How the case got there

The underlying dispute was about who elects the board. Southern Highlands' governing documents establish a “declarant control period” running from the community's inception until 75% of its approved residential units are sold. During that period the developer appoints three of the five directors and homeowners elect two; afterwards, homeowners elect all five.

The homeowner's claim was that the community had crossed 75% and the developer was still appointing three directors. The association and the developer disputed both the reading and the count, arguing that commercial, multi-family and other ineligible units had been wrongly included in the numerator.

The case never reached that question. After a temporary restraining order was denied as moot, a motion to dismiss was largely denied and summary judgment was denied, the homeowner — by then elected to one of the two homeowner seats — moved to dismiss voluntarily, citing litigation expense and potential board conflicts. The association and developer agreed, but asked for dismissal with prejudice plus their fees and costs. The district court granted both. An appeal was filed and then withdrawn, with the homeowner acknowledging in the withdrawal notice that any issues “that were or could have been brought in this appeal are forever waived.”

Then, back in district court on the associations' motions for additional appellate fees, and after three years of litigation, NRS 38.310 was raised for the first time — through a motion under NRCP 60(b)(4), the rule for relief from a judgment that is jurisdictionally void.

Why the court drew the line where it did

The opinion follows the federal framework from Fort Bend County v. Davis (2019), which separates true jurisdictional limits from claim-processing rules — rules that “seek to promote the orderly progress of litigation by requiring that the parties take certain procedural steps at certain specified times.” Claim-processing rules can be forfeited or waived, and they do not render a judgment void.

The practical argument is the one that will be quoted:

“To treat the ADR requirement as jurisdictional would disserve the very interest in dispute-resolution efficiency it seeks to advance. As this case illustrates, jurisdictional treatment would undo the result of years spent litigating a dispute to final conclusion and give the losing party a do-over. Absent clear jurisdictional language, we decline to read NRS 38.310 to support that result.”

The exceptions the court flagged on its way out

The opinion closes by noting that NRS 38.310 is “subject to multiple exceptions.” Excluded from the ADR requirement are actions to quiet title and actions “for injunctive relief in which there is an immediate threat of irreparable harm,” per NRS 38.300(3). That is not dicta a litigant should ignore — it is the court identifying, in a case about the requirement's force, the two routes around it.

What it means in practice

• Raise it at the pleadings, or lose it. A defendant association that wants the ADR requirement enforced must invoke it early. The rule “must be enforced if timely invoked” — and the corollary is that an untimely invocation gets nothing.
• Old Nevada HOA judgments are safer than they were. Before this decision, any final judgment in a CC&R case where the parties skipped mediation carried a theoretical risk of collateral attack under Rule 60(b)(4), which has no time limit for void judgments. That risk is now closed off.
• It does not make the requirement optional. NRS 38.310 still bars the claim if the other side says so in time. What changed is the consequence of nobody saying so.
• For owners, the strategic reading is unforgiving. An owner who litigates a CC&R dispute to a bad result cannot later discover the ADR requirement and reset the case. That was the precise manoeuvre this decision forecloses.

A separate appeal is still pending

This decision is not the end of the litigation between these parties. A separate Nevada Supreme Court appeal involving the same association, Docket No. 89439, concerns an anti-SLAPP motion and remains pending; no decision has issued. Nothing in this article reports an outcome there, and none should be inferred.