More judges are needed to hear construction-defect litigation in Las Vegas, and district courts should be able to dismiss cases without merit in a summary judgment, Nevada Supreme Court Chief Justice Mark Gibbons said Wednesday.
“I was a real estate lawyer and I understand the concerns of subcontractors about how long it took to hear cases,” Gibbons said at the Nevada Subcontractors Association’s monthly luncheon. “When I got to the Supreme Court, I wanted to change the standards of how we dismiss frivolous lawsuits.”
Gibbons has proposed an interim Court of Appeals for Nevada, the state with the largest population without a Court of Appeals.
District Court cases are now appealed directly to the Supreme Court. Gibbons and colleagues hear everything from prisoners complaining about their food to drunken drivers appealing license suspensions.
Gibbons said he’s heard a lot of discussion about Nevada Revised Statutes Chapter 40, which covers construction defects and right-to-repair notification, and nobody seems to like it.
“Lawyers say it’s bad. They want to get rid of it,” he said. “It’s episodic. I don’t know if there’s a consensus between plaintiffs and contractors. There’s the right to repair, but there’s a big argument about the type of notification. There’s these battles over what is proper notice.”
The Supreme Court developed a “reasonable threshold test” last year in a Chapter 40 case involving home builder D.R. Horton, giving trial court judges more discretion in “making the call” on determining proper notice, Gibbons said.
State Sen. Mike Schneider said the right-to-repair law is not working well, and legislators need to tweak Chapter 40.
“It can’t be a ‘gotcha’ thing,” he said. “They play ‘gotcha.’ If there really is a problem, give the contractor a fair opportunity to take care of it. I talked to one guy last week, an expert witness, and he said all they need is spilled paint to get it (defect litigation) started.”
Subcontractors spend more time in litigation than they do developing their business, Nevada Subcontractors Association executive director Cindy Creighton said.
“The last phase of construction is now referred to as the lawsuit phase,” she said.
Local real estate attorney Aviva Gordon said Chapter 40 needs “substantial modification” on construction defects. Some home buyers are dragged into construction-defect litigation without their consent, she said.
“It’s horrible, especially in this economy where people are struggling as it is and their only alternative is to sell their house and they can’t sell or refinance,” Gordon said. “They’re in the unenviable position of not being able to go through the course of foreclosure.”
Contact reporter Hubble Smith at firstname.lastname@example.org or 702-383-0491.