It has been confirmed by the SOA that the requirements of NRS 116.31088 “Meetings regarding civil actions; requirements for commencing or ratifying certain civil actions ….”, will apply to the SOA’s Rockery Wall civil action process (see previous post of February 5th entitled “Rockery Wall Defect Litigation”).
This NRS 116.31088 statute (paraphrased) requires the following:
- That the SOA provide notification of and conduct an owner meeting to discuss the proposed civil action,
- That the proposed civil action be ratified via majority owner vote or written agreement.
- That prior to ratification, the Association provide a written statement to owners that includes a cost estimate for the civil action, including attorney fees, and an explanation of the benefits and/or adverse consequences of the civil action.
- That once settled, a disclosure of the terms and conditions of the settlement at the next BOD meeting.
In consideration of the above, the SOA BOD intends to schedule a meeting for late February and the sending out of ballots for owner approval.
For those interested in a complete reading of NRS 116.31088, go to the “References” tab and click on the “NRS 116 Common-Interest Ownership Uniform Act” link. This will take you to the NRS 116 website wherein you can access all of its provisions.
At the January 24th BOD Meeting it was revealed that the SOA had instituted legal action (i.e., a Chapter 40 Construction Defect, Complaint for Damages) with respect to defects and deficiencies in construction of the SOA Common Area Rockery Walls. (Reference: Washoe County District Court Case No. CV17-02427). Defendants in the legal action are identified as:
- Somersett Development Company LTD
- Somersett LLC (currently dissolved)
- Somersett Development Corporation (currently dissolved)
- Parsons Bros Rockeries, CA Inc.
- Parsons Bros Rockeries, CA Inc. dba Parsons Walls
- Q&D Construction Inc.
The SOA’s General Allegations against the Defendants include the following: (Note: the CV17-02427 article number is referenced in parenthesis).
- That the Defendants “failed to properly and adequately plan, design, investigate, inspect, supervise and construct the Subject Property”. (27)
- That the defects and deficiencies include: “excessive or inadequate voids with no, or inadequate, chinking rocks; failure to use filter fabric to encase the drain rock or otherwise in construction of rockery walls; drain rock and or retained soil spilling through voids; inadequate, improper or otherwise bad placement of rockery wall rocks: over-steepened and or non-uniform face batter of rockery walls; and inadequate stabilization of the rockery walls”. (31)
- That “Based upon investigation and testing performed by experts retained by Plaintiff, Plaintiff …. alleges that the above-referenced defects are pervasive throughout the Subject Property, …. .and that said Defendants …. had actual knowledge of many of the said deficiencies at the time of construction ….”. (32)
- That “All of the said defects which are the subject of this action were described and accompanied by an expert report” (Reference: American Geotechnical Inc. “Preliminary Evaluation – Somersett Master Association – Rockery Walls, dated December 22, 2017). (33)
- That “the defects and deficiencies …. are, among other things, violations or breaches of local building and construction practices, industry standards, governmental codes and restrictions, manufacturer requirements and/or product specifications at the time the Subject Property was planned, designed, constructed and sold”. (35)
- That “the deficiencies in the construction, design, planning, and/or construction of the Subject Properties described in this Complaint were known or should have been known by Defendants at all times relevant hereto”. (36)
- That “the conduct of Defendants, as more fully described herein, was and remains the actual and proximate cause of general and special damages to the Plaintiff”. (38)
The Complaint is an 18 page document that, in addition to the “General Allegations” summarized above, contains numerous articles under the following topics: 1) Negligence and Negligence Per Se, 2) Breach of Express and Implied Warranties of Fitness, Merchantability, Quality and Habitability Pursuant to Chapter 116 and Common Law, 3) Negligent Misrepresentation and/or Failure to Disclose, 4) Declaratory Relief, and 5) Breach of NRS 116.1113 and the Implied Covenant of Good Faith.
In the Complaint, the SOA is seeking a judgment of damages against the Defendants for the following; 1) costs of repair and/or replacement of defects, 2) costs and expenditures to correct, cure or mitigate damages caused or that will be caused by defects and/or deficiencies, 3) losses associated with the defects and/or deficiencies , including loss of use, relocation, and incidental expenses, 4) attorney fees and expert witness expenses, 5) relief as is necessary for a just adjudication of this matter, and 6) prejudgment interest.
The SOA is also demanding a trial by Jury.