JAMES R. OLSON and CANDACE COLLINS OLSON, Appellants, v. THOMAS and CAROL RICHARD dba AZTECH PLASTERING COMPANY, Respondents
Olson v. Richard
JAMES R. OLSON and CANDACE COLLINS OLSON, Appellants, v. THOMAS and CAROL RICHARD dba AZTECH PLASTERING COMPANY, Respondents.
JAMES R. OLSON and CANDACE COLLINS OLSON, Appellants, v. THOMAS and CAROL RICHARD dba AZTECH PLASTERING COMPANY, Respondents.
No. 40259
May 12, 2004
89 P.3d 31
Rawlings Olson Cannon Gormley & Desruisseaux and Michael E. Stoberski, Las Vegas, for Appellants.
Brady, Vorwerck, Ryder & Caspino and Michael W. Caspino, Tracey L. Heinhold, and Charles W. Simmons, Las Vegas, for Respondents.
OPINION
Per Curiam:
This appeal presents an issue of first impression related to construction defects cases brought under Chapter 40 of the Nevada Revised Statutes. Based on our decision in Calloway v. City of Reno, wherein this court held that a plaintiff may not allege a negligence claim for purely economic losses in a construction defects case, the district court dismissed appellants' negligence claim. We conclude that the district court erred because, unlike at common law, a plaintiff can pursue a negligence claim when suing under NRS Chapter 40.
FACTS
In August 1994, James and Candace Olson (the Olsons) contracted with Structure Control, Inc. (SCI), through its president Donald W. Layton, to act as general contractor to construct a custom home for them in Las Vegas. The Olsons requested a three-coat light sand stucco finish, painted with elastomeric paint. SCI entered into a contract with Aztech Plastering Company (Aztech) for the stucco application.
In October 1995, SCI abandoned the construction of the Olsons' home after apparently running out of money. Thereafter, the Olsons confirmed the stucco contract with Aztech and hired Stanton Construction as a managing contractor.
Following Aztech's application of the stucco, the Olsons expressed their concern because the home's exterior did not appear to be a smooth sand finish. According to Mr. Olson, Aztech's foreman assured him that the exterior would look smooth after the elastomeric paint was applied. However, the Olsons claimed that even after the paint was applied, the home's exterior did not appear smooth.
To achieve the smooth finish the Olsons desired, Stanton Construction recommended that either the stucco be sandblasted off and reapplied or a layer of polymer be applied to the outside of the home. The Olsons opted to apply the polymer because it was more economical and less intrusive. However, the Olsons claimed that the exterior still did not appear smooth, despite the application of the polymer.
In addition to the Olsons' aesthetic complaints relating to the stucco, they also complained that stucco fell off the home in various places. And, the Olsons discovered water intrusion when it rained — water seeped through some of the windows in the home. As a result, the Olsons hired construction expert Jerry Lawrence to investigate.
Lawrence observed that the weep holes — requisite exterior egress openings in the windows for accumulated rainwater — were in many instances covered with exterior stucco. Lawrence also observed that several areas of stucco detailing and finishing appeared to have been inappropriately applied, which he opined could have caused the present water intrusion and could lead to surface deterioration in the future. Lawrence opined that inferior stucco application caused the water intrusion, and he recommended that much of the stucco be removed and new stucco applied.
In October 1997, the Olsons made a Chapter 40 demand on SCI through a letter sent to Layton's and SCI's last-known addresses. Although the letter mentioned Aztech, Aztech was not directly sent a copy of the letter. In December 1997, after receiving no response from SCI, the Olsons filed a complaint against, among others, SCI and Aztech. The Olsons based their construction defects claims on Chapter 40 and common law, alleging negligence, breach of contract, breach of warranty, breach of the duty of good faith and fair dealing, and negligent misrepresentation.
During the trial, Aztech moved to dismiss the Olsons' negligence claim, arguing that Calloway restricts a plaintiff's right to sue for negligence in a construction defects cause of action. The Olsons countered that Calloway was inapplicable because it was decided based on facts that predated the Nevada Legislature's enactment of Chapter 40, which they argued permitted their negligence claim. The district court ruled that the Olsons' negligence claim was barred by Calloway and, thus, dismissed the claim.
At the close of the trial, the jury returned a unanimous verdict in favor of Aztech. Thereafter, the Olsons filed a motion for judgment notwithstanding the verdict or, in the alternative, for a new trial. The district court denied the Olsons' motion. The Olsons now appeal from the judgment, including the dismissal of their negligence claim, and from the denial of their motion for a new trial.
DISCUSSION
In Calloway, this court concluded that the economic loss doctrine applied to construction defects cases. Accordingly, this court held that a negligence claim could not be maintained in a construction defects cause of action for purely economic losses where there is no personal injury or property damage other than to the structure itself. Prior to this court's decision in Calloway, the Legislature enacted Chapter 40 to aid in resolving construction defects disputes between contractors and homeowners. But because the claims in Calloway predated the enactment of Chapter 40, we did not address whether a negligence claim could be brought under Chapter 40.
Our objective in construing Chapter 40 is to give effect to the Legislature's intent. NRS 40.640 states that a contractor is liable for any construction defects resulting from his acts or omissions or the acts or omissions of his agents, employees, or subcontractors. This language in no way limits a homeowner's recovery to construction defects covered by a contract or warranty. Thus, we presume that the Legislature envisioned that Chapter 40 would provide more than just contractual remedies.
Additionally, NRS 40.635(2) clarifies that Chapter 40 prevails "over any conflicting law otherwise applicable to the claim or cause of action." Until our holding in Calloway, this court was consistently reluctant to apply the economic loss doctrine to construction defects cases. This was the state of the law at the time the Legislature enacted Chapter 40 in 1995. Hence, it is reasonable to infer that the Legislature did not intend for the economic loss doctrine to preclude a homeowner from alleging a negligence claim in a construction defects cause of action initiated pursuant to Chapter 40. Consequently, we now conclude that, notwithstanding our holding in Calloway, a negligence claim can be alleged in a construction defects cause of action initiated under Chapter 40.
The Olsons argue that the district court should have granted their motion for a new trial based on the misconduct of Aztech's counsel. We have stated that granting a new trial based upon the prevailing party's misconduct does not require proof that the result of the trial would have been different absent counsel's misconduct. However, we have also stated that for a new trial to be warranted, "the flavor of misconduct must sufficiently permeate an entire proceeding to provide conviction that the jury was influenced by passion and prejudice in reaching its verdict." We agree that many of Aztech's counsel's remarks were improper, particularly informing the jury that his clients were not wealthy people. Nonetheless, we conclude that the district court did not abuse its discretion in denying the Olsons' motion for a new trial, since it is not evident that the jury reached its verdict solely on the basis of passion and prejudice.
Because the district court erred in dismissing the Olsons' negligence claim, we reverse and remand for further proceedings consistent with this opinion.
116 Nev. 250, 993 P.2d 1259 (2000).
.Id. at 261, 993 P.2d at 1267.
Id. at 265, 993 P.2d at 1269.
See State v. Kopp, 118 Nev. 199, 204, 43 P.3d 340, 343 (2002).
See Calloway v. City of Reno, 113 Nev. 564, 571-72, 939 P.2d 1020, 1025 (1997) (concluding that despite the economic loss doctrine, strong policy considerations favor allowing a homeowner to recover damages for a negligently constructed home), opinion withdrawn, 114 Nev. 1157, 971 P.2d 1250 (1998); Oak Grove Inv. v. Bell & Gossett Co., 99 Nev. 616, 625, 668 P.2d 1075, 1080-81 (1983) (concluding that the economic loss doctrine did not bar recovery for negligence when the appellant alleged that a defective plumbing and heating system caused water leakage throughout and damage to the appellant's apartment).
Barrett v. Baird, 111 Nev. 1496, 1515, 908 P.2d 689, 702 (1995).
Standard Oil of California v. Perkins, 347 F.2d 379, 388 (9th Cir. 1965), quoted in Barrett, 111 Nev. at 1515, 908 P.2d at 702.
See Camerino v. The Mirage Casino-Hotel, 117 Nev. 19, 30, 16 P.3d 415, 422 (2001) (Rose, J., concurring in part and dissenting in part) (observing that it is misconduct for an attorney to deliberately attempt to appeal to the economic prejudices of the jury).
See Krause Inc. v. Little, 117 Nev. 929, 933, 34 P.3d 566, 569 (2001) (observing that this court will not reverse a district court's denial of a motion for a new trial absent a palpable abuse of discretion).