On October 2, 2019, the Second Judicial District Court of Nevada (Judge Elliott A, Slatter presiding) entered an “ORDER GRANTING THE DEFENDANT’S MOTION FOR SUMMARY JUDGEMENT”. The Defendant’s being the Somersett Development Company LTD, Somersett LLC, Somersett Development Corp, Q&D Construction Inc., Stantec Consulting Services Inc. and Parsons Brothers Rockeries Inc., with the Plaintiff being the Somersett Owners Association (SOA) , who as we know, filed a NRS Chapter 40 “FIRST AMENDED COMPLAINT FOR DAMAGES (FAC)“ against the Defendants seeking relief for damages associated with the SOA’s Common Area Rockery Wall failures.
So what is a Summary Judgement? Per Merriam-Webster: “a judgment that may be granted upon a party’s motion when the pleadings, discovery, and any affidavits show that there is no issue of material fact and that the party is entitled to judgment in its favor as a matter of law”. The purpose being to cut down on unnecessary litigation by eliminating without trial one or more causes of action in a complaint.
In issuing the Order, the Court basically ruled that the SOA’s lawsuit had no merit under Nevada’s statutes of repose. In quoting from the Order:
“The Court will grant the Motion because there is no genuine dispute of material fact the Plaintiff failed to file the FAC within the six-year statute of repose. Even when viewing the evidence in the light most favorible to the Plaintiff, the Plaintiff has not identified any admissible evidence proving the FAC was filed within the six-year statute of repose. Because the Plaintiff bears the burden of persuasion on the statute of repose issue, the lack of affirmative evidence is fatal.”
A full reading of the Court’s Order may be viewed via the following link:
The above ruling, in favor of the Defendants, represents very bad news for the SOA and its lawsuit. It upholds the opinions of many Association members, that the SOA Attorneys were leading the SOA down a “primrose path” in attempting to circumvent Nevada Law on statutes of limitation and repose. So where does the SOA go from here? An appeal perhaps, or do the SOA’s attorneys simply pack their briefcases and go home? It will be interesting to see how the SOA now moves forward on the lawsuit, which has already cost the SOA $365K through June of this year and possibly $400K year to date.
Also, where does this now leave the Tolling Agreement (effective through June 30, 2020) between the SOA and the Somersett Golf and Country Club (SGCC) ?, which placed on hold any SOA litigation against the SGCC for its share of rockery wall damages (estimated at ~$700K), pending outcome of the SOA lawsuit. This agreement also has a 30-day notice termination clause that can be implemented by the SOA.
A history of past events and related documents are available via the following previous posts:
• Rockery Wall Litigation Update, May 22, 2018
• Rockery Wall Litigation Update (2), August 29, 2018
• Rockery Wall Litigation Update (3), November 7, 2018
• Rockery Wall Litigation Update (4), March 28, 2019
• Rockery Wall Litigation Update (5), June 19, 2019