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Barrett v. Eighth Judicial Dist. Court of State

Supreme Court of Nevada

August 7, 2014

KELLY BARRETT, AN INDIVIDUAL; DEAN AND WENDY COOPER, HUSBAND AND WIFE; RICHARDS ZIEMELIS AND SHELLY CONNELL-ZIEMELIS, HUSBAND AND WIFE; HARRY AND LISA BURGESS, HUSBAND AND WIFE; MICHAEL SOUSOUAY, AN INDIVIDUAL; KIM COLBERT, AN INDIVIDUAL; JAMES AND KAREN TIPPEL, HUSBAND AND WIFE; ROSA MARTINEZ, AN INDIVIDUAL; JOSEPHINE MARTINEZ, AN INDIVIDUAL; RANDY AND JOHNNA REECE, HUSBAND AND WIFE; PATRICIA MONTEROS, AN INDIVIDUAL; DONALD ROBBINS AND HOPE ILEEN KELLER-ROBBINS, HUSBAND AND WIFE; LENA HAYCOCK, AN INDIVIDUAL; TRELYNN GUICE, AN INDIVIDUAL; ENRIQUE CABRERA, AN INDIVIDUAL; MARVIN AND ROSALYN RANDALL, HUSBAND AND WIFE; JOHN AND SUSAN POLYAK, HUSBAND AND WIFE; KENYETTA BANKS, AN INDIVIDUAL; AMANDA MATTOS, AN INDIVIDUAL; RONNE R. CRAMER AND CYNTHIA L. CRAMER, HUSBAND AND WIFE; RICHARD J. LAHEY AND DIANE C. LAHEY, HUSBAND AND WIFE; NICHOLAS D. MARQUEZ AND CATHERINE M. MARQUEZ, HUSBAND AND WIFE; DONALD J. WYMAN AND MACHELLE A. WYMAN, HUSBAND AND WIFE; AND APRIL WASHINGTON, AN INDIVIDUAL, Petitioners,
v.
THE EIGHTH JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, IN AND FOR THE COUNTY OF CLARK; AND THE HONORABLE ALLAN R. EARL, DISTRICT JUDGE, Respondents, and UPONOR INC., A MINNESOTA CORPORATION; RCR PLUMBING & MECHANICAL, INC. D/B/A RCR COMPANIES, A CALIFORNIA CORPORATION, Real Parties in Interest

Petition for a writ of mandamus or, in the alternative, prohibition challenging a district court order requiring a subcontractor to provide NRS Chapter 40 prelitigation notice to another subcontractor, prior to filing a fourth-party complaint against it.

Petition granted.

Canepa Riedy & Rubino and Scott K. Canepa and Terry W. Riedy, Las Vegas; Carraway & Associates and James D. Carraway, Las Vegas; Kemp, Jones & Coulthard, LLP, and Michael J. Gayan and J. Randall Jones, Las Vegas; Lynch, Hopper & Salzano, LLP, and Charles D. Hopper and Francis Lynch, II, Las Vegas; Maddox, Segerblom & Canepa, LLP, and Robert C. Maddox, Reno, for Petitioners.

Bremer Whyte Brown & O'Meara, LLP, and Peter C. Brown and Prescott T. Jones, Las Vegas; Hansen Rasmussen, LLC, and R. Scott Rasmussen and Vadim Veksler, Las Vegas; Helm & Associates and Kevin E. Helm, Las Vegas; Grotefeld, Hoffman, Schleiter, Gordon & Ochoa and Lindsay E. Dansdill, Howard L. Lieber, and John R. Schleiter, Chicago, Illinois, for Real Parties in Interest.

Gibbons, C.J. We concur: Pickering, J., Hardesty, J., Douglas, J., Cherry, J., Saitta, J.

OPINION

Page 893

BEFORE THE COURT EN BANC.[1]

GIBBONS, C.J.:

In this opinion, we address whether a defendant subcontractor must provide NRS Chapter 40 prelitigation notice, which is statutorily followed by an opportunity to repair, prior to filing a fourth-party complaint against a supplier. We conclude that nothing in NRS Chapter 40 requires this notice.

FACTS AND PROCEDURAL HISTORY

Petitioners, homeowners in the Tropical Breeze subdivision in Las Vegas, found allegedly defective plumbing parts in their residences. They provided NRS Chapter 40 notice to the general contractor/developer Centex Homes, informing it of this alleged defect. Centex then forwarded this notice to its numerous subcontractors and suppliers, including real party in interest Uponor, Inc. Despite receiving the notice, Uponor declined to make repairs, asserting that it was not a supplier under NRS Chapter 40. Then, the homeowners filed a complaint against Centex, who, in turn, filed a third-party complaint against numerous subcontractors, including real party in interest RCR Plumbing & Mechanical, Inc. RCR then filed a fourth-party complaint against Uponor. Uponor moved to dismiss the fourth-party complaint against it, asserting that it had not been provided with notice of the alleged defects.

The district court found that Uponor was a supplier under NRS Chapter 40 and that RCR was required to give notice of the alleged construction defect to Uponor prior to filing its fourth-party complaint.[2] As a result, the district court stayed the proceedings and allowed RCR to provide Uponor notice. Once RCR provided notice, Uponor elected to make repairs. The homeowners now petition this court for a writ of mandamus or prohibition, arguing that neither they nor RCR were required to give Uponor NRS Chapter 40 notice and an opportunity to repair prior to RCR's filing of its fourth-party complaint.

DISCUSSION

A writ of mandamus is available to compel the performance of a legal duty or to control an arbitrary or capricious exercise of discretion. See NRS 34.160; Int'l Game ...


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