Rockery Wall Litigation Update (6)

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:

Order Granting Defenant’s Motion for Summary Judgement

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

13 thoughts on “Rockery Wall Litigation Update (6)

    1. Patricia,
      It is highly unlikely that the SOA Attorney would advise the SOA BOD that a homeowner vote would be required to proceed with an appeal. That is, this is just a normal process in an Attorney’s bag of tricks. However, it is hard to imagine that any appeal would be successful, given the basis for the Court’s ruling.

  1. No appeal, sell the Golf Course or open it to the Public for use with SOA members having first privilege of golf days and times, visitors get what haven’t been reserved yet. People living here have plenty of company that golf and would use the course if able.

  2. Perhaps it is time for the BOD to review the performance of their attorneys, and consider replacing them, SOA has had some big legal bills and nothing to show for it.

    1. Based on performance, it’s clear that it’s time to replace both the Lawyers and the members of the SOA HOA ! The actions taken, along with the goals of both are not in the best interest of the Homeowners.

  3. By not having a vote in favor of the law suit in accordance with NRS – that this 50% + 1
    (At least 1550 yes +1)

    Has the SOA board done something illegal – outside their fiduciary duty?

    I did ask the board why they had not kept the vote open as did Blake Smith when he was in charge and wanted resident permission to pursue the Chapter 40 lawsuit which we did prevail in….at the last Board Meeting – so far no answer to my question…. nor to my request for e-voting- many owners only live here part time and the US mail was still delivering to folks prior to the date the vote for legal action had to be in by….for the law suit authorization.

    It is my understanding that not voting for something expensive and important is tantamount to a no vote!

    Do we as residents have any recourse to have the monies improperly spent on this suit returned?

  4. The time has come, and no pun intended, just in time, for all board members to undertake the honorable action of resigning simultaneously effective October 15, 2019, the day before the next board meeting. With the upcoming board election now scheduled to fill two seats owners could instead vote to fill all five seats.

    This board has been a disgrace supporting the lawsuit instituted by the prior board by proceeding with the lawsuit when owners DID NOT vote for it as required by Nevada Law (NRS 116.31088) instead of withdrawing from it. NRS says: “the association may commence a civil action ONLY upon a vote or written agreement of the owners of units to which at least a majority of votes of the members of the association are allocated.”

    A vote was held, but the count was short. Instead of “over” meaning “over,” the prior board twisted the count to mean they had the authorization to proceed since among those who bothered to cast ballots more voted For than Against.

    Subsequently, the Ombudsman was asked by an association member to intervene, but declined ruling that the Board had made a good faith effort and NRS does not mandate that a civil action is summarily dismissed if the association fails to garner the majority approval of its Units’ Owners.

    A good faith effort is not following the law; and because the law does not mandate something does not mean it is OK.

    The lawyers are richer; the Board is puzzled about what/how to do next; and owners are wondering and waiting what hammer will fall on them and when.

    All this on top of the Board earlier this year losing the costly James lawsuit. Two losses/strikes. Can we afford a third one? Time for a total new board and law firm.

    It would be best, less costly, and less time consuming for the community if the current board board resigned en masse and five new members were voted in versus holding a recall election for the three board members whose seats are not up for election.

    1. I wondered why the SOA Board would give an non-collateralized loan to the SGC for its Rockery Wall Repair. Now I know why. Meadows Bank has a lien on all the property, for a $600K loan taken out by the SGC ( a public document). If the SGC defaults on its loan, Meadows Bank gets paid.. Will there be anything left for homeowners??

      In the Purchase and Lease Agreement, the SOA had Right of First Refusal, if the SGC decided to sell for any reason, or if they ceased to operate. That Right of Refusal does not take precedence over a lien on the property.

      The Board should cease giving money in any shape or form to the SGC. Somersett has no legal obligation to finance the club, and it has plenty of water, to keep the course green.

  5. “Humpty Dumpty sat on a wall,
    Humpty Dumpty had a great fall.
    All the king’s horses and all the king’s men
    Couldn’t put Humpty together again.”

    The comments of Rulisting make perfect sense…the Board should resign – after the Fall …

    Retirees in Somersett who have worked for large corporations, government entities should not be permitted to spend our money on lawyers as they would have in their previous jobs. Their big business, government experiences just don’t mesh with a relatively small non-profit (roughly $9 million/year). Contrary to THEIR beliefs, I don’t believe that they are qualified or have the experience necessary to run a small non-profit. Just look at what has happened over the last 5 years: $1,000,000 of OUR money has been spent on legal fees – to what end?

    We need a management company who can adequately advise the Board and committee volunteers who understand that non-profits need to be run as just that…not as profit centers for their legal advisors!

      1. At the Budget Presentation meeting this week, Terry Retter said there had been no decision, yet, on whether or not the ruling would be appealed. It is my belief that the only reason for beating this dead horse would be to delay the finality of the Tolling Agreement, which is scheduled to expire on December 30, 2019. This action, if taken, would be a total breach of fiduciary duty by the BOD.

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