Yes, you did!  No, I didn’t!

Plaintiffs Attorney vs. Pulte

on Whether Pulte Violated Nevada Law

What are those greedy attorneys telling Pulte? Are they even talking with one another? And how did Pulte respond? While it might be nice to be that fly on the wall listening in on their conversations, we have what amounts to the next best thing by reading their legal brief. From an examination of plaintiffs legal brief, we can learn their legal strategy, Pulte's position, their respective arguments, case law and authority, and, in this instance, we can even read their correspondence between legal counsels.

For those who wish to wade into the legalese of what has been occurring between Pulte and the class attorneys, you can glean a lot from the legal document that was filed by the Plaintiffs attorney with the district court on December 20th. I have appended a short outline of the Plaintiffs legal brief at the bottom of this page. A complete copy of that 77 page brief may be read here. Plaintiffs Legal Brief, 20 December 2006

A central dispute between the parties has been over whether the class attorneys have any jurisdiction over the actions taken by Pulte here in Sun City Anthem. Pulte writes that the class attorneys do not have any jurisdiction while the class attorney writes that they do. So, who’s right? We assume the court will make that determination and that the parties will agree (although that is not a certainty since decisions can be appealed).

Pulte’s legal counsel takes the following position on jurisdiction:  

“We find no authority in NRS Chapter 40 stating [the] your firm represents or otherwise has a legal relationship with any of the unnamed "similarly situated" Sun City Anthem homeowners. Del Webb committed no impropriety in electing to communicate directly with the Sun City Anthem homeowners.” Letter to plaintiffs counsel, 3 Nov., see Exhibit 6.]

Responding, the plaintiffs attorney writes, in part, as follows:

“Unfortunately, I must disagree with your conclusion. As Class Counsel, my firm has a substantive duty imposed by the Court and case law to protect the interests of the class, which includes Pulte homeowners whose homes contain Kitec Fittings. Thus, this firm has a direct legal relationship with all Pulte homeowners whose homes contain Kitec Fittings regardless of Chapter 40. Further, under Chapter 40, this firm is entitled to attorney's fees and costs for similarly situated homes that you repair because our Chapter 40 notice was the impetus of Pulte's response. Therefore, your claim that no “legal relationship" exists between this firm and similarly situated Pulte homeowners is  unfounded.” [Letter to Pulte’s legal counsel, 15 Nov., see Exhibit 8.]

One may assume that this argument will continue before the court at the hearing in January. At that time, Pulte’s legal counsel can be expected to provide a legal brief setting forth their position on this matter, unless they have changed their mind in the interim.

With respect to the plaintiffs brief that brought Pulte into court in the first place, I’ll leave that for your perusal, highlighting for you below only those legal matters that are summarized in an “Introduction” section and later are discussed in greater detail in the 19 page legal brief.

As covered by their legal brief, here is how the plaintiffs attorney secured the court’s attention:

“. . . . Builder Del Webb/Pulte ("Pulte") is now attempting to circumvent NRCP 23 and Chapter 40 by offering money to Sun City Anthem homeowners without the advice of Class Counsel or approval of this Court in exchange for a release and assignment of all claims related to Kitec Fittings (the "Release Offer"). Class Members therefore respectfully request this Court to issue an Order to Show Cause why Pulte should not be sanctioned because:

• Pulte's letter violates NRCP 23.  Under NRCP 23(e), a class action "shall not be dismissed or compromised without the approval of the court." Despite Pulte's knowledge of this class action, it has secretly distributed an illegal release and assignment for all claims regarding Kitec Fittings that violates Nevada law and the substantive rights of Class Members without notice to Class Counsel or this Court;

• Pulte's letter violates Chapter 40.  Under NRS 40.648(4), a Builder's election to repair cannot be conditioned upon a release of liability. However, Pulte's secret letter specifically and illegally conditions its $7,800 payment for the repair of defective Kitec Fittings upon the homeowners' execution of a general release of liability; and

• Pulte's Release Offer is unfair, inadequate, and unreasonable on its face.  Because Pulte's Release Offer is clearly unfair.”

The above quoted material is from the "Introduction" of the 14-page section on MEMORANDUM OF POINTS AND AUTHORITIES, or P&A for short, which begins on page 6 of the brief. In any legal case, the P&A section sets forth the facts and arguments that support the parties favor, whether that be the plaintiffs favor or the defendants favor.

Ron Johnson, 31 December 2006

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Here is a short outline of the major elements of the plaintiffs legal brief.

1. Identifies (pg. 1) the case (and other facts) before the court, in this instance: Case No. A493302
2. Identifies (pg. 1) the reason the party is seeking the court’s attention. In this case the plaintiffs are seeking the court’s attention for the following reasons: EX-PARTE APPLICATION FOR ORDER TO SHOW CAUSE ON ORDER SHORTENING TIME AND REQUEST FOR EVIDENTIARY FAIRNESS HEARING
3. Provides (Pg. 2) a short explanation of why Pulte should be sanctioned for violations of the Nevada Rule of Civil Procedure 23 and Chapter 40, and to hear their application on the above two matters.
4. APPLICATION FOR ORDER SHORTING TIME, Pages 3-5.
5. ORDER SHORTING TIME, Page 6. An Order for Shortening Time refers tells the court that they need to hear the matter NOW due to unusual or special circumstances and that the regular rules of procedure are not applicable. The court has the option of rejecting the application or agreeing to hear the matter.
6. EX PARTE APPLICATION FOR ORDER TO SHOW CAUSE ON ORDER SHORTING TIME, Page 6.
7. MEMORANDUM OF POINTS AND AUTHORITIES, Pages 6-19.
1. I.      INTRODUCUTION
2. II.     STATEMENT OF FACTS
3. III.    ARGUMENT
4. IV.    CONCLUSION

There are a number of Exhibits, covering pages 20-77.

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