternative theories discussed in these cases. This is a factual issue for
the district court to consider on remand. In addition, we are not
suggesting that the cases cited above are necessarily the only cases which
are relevant to this issue.
2 Based on our determinations above, the district court's order
regarding costs and attorney fees is necessarily reversed and remanded,
and we need not reach Fuller's cross-appeal of the post-judgment order
denying attorney fees.
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cc: Hon. Allan R. Earl, District Judge
Thomas J. Tanksley, Settlement Judge
Marquis Aurbach Coffing
Fuller Jenkins/San Diego
The Clarkson Law Group, P.C.
Bourassa Law Group, LLC
Eighth District Court Clerk
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