MAR 1 0 2016 

CIE K. LAIDEMAN 

ECO 

CHIErDEPUTCLER 

CLE 

BY 

T 

132 Nev., Advance Opinion 

IN THE COURT OF APPEALS OF THE STATE OF NEVADA 

TIMOTHY TOM, AN INDIVIDUAL, 

Appellant, 

vs. 

INNOVATIVE HOME SYSTEMS, LLC, 

A NEVADA LIMITED LIABILITY 

COMPANY, 

Respondent. 

TIMOTHY TOM, AN INDIVIDUAL, 

Appellant, 

vs. 

INNOVATIVE HOME SYSTEMS, LLC, 

A NEVADA LIMITED LIABILITY 

COMPANY, 

Respondent. 

No. 65419 

No. 66006 ./ 

FILED 

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. 

10) 1947B 
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 IHS 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) IHS 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 IHS to correct nine of the 

items listed in the complaint. 

The investigator also requested a response to Tom's complaint 

from IRS. IRS 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 "[o]n occasion, . . . some low voltage wire needs to be 

pulled through previously constructed walls for aesthetic purposes to allow 

the systems to operate." IHS 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 
claimed the overlap would possibly occur in future jobs, but not in this 

case. 

After IHS 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. IHS also requested attorney fees. After an initial round of 

dispositive motions by both parties were denied without prejudice, IRS 

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 IRS 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-The Honorable James Brennan heard the initial dispositive motions 

filed by IHS 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 IRS did not need a license. First, the court concluded 

that if IHS 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 IRS 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' 

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 IHS 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 IHS 

$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 IHS 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 IHS 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, IHS cannot enforce its 

mechanic's lien or maintain an action against him to collect compensation 

on the parties' contract. In response to these assertions, IHS 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 

2VVhile this 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, 71849, 

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, 3or 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[J . . . construct, alter, repair, 

add to, subtract from, improve, move, wreck or demolish any building." 

NRS 624.020(2). 

8 
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 IHS. 

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 IRS 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 IHS 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 IHS 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 IRS 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 

10 
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 P.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, 

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(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 ceaseand-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 624]." 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"); NRS 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 

14 
IHS 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 

IHS 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, 5and no 

administrative record that complied with the statute. See NR,S 

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. 

15 
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. 7We now turn to the 

6IHS 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). 

7IHS 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 

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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. 

8The 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. Thorn sberry, 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. 9We disagree with the district court's 

interpretations and conclude that the advisory opinions are not 

persuasive. 

9The 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 IHS—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 IHS summary judgment on that issue. Thus, when viewing all of 

this evidence in the light most favorable to Torn, we conclude that IHS 

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 IHS 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 

10IHS 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 IHS 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 IHS 

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 IHS in full ii Thus, summary judgment on this issue 

was improper as well. See id. Therefore, regarding the district court's 

11For example, IHS'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 IHS's responsibility. 

Tom's affidavit, however, asserts that IHS 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 IHS. 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 

12Because 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. 

13The district 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 IRS 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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C.J. 

abused its discretion by not making any findings regarding the Brun,zell 

factors. 14Because 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 

14Although we 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 
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. 

Tao 

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