One Las Vegas Homeowners' Ass'n v. The Eighth Judicial Dist. Court of State

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ONE LAS VEGAS HOMEOWNERS' ASSOCIATION, INC.; AND FIRSTSERVICE RESIDENTIAL NEVADA, LLC, Petitioners, v. THE EIGHTH JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, IN AND FOR THE COUNTY OF CLARK; AND THE HONORABLE VERONICA BARISICH, DISTRICT JUDGE, Respondents, and MONDIER KHAIRA, Real Party in Interest.

No. 86629

Supreme Court of Nevada

March 27, 2024

UNPUBLISHED OPINION

ORDER DENYING PETITION FOR A WRIT OF MANDAMUS

This petition for a writ of mandamus challenges a district court order denying a motion for partial summary judgment in a negligence and premises liability action for injuries real party in interest allegedly sustained in the common-area parking garage maintained by petitioners.

In suits involving a common interest community, NRS 38.310 requires parties to mediate any claim relating to "[t]he interpretation, application, or enforcement of any [CC&Rs] applicable to residential property" before commencing a civil action, and NRS 116.4117(5) provides that "[p]unitive damages may not be awarded against" a homeowners' association. Petitioners contend that any duty giving rise to the claims here was founded in the CC&Rs and therefore NRS 38.310(1) requires pre-suit mediation. Petitioners further argue that NRS 116.4117(5) bars punitive damages.

The decision to entertain a petition for a writ of mandamus lies within our sole discretion. Smith v. Eighth Jud. Dist Ct., 107 Nev, 674, 677, 818 P.2d 849, 851 (1991). Writ relief is an extraordinary remedy, available to compel a lower court to act in accordance with the law, or to correct a '"clear and indisputable' legal error." Archon Corp. v. Eighth Jud. Dist. Ct. (Archon), 133 Nev. 816, 819-20, 407 P.3d 702, 706 (2017) (quoting Bankers Life & Cas. Co. v. Holland, 346 U.S 379, 384 (1953)). It is the petitioner's burden to show a clear legal right to the requested course of action, and where the district court has discretion on the issue the petitioner must show a manifest abuse of discretion. Walker v. Second Jud. Dist. Ct., 136 Nev. 678, 680 476 P.3d 1194, 1196 (2020). Mandamus relief is ordinarily available only where there is no "plain, speedy and adequate remedy in the ordinary course of law," NRS 34.170, and subject to very few exceptions we will not consider writ petitions challenging a district court order denying summary judgment. Smith v. Eighth Jud. Dist Ct., 113 Nev. 1343, 1344, 950 P.2d 280, 281 (1997). When traditional mandamus is unavailable, advisory mandamus may be available if exceptional circumstances warrant clarifying a "substantial issue of public policy or precedential value." Walker v. Second Jud. Dist, Ct., 136 Nev. 678, 684, 476 P.3d 1194, 1199 (2020) (quoting Poulos v. Eighth Jud. Dist. Ct., 98 Nev. 453, 455-56, 652 P.2d 1177, 1178 (1982)); Archon, 133 Nev. at 825, 407 P.3d at 710.

The district court rejected mediation because it determined that the claims did not require the interpretation, application or enforcement of CC&Rs. It applied applicable law to the issue presented, see Saticoy Bay, LLC, Series 9720 Hitching Rail v. Peccole Ranch Cmty. Ass'n, 137 Nev. 516, 495 P.3d 492 (2021), and did not clearly err in doing so. See Archon Corp., 133 Nev. at 819-20, 407 P.3d at 706. This defeats traditional mandamus. Nor does the mediation issue qualify for advisory mandamus. The uncitable decision on which petitioners rely predates Saticoy Bay, on which the district court relied and does not...