Rockery Wall Lawsuit Update

As all should be aware, the SOA lost its Rockery Wall defect lawsuit against Somersett Development Company et al. in the District Court. The SOA subsequently appealed the decision to the Nevada Supreme Court’s Appellate Department, where it still resides as yet unsettled. Actions to date include the SOA filing its Opening Brief and the Respondents filing their Answering Briefs thereto. The SOA now has until December 14, to reply to the Respondents Answering Briefs. When available, SU will publish the SOA’s response.

The following summarizes the above referenced Court actions in more detail.

On August 13, 2020 the SOA filed its  “APPELLANT’S OPENING BRIEF” with the Nevada Appellate Court. The SOA’s Appeal Brief contained the elements listed below.. Of particular interest are the SOA’s Arguments, the details of which may be accessed via the following link:  “Appellant’s Opening Brief 20-29955“. The  Brief’s  Conclusion is quoted below in its entirety.

    • INTRODUCTION
    • JURISDICTION OF THE COURT
    • STATEMENT OF THE ISSUES PRESENTED ON REVIEW
    • STANDARD OF REVIEW
    • STATEMENT OF THE CASE
    • STATEMENT OF RELEVANT FACTS
    • ARGUMENT
      1. Material Facts Remain At Issue Regarding Whether The Project Was “Substantially Complete”.
      2. Under The Facts of This Case, The Statute of Repose Should Be Tolled During The Period of Developer Control of a Homeowners’ Association, or Respondents Should Be Equitably Estopped From Asserting Repose In This Action.
      3. NRS 11.202 Does Not Apply To NRS Chapter 116 Warranty Claims.
    • CONCLUSION

Based upon the foregoing, Appellant asks this Court to reverse the judgment of the district court, and hold either that there is a genuine dispute of material fact regarding whether the rockery walls were or are substantially complete within the meaning of NRS 11.2055; that equitable tolling or estoppel acts to delay the application of the period of repose in NRS 11.202 until the time of declarant transfer of control, or to bar Respondents from asserting the time bar in this instance; that NRS 11.202 does not apply to NRS Chapter 116 warranty claims; or some combination of these holdings permitting SOA to proceed upon its claims.”

On August 31, 2020, the Court granted the Respondents an extension until October 14 to file a response to the SOA’s Opening Brief.

On October 14, 2020 , Parsons Bros Rockeries, filed their Answering Brief to the SOA, which consisted of the following elements. The complete Brief may be accessed via the following link:   “Parsons Bros Answering Brief 20-37721

    • STATEMENT OF FACTS
    • STATEMENT OF THE CASE
    • ARGUMENT
      1. SOA Failed to Meet its Burden and Summary Judgement was proper.
      2. SOA Ignores its Own Evidence.
      3. SOA’S Failure to Produce Evidence.
      4. NRS 11.2055 and Substantial Completion
      5. SOA did not Claim Equitable Estoppel Against Parsons.
      6. SOA has no NRS 116 Statutory Warranty Claims Against Parsons

On October 14, 2020, Stantec Consulting Services, Somersett Development Company et al. and Q&D Construction filed a Joint Answering Brief to the SOA, which consisted of the following elements. The complete Brief may be accessed via the following link:   “Respondents Joint Answering Brief 20-37822“.  The Brief’s Conclusion below is quoted in its entirety.

    • STATEMENT OF THE CASE
    • STATEMENT OF FACTS
    • STANDARD OF REVIEW
    • SUMMARY OF THE ARGUMENT
    • ARGUMENT
      1. The district court correctly determined that the SOA failed to meet its burden to introduce admissible evidence that it brought its action prior to the expiration of the statute of repose.
      2. The district court correctly held that the statute of repose cannot be tolled without statutory authorization, or be subject to equitable estoppel.
      3. The district court correctly held that NRS 11.202 applies to all claims for construction defects, and the tolling provisions in NRS Chapter 116 do not take warranty claims out of the universe of claims subject to the statute of repose.
    • CONCLUSION

Substantial completion, under the common law, is achieved when the improvement is at such a stage that it can be used for its intended purpose. The rockery walls in Somersett were substantially complete by the end of 2006. The SOA, when opposing the MSJ, did not introduce admissible evidence to establish that substantial completion occurred with six years of its suit. Rather, the evidence submitted by the SOA shows the walls were finally complete, and therefore substantially complete, in December, 2006. Because statutes of repose provide developers, contractors, and design professionals with vested rights to not be sued after a period of time, statutes of repose are not subject to equitable tolling. Similarly, the effects of statutes of repose cannot be avoided through equitable estoppel, and if they can, the SOA did not provide any evidence that equitable estoppel should be applied here.”

On November 10th, 2020, the Court granted the SOA an extension until December 14, 2020, to file a reply to the Respondent’s Answering Briefs.

Who knows what the future holds for our newly elected Board? If the Appeal is granted is the Association looking at another $400-$500K to retry the case?