MARCUS A. REIF, AN INCOMPETENT PERSON BY AND THROUGH HIS CONSERVATOR CINDY REIF, Appellant,
ARIES CONSULTANTS, INC., A NEVADA CORPORATION, Respondent.
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.
Lerner Injury Attorneys and Randolph L. Westbrook, III, and
Glen J. Lerner, Las Vegas, for Appellant.
Rees Scully Mansukhani, LLP, and Robert E, Schumacher, Craig
J. Mariam, and Brian K. Walters, Las Vegas, for Respondent.
HARDESTY, STIGLICH and SILVER, JJ.
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.
AND PROCEDURAL HISTORY
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.
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,
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.
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
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).
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 ...