495 P.3d 519
Nev.2021Background
- The City of North Las Vegas (CNLV) completed a fire station (notice of completion July 13, 2009); defects were later discovered (foundation/soil settlement).
- At the time of discovery, Nevada's statute of repose, NRS 11.202, provided a six‑year repose period; in 2019 the Legislature (A.B. 421) extended the repose to ten years and expressly made the amendment retroactive to improvements substantially completed before October 1, 2019.
- CNLV filed suit on July 11, 2019 (after the original six‑year repose had run but before the 2019 amendment took effect).
- The district court initially dismissed CNLV’s complaint on October 14, 2019, applying the former six‑year repose; CNLV filed a timely NRCP 59(e) motion after the ten‑year amendment took effect.
- The district court granted CNLV’s motion, concluding the 2019 amendment applied retroactively and reinstating the claims; petitioning contractors sought writ relief to challenge that ruling.
- The Nevada Supreme Court denied the writ: it held the amendment plainly applied retroactively, CNLV’s complaint was timely under the ten‑year repose, the complaint was not void ab initio, and retroactive application did not violate due process.
Issues
| Issue | Dekker's Argument | CNLV's Argument | Held |
|---|---|---|---|
| Whether the 2019 amendment to NRS 11.202 applies retroactively to revive claims | The complaint was filed while the six‑year repose still governed, so it was void ab initio and cannot be revived | A.B. 421 expressly applies retroactively to improvements substantially completed before Oct. 1, 2019, so the ten‑year repose governs | The Legislature clearly manifested retroactive intent; the ten‑year repose applies to this action |
| Whether a complaint filed when the prior repose applied is void ab initio | An untimely complaint is null from the beginning and cannot be acted upon | The repose statute addresses timeliness, not court jurisdiction; nothing indicates it renders complaints void ab initio | The complaint was not void ab initio; NRS 11.202 is non‑jurisdictional for this purpose |
| Whether retroactive extension of the repose violates due process / vested‑rights protection | Dekker had a vested right to be free from claims after six years; retroactive revival is unconstitutional | The Legislature had a rational purpose (preventing prejudice to owners unaware of latent defects); retroactivity is rationally related to that purpose | Retroactive application satisfies rational‑basis review and does not offend due process |
| Whether NRCP 59(e) relief to alter dismissal was appropriate | Altering judgment would improperly revive a void complaint | The motion corrected a change in controlling law and prevented manifest injustice | Granting NRCP 59(e) to apply the new, retroactive statute was appropriate |
Key Cases Cited
- Pub. Emps. Benefits Program v. Las Vegas Metro. Police Dep't, 124 Nev. 138, 179 P.3d 542 (recognizing statutes apply retroactively only when Legislature clearly manifests intent)
- Somersett Dev. Co. v. Somersett Owners Ass'n, 492 P.3d 534 (defining "substantial completion" for NRS 11.2055 purposes)
- Gray v. First Winthrop Corp., 989 F.2d 1564 (9th Cir.) (a case remains pending and not final while appeals remain)
- Washoe Med. Ctr. v. Second Judicial Dist. Court, 122 Nev. 1298, 148 P.3d 790 (Complaint may be void ab initio where statutorily required affidavit is missing)
- U.S. Dep't of Labor v. Preston, 873 F.3d 877 (11th Cir.) (statutes that speak to timeliness, not court power, are non‑jurisdictional)
- AA Primo Builders, LLC v. Washington, 126 Nev. 578, 245 P.3d 1190 (Rule 59(e) may be used to correct manifest errors or changes in controlling law)
- Cote H. v. Eighth Judicial Dist. Court, 124 Nev. 36, 175 P.3d 906 (standards for writ relief)