                                                       132 Nev., Advance Opinion 1
                           IN THE SUPREME COURT OF THE STATE OF NEVADA

                    THE STATE OF NEVADA                                    No. 67465
                    DEPARTMENT OF
                    TRANSPORTATION,
                    Petitioner,
                    vs.                                                       FILED
                    THE EIGHTH JUDICIAL DISTRICT
                    COURT OF THE STATE OF NEVADA,                              FEB 2 5 2016
                    IN AND FOR THE COUNTY OF                                     IE K. LINDEMAN

                    CLARK; AND THE HONORABLE
                    SUSAN SCANN, DISTRICT JUDGE,
                    Respondents,
                    and
                    JORGENSON & KOKA, LLP, A
                    NEVADA LIMITED LIABILITY
                    PARTNERSHIP; PWREO EASTERN
                    AND ST. ROSE, LLC, A NEVADA
                    LIMITED LIABILITY COMPANY; AND
                    CITY OF HENDERSON, A MUNICIPAL
                    CORPORATION,
                    Real Parties in Interest.



                                Original petition for a writ of prohibition or mandamus
                    challenging a district court order denying a motion to dismiss.
                                Petition denied.

                    Adam Paul Laxalt, Attorney General, and Roger K. Miles, Deputy
                    Attorney General, Carson City,
                    for Petitioner.

                    Josh M. Reid, City Attorney, and Nancy D. Savage, Assistant City
                    Attorney, Henderson,
                    for Real Party in Interest City of Henderson.




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                 Lee, Hernandez, Landrum & Garofalo and David S. Lee and Charlene N.
                 Renwick, Las Vegas,
                 for Real Parties in Interest PWREO Eastern and St. Rose, LLC.

                 Reisman Sorokac and Robert R. Warns, III, Las Vegas,
                 for Real Party in Interest Jorgenson & Koka, LLP.




                 BEFORE THE COURT EN BANC.


                                                 OPINION
                 By the Court, HARDESTY, J.:
                             In this original writ proceeding, we are asked to consider
                 whether a complaint alleging professional negligence in an action filed
                 against petitioner State of Nevada Department of Transportation (NDOT)
                 must be accompanied by an attorney affidavit and an expert report
                 pursuant to NRS 11.258. Because we conclude that NDOT is not a design
                 professional as envisioned by the Legislature in NRS 11.2565(1)(a), we
                 further conclude that the requirements of NRS 11.258 are inapplicable to
                 NDOT since the action would not statutorily qualify as "an action
                 involving nonresidential construction." NRS 11.258(1). Accordingly, we
                 deny this petition.
                                   FACTS AND PROCEDURAL HISTORY
                             Real party in interest Jorgenson & Koka, LLP (J&K) filed suit
                 against NDOT and real parties in interest PWREO Eastern and St. Rose,
                 LLC (collectively, PWREO) and the City of Henderson. PWREO owned a
                 commercial shopping center in Henderson, Nevada, and leased a portion of
                 the shopping center to J&K for an urgent care facility. In its amended
                 complaint, J&K alleged that water entered its premises on two separate
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                 occasions and that NDOT failed to prevent the flooding. J&K asserted a
                 claim of negligence against NDOT for failing to properly design, construct,
                 maintain, and/or repair a state highway located adjacent to J&K's
                 premises. PWREO filed a cross-claim against NDOT and the City,
                 asserting claims of negligence, equitable indemnity, implied indemnity,
                 contribution, and declaratory relief.
                             NDOT filed motions to dismiss the amended complaint and
                 the cross-claim for failure to comply with NRS 11.256-.259. The district
                 court denied the motions after finding that NDOT is not "primarily
                 engaged in the practice of professional engineering" and, as such, all
                 claims brought against NDOT are not subject to the mandatory filing
                 requirements of NRS 11.256-.259. This petition for writ relief followed.
                                                DISCUSSION
                 Writ relief is appropriate
                             "A writ of mandamus is available to compel the performance of
                 an act that the law requires as a duty resulting from an office, trust, or
                 station or to control an arbitrary or capricious exercise of discretion."
                 Humphries v. Eighth Judicial Dist. Court, 129 Nev., Adv. Op. 85, 312 P.3d
                 484, 486 (2013) (quoting Int? Game Tech., Inc. v. Second Judicial Dist.
                 Court, 124 Nev. 193, 197, 179 P.3d 556, 558 (2008)); NRS 34.160.
                 Generally, "[w]rit relief is not available. . . when an adequate and speedy
                 legal remedy exists." Int'l Game Tech., 124 Nev. at 197, 179 P.3d at 558.
                 "While an appeal generally constitutes an adequate and speedy remedy
                 precluding writ relief, we have, nonetheless, exercised our discretion to
                 intervene 'under circumstances of urgency or strong necessity, or when an
                 important issue of law needs clarification and sound judicial economy and
                 administration favor the granting of the petition."      Cote H. v. Eighth
                 Judicial Dist. Court, 124 Nev. 36, 39, 175 P.3d 906, 908 (2008) (footnote
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                  omitted) (quoting State v. Second Judicial Dist. Court, 118 Nev. 609, 614,
                  55 P.3d 420, 423 (2002))."
                              Although NDOT appears to have a plain, speedy, and
                  adequate remedy in the form of an appeal from any judgment rendered
                  against it, we exercise our discretion to consider this petition because the
                  applicability of NRS 11.258 to NDOT raises an important legal issue in
                  need of clarification. Furthermore, the interests of sound judicial economy
                  and administration favor resolving this writ petition.
                  NRS 11.258 does not apply to NDOT
                              NRS 11.258(1) provides that
                              in an action involving nonresidential construction,
                              the attorney for the complainant shall file an
                              affidavit with the court concurrently with the
                              service of the first pleading in the action stating
                              that the attorney:
                                    (a) Has reviewed the facts of the case;
                                    (b) Has consulted with an expert;
                                    (c) Reasonably believes the expert who was
                              consulted is knowledgeable in the relevant
                              discipline involved in the action; and



                         'Alternatively, NDOT seeks a writ of prohibition. A writ of
                  prohibition is applicable when a district court acts "without or in excess of
                  [its] jurisdiction." NRS 34.320; see also Club Vista Fin. Servs., LLC v.
                  Eighth Judicial Dist. Court, 128 Nev., Adv. Op. 21, 276 P.3d 246, 249
                  (2012). A writ of prohibition is inappropriate here because the district
                  court had jurisdiction to rule on the motions to dismiss. See Goicoechea v.
                  Fourth Judicial Dist. Court, 96 Nev. 287, 289, 607 P.2d 1140, 1141 (1980)
                  (explaining that we will not issue a writ of prohibition "if the court sought
                  to be restrained had jurisdiction to hear and determine the matter under
                  consideration").



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                                  (d) Has concluded on the basis of the review
                            and the consultation with the expert that the
                            action has a reasonable basis in law and fact.
                Pursuant to NRS 11.258(3), the attorney's affidavit must also be
                accompanied by an expert report. NRS 11.2565(1) defines an "[a]ction
                involving nonresidential construction" as one that:
                                  (a) Is commenced against a design
                            professional; and
                                  (b) Involves the design, construction,
                            manufacture, repair or landscaping of a
                            nonresidential building or structure, of an
                            alteration of or addition to an existing
                            nonresidential building or structure, or of an
                            appurtenance, including, without limitation, the
                            design, construction, manufacture, repair or
                            landscaping of a new nonresidential building or
                            structure, of an alteration of or addition to an
                            existing nonresidential building or structure, or of
                            an appurtenance.
                The district court concluded that the claims against NDOT are not actions
                concerning nonresidential construction pursuant to NRS 11.2565(1), thus
                an affidavit and expert report were not necessary. "We review the district
                court's legal conclusions de novo." Buzz Stew, LLC v. City of N. Las Vegas,
                124 Nev. 224, 228, 181 P.3d 670, 672 (2008).
                     NDOT is not a design professional
                            NDOT argues that it is a design professional because its
                employees hold professional engineering licenses and it primarily engages
                in professional engineering. We disagree. NRS 11.2565(2)(b) defines
                "[d]esign professional" as "a person who holds a professional license or
                certificate issued pursuant to chapter 623 [Architecture, Interior Design
                and Residential Design], 623A [Landscape Architects] or 625 [Professional
                Engineers and Land Surveyors] of NES or a person primarily engaged in
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                the practice of professional engineering, land surveying, architecture or
                landscape architecture." (Emphasis added.)
                            Not all NDOT employees are statutorily required to be
                licensed professional engineers.    See NRS 408.106 (setting forth the
                makeup and qualifications of the NDOT board of directors but not
                requiring members to solely be licensed• professional engineers); NRS
                408.163 (setting forth the qualifications for the NDOT director but not
                requiring the director to be a licensed professional engineer); NRS
                408.178(1)-(2) (setting forth the qualifications for NDOT deputy directors
                and the chief engineer and requiring the chief engineer to "be a licensed
                professional engineer"). Moreover, it cannot be said that NDOT is
                "primarily engaged in the practice of professional engineering." NRS
                11.2565(2)(b). NRS 625.050(1) defines "professional engineering" as
                                 (a) Any professional service which involves
                           the application of engineering principles and data,
                           such as surveying, consultation, investigation,
                           evaluation, planning and design, or responsible
                           supervision of construction or operation in
                           connection with any public or private utility,
                           structure, building, machine, equipment, process,
                           work or project, wherein the public welfare or the
                           safeguarding of life, health or property is
                           concerned or involved.
                                  (b) Such other services as are necessary to
                            the planning, progress and completion of any
                            engineering project or to the performance of any
                            engineering service.
                           NDOT engages in several of these activities.     See, e.g., NRS
                408.200(1), (3) (stating that NDOT director's duties include investigating
                the best approach for highway construction and maintenance throughout
                the state and consulting with county officials regarding streets and
                highways in their counties); NRS 408.233(2)(c) (providing that NDOT
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                 planning division's duties include "evaluat[ing] the [department's] policies,
                 plans, proposals, systems, programs and projects"); NRS 408.234(2)(i), (k)
                 (stating that NDOT planning division shall "[finvestigate possible sources
                 of money" for promotion of and participation in programs for bicycle
                 transportation on state roadways). However, NDOT's board of directors is
                 the "custodian of the state highways and roads," NRS 408.100(5), and its
                 director's duties include "construction, reconstruction, improvement,
                 maintenance and repair of all highways" in Nevada, NRS 408.195. Thus,
                 while some NDOT employees may be engaged in areas of professional
                 engineering, we cannot conclude that NDOT is "primarily engaged in the
                 practice of professional engineering" as contemplated by NRS
                 11.2565(2)(b). 2
                              Finally, NRS 11.2565(2)(b) defines "[d]esig-n professional" as "a
                 person who holds a professional license or certificate . . . or a person

                 primarily engaged in the practice of professional engineering." (Emphases
                 added.) "Person" is defined as "a natural person, any form of business or
                 social organization and any other nongovernmental legal entity including,
                 but not limited to, a corporation, partnership, association, trust or
                 unincorporated organization. The term does not include a government,
                 governmental agency or political subdivision of a government." NRS
                 0.039. As a government entity, NDOT does not fall within this definition.




                       2Alternatively,    NDOT argues that it primarily engages in
                 architecture, landscape architecture, and land surveying. However,
                 identical to our analysis above, these activities are also only a portion of
                 the activities in which NDOT engages. Thus, this argument lacks merit.



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                                Accordingly, for the reasons set forth above, we conclude that
                  NDOT is not a design professional as envisioned by the Legislature in
                  NRS 11.2565(1)(a). 3 As such, the requirements of NRS 11.258 are
                  inapplicable to NDOT since the action would not statutorily qualify as "an
                  action involving nonresidential construction." NRS 11.258(1). Because
                  NRS 11.258 is inapplicable to NDOT, we conclude that the district court
                  did not err in denying NDOT's motion to dismiss, and we thus deny this
                  petition. 4


                                                                  ,




                                            Hardesty


                                                                                        J.
                  Parraguirre                                Douglas


                                                                                        J.
                  Cherry                                     Saitta


                                                                                        J.




                         3 Becauseboth subsections of NRS 11.2565(1) must be met in order
                  for a claim to be classified as an "[a]ction involving nonresidential
                  construction" and we have determined that NDOT does not qualify as a
                  design professional under subsection (a), we need not consider whether
                  subsection (b) has been satisfied.

                         4 NDOTalso argues that NRS 11.259 mandates dismissal with
                  prejudice. Because we conclude that the district court did not err in
                  denying NDOT's motions to dismiss, we do not address this argument.



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