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Reif v. Aries Consultants, Inc.

Supreme Court of Nevada

October 10, 2019

MARCUS A. REIF, AN INCOMPETENT PERSON BY AND THROUGH HIS CONSERVATOR CINDY REIF, Appellant,
v.
ARIES CONSULTANTS, INC., A NEVADA CORPORATION, Respondent.

          Appeal from a district court order granting a motion to dismiss for failure to comply with NRS 11.258(1). Eighth Judicial District Court, Clark County; Susan Johnson, Judge.

         Reversed and remanded.

          Glen Lerner Injury Attorneys and Randolph L. Westbrook, III, and Glen J. Lerner, Las Vegas, for Appellant.

          Gordon Rees Scully Mansukhani, LLP, and Robert E, Schumacher, Craig J. Mariam, and Brian K. Walters, Las Vegas, for Respondent.

          BEFORE HARDESTY, STIGLICH and SILVER, JJ.

          OPINION

          HARDESTY, J.

         For actions involving nonresidential construction malpractice, NRS 11.258 requires the plaintiffs attorney to file an affidavit and an expert report "concurrently with the service of the first pleading." The district court dismissed appellant Marcus Reif s complaint because he filed it, though he did not serve it, without an affidavit and expert report. In doing so, the district court relied on a statement in Otak Nevada, LLC v. Eighth Judicial District Court, 127 Nev. 593, 599, 260 P.3d 408, 412 (2011), that "a pleading filed under NRS 11.258 without the required affidavit and expert report is void ab initio." (Emphasis added.) We now clarify that, based on the plain text of the statute, an initial pleading filed under NRS 11.258(1) is void ab initio only where it is served without a concurrent filing of the required attorney affidavit and expert report. Accordingly, we reverse the district court's order granting the motion to dismiss and remand to the district court for further consideration.

         FACTS AND PROCEDURAL HISTORY

         Reif sustained serious injuries as a result of an alleged parking garage structural failure when his vehicle traveled through the wall and fell five stories. He filed a complaint against respondent Aries Consultants, Inc., the company that had inspected the wall, asserting negligence, negligence per se, and negligent performance of an undertaking. Reif did ! not file the attorney affidavit and expert report required by NRS 11.258(1) | with his complaint. The next day, Reif filed another complaint, entitled "Amended Complaint," identical to the initial complaint but with the addition of the affidavit and expert report. Reif then served the amended pleading, without having served the initial complaint.

         Aries moved to dismiss the complaint, arguing that the complaint violated the single-cause-of-action rule because Reif maintained an identical cause of action in a separate court, [1] and that the complaint failed to comply with NRS 11.258 because the attorney who signed the affidavit was not licensed in Nevada or admitted pro hac vice in this action. Reif disputed both of these claims.

         The district court granted the motion to dismiss on different grounds. Without reaching the merits of the arguments presented, the district court, relying on Otak, concluded that Reif violated NRS 11.258 for failing to file an attorney affidavit and expert report concurrently with the filing of the initial complaint.

         DISCUSSION

         We review questions of statutory interpretation de novo. Constr. Indus. Workers' Comp. Grp. v. Chalue, 119 Nev. 348, 351, 74 P.3d 595, 597 (2003). When a statute is clear and unambiguous, this court will "give effect to the plain and ordinary meaning of the words." Cromer v. Wilson, 126 Nev. 106, 109, 225 P.3d 788, 790 (2010).

         NRS 11.258(1) and (3) provide that, for actions involving nonresidential construction against design professionals, "the attorney for the complainant shall file an affidavit [with the attached expert report] with the court concurrently with the service of the first pleading in the action." If the requirements of NRS 11.258 are not met, NRS 11.259(1) mandates that the district court "shall dismiss" the action. The parties concede that Aries is a design professional and that NRS 11.258 applies. The issue before us, therefore, is ...


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