                                   132 Nev., Advance Opinion
      IN THE COURT OF APPEALS OF THE STATE OF NEVADA
                                                                 IS

TIMOTHY TOM, AN INDIVIDUAL,                          No. 65419
Appellant,
vs.
INNOVATIVE HOME SYSTEMS, LLC,
A NEVADA LIMITED LIABILITY
COMPANY,
Respondent.

TIMOTHY TOM, AN INDIVIDUAL,                          No. 66006
Appellant,
vs.
INNOVATIVE HOME SYSTEMS, LLC,                                  !LED
A NEVADA LIMITED LIABILITY
COMPANY,                                                   MAR 1 0 2016
Respondent.



            Consolidated appeals from a district court summary judgment
in a mechanic's lien action and a post-judgment order awarding attorney
fees and costs. Eighth Judicial District Court, Clark County; Adriana
Escobar, Judge.
           Reversed in part, vacated in part, and remanded.

Pezzillo Lloyd and Brian J. Pezzillo, Jennifer R. Lloyd, Marisa L. Maskas,
and George E. Robinson, Las Vegas,
for Appellant.

Snell & Wilmer, LLP, and Leon F. Mead II, Las Vegas,
for Respondent.
                   BEFORE GIBBONS, C.J., TAO and SILVER, JJ.

                                                     OPINION
                   By the Court, GIBBONS, C.J.:
                               This case involves the foreclosure of a mechanic's lien and a
                   breach of contract claim relating to work performed on a residence. At
                   issue here is whether the district court properly granted summary
                   judgment on both claims based on its conclusion that respondent
                   Innovative Home Systems, LLC (IHS) did not need a license to perform
                   the work it bid and completed on appellant Timothy Tom's residence. We
                   also address the district court's award of attorney fees.
                               Pursuant to NRS 108.222(2), a contractor must be duly
                   licensed to have an enforceable mechanic's lien for work it performed. In
                   addition, NRS 624.320 precludes an unlicensed contractor from bringing
                   or maintaining an action for the collection of compensation on a contract
                   for which a license is required. In applying these statutes to the facts of
                   this case, we conclude that genuine issues of material fact remain
                   regarding whether IHS's work on Tom's residence required a license and
                   whether IHS completed the contract in a workmanlike manner, thereby
                   possibly negating Tom's obligation to make final payment under the
                   contract. Accordingly, the district court erred in granting summary
                   judgment on these issues. We therefore reverse the district court's order
                   granting summary judgment, vacate the award of attorney fees, and
                   remand this matter to the district court for further action consistent with
                   this opinion.
                                                 BACKGROUND
                               Tom and IHS entered into a contract in April 2012, in which
                   IHS agreed to install automation, sound, surveillance, and landscaping
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                   systems in Tom's residence. IHS began work on the residence soon
                   thereafter. It is undisputed that IHS did not have an electrical
                   contractor's license when it bid the contract and began the work. In
                   September 2012, IHS applied for, and received, an electrical contractor's
                   license, which IHS contends was needed for other projects it would be
                   working on, but not for the work on Tom's residence. IHS continued
                   working on the Tom residence until December 2012. At that time, the
                   parties disagreed on the performance of the contract, Tom refused to
                   tender further payment to IHS, and IRS consequently filed a notice of lien
                   against Tom's residence.
                               In response, Tom filed a consumer complaint with the Nevada
                   State Contractors' Board (the Board), a state administrative agency,
                   alleging that (1) IHS did not complete certain parts of the contract in a
                   workmanlike manner and (2) IRS bid the job and performed the work
                   without first obtaining the required electrical license. In response to the
                   first allegation, an investigator for the Board investigated the matter and
                   sent IHS a notice to correct, which required IRS to correct nine of the
                   items listed in the complaint.
                               The investigator also requested a response to Tom's complaint
                   from IHS. IHS responded with a letter claiming, among other things, that
                   it did not need a license to complete the work on Tom's residence. IHS
                   further stated that "[sp]n occasion, . . . some low voltage wire needs to be
                   pulled through previously constructed walls for aesthetic purposes to allow
                   the systems to operate." IRS went on to explain that, "because of
                   occasional overlap between such activities for which a license may
                   arguably be required and those for which an exemption may apply, IHS
                   made the conscious decision to obtain a C-2D low voltage license." IHS

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                   claimed the overlap would possibly occur in future jobs, but not in this
                   case.
                                   After IRS purportedly remedied the work items identified by
                   the investigator, the Board closed the case as resolved through a letter
                   signed by a compliance supervisor. The Board neither conducted an
                   adversary proceeding to determine the legal rights of the parties, nor
                   issued a written decision specifically ruling on the license issue.
                                   IHS then filed a complaint in district court against Tom
                   alleging breach of contract, breach of the covenant of good faith and fair
                   dealing, unjust enrichment, foreclosure of notice of lien, and declaratory
                   relief. IRS also requested attorney fees. After an initial round of
                   dispositive motions by both parties were denied without prejudice, IHS
                   filed a renewed motion for summary judgment on its claims, again arguing
                   that an electrical license was not required for the work performed on
                   Tom's residence and that its lien was proper and perfected. In support of
                   this position, IHS's renewed motion cited three advisory opinions written
                   by the licensing administrator on behalf of the executive officer of the
                   Board addressing licensing requirements in the context of work performed
                   by other contractors. IHS also provided additional support for its positions
                   that IHS's work either did not require a license or fell within an exemption
                   to the licensing requirement. After a hearing, the district court granted
                   summary judgment in favor of IHS on the claims of breach of contract,
                   breach of the covenant of good faith and fair dealing, foreclosure upon the
                   notice and claim of lien, and declaratory relief. 1

                           1 The
                              Honorable James Brennan heard the initial dispositive motions
                   filed by IRS and Tom. The Honorable Adriana Escobar heard and granted
                   IHS's renewed motion for summary judgment.

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                               Since the court found a valid contract existed, it denied IHS's
                   unjust enrichment claim; however, it stated that, if the contract had been
                   deemed unenforceable, it would have granted summary judgment to IHS
                   for unjust enrichment. Even though discovery had not yet commenced,
                   the court also denied Tom's motion for discovery pursuant to NRCP 56(f),
                   stating that he failed to demonstrate that any discovery would lead to
                   admissible evidence that would create a genuine issue of material fact.
                   The district court did not rule on IHS's alternative theory of exemption.
                               The district court relied on two aspects of the Board's actions
                   in determining that IHS did not need a license. First, the court concluded
                   that if IRS needed a license to perform the work on Tom's residence, the
                   Board was required, pursuant to NRS 624.212(1), to order IRS to cease
                   and desist its work upon learning IHS was operating without a license.
                   Because it did not do so and instead closed Tom's complaint, the district
                   court determined that the Board "necessarily found that a license was not
                   necessary" for the work IHS performed. Second, the court relied on the
                   Board's advisory opinions, which determined that no license was needed
                   when answering licensing questions regarding work on unrelated matters
                   and concluded that those opinions were persuasive authority. Based on
                   these conclusions, the district court awarded IRS the full lien amount of
                   $23,674.67 and ordered the residence sold to satisfy payment of the lien
                   and the impending attorney fees and costs. Tom subsequently appealed
                   this determination, which is pending before this court in Docket No.
                   65419.
                               Thereafter, the district court filed an order awarding IRS
                   $1,144.37 in costs and $35,350.00 in attorney fees pursuant to NRS
                   18.010(2)(b) and NRS 108.237(1)—an amount less than IRS requested.

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                   Tom then appealed the order awarding IHS its attorney fees and costs,
                   which is before us in Docket No. 66006, and his two appeals were
                   subsequently consolidated.
                                                    ANALYSIS
                               Throughout the proceedings before the Board, in the district
                   court action, and now before this court, Tom has steadfastly maintained
                   that IRS was required to have an electrical license in order to bid on and
                   perform the work on his residence. And this position lies at the heart of
                   Tom's argument that, without the required license, IRS cannot enforce its
                   mechanic's lien or maintain an action against him to collect compensation
                   on the parties' contract. In response to these assertions, IRS contends
                   that it did not need an electrical license to perform the work or
                   alternatively, that the work it performed was exempt from the license
                   requirement.
                               Tom also argues that the district court erred in basing its
                   decision to grant summary judgment on the licensing issue on the Board's
                   resolution of Tom's administrative complaint and the Board's advisory
                   opinions. He further asserts that genuine issues of material fact remain
                   regarding whether IHS completed its obligations under the contract, thus
                   precluding summary judgment on that issue. And because he claims
                   summary judgment was improper, Tom argues that the award of attorney
                   fees to IHS was also improper. IHS contends that there were no genuine
                   issues of material fact remaining and therefore, granting judgment as a
                   matter of law in its favor was appropriate, as was the award of attorney
                   fees.
                               We review a district court's grant of summary judgment de
                   novo.   Wood v. Safeway, Inc.,   121 Nev. 724, 729, 121 P.3d 1026, 1029

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                   (2005). A district court's award of attorney fees is reviewed for an abuse of
                   discretion. Kahn v. Morse & Mowbray, 121 Nev. 464, 479, 117 P.3d 227,
                   238 (2005).
                                 Before addressing the parties' specific arguments regarding
                   the district court rulings at issue here, we first provide a brief discussion
                   of Nevada's licensing scheme. A general understanding of this scheme
                   and the statutes involved in this case will provide necessary background,
                   as well as a starting point, for considering the issues presented on appeal.
                   Nevada's licensing laws
                                 "The primary purpose of Nevada's licensing statutes is to
                   protect the public against both faulty construction and financial
                   irresponsibility." MGM Grand Hotel, Inc. v. Imperial Glass Co., 533 F.2d
                   486, 489 (9th Cir. 1976) (relying in part on Nev. Equities, Inc. v. Willard
                   Pease Drilling Co., 84 Nev. 300, 303, 440 P.2d 122, 123 (1968)). Licensing
                   statutes allow Nevada to "exercis[e] its regulatory power over
                   [contractors'] operations and effectuat[e] its consumer protection goals."
                   Interstate Commercial Bldg. Servs., Inc. v. Bank of Am. Nat'l Tr. & Say.
                   Ass'n, 23 F. Supp. 2d 1166, 1173 (D. Nev. 1998) (citing NRS 624.260(1)
                   (1997)2 (requiring applicants "to show such a degree of experience,
                   financial responsibility and such general knowledge. . . [as is] necessary
                   for the safety and protection of the public" in order to obtain a contractor's
                   license)). Thus, to protect consumers, NRS 624.320 serves as an absolute
                   bar on the recovery of contract claims brought by unlicensed contractors or



                         2 Whilethis statute has subsequently been amended, the subsection
                   relied on by the federal district court in Interstate Commercial did not
                   change. See 2015 Nev. Stat., ch. 359, § 2, at 2005.


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                   contractors not properly licensed for the duration of work requiring such a
                   license. See Magill v. Lewis, 74 Nev. 381, 384, 387, 333 P.2d 717, 718-19,
                   720 (1958) (recognizing that NRS 624.320 essentially nullifies contracts
                   with unlicensed contractors). Further, under NRS 108.222(2), unlicensed
                   contractors are also unable to obtain an enforceable lien against the
                   subject property.
                                Under this statutory scheme, anyone engaging in the business
                   or acting in the capacity of a contractor, 3 or submitting a bid on a project,
                   must be licensed unless they are exempt from licensure. NRS 624.700(1).
                   And, relevant to the specific issues presented here, an electrical license is
                   required for the "installation, alteration and repair of systems that use
                   fiber optics or do not exceed 91 volts, including telephone systems, sound
                   systems, cable television systems, closed circuit video systems, satellite
                   dish antennas, instrumentation and temperature controls, computer
                   networking systems and landscape lighting." NAC 624.200(2)(d).
                                Thus, if IHS performed any of the work described in NAC
                   624.200(2)(d) on Tom's residence, it needed an electrical license in order to
                   bid on and perform the work.           See NRS 624.700(1)(b) (bidding); NRS
                   624.700(1)(a) (performing). But an exemption to the licensure
                   requirement exists when the project is limited to the "sale or installation
                   of any finished product. . . which is not fabricated into and does not
                   become a permanent fixed part of the structure." NRS 624.031(6).




                         3A  contractor is anyone who, "acting solely in a professional
                   capacity, . . . submits a bid to, or does himself[,] . . . construct, alter, repair,
                   add to, subtract from, improve, move, wreck or demolish any building."
                   NRS 624.020(2).

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                               With this background information in mind, we now turn to
                   Tom's challenges to the district court's grant of summary judgment to IHS
                   and award of attorney fees in favor of IHS. We first examine the district
                   court's summary judgment decision, beginning with the determination
                   that IHS was not required to possess an electrical license in order to bid
                   on or perform work on Tom's residence. We will then determine the
                   propriety of the court's grant of summary judgment on IRS's breach of
                   contract claim. We conclude our review of the issues presented by
                   examining the award of attorney fees to IRS.
                   Licensure
                               To resolve the licensing issue, the district court relied on the
                   Board's resolution of Tom's complaint, which the court found
                   determinative of whether IHS needed a license for the work it performed
                   on Tom's residence, thus giving that resolution preclusive effect. The
                   district court further concluded that the advisory opinions provided by
                   IHS also demonstrated that IRS did not need a license for the work it
                   performed. Tom asserts that the district court erred in its reliance on
                   these documents, but IRS counters that such reliance was proper because
                   the documents demonstrated that IHS was not required to have a license,
                   making the grant of summary judgment in its favor on that issue
                   appropriate.
                               We begin our examination of these issues by considering
                   whether the district court properly concluded that the Board's resolution
                   of Tom's administrative complaint was dispositive evidence that IRS did
                   not need a license for the work performed on Tom's residence. Thereafter,
                   we turn to the district court's reliance on the advisory opinions issued by
                   the Board as further demonstrating that IRS did not need a license.

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                                Summary judgment is appropriate "when the pleadings and
                   other evidence on file demonstrate" that no genuine issues of material fact
                   remain "and that the moving party is entitled to a judgment as a matter of
                   law." Wood, 121 Nev. at 729, 121 P.3d at 1029 (internal quotation marks
                   omitted). In reviewing a motion for summary judgment, "the evidence,
                   and any reasonable inferences drawn from it, must be viewed in a light
                   most favorable to the nonmoving party."          Id.   "The party moving for
                   summary judgment bears the initial burden of production to show the
                   absence of a genuine issue of material fact." Cuzze v. Univ. & Cmty. Coll.
                   Sys. of Nev., 123 Nev. 598, 602, 172 P.3d 131, 134 (2007). Only if the
                   moving party meets its burden of production does the burden shift to the
                   opposing party "to show the existence of a genuine issue of material fact."
                   Id. (citing Celotex Corp. v. Catrett, 477 U.S 317, 331 (1986) (Brennan, J.,
                   dissenting) (rejecting the majority's application of the summary judgment
                   rule to the facts at hand, but not its explanation of the rule)).
                         The district court's reliance on the Board's decision
                                In concluding that a license was not required for the work IHS
                   performed on Tom's residence, the district court relied heavily on the
                   Board's decision to close Tom's complaint without ordering IHS to cease all
                   work under the contract. Specifically, the district court noted that NRS
                   624.212 required the Board to take such action if a license was required,
                   and that its failure to do so indicated that the Board had "necessarily
                   found that a license was not necessary for the work performed by IHS."
                   While not stated in these exact terms, the district court essentially held
                   that the Board's decision was entitled to preclusive effect on the question
                   of whether a license was required so as to bar Tom from relitigating that
                   issue. Tom argues that because there was no final decision resulting from

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a contested case on the license issue, the district court should not have
viewed the Board's actions as determinative of the licensing issue, while
IHS contends the district court did not err by doing so. We start our
discussion of this issue by analyzing issue and claim preclusion and how
those legal principles apply in the administrative context.
            "Claim and issue preclusion can apply in the administrative
context `[w]hen an administrative agency is acting in a judicial capacity
and resolves disputed issues of fact properly before it which the parties
have had an opportunity to litigate." Holt v. Reg'l Tr. Servs. Corp., 127
Nev. 886, 891, 266 P.3d 602, 605 (2011) (alteration in original) (quoting
United States v. Utah Constr. & Mining Co., 384 U.S. 394, 422 (1966)); see
also Britton v. City of N. Las Vegas, 106 Nev. 690, 692, 799 P.2d 568, 569
(1990) ("It is a well-settled rule of law that res judicata may apply to
administrative proceedings."). Thus, "[a] n agency decision can result in
issue or claim preclusion as to a subsequent decision made by another
court or a different agency." Redrock Valley Ranch, LLC v. Washoe Cty.,
127 Nev. 451, 459, 254 F'.3d 641, 646 (2011).
            In order for either doctrine to apply to bar the relitigation of a
claim or issue, all the elements of the particular doctrine must be met.
For claim preclusion to apply, (1) the same parties or their privies must be
involved in both cases, (2) a valid final judgment must be entered in the
first case, and (3) the subsequent action must be "based on the same
claims or any part of them that were or could have been brought in the
first case." Alcantara ex rel. Alcantara v. Wal-Mart Stores, Inc., 130 Nev.
        , 321 P.3d 912, 915 (2014) (internal quotation marks omitted).
Similarly, for issue preclusion to apply,




                                      11
                               (1) the issue decided in the prior litigation must be
                               identical to the issue presented in the current
                               action; (2) the initial ruling must have been on the
                               merits and have become final;. . . (3) the party
                               against whom the judgment is asserted must have
                               been a party or in privity with a party to the prior
                               litigation; and (4) the issue [must have been]
                               actually and necessarily litigated.
                   Id. at   , 321 P.3d at 916 (first alteration in original) (internal quotation
                   marks omitted).
                               Having laid out the elements for both claim and issue
                   preclusion, we must now determine if the Board's resolution of Tom's
                   administrative complaint met these elements such that it barred Tom
                   from relitigating the licensing issue in the district court. To do so, we
                   must first examine the Board's statutory powers and its role in resolving
                   the complaints and issues presented to it before addressing the specific
                   Board decision at issue here.
                               The Board
                               The Board consists of seven members, NRS 624.040, and is an
                   administrative agency within the meaning of the Administrative
                   Procedure Act (APA). Thus, it must comply with the Act's provisions. See
                   NRS 233B.031 (defining an agency as "an agency, bureau, board,
                   commission, department, division, officer or employee of the Executive
                   Department of the State Government authorized by law to make
                   regulations or to determine contested cases"); NRS 624.100(1) (authorizing
                   the Board to make reasonable regulations necessary to carry out the
                   provisions of NRS Chapter 624); NRS 233B.039 (listing those agencies
                   that are exempted from the requirements of the APA and not including
                   the Nevada State Contractors' Board amongst the exempted agencies).
                   Additionally, the Board's enforcement actions are authorized by Chapter
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                   624 of the Nevada Revised Statutes, see NRS 624.040-.212, the chapter
                   which also governs contractors' licenses.      See NRS 624.240-.288. As
                   directed by statute, the Board designates one or more of its employees to
                   investigate any form of construction fraud, NRS 624.165(1)(a), which in
                   this case, is defined as "a person engaged in construction
                   knowingly . . . [acting] as a contractor without. . . [p] ossessing a
                   contractor's license." NRS 624.165(3)(e)(1).
                                 In that vein, after the Board receives a written complaint, it
                   must "investigate the actions of any person acting in the capacity of a
                   contractor, with or without a license." NRS 624.160(4). If the Board's
                   investigation reveals that the contractor submitted a bid on a project or
                   performed work without the proper license, the Board must issue a cease-
                   and-desist order to stop the unlicensed work. NRS 624.212(1).
                                 Further, "[t]he Board is vested with all of the functions and
                   duties relating to the administration of [NRS Chapter 6241." NRS
                   624.160(1). This includes adjudicating contested cases.            See NRS
                   233B.121; see also NRS 624.170(2)(c) (permitting the Board to "[i]ssue
                   subpoenas for the attendance of witnesses and the production of records,
                   books and papers in connection with any hearing, investigation or other
                   proceeding of Board"); MRS 624.510(8) 4 (providing that the Board may
                   award attorney fees incurred in contested cases under certain
                   circumstances). A contested case is defined as a proceeding "in which the
                   legal rights, duties or privileges of a party are required by law to be
                   determined by an agency after an opportunity for hearing, or in which an


                         4This statute has since been amended, but the relied-upon
                   subsection was not altered. See 2015 Nev. Stat., ch. 359, § 6, at 2010.

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                   administrative penalty may be imposed." NRS 233B.032. Parties to
                   contested cases have statutory rights to: (1) receive notice of the
                   proceeding; (2) be represented by counsel; and (3) respond to and present
                   evidence. NRS 233B.121(1)-(4).
                               Related to its investigative duties and ability to resolve
                   contested cases, the Board can also make findings of fact regarding the
                   issues presented to it. NRS 233B.125; see also Dickinson v. Am. Med.
                   Response, 124 Nev. 460, 469, 186 P.3d 878, 884 (2008) (stating that the
                   agency's factual findings are "crucial to the administrative process").
                   Indeed, when resolving contested cases resulting in a final decision, NRS
                   233B.125 requires the Board to "include findings of fact and conclusions of
                   law, separately stated," either on the record or in writing.     But see NRS
                   233B.121(5) (stating that an administrative agency may make an informal
                   disposition in certain circumstances and if it does, "the parties may waive
                   the requirement for findings of fact and conclusions of law").
                               The Board's decision on Tom's administrative complaint
                               With regard to the agency decision relied on by the district
                   court in granting IHS's motion for summary judgment, the Board
                   conducted an investigation on Tom's complaint and issued a notice to
                   correct to IHS. Although the notice to correct stated IHS's failure to
                   comply could result in a fine, it cited NAC 624.700(3), which permits the
                   Board to take action after an investigation, as opposed to after a
                   proceeding in a contested case. Additionally, that regulation does not
                   allow for the imposition of a fine itself, but rather allows the Board to
                   require the contractor to show cause why disciplinary action, which could
                   include a fine, should not be issued, demonstrating that further
                   procedures are required before such discipline is imposed.         See NAC
                   624.700(3)(c). Thus, the notice from the investigator in this case directing
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                   IRS to make certain repairs did not determine the legal rights, duties, or
                   privileges of either party. See NRS 233B.032. The Board's letter closing
                   the complaint similarly did not attempt to determine the rights, duties, or
                   privileges of either party; instead, the letter simply stated that the issues
                   identified in Tom's complaint appeared to have been resolved. See id.
                               Furthermore, the investigator's act of issuing a letter directing
                   IRS to respond to the complaint falls far short of compliance with the
                   notice and hearing requirements mandated in NRS 233B.121 for contested
                   cases. There was no notice of a hearing sent to the parties, no ability for
                   Tom to present evidence or witnesses in response to IHS's letter, 5 and no
                   administrative record that complied with the statute.              See   NRS
                   233B.121(2), (4), (7); see also Private Investigator's Licensing Bd. v.
                   Atherley, 98 Nev. 514, 515, 654 P.2d 1019, 1020 (1982) (concluding that
                   when a proceeding relating to the licensing process does not require notice
                   and an opportunity for a hearing, it does not constitute a contested case
                   under the APA).
                               Finally, the Board did not issue findings of fact and
                   conclusions of law pursuant to NRS 233B.125. And neither party argues,
                   and the record does not support, that the circumstances required in NRS
                   233B.121(5) were met, allowing the Board to issue an informal disposition.
                   Thus, we conclude, as argued by Tom, that the Board's decision cannot be
                   characterized as a final decision resolving a contested case.




                         5Although  IHS submitted documentation to support the assertions
                   raised in its response letter to the Board, it is unclear whether Tom
                   submitted additional documentation with the complaint or in response to
                   IHS's letter.

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                                 Having determined that there was no actual litigation and no
                   final decision made on the merits of the case by the Board, we conclude
                   that no preclusive effect could be given to the Board's decision on Tom's
                   complaint. 6 See Alcantara, 130 Nev. at , 321 P.3d at 915-16; see also
                   Britton,   106 Nev. at 693, 799 P.2d at 569-70 (stating that an
                   administrative decision can have a preclusive effect on a future case only if
                   it resulted in a final judgment on the merits). And it follows that, because
                   the Board's decision was not entitled to preclusive effect on the issues
                   presented to the district court, the district court erred in granting
                   summary judgment in favor of IHS on this basis. 7 We now turn to the




                         6 IHS  argues, and the district court concluded, that Tom had to seek
                   judicial review pursuant to NRS Chapter 233B because the Board's
                   actions constituted a final decision. IHS therefore maintains that this
                   court should defer to the Board's decision and that this is not a preclusion
                   issue. Because we have already concluded that the Board's decision did
                   not constitute a final decision resulting from a contested case, and because
                   this case is not an appeal from a petition for judicial review of an agency
                   decision, deference to the agency is not appropriate.              See NRS
                   233B.135(2)-(3) (providing that, in the judicial review process, the burden
                   of proof is on the party challenging the agency decision and that the
                   district court should not substitute its judgment for that of the agency on
                   questions of fact).

                         7 IHS also argues that summary judgment is supported because,
                   pursuant to its complaint form, the Board may not request an unlicensed
                   contractor to complete work, but here, the Board requested IHS to address
                   nine of Tom's complaint items. IHS further argues that summary
                   judgment is supported by the Board's failure to order IHS to cease work on
                   Tom's residence. Because we conclude that the Board's action of closing
                   Tom's complaint should not have been given preclusive effect, we also
                   conclude that neither the Board's actions in ordering IHS to address nine
                   of the complaint items nor the Board's failure to order IHS to cease work
                   on Tom's residence should be given preclusive effect because the elements
                                                                      continued on next page...
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                   other basis for the district court's grant of summary judgment—the
                   Board's advisory opinions.
                         The district court's reliance on advisory opinions addressing other
                         matters
                                 The district court explicitly relied on three advisory opinions, 8
                   which did not directly involve Tom or IHS but discussed work arguably
                   resembling the work IHS performed on Tom's residence, as providing a
                   legal basis for granting summary judgment on the licensing issue. Tom
                   argues that the district court clearly erred in relying on the advisory
                   opinions because of the disclaimer contained in each opinion limiting them
                   to the specific facts and circumstances provided to the Board, a point
                   which IHS concedes on appeal. IHS counters, however, that reliance on
                   these advisory opinions was still proper because they are in accord with
                   other jurisdictions dealing with the same issue and that the opinions also
                   provide insight into whether a license was needed for the work IHS
                   performed.


                   ...continued
                   for claim and issue preclusion have not been met. See Alcantara, 130 Nev.
                   at     ,321 P.3d at 915-16; Britton, 106 Nev. at 693, 799 P.2d at 569-70.

                         8 The APA mandates that each administrative agency provide for the
                   issuance of advisory opinions regarding "the applicability of any statutory
                   provision, agency regulation or decision of the agency." NRS 233B.120.
                   The Board may provide advisory opinions, NRS 624.160(3), to any person
                   who files a petition regarding "the applicability of any provision of Chapter
                   624 of NRS." NAC 624.120. Although NRS 233B.120 states that
                   declaratory orders disposing of petitions have the same status as agency
                   decisions, it is silent as to the legal effect of advisory opinions. NRS
                   233B.038(2)(f), however, provides that an advisory opinion that is not of
                   general applicability is not enforceable as a regulation. But see NRS
                   233B.038(1)(a) (providing that an agency's statement of general
                   applicability interpreting a statute is enforceable as a regulation).

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                               We disagree with IHS's position. First, all three opinions
                   contain disclaimers that limit their use. Two of the three advisory
                   opinions state:
                               The foregoing opinion applies only to the specific
                               facts and circumstances defined herein. Facts and
                               circumstances that differ from those in this
                               opinion may result in an opinion contrary to this
                               opinion. No inferences regarding the provisions of
                               [the NRS] quoted and discussed in this opinion
                               may be drawn to apply generally to any other facts
                               and circumstances.
                   Therefore, in addition to the parties' concessions on appeal that the
                   opinions' applications are limited to their facts, the opinions themselves
                   caution against applying inferences to factually dissimilar circumstances.
                               Moreover, IHS's reliance on Walker v. Thornsberry, 158 Cal.
                   Rptr. 862 (Ct. App. 1979), is unavailing. While the Walker court did
                   decide a licensure issue similar to the one at issue here, the fact that that
                   court concluded that a license was not required for the installation of a
                   prefabricated bathroom, see id. at 865, is not a reason to conclude that the
                   advisory opinions in this case are instructive because Walker does not
                   resolve the deficiencies present in the advisory opinions relied upon by
                   IHS. The first deficiency, addressed above, is that the opinions are limited
                   to their facts. The second deficiency, discussed in more detail below, is
                   that the work discussed in those opinions was dissimilar to the work
                   performed by IHS.
                               Below, the district court gave the advisory opinions persuasive
                   effect because it found that the advisory opinions were factually similar to
                   IHS's work; therefore, it concluded that IHS did not need a license for the




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                   work performed on Tom's residence'. 9 We disagree with the district court's
                   interpretations and conclude that the advisory opinions are not
                   persuasive.


                         9 The
                             substance of the advisory opinions consists merely of a question
                   and an answer. The first opinion states:

                                 ISSUE: Would a Nevada State [Contractor's]
                                 license be required to install a new phone system
                                 for the Carson City School System utilizing
                                 existing cabling infrastructure?
                                 ADVISORY OPINION: Based upon the
                                 information provided, the Board opined that a
                                 [Contractor's] license would not be required to set
                                 components in place and plug the equipment into
                                 existing outlets. A C-2 (Electrical) or a C-2(e)
                                 Signal Systems classification would be required if
                                 any electrical work is performed.
                         The second opinion states:

                                 ISSUE: Would a Nevada State [Contractor's]
                                 license be required to install component
                                 communication equipment into metal cabinets in
                                 police dispatch rooms.
                                 ADVISORY OPINION: Based upon the
                                 information provided, a [Contractor's] license
                                 would not be required to set components in place
                                 and plug the equipment into existing outlets. A
                                 C-2 (Electrical) or a C-2(e) Signal Systems
                                 classification would be required if any electrical
                                 work is performed.
                         The third opinion states:
                                 ISSUE: Is a [Contractor's] license required to
                                 perform the installation of pet containment
                                 systems that consist of low-voltage wiring that is
                                 plugged into a lightning protector and then into a
                                 grounded outlet?
                                                                       continued on next page...
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                                  First, in reviewing the questions addressed in the advisory
                   opinions, it is clear that all three are factually dissimilar to the case at
                   bar. One opinion answers whether a license would be necessary to install
                   a new phone system utilizing an existing cabling infrastructure. Another
                   opinion answers whether a license would be required to install component
                   communication equipment into metal cabinets. And the last opinion
                   answers whether a license would be required to install a pet containment
                   system consisting of plugging low-voltage wiring into a lightning protector.
                   Thus, the opinions do not appear to be sufficiently similar to the case at
                   bar to be persuasive because none of them discuss whether a contractor's
                   license is required to install automation, sound, surveillance, and
                   landscaping systems like the systems IHS installed at Tom's residence.
                   See generally Univ. & Cmty. Coll. Sys. of Nev. v.    DR Partners, 117 Nev.
                   195, 203-04, 18 P.3d 1042, 1047-48 (2001) (stating that nonbinding
                   opinions of the attorney general that do not support the assertion for
                   which they are presented are not persuasive).
                                  Second, the opinions are very brief, each consisting only of a
                   one-sentence statement of the issue and one or two sentences for the
                   opinion. There is not a section for a description of the facts, only a few
                   words within the issue statement. Even if the type of work in the advisory
                   opinions was factually similar to some of the work IHS performed, the
                   advisory opinions could not cover the entire scope of work contemplated by


                   ...continued
                                  ADVISORY OPINION: Based upon the
                                  information provided, the Board opined that a
                                  [Contractor's] license would not be required to
                                  perform the installation of the PetSafe pet
                                  containment systems.

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                   the contract with JETS—installation of automation, sound, surveillance,
                   and landscaping systems. Further, two of these opinions, wherein the
                   Board opined that the work described did not require an electrical license,
                   included a statement of the general principle that "[an electrical license]
                   would be required if any electrical work is performed" (emphasis added),
                   an issue that was not explored by the district court. Thus, the advisory
                   opinions lack the factual detail necessary for the opinions to be used as
                   persuasive authority.     But see Pyramid Lake Paiute Tribe of Indians v.
                   Washoe Cty., 112 Nev. 743, 748, 918 P.2d 697, 700 (1996) (providing that
                   an agency's interpretation of a statute is not controlling, but can be
                   persuasive).
                                  In sum, we conclude that the district court erred in treating
                   the Board's letter closing Tom's complaint as dispositive of the license
                   issue. We further conclude that the advisory opinions do not support
                   granting IRS summary judgment on that issue. Thus, when viewing all of
                   this evidence in the light most favorable to Tom, we conclude that IRS
                   failed to meet its initial burden of production to show the absence of a
                   genuine issue of material fact regarding whether it needed a license. See
                   Cuzze, 123 Nev. at 602, 172 P.3d at 134. Additionally, the contract itself,
                   and its multiple revisions, when construed in a light most favorable to
                   Tom, are also sufficient to create a genuine issue of material fact
                   regarding whether a license was needed.       See id. Therefore, we reverse
                   the district court's grant of summary judgment on the lien claim, as that
                   decision was premised on the conclusion that IRS did not need a license




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                   for the work it performed on Tom's residence. 1° We next address whether
                   summary judgment was proper on IHS's breach of contract claim.
                   Breach of contract
                                  IHS's breach of contract claim is based on its assertion that it
                   completed its contractual obligations, but Tom did not make a final
                   payment. Tom argues that IHS never completed the work on his
                   residence; therefore, final payment was not required. To support his
                   assertion, Tom filed an affidavit describing the unfinished work, which
                   included issues with the equipment rack ventilation system, the sprinkler
                   system, the sidelight window switchable smart tint, and a failure to honor
                   a warranty and provide wiring diagrams to some of the systems as
                   promised.
                                  IHS, on the other hand, relies on the closure of Tom's Board
                   complaint to support its assertion that it finished all contractual
                   obligations in a workmanlike manner. It further states that had it not
                   completed the work in question, Tom would have filed another complaint
                   with the Board and since no such complaint was filed, IHS maintains that
                   it satisfied its contractual obligations. In its order, the district court found
                   that IRS had resolved the items that the Board directed it to correct
                   before closing Tom's complaint, that there was no evidence that Tom
                   "insisted that additional problems remained after IHS complied with the


                         10 IHS also argues on appeal that, pursuant to NRS 47.250(16), this
                   court should apply a disputable presumption that the Board followed the
                   law in this case. IRS waived this argument, however, because it was not
                   raised in the district court, and we therefore decline to consider it. See
                   Old Aztec Mine, Inc. v. Brown, 97 Nev. 49, 52, 623 P.2d 981, 983 (1981) ("A
                   point not urged in the trial court . . . is deemed to have been waived and
                   will not be considered on appeal.").

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                   [Board's] correction directive," and that Tom's affidavit failed to create a
                   genuine issue of material fact that IHS had not completed its portion of
                   the contract.
                               Looking at IHS's evidence on the contract claim, we conclude
                   that it has not met its burden of proving that no genuine issue of material
                   fact exists regarding whether the contract was completed.     See id. First,
                   while the Board's letter stated it was closing the complaint because it
                   appeared that the issues raised therein were resolved, it does not state
                   that IRS fully completed its obligations under the contract. And, although
                   Tom certainly could have filed a second complaint with the Board
                   regarding any remaining issues, he was under no obligation to do so as he
                   also had the right to pursue those claims in court. Thus, the closing of
                   Tom's Board complaint is not dispositive evidence that IHS completed the
                   contract.
                               Additionally, when viewing the competing affidavits from IRS
                   and Tom, and the additional evidence, in a light most favorable to Tom, it
                   is apparent that genuine issues of material fact remain regarding whether
                   IHS satisfied all of its obligations under the contract such that Tom would
                   be required to pay IRS in full." Thus, summary judgment on this issue
                   was improper as well.    See id.   Therefore, regarding the district court's


                          "For example, IRS's affidavit stated that it included an item on a
                   revised contract, at Tom's request, that was actually supposed to be
                   completed by another contractor and thus, was not IRS's responsibility.
                   Tom's affidavit, however, asserts that IRS was to complete that item and
                   failed to do so. Tom's statement, plus the contract from IHS including the
                   disputed item, creates a genuine issue of material fact as to whether IHS
                   completed its obligations under the contract. See Cuzze, 123 Nev. at 602,
                   172 P.3d at 134.

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                   grant of summary judgment, there remain genuine issues of fact as to
                   whether IHS needed a contractor's license and whether Tom breached his
                   contractual obligations. Because these disputed facts are material to the
                   success of the mechanic's lien and breach of contract claims, summary
                   judgment was inappropriate in this case and we reverse that decision. 12
                   See id.
                   Attorney fees
                                  After granting summary judgment in favor of IRS, the district
                   court also awarded attorney fees to IRS. On appeal, Tom raises three
                   separate challenges to this award. First, Tom argues that the district
                   court improperly awarded attorney fees under NRS 18.010(2)(b) because
                   there were reasonable grounds for Tom's claims and his defenses were not
                   raised to harass IRS. Second, Tom maintains that the district court
                   improperly awarded attorney fees under NRS 108.237 because a portion of
                   the award requested was incurred during the administrative process and
                   outside of court proceedings. 13 Third, Tom claims that the district court


                         'Because we conclude that genuine issues of material fact remain
                   pending below such that summary judgment was inappropriate, we need
                   not address Tom's additional argument that the district court abused its
                   discretion in denying his NRCP 56(f) motion for a continuance to obtain
                   discovery in order to oppose the motion. We do note, however, that
                   discovery had not even commenced in this case when the district court
                   granted summary judgment.

                         13 Thedistrict court did not identify if it was awarding attorney fees
                   associated only with IRS's complaint before the district court, or if it was
                   also awarding attorney fees IRS incurred in defending the action brought
                   by Tom before the Board, as was requested by IHS in its fees motion.
                   While we need not rule on this issue at this juncture, we urge the district
                   court to be aware of this distinction if the parties request an award of
                   attorney fees under NRS 108.237(1) during the proceedings on remand.

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                   abused its discretion by not making any findings regarding the Brunzell
                   factors. 14 Because of our conclusion that summary judgment was
                   inappropriate in this case, the award of attorney fees is necessarily
                   vacated; therefore, we do not address this issue.
                                                  CONCLUSION
                                 Because genuine issues of material fact remain as to whether
                   IHS needed a license to perform certain work under the contract and
                   whether IHS completed the contract, we reverse the district court's order
                   granting summary judgment in IHS's favor. Accordingly, we also vacate
                   the award of attorney fees and remand this case to the district court for
                   further proceedings consistent with this opinion.




                                                        Gibbons


                   I concur:


                                                   J.
                   Silver




                            14Althoughwe conclude that an award of attorney fees is premature
                   at this time, we note that the district court failed to analyze the Brunzell
                   factors in its award. See Brunzell v. Golden Gate Nat'l Bank, 85 Nev. 345,
                   349, 455 P.2d 31, 33 (1969) (identifying factors a district court must
                   consider when making an award of attorney fees); see also Shuette v.
                   Beazer Homes Holdings Corp., 121 Nev. 837, 865, 124 P.3d 530, 549 (2005)
                   (providing that an award of attorney fees will be deemed reasonable "as
                   long as the court provides sufficient reasoning and findings in support of
                   its ultimate determination").


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                   TAO, J., concurring:
                               I join wholeheartedly in every aspect of the majority's very
                   thorough and well-reasoned opinion, but write separately to address a
                   matter that, historically, the Nevada Supreme Court has not explained as
                   clearly as it perhaps should have. The Nevada Supreme Court has held
                   that advisory opinions issued by executive-branch boards can be deemed
                   "persuasive." Following this principle, the majority concludes that the
                   advisory opinions cited by respondent are not sufficiently persuasive to
                   govern the outcome of this appeal. I fully agree with the majority's
                   conclusion, but my concern is that the Nevada Supreme Court has not
                   always given clear guidance regarding whether, when, and why courts
                   should follow such advisory opinions.
                               Used imprecisely, words can obscure as much as they explain.
                   We say that a judicial opinion can be "persuasive," and we say that an
                   executive-branch board advisory opinion can be "persuasive." In both
                   instances, we use the same word—but we really mean two very different
                   things. If one were to read the supreme court's precedent too loosely, one
                   might come away thinking that we apply the same thought process in both
                   contexts when we not only do not, but cannot.
                               When we read judicial opinions with an eye toward deciding
                   whether to follow them or not, we are exploring the reasoning of other
                   judges who are similarly situated to us, have similar powers and limits,
                   and who are allowed to consider the same things as we could have
                   considered under the rules of evidence, procedure, jurisdiction (both
                   personal and subject matter), standing, mootness, ripeness, waiver and
                   preservation of issues, and all of the other established doctrines of
                   justiciability that govern what courts do and how they do it. A judicial
                   opinion is an expression of how a judge understood a principle of law and
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                   applied it to a set of judicially admissible facts. We consider a judicial
                   opinion to be persuasive, meaning worth extending and applying to other
                   cases with different facts, when it accords with our own sense of what the
                   law means and how we would have likely addressed the same question
                   under the same rules and constraints when faced with a comparable set of
                   facts admitted into evidence.
                               But executive-board advisory opinions are nothing like judicial
                   opinions. Executive boards do not operate under the same rules of
                   evidence or procedure that courts do, they are not constrained by the same
                   jurisdictional and constitutional constraints that courts are, and they may
                   consider things that would never be admitted as evidence in a court of law.
                   In disciplinary matters, the board is simultaneously the prosecutor who
                   decides to bring the action, the judge of how the hearing will be conducted
                   and what evidence will be considered, and the jury who decides the truth
                   of the charge. The very fact that boards can issue "advisory" opinions at
                   all—unbound by judicial considerations of ripeness, mootness, standing, or
                   justiciability—symbolizes one fundamental difference between the
                   operation of a board and the operation of a court.
                               Courts give deference to executive boards, but not because
                   they act like courts; in many ways boards could not operate less like
                   courts, and we need to be careful when applying judicial doctrines like
                   collateral estoppel, res judicata, and "law of the case" to board actions in
                   the same way that we apply them to judicial decisions. Rather, courts give
                   deference to executive boards because they have subject-matter expertise
                   that judges do not. Boards are essentially panels of experts licensed in the
                   field and appointed to regulate the standards of their own profession.
                   Unlike courts run by generalist judges whose principal (or only) training is

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                   in the law, Nevada boards are purposefully structured to include
                   nonlawyer members who lack legal training but who have personal
                   familiarity with the area over which the board exercises jurisdiction,
                   whether the subject matter relates to contractor licensing, osteopathic
                   practices, the qualifications of massage therapists, or any of the other
                   myriad subject areas and professions licensed and supervised by state
                   executive boards in Nevada. By virtue of their experience, board members
                   know things about the subject matter that judges likely will not know and
                   that could never be admitted into evidence in a court governed by rules of
                   evidence. Even board members who have law degrees will likely know
                   more than most judges do about board licensing and discipline, because a
                   court like ours confronts a licensing question perhaps once in a blue moon,
                   if that; but the very purpose of a board is to grapple with the same
                   questions over and over, frequently in disputes that would never reach a
                   court.
                               So, when we say that an advisory opinion issued by a board is,
                   or is not, persuasive, we should not mean that we have reviewed the
                   board's reasoning and picked apart its written opinion in the same manner
                   as we would a judicial opinion, focusing on the clarity of its internal logic
                   or the fairness of its ultimate outcome. Instead, what we should mean is
                   something very different: that the board has, or has not, brought its
                   superior subject-matter expertise to bear on the question at hand in a way
                   that enlightens us and helps us resolve the case before us.
                               In this particular case, this distinction makes no difference
                   because the advisory opinions relied upon here are not persuasive in
                   either sense of the term; they are so narrowly drafted that they are not
                   guideposts to much of anything useful in this case. But that will not

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                   always be true, and there likely will be cases in which thinking about the
                   board's opinion as an example of legal reasoning, and thinking about it
                   instead as an exercise in subject-matter expertise, may lead to very
                   different views on whether we should give weight to what the board
                   thought or did. To the extent that our role includes providing guidance to
                   the public on how questions like this will be analyzed and resolved, we
                   should be clear on precisely what we are saying or else we risk confusing
                   the issue more than clarifying it, even on questions like this one where the
                   potential confusion originates with the words used by the Nevada
                   Supreme Court.


                                                                                      J.
                                                      Tao




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