338.635 - Action by subcontractor or supplier to remedy unjustified or excessive withholding.
338.635 Action by subcontractor or supplier to remedy unjustified or excessive withholding.
1. A subcontractor or supplier who believes that the amount withheld by the contractor or subcontractor is not justified or is excessive may apply to the district court of the county where the public work or a part thereof is located for an order directing the contractor or subcontractor to appear before the court to show cause why the relief requested should not be granted.
2. The motion must:
(a) Set forth the grounds upon which relief is requested; and
(b) Be accompanied by a notarized affidavit signed by the petitioner or his or her attorney that sets forth the facts upon which the motion is based.
3. If the court orders a hearing based upon the motion, the petitioner shall serve the notice of the motion and the order of the court on the respondent within 3 days after the court issues the order. The court shall conduct the hearing not less than 10 days and not more than 20 days after the court issues the order for a hearing.
4. The order for a hearing must include a statement that, if the respondent fails to appear at the time and place of the hearing, the court will order the respondent to pay to the petitioner:
(a) The entire amount that was withheld by the respondent, or a portion thereof;
(b) Interest on the amount that was withheld by the respondent, or a portion thereof;
(c) The costs incurred by the petitioner, including, without limitation, his or her attorney’s fees; or
(d) Any combination of paragraphs (a), (b) and (c).
5. If, when the motion is filed, there is a civil action pending between the petitioner and the respondent, the motion must be consolidated into the civil action.
6. If the court determines that:
(a) The amount withheld is not justified, the court shall order the respondent to pay to the petitioner the amount that was withheld.
(b) The amount withheld is excessive, the court shall order the respondent to pay to the petitioner an amount determined by the court.
(c) The amount withheld is justified, the court shall issue an order approving the amount that was withheld by the respondent.
7. The proceedings conducted pursuant to the provisions of this section do not affect any other rights or remedies provided by law or contract.
(Added to NRS by 1999, 1990)