Vistana Condo. Owners Ass'n., Inc. v. Dist. Ct. (Montesa, LLC)

IN THE SUPREME COURT OF THE STATE OF NEVADA

VISTANA CONDOMINIUM OWNERS No. 68595
ASSOCIATION, INC.,
Petitioner,
vs.
THE EIGHTH JUDICIAL DISTRICT
COURT OF THE STATE OF NEVADA,
IN AND FOR THE COUNTY OF FILED
CLARK; AND THE HONORABLE
NANCY L. ALLF, DISTRICT JUDGE, APR 1 5 2016
Respondents, TRACIE K. LINDEMAN

and BY__52,11-ktcbly.
DEPUTY CLERK
_
CLERK OF SUPREME COURT

MONTESA, LLC; HODAKA, LLC; PARK
VILLAGE HOMEOWNERS
ASSOCIATION; PEAKS
HOMEOWNERS ASSOCIATION;
SAHARA MOUNTAIN VISTA
HOMEOWNERS ASSOCIATION;
SEASONS AT ALIANTE COMMUNITY
ASSOCIATION; SEVEN HILLS
MASTER ASSOCIATION; SILVERADO
RANCH LANDSCAPE MAINTENANCE
CORPORATION; SILVERLYN
HEIGHTS COMMUNITY
ASSOCIATION; SOUTHPARK
CONDOMINIUM ASSOCIATION;
SOUTHWEST RANCH HOMEOWNERS
ASSOCIATION; SPRING MOUNTAIN
RANCH MASTER ASSOCIATION;
SQUIRE VILLAGE AT SILVER
SPRINGS COMMUNITY
ASSOCIATION; SUMMERFIELD
VILLAGE HOMEOWNERS
ASSOCIATION, INC.; SUN CITY
SUMMERLIN COMMUNITY
ASSOCIATION, INC.; SUNRISE RIDGE
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 HOMEOWNERS ASSOCIATION, INC.;
TALASERA AND VICANTO
HOMEOWNERS ASSOCIATION;
TIERRA LAS PALMAS OWNERS
ASSOCIATION; TERRA LINDA
TOWNHOUSE HOMEOWNERS
ASSOCIATION; TRIPOLY AT WARM
SPRINGS SOUTH HOMEOWNERS
ASSOCIATION; VICTORY OVATION
HOMEOWNERS ASSOCIATION; AND
VILLAGE AT CRAIG RANCH
HOMEOWNER'S ASSOCIATION,
Real Parties in Interest.

ORDER DENYING PETITION FOR WRIT OF MANDAMUS

This is an original petition for a writ of mandamus challenging
a district court order denying a motion to dismiss for failure to pursue
alternative dispute resolution before bringing suit against a Nevada
homeowner association (HOA).
In May 2011, real party in interest Montesa challenged the
superpriority liens petitioner Vistana and other HOAs recorded against
properties Montesa acquired at first deed of trust foreclosure sales. NRS
38.310 requires that disputes involving the "interpretation, application or
enforcement" of covenants, conditions and restrictions (CC&Rs) be
submitted to mediation and, if the parties agree, arbitrated before suit is
brought. Accordingly, Montesa pursued Nevada Real Estate Division
(NRED) arbitration against Vistana and the other named defendants
before commencing this action. Montesa was asked during NRED
discovery to identify the properties involved in its claims, which it did.
Thereafter, Montesa purchased Vistana condominium #207, which it did
not include on its NRED discovery response list. In an attachment to its
second amended complaint, Montesa nonetheless identified Vistana
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 condominium #207 as one of the many properties whose HOA liens are at
issue in this lawsuit.
Vistana joined its co-defendants' partial motion to dismiss for
lack of subject matter jurisdiction, claiming the district court lacked
jurisdiction to entertain the dispute over the HOA lien calculations as to
certain properties, including Vistana condominium #207, because those
properties had not been included on Montesa's NRED discovery response
list. The district court denied the motion to dismiss on September 18,
2014. Vistana did nothing further on the issue until March 27, 2015,
when it filed its motion for reconsideration. After the district court denied
Vistana's motion for reconsideration on May 4, 2015, Vistana waited until
August 11, 2015, to file its petition for a writ of mandamus.
"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 an arbitrary or capricious exercise of discretion." Int'l
Game Tech., Inc. v. Second Judicial Dist. Court, 124 Nev. 193, 197, 179
P.3d 556, 558 (2008). Mandamus is reserved for matters "where there is
not a plain, speedy and adequate remedy in the ordinary course of law."
NRS 34.170. The decision to entertain an extraordinary writ petition,
such as mandamus, lies within this court's discretion. Libby v. Eighth
Judicial Dist, Court, 130 Nev., Adv. Op. 39, 325 P.3d 1276, 1278 (2014).
Review on eventual direct appeal normally affords an adequate remedy,
sufficient to defeat mandamus relief. Williams u. Eighth Judicial Dist.
Court, 127 Nev. 518, 524, 262 P.3d 360, 364 (2011) ("[T]he opportunity to
appeal a final judgment typically provides an adequate legal remedy.").
Here, if Vistana is correct about condominium #207 being
included in error in the suit because arbitration was required but not

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 pursued as to its HOA lien on that unit, the issue is one this court can
review on appeal from the eventual final judgment. There appear to be a
number of different properties involved, and a mix of statutory and CC&R-
based claims, with exhaustion of NRED alternative dispute resolution an
issue for very few of them. While it is true that the law remains unsettled
respecting NRS 38.310's arbitration requirements, allowing this case to
proceed to judgment in the district court will present a better record for
resolving the legal issues involved, as the factual and legal posture will be
more fully developed. Cf. Buckwalter v. Eighth Judicial Dist. Court, 126
Nev. 200, 201, 234 P.3d 920, 921 (2010) ("Normally, this court will not
entertain a writ petition challenging the denial of a motion to dismiss but
we may do so where, as here, the issue is not fact-bound and involves an
unsettled and potentially significant, recurring question of law."). Also,
Vistana's nearly year-long delay in seeking mandamus militates against
extraordinary writ relief. See State v. Eighth Judicial Dist. Court, 116
Nev. 127, 134•35, 994 P.2d 692, 697 (2000) (applying the doctrine of laches
to a petition for a writ of mandamus after an 11 month delay in the filing
of the petition).
Accordingly, we
ORDER the petition DENIED.

Hardesty

,J. I" I
Saitta Pickering

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 cc: Hon. Nancy L. Allf, District Judge
Pengilly Law Firm
Alverson Taylor Mortensen & Sanders
Law Office of Andrew H. Pastwick, LLC
Boyack Orme & Taylor
Wolf, Rifkin, Shapiro, Schulman & Rabkin, LLP/Las Vegas
Adams Law Group
Lipson Neilson Cole Seltzer & Garin, P.C.
Puoy K. Premsrirut, Inc.
Leach Johnson Song & Gruchow
Messner Reeves LLP
Eighth District Court Clerk

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