                     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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