Vanishing Expectations
All is calm in Sun City. A giant sigh of relieve is heard among our Kitec affected residents as word spreads about the meeting that’s scheduled to take place this coming Sunday. Those class attorneys along with Pulte would be present to answer questions. If the parties in dispute were not cooperating and working together on a mutually agreeable resolution of their differences, there would be no meeting, as many residents are no doubt thinking. Otherwise, why would Pulte agree to meet together on the same stage with those class action attorneys? And why now, in advance of that district court hearing?
As it turns out, at least to this observer, the “why now” overshadows everything else, even the issue of allowing the presence of those class attorneys on the same stage with Pulte in Sunday’s upcoming meeting. I think Pulte has something they believe is terribly important to tell us.
Pulte will tell us that insofar as their offer is concerned, nothing has changed as a result of the efforts of the class attorneys. If you have received an Offer letter and do not accept the Offer by returning the general release form within the time specified, your home will be excluded from the homes getting a needed repair at virtually no cost to the homeowner. Since for many homeowners, that 35-day response time expires in January, Pulte needs to get that message out as soon as possible, now and before that 35-day period expires, notwithstanding what the class attorneys say or would prefer. And if you wish to have your home repaired now (which means within the next year of so), the homeowner has few viable options other than to accept Pulte’s ostensibly free Offer, regardless of what other risks may be present.
And to those of you who may believe that the parties are now working to resolve issues of potential concern, such as whether the settlement terms are fair and reasonable or whether the general release form gives away this or that homeowner right, you will be disappointed to learn that is not the case, at least not at the moment. At the moment, and as reported in today’s South Valley News by Nicole Feneberg Lucht, Pulte has appealed the decision of District Court Judge Tim Williams to the Nevada Supreme Court. That decision barred Pulte from engaging in any “ex parte” communications with Sun City Anthem homeowners, effectively placing a “gag order” on Pulte’s efforts to communicate with homeowners without the consent or concurrence of the class attorneys. How the Supreme Court might respond to Pulte’s appeal is yet to be determined. The Supreme Court has three options: 1) provide Pulte with the requested releif (see below); 2) summarily dismiss the matter and leave it in the hands of the District Court at the Evidentiary Fairness Hearing (if one takes place); or 3) the court may want to hear further argument, in which case, that will delay the matter even more.
Pulte is seeking to vacate (set aside or annul) the judge’s so called “gag order.” The specific relief Pulte is seeking from the Nevada Supreme Court is as follows:
1. This court should hear this petition and issue an order staying the operation of this [lower district] court’s December 22 "gag order” and any subsequent, similar gag orders; and
2. This court should issue a writ of prohibition, or mandamus, effectively vacating all district court orders prohibiting Del Webb from communicating with homeowners regarding this matter.
For the reader’s information, a “stay” is a court-ordered short-term delay in judicial proceedings. A writ of prohibition or mandamus is a court order to a government agency, including another court, to forbid an act or to follow the law by correcting its prior actions or ceasing illegal acts.
So, what will be Pulte’s message to our homeowners?
Nothing has changed, nothing will change, and ignore the class attorneys. And if you do not respond to our Offer when its tendered, you will lose our valued, virtually cost-free opportunity of repair and your rights of repair under NRS Chapter 40 may be compromised as a result.
And what about the class attorneys? What will be their message to homeowners?
There are unsettled issues of law yet to be determined. If the homeowner acts to opt out of the class by executing Pulte’s general release form, the class attorney may not be able to protect your interests and rights. The courts have yet to rule.
As you can see, there are no simple, straight forward answers awaiting our homeowners.
- Will the courts side with Pulte or the class attorneys?
- Say the courts ultimately decide with Pulte. What options, if any, will homeowners have who had rejected Pulte's Offer by failing to return the general release form in a timely manner?
- Say the courts ultimately decide with the plaintiffs counsel, what is the status of that Agreement you executed in accepting Pulte's Offer?
Reproduced immediately below is a portion of Pulte’s legal brief, detailing the sequence of significant events that have transpired and Pulte’s position with respect to those events. A complete copy of that legal brief (except exhibits) may be read here, Pulte’s Appeal to the Supreme Court, 27 December 2006. (Note that many of the exhibits referred to in Pulte’s brief, although not included in our .pdf file, can be found in the Plaintiffs’ brief, elsewhere on our site.)
Ron Johnson, 5 January 2007
_________________________________________________________________________________
PETITION [TO THE SUPREME COURT]
FOR WRIT OF PROHIBITION OR,
in the Alternative, Writ of Mandamus
With Supporting Points and Authorities
Del Webb Communities, Inc. (“Del Webb") petitions this court for a writ of prohibition or, in the alternative, mandamus, vacating the minute order of the district court that prohibits Del Webb from having any contact with homeowners in its Sun City Anthem development in Las Vegas, despite a notice under NRS Chapter 40 that allows petitioner to repair or settle claims of those homeowners.
In furtherance of this petition, Del Webb avers:
The Parties and the Underlying Action to which Del Webb is NOT a Party
1. The real parties in interest ("real parties") Tracie L. Quinterro; Eric W. Quinterro; Ladybeth Panusis; Charles Panusis; Raul Garcia; Brenda Garcia; Stephen Inferrera; Sheila Inferrera; Anna Naumo; Alonzo Collins; Laura Collins; Ronald Carroll; Dorene Carroll; Susan Sheldon; Robert Doslter, are plaintiffs in a class-action construction defect case. Quinterro, et. al., v. Ipex USA, LLC, EJDC Case No. A517493, pending before the respondent district court and Judge Williams. The respondent district court consolidated the underlying action with Classic Plumbing, Inc. v. Ipex., Case No. A493302.
2. Petitioner Del Webb is not a party to the underlying action. Del Webb is the developer of the community commonly known as Sun City Anthem.
3. The underlying action involves claims that 55,000 houses in Clark County were built using allegedly defective Kitec plumbing materials and fittings. Real parties brought the action against Ipex, the manufacturer of the Kitec materials, as well as Classic Plumbing, Inc.; Sharp Plumbing, Inc.; and Cox & Sons Plumbing, Inc. (Ex. A.)
4. The respondent district court certified the class in the underlying action in October 2006. (Ex. B.)
The Chapter 40 Notice to Del Webb
5. On August 22, 2006, real parties Stephen and Sheila Inferrera sent a notice
pursuant to NRS 40.645, on behalf of all "similarly situated" homeowners. (Ex. C.) Del Webb received the notice about August 28, 2006.
Del Webb's Dealings with the Inferreras due to the Chapter 40 Notice
6. On November 10, 2006, Del Webb responded to the Inferrera’s notice by sending a letter stating that the Inferrera home would be repaired. (Ex. G.)
Del Webb's Dealings with the “Similarly Situated” Homeowners
7. On October 20, 2006, Del Webb sent notice to all unnamed, "similarly
situated" homeowners in Sun City Anthem pursuant to NRS 40.6452. (Ex. D.) With
the notice, Del Webb included a form for homeowners to return and request an inspection. (Id.)
8. In the weeks after the notice to homeowners, Del Webb received approximately 2,510 forms requesting inspections.
9. Beginning on December 7, 2006, Del Webb responded to those similarly
situated homeowners who requested an inspection pursuant to NRS 40.6452(3). Del
Webb offers the owners of each home $7,800in monetary compensation pursuant to
NRS 40.6472(b)in exchange for a release and an assignment of rights against Cox
and Sons and Ipex. (See Ex. E, 12/8/06letter attached thereto as Exhibit 9.)
10. Del Webb's notices, offers and contacts with the similarly situated
homeowners were proper under NRS Chapter 40and fulfilled the spirit and purpose of that statutory scheme.
Plaintiffs’ Counsel Claims “Ex Parte” Contact with Homeowners
11. Plaintiffs’ counsel objected to Del Webb's communications with the
homeowners, despite Del Webb's compliance with Chapter 40procedures. On October 26, 2006, Plaintiffs' counsel demanded in a letter to Del Webb that their law firm be involved in all communications with the homeowners. (See Ex. E, 10/24/06 letter attached thereto as Ex. 5 .)
12. Despite the fact that Chapter 40provides no basis for their assertions, plaintiffs' counsel continued to insist, in letters to Del Webb, that any contact with the homeowners must involve their law firm. Counsel made this assertion in letters sent to Del Webb on October 26, November 13, and November 15, 2006. (See letters attached to Ex. E.)
13. In a letter dated November 13, 2006, plaintiffs' counsel further insists
that the Inferrera notice applied to all homes in Clark County built by Del Webb, not
just the homes in Sun City Anthem. (Ex. E.)
The District Court hears Plaintiffs Application and Order
14. On December 19, 2006, after business hours, Plaintiffs' counsel faxed a
copy of an “Ex Parte Application for Order to Show Cause on Order Shortening Time
and Request for Evidentiary Fairness Hearing," filed under the caption of the
consolidated class action, to Del Webb's counsel. (Ex. E.)
15. In the application, Plaintiffs' counsel requests the following relief: (I) an
order to show cause why Del Webb should not be sanctioned for its communications
with class members; (2) disclosure of the names and addresses of those class members already contacted; (3) payment of counsel's costs to contact class members; (4) disclosure of the identity of any person who participated in drafting the release sent to the homeowners; (5) an evidentiary hearing to address the fairness of the monetary :compensation offered by Del Webb to the homeowners; (6) payment of fees and costs to Plaintiffs' counsel; (7) a $1,000 per day sanction until Del Webb produces the names and addresses of all homeowners contacted. (Ex. E.)
16. The hearing on Plaintiffs' ex pate application was held in Department 16 of the district court on December 21, 2006 at 9 a.m. Del Webb had no opportunity to present a written opposition to the application.
17. In response to the application, the district court issued a minute order on December 22, 2006, effectively imposing a "gag order" on Del Webb. (Ex. F.) The court’s order completely barred Del Webb from any "ex parte" contact with Sun City Anthem homeowners. Instead of conducting an evidentiary hearing, the district court “set this matter for an evidentiary hearing within the next 30 days."
The district court minute order goes far beyond the district court's authority. First—and most fundamentally—the order interferes with the proper operation of NRS Chapter 40 and prevents petitioner from exercising its rights to repair or settle with homeowners. Second, the district court placed restrictions on petitioner when Del Webb is not even a party in the underlying litigation.
Now, therefore, petitioner prays for relief as follows:
1. This court should hear this petition and issue an order staying the operation of this [lower district] court’s December 22 "gag order” and any subsequent, similar gag orders; and
2. This court should issue a writ of prohibition, or mandamus, effectively vacating all district court orders prohibiting Del Webb from communicating with homeowners regarding this matter.
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