PANORAMA TOWERS CONDO. UNIT OWNERS' ASS'N VS. HALLIER , 2021 NV 67 ( 2021 )

137 Nev., Advance Opinion 41
IN THE SUPREME COURT OF THE STATE OF NEVADA
PANORAMA TOWERS No. 80615
CONDOMINIUM UNIT OWNERS'
ASSOCIATION, A NEVADA
NONPROFIT CORPORATION,
Appellant,
vs. FILED .•••
LAURENT HALLIER, AN
INDIVIDUAL; PANORAMA TOWERS I,
LLC, A NEVADA LIMITED LIABILITY
COMPANY; PANORAMA TOWERS I
MEZZ, LLC, A NEVADA LIMITED
LIABILITY COMPANY; AND M.J.
DEAN CONSTRUCTION, INC., A
NEVADA CORPORATION,
Respondents.
Appeal from a district court order granting summary judgment,
certified as final under NRCP 54(3), in a construction defect action. Eighth
Judicial District Court, Clark County; Susan Johnson, Judge.
Vacated and remanded.
Kemp Jones, LLP, and Michael J. Gayan and Joshua D. Carlson, Las Vegas;
Lynch & Associates Law Group and Francis I. Lynch, Henderson; Williams
& Gumbiner, LLP, and Scott A. Williams, San Rafael, California,
for Appellant.
Lewis Roca Rothgerber Christie LLP and Daniel F. PoIsenberg, Joel D.
Henriod, and Abraham G. Smith, Las Vegas; Bremer Whyte Brown &
O'Meara LLP and Peter C. Brown, Jeffrey W. Saab, and Devin R. Gifford,
Las Vegas,
for Respondents.
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BEFORE THE SUPREME COURT, EN BANC.'
OPINION
By the Court, HERNDON, J.:
Appellant Panorama Towers Condominium Unit Owners'
Association filed a construction defect claim against respondents
(collectively, the Builders), which the district court concluded was time-
barred under the NRS 11.202 statute of repose. The Association filed two
motions to alter or amend the court's resulting sumrnary judgment. Before
the district court considered the second motion, the Legislature amended
the statute of repose to extend the filing deadline and specified that the
amendment was retroactive. The amended statute also became effective
before the district court considered the second motion. Nevertheless, the
district court denied the Association's motion to alter or amend the
judgment. We conclude that, in accordance with our opinion in
Dekker I Perich 1 Sabatini Ltd. v. Eighth Judicial District Court, 137 Nev.,
Adv. Op. 53, 495 P.3d 519 (2021), because the amended statute of repose
was retroactive and, under that statute of repose, the Association's
construction defect claim was timely, the district court erred in denying the
motion.
FACTS
The Builders constructed the Panorama Towers in Las Vegas,
including 616 units across two high-rise condominium buildings.
Substantial completion of each tower corresponded with the date of its
respective certificate of occupancy, which issued on January 16, 2008, and
1The Honorable Abbi Silver, Justice, voluntarily recused herself frorn
participation in the decision of this matter.
2
March 31, 2008.2 The Association filed an initial construction defect action
against the Builders in 2009, and the parties settled that action in June
2011, but the settlement agreement applied only to known defects at that
time.
The Association sent the relevant underlying NRS 40.645 notice
of construction defect to the Builders on February 24, 2016. In addition to
other defects, the notice asserted that all of the residential units window
assemblies were defective.3 The notice alleged that the defect permits water
to enter the assemblies, causing corrosion to the metal parts and
components of the wall and floor assemblies, which creates an unreasonable
risk of structural degradation and injury to person and property.
NRS Chapter 40 requires builders to have certain opportunities
to investigate and repair construction defects and requires parties to
mediate the construction defect claims before an action can be filed. See
NRS 40.647; NRS 40.648; NRS 40.652; NRS 40.670; NRS 40.680. The
prelitigation construction defect proceedings, including mediation, were
completed on September 26, 2016. Two days later, the Builders filed an
action against the Association seeking declaratory relief and damages,
asserting that the previous settlement agreement precluded the underlying
2Tothe extent the Association challenges the substantial completion
dates, the Association has waived this argument on appeal by not raising it
in its opening brief. See Khoury v. Seastrand, 132 Nev. 520, 530 n.2, 377
P.3d 81, 88 n.2 (2016) (providing that issues raised for the first time in a
reply brief are waived).
3The
notice also addressed other defects, but the district court
dismissed the claims pertaining to those defects because the notice was
insufficient to demonstrate the defects without extrapolation, and the
Association does not challenge the dismissal of those defects' claims in this
appeal.
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construction defect claims and the NRS Chapter 40 notice was insufficient.
On March 1, 2017, the Association filed its answer and counterclaim
asserting its construction defect causes of action, roughly nine years after
substantial completion of the towers.
The Builders moved for summary judgment, arguing that the
Association's construction defect claim was time-barred under the statute
of repose in NRS 11.202(1) (2015) because it was not filed within six years
of the substantial completion of each tower.. See 2015 Nev. Stat., ch. 2, § 17,
at 17. The district court concluded that because the Association filed its
NRS Chapter 40 notice on the last day of the six-year statute of repose,
when considering the grace period provided for in the 2015 amendment to
NRS 11.202(1), the NRS Chapter 40 notice tolled that statute of repose.4
The court also concluded, however, that the NRS Chapter 40 notice tolled
the statute of repose only until 30 days after the preligitation proceedings
were completed, and because the Association did not file its answer and
counterclaim during those 30 days, the Association's construction defect
claim was time-barred. Thus, the district court granted the Builders'
motion for summary judgment and dismissed the Association's construction
defect claim on May 23, 2019.
Thereafter, on June 3, 2019, the Governor signed into law
Assembly Bill (A.B.) 421, which amended NRS 11.202s statute of repose
from six years to ten years. 2019 Nev. Stat., ch. 361, at 2257 & § 7, 2262.
The Association filed a motion to alter or amend the court's order dismissing
the construction defect claim in light of A.B. 421. The Builders opposed the
4The district court reached this conclusion before our opinion in Byrne
v. Sunridge Builders, Inc., 136 Nev. 604, 475 P.3d 38 (2020), clarified that
an NRS Chapter 40 notice cannot toll the statute of repose.
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motion and requested the district court certify its order dismissing the
construction defect claim as final under NRCP 54(b). The district court
denied the motion to alter or amend its order, concluding that A.B. 421 did
not become effective until October 1, 2019. The district court also granted
the Builders motion for NRCP 54(b) certification.
On September 9, 2019, the Association filed its second motion
to alter or amend the judgment based on A.B. 421. Although filed before
October 1, 2019, when A.B. 421 became effective, the hearing on the motion
did not occur until after that date. On January 14, 2020, the district court
denied the Association's motion, concluding the court had properly
determined the claim was time-barred based on the effective law at the
time.
DISCUSSION
An NRCP 59(e) motion to alter or amend a judgment may be
appropriate to correct "manifest errors of law or fact," address "newly
discovered or previously unavailable evidence," "prevent manifest
injustice," or address a "change in controlling law." AA Primo Builders, LLC
v. Washington, 126 Nev. 578, 582, 245 P.3d 1190, 1193 (2010) (internal
quotation marks omitted). We review an order denying an NRCP 59(e)
motion for an abuse of discretion. Id. at 589, 245 P.3d at 1197.
The 2015 version of NRS 11.202(1) precluded construction
defect actions from being filed more than six years after the substantial
completion of an improvement. A.B. 421 changed the repose period in NRS
11.202(1) from six years to ten years.5 2019 Nev. Stat., ch. 361, § 7, at 2262.
5NRS11.202(1) is a statute of repose because it precludes actions after
a certain amount of time, regardless of injury. See Libby v. Eighth Judicial
Dist. Court, 130 Nev. 359, 364 n.1, 325 P.3d 1276, 1279 n.1 (2014)
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A.B. 421 also provided that "Mhe period of limitations on actions set forth
in NRS 11.202, as amended by section 7 of this act, apply retroactively to
actions in which the substantial completion of the improvement to the real
property occurred before October 1, 2019." Id. at § 11, at 2268.
While A.B. 421 was signed into law on June 3, 2019, the
amendment of the statute of repose did not become effective until
October 1, 2019. NRS 218D.330(1) provides that "[e]ach law and joint
resolution passed by the Legislature becomes effective on October 1
following its passage, unless the law or joint resolution specifically
prescribes a different effective date." A.B. 421 did not prescribe a different
effective date for the amendment to the statute of repose. Further, even
though the amendment to the statute of repose was explicitly applicable
retroactively, a retroactive-application provision does not alter a hill's
effective date. Thus, the amended statute of repose in A.B. 421 became
effective on October 1, 2019, and was not retroactive until that date.
Accordingly, at the time the district court considered the
Association's second motion to alter or amend the judgment, there had been
a change in controlling law since the entry of the judgment. Instead of
considering this change in controlling law, the district court determined
that alteration or amendment of the judgment was unnecessary because the
court had properly concluded that the Association's claim was time-barred
under the applicable law at the time the judgment was entered. The district
court failed to consider the fact that the amended statute of repose was
(explaining that "[a] statute of repose bar[s] causes of action after a certain
period of time, regardless of whether damage or an injury has been
discovered, whereas, a statute of limitations forecloses suit after a fixed
period of time following the occurrence or discovery of an injury" (second
alteration in original) (internal citations and quotations omitted)).
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retroactive, which changed the applicable law not only at the time the court
considered the motion, but also at the time the judgment was entered. In
re Estate of Thomas, 116 Nev. 492, 495-96, 998 P.2d 560, 562 (2000) ("The
general rule is that statutes are prospective only, unless it clearly, strongly,
and imperatively appears from the act itself that the legislature intended
the statute to be retrospective in its operation."); 2019 Nev. Stat., ch. 361,
§ 11, at 2268 (providing that the change to the statute of repose applies
retroactively). Because A.B. 421s statute of repose was retroactive, the
Legislature intended it to apply to construction defect actions pending as of
October 1, 2019. See Dekker I Perich I Sabatini Ltd. v. Eighth Judicial Dist.
Court, 137 Nev., Adv. Op. 53, 495 P.3d 519 (2021) (explaining that the
Legislature intended NRS 11.202s amended statute of repose to apply
retroactively to projects completed before October 1, 2019, "to relieve
prejudice to Nevada landowners who were unaware of property damage
that did not manifest within the six-year repose period"). As soon as A.B.
421 became law on October 1, 2019, all construction defect actions filed
within ten years of substantial completion of the project were no longer
time-barred. See id. Because the Association's construction defect action
was filed within nine years of the substantial completion of each of the
towers, the action was no longer time-barred. Accordingly, the district court
abused its discretion in denying the Association's second motion to alter or
amend the judgment.
CONCLUSION
A.B. 421 became effective on October 1, 2019. As of that date,
the statute of repose for filing construction defect claims was ten years from
substantial completion of the project. Further, that change in the law
applied retroactively. Because the district court did not consider the
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retroactive change in the controlling law when denying the Association's
second motion to alter or amend the judgment, we conclude the district
court abused its discretion in denying that motion. Accordingly, as the court
should have granted the Association's second motion to alter or amend the
judgment, we vacate the district court's summary judgment and remand
this matter for proceedings consistent with this opinion.6
çÇ
J
Herndon
We concur:
Hardesty
J.
Parraguirre
Stiglich
7 J
, J
Pickering
61nlight of this opinion, we need not reach the other arguments raised
by the parties on appeal.
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