By the Court, HARDESTY, J.:
In this extraordinary writ proceeding, we must determine whether NRS 11.259(1) compels dismissal where the initial pleading in an action alleging nonresidential construction malpractice was served without filing the attorney affidavit and expert report required by NRS 11.258(1) and (3). We take this opportunity to extend our analysis and holding in Fierle v. Perez, 125 Nev. ___, ___, 219 P.3d 906, 914 (2009) (interpreting NRS 41A.071's expert affidavit requirement in medical malpractice actions) to apply to a defective pleading served in violation of NRS 11.258. Such a pleading is void ab initio and of no legal effect and, thus, cannot be cured by amendment. Therefore, because the initial pleadings
This wrongful death and personal injury matter arose out of claims for damages allegedly caused by a defect in street improvements to Cheyenne Avenue in Las Vegas. A vehicle operated by someone who is not a party to this writ proceeding was driving on Cheyenne when it ran into a median and collided with oncoming traffic, killing the driver of the other car and injuring the passenger, real party in interest Christopher Watkins. The decedent's family and Watkins filed suit against the parties involved in the construction project, including the other real parties in interest.
In September 2009, real party in interest Pacificap Construction Services, LLC (PCS), the general contractor, filed a third-party complaint against petitioner Otak Nevada, LLC, the design architect, alleging claims for negligence, breach of contract, breach of express and implied warranties, implied indemnity, express indemnity, equitable indemnity, contribution, and apportionment, and seeking declaratory relief, related to
Otak filed a motion to dismiss PCS's amended third-party complaint on the grounds that the affidavit and report were not filed concurrently with or before the original third-party complaint, as required by NRS 11.258. Citing this court's holding in Fierle, 125 Nev. at ___, 219 P.3d at 914 (holding that a medical malpractice complaint filed without the statutorily required expert report is void and cannot be amended), Otak argued that the third-party complaint was void ab initio. The district court conducted a hearing and denied Otak's motion, stating that the holding in Fierle applied only to medical malpractice cases.
After the district court denied Otak's motion to dismiss, real parties in interest Pacificap Properties Group, LLC; Pacificap Holdings XXIX, LLC; Chad I. Rennaker; and Jason Q. Rennaker (collectively, P & R) filed a motion for leave to amend their answer and assert cross-claims against Otak. Similar to its motion to dismiss PCS's amended third-party complaint, Otak opposed P & R's motion to amend for failure to file the required attorney affidavit and expert report and argued that the cross-claim was void ab initio under Fierle. The district court conducted a hearing on this motion as well and granted P & R's motion to amend, and the court further found that P & R could rely on PCS's expert report instead of filing its own expert report. The district court also orally concluded that, based on its ruling that P & R could rely on PCS's expert report, Watkins
In its petition, Otak maintains that the district court erred by ruling that PCS's and P & R's pleadings were not void when those parties failed to file an affidavit and expert report, as required by NRS 11.258(1) and (3). This argument raises an issue of first impression in Nevada: Is a construction design malpractice pleading void ab initio if the statutorily required attorney affidavit and expert report are not filed with the court before the initial pleading is served? Because the determination of this issue is not fact-bound and it involves an unsettled question of law that is likely to recur, and because this case is in the early stages of litigation and resolving this question now promotes judicial economy, we conclude that our consideration of this writ petition is warranted. See County of Clark v. Upchurch, 114 Nev. 749, 753, 961 P.2d 754, 757 (1998) (concluding that addressing an issue was appropriate because it would "likely rise again and its resolution might forestall future litigation"); NRS 34.330 (recognizing that a writ of mandamus is available only when no adequate legal remedy exists); International Game Tech. v. Dist. Ct., 124 Nev. 193, 197-98, 179 P.3d 556, 559 (2008) (noting that the right to appeal from a future final judgment is not always an adequate legal remedy precluding writ relief, such as when the case is at early stages of litigation and writ relief would promote policies of sounds judicial administration); Buckwalter v. Dist. Ct., 126 Nev. ___, ___, 234 P.3d 920, 921 (2010) (recognizing
This court has original jurisdiction to issue writs of mandamus. Nev. Const, art. 6, § 4. "A writ of mandamus is available to compel the performance of an act that the law requires as a duty resulting from an office, trust, or station, or to control a manifest abuse of discretion." We the People Nevada v. Secretary of State, 124 Nev. 874, 879, 192 P.3d 1166, 1170 (2008).
The district court based its orders denying Otak's motion to dismiss PCS's third-party complaint and granting P & R's motion to file an amended answer and cross-claim on its interpretation and application of NRS 11.258. "This court reviews a district court's statutory construction determinations de novo." Fierle, 125 Nev. at ___, 219 P.3d at 910.
An initial pleading for nonresidential construction defect claims is void ab initio if it is served before an attorney affidavit and expert report are filed with the court
NRS 11.258(1) and (3)
The use of the word "`[s]hall' imposes a duty to act." NRS 0.025(1)(d); see also S.N.E.A. v. Daines, 108 Nev. 15, 19, 824 P.2d 276, 278 (1992) ("`[S]hall' is mandatory unless the statute demands a different construction to carry out the clear intent of the legislature."); Washoe Med. Ctr. v. Dist. Ct., 122 Nev. 1298, 1303, 148 P.3d 790, 793 (2006) ("`[S]hall' is mandatory and does not denote judicial discretion."). Thus, the Legislature's use of "shall" in NRS 11.259 demonstrates its intent to prohibit judicial discretion and, consequently, mandates automatic dismissal if the pleading is served without the complaining party concurrently filing the required affidavit and report. See Washoe Med., 122 Nev. at 1303, 148 P.3d at 793-94.
In Washoe Medical Center v. District Court, 122 Nev. at 1303, 148 P.3d at 793-94, we addressed a statutory interpretation issue similar to the one raised in this case, when we analyzed NRS 41A.071. That statute provides, in pertinent part, as follows:
We determined that NRS 41A.071's mandatory language did not give the district court the discretion to allow a party to amend a complaint alleging medical malpractice that was filed without the required affidavit. Washoe Med., 122 Nev. at 1303, 148 P.3d at 793-94. Later, in Fierle, we reasoned that because a complaint filed under NRS 41A.071 without the required affidavit was void ab initio, "such complaints may not be amended because they are void and do not legally exist." 125 Nev. at ___, 219 P.3d at 914; see also Washoe Med., 122 Nev. at 1300,
In this case, PCS served its initial pleading asserting nonresidential construction malpractice claims against Otak without concurrently filing the required attorney affidavit and expert report in direct violation of NRS 11.258, and, thus, we conclude that PCS's initial pleading is void ab initio. The provision of NRCP 15(a) that allows "[a] party to amend the party's pleading once as a matter of course at any time before a responsive pleading is served" is inapplicable when that pleading is void for not complying with NRS 11.258, because a void pleading does not legally exist and thus cannot be amended. See Washoe Med., 122 Nev. at 1304, 148 P.3d at 794. Because the initial pleading was void for violating NRS 11.258, the district court had no discretionary authority to allow PCS to amend its pleading. Therefore, we conclude that the district court abused its discretion when it denied Otak's motion to dismiss PCS's amended third-party complaint.
P & R, rather than simply filing an amended complaint like PCS, moved for the district court for leave to amend their answer and to assert cross-claims for equitable indemnity and contribution against Otak. The district court not only granted P & R's motion, but also allowed them (and Watkins, who did not even move to amend his claims against Otak) to rely on PCS's expert report, rather than requiring each party filing a claim against Otak to file their own expert report. As stated above, granting the motion to amend was reversible error because the pleading was void ab initio for being served without filing the expert report and attorney affidavit. Additionally, the district court erred by allowing P & R (and Watkins) to rely on PCS's expert report because NRS 11.258(1) provides that "the attorney for the complainant shall file" the expert report and affidavit. Each party that files a separate complaint for nonresidential construction malpractice must file its own expert report and attorney affidavit. See Washoe Med., 122 Nev. at 1303, 148 P.3d at 793. Requiring each party to file a separate expert report and attorney affidavit that are particularized to that party's claims is not an unreasonable requirement, as each party must justify its claims of nonresidential construction malpractice based on that party's relationship with the defendant.
Accordingly, for the reasons set forth above, we grant Otak's petition for extraordinary relief as to the nonresidential construction defect claims against Otak
We concur: SAITTA, C.J., and PARRAGUIRRE, J.