130 Nev., Advance Opinion 605 

IN THE SUPREME COURT OF THE STATE OF NEVADA 

KELLY BARRETT, AN INDIVIDUAL; 

DEAN AND WENDY COOPER, 

HUSBAND AND WIFE; RICHARDS 

ZIEMELIS AND SHELLY CONNELLZIEMELIS, HUSBAND AND WIFE; 

HARRY AND LISA BURGESS, 

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, 

SUPREME COURT 

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NEVADA 

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No. 63871 

FILED 

AUG 0 7 2014 

-L425-7I 
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. 

1The Honorable 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. 

3Similarly, 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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RCR to give notice of the construction ects, to Uponor. 4 

//1/7 

itvNl , C.J. 

district court to vacate the portion of its August 2, 2013, order directing 

Gibbons 

We concur: 

Pickering 

A Lt 

Hardesty 

J. 

Douglas 

41n light of this conclusion, the homeowners' alternative request for 

a writ of prohibition is denied. 

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