KOSOR, JR. v. S. HIGHLANDS CMTY. ASS'N

141 Nev. Adv. Op. No. 34
CourtNevada Supreme Court
DecidedJune 18, 2025
Docket87942
StatusPublished

This text of 141 Nev. Adv. Op. No. 34 (KOSOR, JR. v. S. HIGHLANDS CMTY. ASS'N) is published on Counsel Stack Legal Research, covering Nevada Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
KOSOR, JR. v. S. HIGHLANDS CMTY. ASS'N, 141 Nev. Adv. Op. No. 34 (Neb. 2025).

Opinion

141 Nev., Advance Opinion 3L-1

IN THE SUPREME COURT OF THE STATE OF NEVADA

MICHAEL KOSOR, JR., A NEVADA No. 87942 RESIDENT, Appellant, vs. SOUTHERN HIGHLANDS FILED COMMUNITY ASSOCIATION; AND JUN 18 4, 21 SOUTHERN HIGHLANDS ELETH&

DEVELOPMENT CORPORATION, 1f1. BY • Respondents.

Appeal from a district court order denying a motion for relief from judgrnent as jurisdictionally void. Eighth Judicial District Court, Clark County; Danielle K. Pieper, Judge. Affirmed.

Hutchison & Steffen, PLLC, and Robert E. Werbicky, Las Vegas, for Appellant.

Bravo Schrager LLP and Bradley S. Schrager and Daniel Bravo, Las Vegas; Wolf, Rifkin, Shapiro, Schulman & Rabkin, LLP, and Gregory P. Kerr, Jordan J. Butler, and Royi Moas, Las Vegas, for Respondent Southern Highlands Community Association.

Kernp Jones, LLP, and J. Randall Jones, Nathanael Rulis, Madison S. Florance, and Francesca M. Bergeret-Simpson, Las Vegas, for Respondent Southern Highlands Development Corporation.

BEFORE THE SUPREME COURT, PICKERING, CADISH, and LEE, JJ.

SUPREME COURT OF NEVADA 11041,010 111 1447A OPINION

By the Court, PICKERING, J.: NRS 38.300 through 38.360 create an alternative dispute resolution (ADR) program for disputes involving a residential common- interest community's covenants, conditions, or restrictions (CC&Rs). With specified exceptions, NRS 38.310 requires that parties submit CC&R-based claims to mediation or nonbinding arbitration before asserting them in court. Appellant argues that NRS 38.310 is "jurisdictional" and that, because the parties did not comply with its pre-suit ADR requirement, the district court lacked the subject matter jurisdiction needed to decide the case. We do not agree. By its terms, NRS 38.310 does not limit the district court's jurisdiction. It is a procedural claim-processing rule that must be enforced if timely invoked but that can be forfeited or waived. Because the district court had jurisdiction, despite the parties' noncompliance with NRS 38.310's ADR requirement, it properly denied appellant's motion to vacate its judgment and fee-award orders as jurisdictionally void. We therefore affirm. I. Michael Kosor, Jr., is a homeowner in Southern Highlands, a Las Vegas residential common-interest cornrnunity. He sued the community's homeowners' association (Southern Highlands Community Association or "the HOA") and its developer/declarant (Southern Highlands Development Corporation or "SHDC") for declaratory and injunctive relief with respect to the homeowners' right to elect the HOA's board of directors. The HOA's bylaws and CC&Rs address the composition of its board. They establish a "declarant control psriod," which lasts from the community's inception until 75% of its approved number of residential units are sold.

SUPREME COURT OF NEVADA

2 01 1047A e During this period, SHDC has the power to control the HOA's board of directors by appointing three of its five members, with the homeowners electing the other two. SHDC's power of appointment expires when the control period does. After that, the homeowners have the right to elect all five members of the board. In district court, Kosor complained that Southern Highlands home-sale count had crossed the 75% threshold, yet SHDC continued to appoint three of the five directors, and that this violated the homeowners' voting rights. The HOA and SHDC contested both Kosor's reading of the governing documents and his math. They contended that Kosor erroneously included commercial, multi-family, and other ineligible units in his home- sale count and that, when those units were subtracted, the declarant control period remained in place. The dispute came before the district court on a series of pretrial motions—Kosor's motion for a temporary restraining order, which the district court denied as moot (the election Kosor sought to enjoin occurred before the district court could decide the motion); the HOA's and SHDC's rnotion to dismiss, which the district court largely denied; and Kosor's motion for summary judgment, which the district court also denied. After it denied sumrnary judgment, the district court set a trial date. By then, Kosor had been elected to one of the two homeowner- controlled seats on the HOA board. Citing litigation expense and potential board conflicts, Kosor filed a motion to voluntarily dismiss the action without prejudice, thereby avoiding trial but not conceding his position about the declarant control period having ended and the homeowners having the right to elect the full board. The HOA and SHDC agreed to dismissal but asked that it be with prejudice, so Kosor could not reassert the same claims in another future suit. They also asked for the fees and

3 10) 1047A e costs they had incurred defending the case to that point. The district court granted both requests, dismissing the action with prejudice and awarding the HOA and SHDC their fees and costs. Kosor appealed, then withdrew his appeal. In his withdrawal notice, Kosor acknowledged that he could not "hereafter seek to reinstate this appeal and that any issues that were or could have been brought in this appeal are forever waived." After Kosor withdrew his appeal, the case returned to district court, where the HOA and SHDC filed motions asking for substantial additional fees and costs incurred on appeal. It was then, after three years of litigation, that Kosor raised NRS 38.310 and its pre-suit ADR requirement for the first time. He did so by filing a motion under NRCP 60(b)(4), which authorizes relief from a judgment or order that is jurisdictionally void. In his motion, Kosor argued that NRS 38.310's ADR requirement is jurisdictional and that, because the parties did not comply with it, the district court had lacked subject matter jurisdiction from the start. As a result, Kosor argued, the district court must set aside its judgment and orders awarding fees and costs—and refrain from ruling on the pending motions for additional fees and costs. The district court denied Kosor's motion. It held that NRS 38.310's ADR requirement was procedural, that Kosor's failure to submit his claims to mediation or nonbinding arbitration before asserting them in court did not affect its subject matter jurisdiction, and that its judgment and prior orders were valid and enforceable.

A. On appeal, Kosor argues that the district court should have granted his NRCP 60(b)(4) rnotion to vacate its judgment and fee-award orders as void, because NRS 38.310 imposes a jurisdictional requirement SUPREME COURT OF NEVADA

4 19-17A that the parties never met. The HOA and SHDC counter that the statute merely adds a procedural precondition to suit and that, because it does not remove a category of cases from the purview of the court, it is not jurisdictional.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

United Student Aid Funds, Inc. v. Espinosa
559 U.S. 260 (Supreme Court, 2010)
Weinberger v. Salfi
422 U.S. 749 (Supreme Court, 1975)
Landreth v. Malik
251 P.3d 163 (Nevada Supreme Court, 2011)
Allstate Insurance v. Thorpe
170 P.3d 989 (Nevada Supreme Court, 2007)
Ogawa v. Ogawa
221 P.3d 699 (Nevada Supreme Court, 2009)
Crosstex Energy Services, L.P. v. Pro Plus, Inc.
430 S.W.3d 384 (Texas Supreme Court, 2014)
Patchak v. Zinke
583 U.S. 244 (Supreme Court, 2018)
Fort Bend County v. Davis
587 U.S. 541 (Supreme Court, 2019)
Boechler v. Commissioner
596 U.S. 199 (Supreme Court, 2022)
Crane v. Continental Telephone Co.
775 P.2d 705 (Nevada Supreme Court, 1989)

Cite This Page — Counsel Stack

Bluebook (online)
141 Nev. Adv. Op. No. 34, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kosor-jr-v-s-highlands-cmty-assn-nev-2025.