                                             130 Nev., Advance Opinion   605
                        IN THE SUPREME COURT OF THE STATE OF NEVADA


                   KELLY BARRETT, AN INDIVIDUAL;              No. 63871
                   DEAN AND WENDY COOPER,
                   HUSBAND AND WIFE; RICHARDS
                   ZIEMELIS AND SHELLY CONNELL-
                   ZIEMELIS, HUSBAND AND WIFE;
                                                                   FILED
                   HARRY AND LISA BURGESS,                         AUG 0 7 2014
                   HUSBAND AND WIFE; MICHAEL
                   SOUSOUAY, AN INDIVIDUAL; KIM
                   COLBERT, AN INDIVIDUAL; JAMES
                   AND KAREN TIPPEL, HUSBAND AND
                   WIFE; ROSA MARTINEZ, AN
                   INDIVIDUAL; JOSEPHINE
                   MARTINEZ, AN INDIVIDUAL; RANDY
                   AND JOHNNA REECE, HUSBAND
                   AND WIFE; PATRICIA MONTEROS,
                   AN INDIVIDUAL; DONALD ROBBINS
                   AND HOPE ILEEN KELLER-ROBBINS,
                   HUSBAND AND WIFE; LENA
                   HAYCOCK, AN INDIVIDUAL;
                   TRELYNN GUICE, AN INDIVIDUAL;
                   ENRIQUE CABRERA, AN
                   INDIVIDUAL; MARVIN AND
                   ROSALYN RANDALL, HUSBAND AND
                   WIFE; JOHN AND SUSAN POLYAK,
                   HUSBAND AND WIFE; KENYETTA
                   BANKS, AN INDIVIDUAL; AMANDA
                   MATTOS, AN INDIVIDUAL; RONNE R.
                   CRAMER AND CYNTHIA L. CRAMER,
                   HUSBAND AND WIFE; RICHARD J.
                   LAHEY AND DIANE C. LAHEY,
                   HUSBAND AND WIFE; NICHOLAS D.
                   MARQUEZ AND CATHERINE M.
                   MARQUEZ, HUSBAND AND WIFE;
                   DONALD J. WYMAN AND MACHELLE
                   A. WYMAN, HUSBAND AND WIFE;
                   AND APRIL WASHINGTON, AN
                   INDIVIDUAL,
                   Petitioners,
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                vs.
                THE EIGHTH JUDICIAL DISTRICT
                COURT OF THE STATE OF NEVADA,
                IN AND FOR THE COUNTY OF
                CLARK; AND THE HONORABLE
                ALLAN R. EARL, DISTRICT JUDGE,
                Respondents,
                   and
                UPONOR INC., A MINNESOTA
                CORPORATION; RCR PLUMBING &
                MECHANICAL, INC. D/B/A RCR
                COMPANIES, A CALIFORNIA
                CORPORATION,
                Real Parties in Interest.



                            Petition for a writ of mandamus or, in the alternative,
                prohibition challenging a district court order requiring a subcontractor to
                provide NRS Chapter 40 prelitigation notice to another subcontractor,
                prior to filing a fourth-party complaint against it.
                            Petition granted.

                Canepa Riedy & Rubino and Scott K. Canepa and Terry W. Riedy, Las
                Vegas; Carraway & Associates and James D. Carraway, Las Vegas; Kemp,
                Jones & Coulthard, LLP, and Michael J. Gayan and J. Randall Jones, Las
                Vegas; Lynch, Hopper & Salzano, LLP, and Charles D. Hopper and
                Francis Lynch, II, Las Vegas; Maddox, Segerblom & Canepa, LLP, and
                Robert C. Maddox, Reno,
                for Petitioners.

                Bremer Whyte Brown & O'Meara, LLP, and Peter C. Brown and Prescott
                T. Jones, Las Vegas; Hansen Rasmussen, LLC, and R. Scott Rasmussen
                and Vadim Veksler, Las Vegas; Helm & Associates and Kevin E. Helm,
                Las Vegas; Grotefeld, Hoffman, Schleiter, Gordon & Ochoa and Lindsay E.
                Dansdill, Howard L. Lieber, and John R. Schleiter, Chicago, Illinois,
                for Real Parties in Interest.



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                     BEFORE THE COURT EN BANC.'


                                                       OPINION
                     By the Court, GIBBONS, C.J.:
                                   In this opinion, we address whether a defendant subcontractor
                     must provide NRS Chapter 40 prelitigation notice, which is statutorily
                     followed by an opportunity to repair, prior to filing a fourth-party
                     complaint against a supplier. We conclude that nothing in NRS Chapter
                     40 requires this notice.
                                       FACTS AND PROCEDURAL HISTORY
                                   Petitioners, homeowners in the Tropical Breeze subdivision in
                     Las Vegas, found allegedly defective plumbing parts in their residences.
                     They provided NRS Chapter 40 notice to the general contractor/developer
                     Centex Homes, informing it of this alleged defect. Centex then forwarded
                     this notice to its numerous subcontractors and suppliers, including real
                     party in interest Uponor, Inc. Despite receiving the notice, Uponor
                     declined to make repairs, asserting that it was not a supplier under NRS
                     Chapter 40. Then, the homeowners filed a complaint against Centex, who,
                     in turn, filed a third-party complaint against numerous subcontractors,
                     including real party in interest RCR Plumbing & Mechanical, Inc. RCR
                     then filed a fourth-party complaint against Uponor. Uponor moved to
                     dismiss the fourth-party complaint against it, asserting that it had not
                     been provided with notice of the alleged defects.



                           1 TheHonorable Ron Parraguirre, Justice, voluntarily recused
                     himself from participation in the decision of this matter.


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                             The district court found that Uponor was a supplier under
                 NRS Chapter 40 and that RCR was required to give notice of the alleged
                 construction defect to Uponor prior to filing its fourth-party complaint. 2
                 As a result, the district court stayed the proceedings and allowed RCR to
                 provide Uponor notice. Once RCR provided notice, Uponor elected to
                 make repairs. The homeowners now petition this court for a writ of
                 mandamus or prohibition, arguing that neither they nor RCR were
                 required to give Uponor NRS Chapter 40 notice and an opportunity to
                 repair prior to RCR's filing of its fourth-party complaint.
                                                DISCUSSION
                             A writ of mandamus is available to compel the performance of
                 a legal duty or to control an arbitrary or capricious exercise of discretion.
                 See NRS 34.160; Int? Game Tech., Inc. v. Second Judicial Dist. Court, 124
                 Nev. 193, 197, 179 P.3d 556, 558 (2008). Its counterpart, a writ of
                 prohibition, may issue to arrest the proceedings of a district court
                 exercising its judicial functions in excess of its jurisdiction.    See NRS
                 34.320; Smith v. Eighth Judicial Dist. Court, 107 Nev. 674, 677, 818 P.2d
                 849, 851 (1991). Writ relief is typically not available, however, when the
                 petitioners have a plain, speedy, and adequate remedy at law.       See NRS
                 34.170; NRS 34.330; Intl Game Tech., 124 Nev. at 197, 179 P.3d at 558.
                             Preliminarily, RCR and Uponor argue that writ relief is
                 inappropriate and unwarranted in this case. We choose to entertain this
                 petition because it involves an issue of first impression and statewide
                 importance, and because an appeal will not provide the homeowners with

                       2Around this time, the homeowners requested and were granted
                 leave to amend their complaint to add claims against RCR and Uponor.


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                    a speedy and adequate remedy. Pan v. Eighth Judicial Dist. Court, 120
                    Nev. 222, 224, 88 P.3d 840, 841 (2004); NRS 34.170; NRS 34.330. Since
                    Uponor elected to make repairs after RCR gave notice, the homeowners
                    will not have an adequate legal remedy once Uponor makes these repairs.
                    See D.R. Horton, Inc. v. Eighth Judicial Dist. Court, 123 Nev. 468, 474-75,
                    168 P.3d 731, 736 (2007). Further, this case has already existed in the
                    prelitigation stage for over five years, during which time Uponor
                    previously refused to make repairs. Id. at 475, 168 P.3d at 736. Thus, we
                    conclude that writ relief is appropriate.
                    NRS Chapter 40 does not require a subcontractor to give prelitigation
                    notice before filing a fourth-party complaint against a supplier
                                Before claimant homeowners may assert construction defect
                    claims in the district court, they must provide the contractor written
                    notice of the alleged defect, followed by an opportunity to repair. NRS
                    40.645; NRS 40.647(1). The homeowners here argue that, while NRS
                    Chapter 40 compels the contractor to forward any notices of defect to the
                    subcontractors and suppliers or forgo suit against those subcontractors
                    and suppliers, the chapter does not require either the claimant
                    homeowners or the subcontractors to give prelitigation notice to another
                    subcontractor or supplier like Uponor. We agree.
                                Although the homeowners assert that nothing in NRS Chapter
                    40 requires them or a defendant subcontractor/fourth-party plaintiff to
                    give notice to a subcontractor or supplier, Uponor contends that such
                    notice is mandated by NRS 40.645, NRS 40.646, NRS 40.647(2), NRS
                    40.690, and the overall purpose of the notice requirement underlying these
                    statutes This court reviews issues of statutory construction de novo, even
                    in the context of a writ petition. D.R. Horton, 123 Nev. at 476, 168 P.3d at
                    737. To determine the Legislature's intent, this court will not look beyond
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                   the statute's plain language when a statute is clear on its face.   Wheble v.
                   Eighth Judicial Dist. Court, 128 Nev.        „ 272 P.3d 134, 136 (2012).
                               NRS 40.645(1) lays out the prelitigation notice requirements
                   that a claimant must follow:
                               [B]efore a claimant commences an action or
                               amends a complaint to add a cause of action for a
                               constructional defect against a contractor,
                               subcontractor, supplier or design professional, the
                               claimant:
                               (a) Must      give     written    notice. .. to   the
                               contractor . . . ; and
                               (b) May     give     written   notice .. . to any
                               subcontractor, supplier or design professional
                               known to the claimant who may be responsible for
                               the constructional defect, if the claimant knows
                               that the contractor is no longer licensed in this
                               State or that the contractor no longer acts as a
                               contractor in this State.
                   (Emphases added.) Based on the plain language of NRS 40.645, a
                   claimant "must" give notice to a contractor. The contractor "shall" forward
                   that notice to any subcontractors and suppliers that it believes contributed
                   to the alleged defect, so that they can decide whether to repair the defect.
                   NRS 40.646; NRS 40.647. A claimant "may" give notice to a
                   subcontractor, supplier, or design professional, if the contractor is
                   unavailable, but the claimant is not required to do so. If a claimant fails
                   to comply with the prelitigation notice requirements of NRS Chapter 40,
                   then, under NRS 40.647(2), the district court must dismiss the action
                   without prejudice or stay the proceedings until the claimant complies.
                   And if a contractor fails to forward a prelitigation notice to its
                   subcontractors and suppliers, it generally may not sue them. NRS
                   40.646(2). Although "claimant" is defined as the owner of the residence or

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                   a representative of a homeowner's association responsible for the
                   residence, NRS 40.610, NRS 40.690 allows a contractor to be treated as a
                   claimant for purposes of requiring another party to appear and participate
                   in the NRS Chapter 40 proceedings after that party receives notice of the
                   proceedings from the contractor or claimant. Thus, as we have broadly
                   recognized, NRS Chapter 40 is designed to avoid costly litigation by
                   providing all contractors and subcontractors with notice of and an
                   opportunity to repair construction defects. D.R. Horton, 123 Nev. at 476,
                   168 P.3d at 737.
                               Given the permissive language in NRS 40.645(1)(b), however,
                   we conclude that neither it nor any of the other statutes mentioned
                   requires the homeowners or RCR to give notice to Uponor prior to filing a
                   fourth-party complaint against it since Uponor is a supplier. The statutes
                   distinguish between a "contractor" and a "subcontractor," providing each
                   with specific and sometimes distinct requirements regarding prelitigation
                   notice. Beginning with NRS 40.645, the clairnaint "may" give notice to
                   "any subcontractor" prior to "commending] an action . . . for a
                   constructional defect against a contractor." Moreover, while a "claimant"
                   may include a contractor based on NRS 40.690, there is no language in
                   NRS Chapter 40 that allows a subcontractor to be defined as a claimant. 3
                   Thus, we conclude that RCR, in its role as a subcontractor, was not
                   required to give notice to Uponor prior to filing a fourth-party complaint.

                         3 Similarly,while NRS 40.647 prevents a claimant from commencing
                   an action if the claimant did not provide proper notice pursuant to NRS
                   40.645, a subcontractor is not included in the NRS Chapter 40 definition of
                   claimant, thus it does not prevent a subcontractor from commencing an
                   action against another subcontractor.


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                Further, we conclude that the homeowners, as claimants, "may" have
                given notice to Uponor, based on its role as a supplier, but were not
                required to.
                               Briefly addressing the remaining pertinent statutes raised by
                Uponor, NRS 40.646 requires a contractor to forward notice to a
                subcontractor "whom the contractor reasonably believes is responsible,"
                however it does not provide any notice requirement for a subcontractor
                who believes another subcontractor or supplier is responsible. Similarly,
                NRS 40.690 governs NRS Chapter 40 proceedings, such as mediation
                under NRS 40.680, not the district court proceedings, and it requires
                notice of those NRS Chapter 40 proceedings, not of construction defects. It
                further does not create any notice requirements that a subcontractor must
                follow in order to file a fourth-party complaint against another
                subcontractor or supplier. Therefore, the homeowners and RCR were not
                required under NRS 40.490 to give notice to Uponor. Moreover, while the
                statutes' and, indeed, chapter's purpose is, in part, to allow defendants an
                initial opportunity to repair, the Legislature chose to carry out that
                purpose in the manner provided by the statutes, and this court will not
                read into the statutes a notice requirement between a subcontractor and
                another subcontractor or supplier where one does not exist.
                                                CONCLUSION
                               We conclude that neither NRS 40.645 nor any other provision
                require that claimant homeowners or subcontractors give notice to other
                subcontractors, suppliers, or design professionals prior to commencing or
                adding an action against them. Thus, the district court erred in requiring
                RCR to give notice of the construction defects to Uponor. We therefore
                order the clerk of this court to issue a writ of mandamus ordering the

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                  district court to vacate the portion of its August 2, 2013, order directing
                  RCR to give notice of the construction    ects, to Uponor. 4
                                                              //1/7

                                                                     itvNl         ,   C.J.
                                                      Gibbons

                  We concur:



                  Pickering


                    A Lt                         J.
                  Hardesty



                  Douglas




                        41n  light of this conclusion, the homeowners' alternative request for
                  a writ of prohibition is denied.



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