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In re CityCenter Constr. & Lien Master Litig.

Supreme Court of Nevada

October 3, 2013

In re CITYCENTER CONSTRUCTION AND LIEN MASTER LITIGATION.
v.
The Eighth Judicial District Court of the State of Nevada, in and for the County of Clark; and the Honorable Elizabeth Goff Gonzalez, District Judge, Respondents, The Converse Professional Group, d/b/a Converse Consultants, Petitioner, and Century Steel, Inc., and Pacific Coast Steel, Real Parties in Interest.

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Wilson Elser Moskowitz Edelman & Dicker, LLP, and Michael M. Edwards and J. Scott Burris, Las Vegas, for Petitioner.

Hutchison & Steffen, LLC, and Michael K. Wall, L. Kristopher Rath, and Cynthia G. Milanowski, Las Vegas; Koeller, Nebeker, Carlson & Haluck, LLP, and Megan K. Dorsey and Robert C. Carlson, Las Vegas, for Real Party in Interest Century Steel, Inc.

Gordon & Rees, LLP, and Robert E. Schumacher, Las Vegas; Procopio, Cory, Hargreaves & Savitch, LLP, and Scott R. Omohundro, Craig A. Ramseyer, and Timothy E. Salter, San Diego, CA, for Real Party in Interest Pacific Coast Steel.

BEFORE THE COURT EN BANC.[1]

OPINION

SAITTA, J.

" [I]n an action involving nonresidential construction," the complainant's attorney " shall file [an affidavit and expert report] concurrently with the service of the first pleading." NRS 11.258(1); see NRS 11.258(3). An " [a]ction involving nonresidential construction" concerns the construction (and related activities) of a nonresidential building and is against a " design professional." NRS 11.2565(1). The district court " shall dismiss [the] action" if NRS 11.258 is violated. NRS 11.259(1). In Otak Nevada, L.L.C. v. Eighth Judicial District Court, 127 Nev. ___, 260 P.3d 408 (2011), we held that an amended pleading must be dismissed when it followed an initial pleading that was void ab initio— of no legal effect— because it was filed without the affidavit and expert report required by NRS 11.258. Id. at __, ___, 260 P.3d at 409, 411-12.

Petitioner Converse Professional Group relied on Otak in filing motions to dismiss amended complaints that real parties in interest Century Steel, Inc., and Pacific Coast Steel (PCS) filed against it. Century and PCS were subcontractors whose work Converse had inspected. After being brought into commercial construction litigation as defendants, Century and PCS filed third-and fourth-party complaints and amended complaints against Converse to recover damages that allegedly arose fro the deficient performance of its services. Converse filed motions to dismiss the amended complaints. It asserted that it was a design professional and that the initial pleadings were void ab initio and could not be cured by the amended pleadings because Century and PCS failed to

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file the attorney affidavit and expert report that NRS 11.258 requires for actions involving nonresidential construction. After expressing concern that NRS 11.259(1) may require dismissing the entire litigation, the district court denied the motions.

Converse brings this petition for a writ of mandamus to compel the dismissal of the amended pleadings. We conclude that Century's and PCS's initial causes of action brought actions that were within the scope of NRS 11.2565(1)'s definition of an action involving nonresidential construction. As a result, because their pleadings identified Converse's services that implicated the practice of professional engineering, see NRS 625.050(1)(a), their pleadings were against a design professional, see NRS 11.2565(2)(b), thereby subjecting them to NRS 11.258's attorney affidavit and expert report requirements. We further conclude that the Otak court correctly construed NRS 11.259(1) as requiring the dismissal of an amended pleading— not an entire action— that followed an initial pleading that was filed without adhering to NRS 11.258. Thus, the district court must dismiss the amended pleadings against Converse as they were void ab initio for their failure to comply with NRS 11.258. Accordingly, we grant Converse's petition.

FACTS AND PROCEDURAL HISTORY

Century, and its successor in interest PCS, subcontracted to perform the steel installation on a new building, the Harmon Tower, which was to be part of a large-scale, mixed-use development in Las Vegas known as CityCenter. Converse was hired by the project's owner to render third-party quality control and assurance inspections. According to Century's and PCS's pleadings, Converse's services ...


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