                                                                    86,
                                                       131 Nev., Advance Opinion
                            IN THE SUPREME COURT OF THE STATE OF NEVADA


                     D.R. HORTON, INC.,                                   No. 66085 v
                     Petitioner,
                     vs.
                     THE EIGHTH JUDICIAL DISTRICT
                     COURT OF THE STATE OF NEVADA,
                                                                               FILED
                     IN AND FOR THE COUNTY OF                                  Gc.`,I 2 9 2015
                     CLARK; AND THE HONORABLE
                     SUSAN JOHNSON, DISTRICT JUDGE,
                     Respondents,
                     and
                     ARLINGTON RANCH HOMEOWNERS
                     ASSOCIATION, A NONPROFIT
                     CORPORATION,
                     Real Party in Interest.

                     D.R. HORTON, INC.,                                   No. 66101
                     Petitioner,
                     vs.
                     THE EIGHTH JUDICIAL DISTRICT
                     COURT OF THE STATE OF NEVADA,
                     IN AND FOR THE COUNTY OF
                     CLARK; AND THE HONORABLE
                     SUSAN JOHNSON, DISTRICT JUDGE,
                     Respondents,
                     and
                     ARLINGTON RANCH HOMEOWNERS
                     ASSOCIATION, A NEVADA
                     NONPROFIT CORPORATION,
                     Real Party in Interest.


                                 Original petitions for a writ of prohibition or mandamus
                     challenging district court orders granting an ex parte stay and denying an
                     NRCP 41(e) motion to dismiss


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                                Petitions denied.


                    Wood, Smith, Henning & Berman, LLP, and Joel D. Odou and Victoria L.
                    Hightower, Las Vegas,
                    for Petitioner.

                    Angius & Terry, LLP, and Paul P. Terry, Jr., Scott P. Kelsey, and David
                    M. Bray, Las Vegas,
                    for Real Party in Interest.




                    BEFORE THE COURT EN BANC.'

                                                    OPINION


                    By the Court, HARDESTY, C.J.:
                                In these original petitions for extraordinary writ relief, we
                    consider whether the district court erred when it initially granted an ex
                    parte stay permitting a homeowners' association to complete the NRS
                    Chapter 40 process and further erred when it denied a motion to dismiss
                    the underlying complaint pursuant to the five-year rule in NRCP 41(e)
                    when the NRS Chapter 40 process was still not complete. We conclude
                    that the district court's order granting a stay was not in error, and the
                    five-year period was tolled under the Boren exception to NRCP 41(e).
                    Accordingly, we deny both of these petitions for a writ of prohibition or
                    mandamus.



                         'The Honorable Ron D. Parraguirre, Justice, voluntarily recused
                    himself from participation in the decision of these petitions.


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                                   FACTS AND PROCEDURAL HISTORY
                             These petitions arise from the same underlying complaint. In
                 Docket No. 66085, petitioner D.R. Horton, Inc., argues that the district
                 court abused its discretion in granting real party in interest High Noon at
                 Arlington Ranch Homeowners Association's 2 ex parte motion to stay the
                 proceedings until the NRS Chapter 40 prelitigation process for
                 constructional defect cases was complete. In Docket No. 66101, petitioner
                 D.R. Horton argues that the district court erred in refusing to dismiss the
                 case for failure to bring the case to trial within five years pursuant to
                 NRCP 41(e) because it improperly excluded from the five-year period
                 certain dates during which the proceedings were stayed.
                 Facts related to both petitions
                             Real party in interes't High Noon is a homeowners' association
                 created pursuant to NRS Chapter 116 that operates and manages the
                 High Noon at Arlington Ranch community. This community consists of
                 342 individual units contained within 114 buildings. According to High
                 Noon, the sales documents for these units contain language that precludes
                 express and implied warranty actions after two years.
                             On June 7, 2007, High Noon filed a complaint against D.R.
                 Horton "in its own name on behalf of itself and all of the High
                 Noon . . . unit owners," alleging breach of implied warranties of
                 workmanlike quality and habitability, breach of contract, breach of
                 express warranties, and breach of fiduciary duty. High Noon obtained
                 written assignment of the claims of 194 of its individual unit owners.

                       2The petitions incorrectly identify the homeowners' association as
                 Arlington Ranch Homeowners Association. We note that the correct name
                 is High Noon at Arlington Ranch Homeowners Association.


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                              Even though High Noon did not specifically allege that its
                claims fall under NRS Chapter 40's constructional defect provisions, High
                Noon immediately moved, ex parte, for a stay and enlargement of time for
                service of the complaint pending completion of prelitigation proceedings
                pursuant to NRS 40.647(2)(b), which allows for stays of district court
                actions filed before the prelitigation process is completed when the claims
                would later be time-barred by statute. In support of this motion, High
                Noon argued that it was unclear whether its warranty claims were subject
                to NRS Chapter 40, but if not, they faced a possible two-year contractual
                limitations period, indicating that "[t]he complaint was filed to preserve
                [High Noon]'s claim for breach of express and implied warranties."
                Additionally, High Noon stated that, to begin the prelitigation process, it
                would "immediately serve [dlefendants with [n]otice of construction
                defects pursuant to NRS 40.645, providing detailed information regarding
                the construction defect damages claimed." The district court granted High
                Noon's motion and stated that the complaint "is hereby stayed until the
                completion of the NRS 40.600 et seq. pre-litigation process." 3 In a later
                order, the district court determined that this stay commenced on August
                13, 2007, and that the case then "remained dormant until April 14, 2008,
                when [D.R. Horton] filed various motions." 4 The district court further


                      3 Two other stays were also granted in the case below, including a
                stay by this court in D.R. Horton, Inc. v. Eighth Judicial District Court,
                Docket No. 58533, but those stays are not at issue in these writ petitions.

                      4 Ourreview of the record shows that D.R. Horton only filed one
                motion with the court on or around April 14, 2008, and that was a motion
                to compel. D.R. Horton's motion sought to compel High Noon "to comply
                with NRS 40.6462 and provide access to each unit at the [s]ubject
                [p]roperty where construction defects are alleged to exist for inspection by
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                concluded that another stay had been granted on July 30, 2009, as a result
                of D.R. Horton's motion for stay. The court determined that this stay
                ended on November 5, 2009, when the district court approved the special
                master's case management order.°
                               Based on information from the parties' briefs and appendices,
                it appears that as of today, over eight years later, the NRS Chapter 40
                process is still not complete.
                Docket No. 66085
                               In this writ petition, D.R. Horton challenges the 2007 district
                court order granting High Noon's ex parte motion for a stay and
                enlargement of time for service so that High Noon could conduct NRS
                Chapter 40 prelitigation activities, including giving notice and
                opportunities to inspect and repair, prior to serving process on D.R.
                Horton. D.R. Horton claims that the stay is void, as High Noon's breach of
                implied and express warranty causes of action allege constructional
                defects and are therefore subject to NRS Chapter 40, which requires
                dismissal for failure to comply with prelitigation procedures unless certain
                conditions are met. NRS 40.645; NRS 40.647. D.R. Horton also argues


                ...continued
                D.R. Horton." D.R. Horton also sought "to toll the statutory deadline to
                submit its repair response pending completion of inspections of all units
                where defects are alleged to exist"

                      5Contradictory to the district court's status of the stay, there is
                nothing in the record to demonstrate that the court ever lifted the August
                13, 2007, stay. And there is no indication in the special master's case
                management order that the July 30, 2009, stay was to end on November 5,
                2009, upon the district court's approval of that order. These stays appear
                to be continuous from August 13, 2007, until now.


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                that the void 2007 stay cannot toll the NRCP 41(e) five-year rule, and it
                requests that this court direct the district court to vacate the order
                denying the motion to dismiss and to dismiss the complaint.
                Docket No. 66101
                            In this petition, D.R. Horton makes an additional argument
                that the district court erred in denying a motion to dismiss based on High
                Noon's failure to bring the action to trial within five years pursuant to
                NRCP 41(e). On January 21, 2014, third-party defendant Firestop, Inc.,
                moved to dismiss the underlying case for failure to prosecute, and D.R.
                Horton joined in the motion. Firestop contended that the only stay that
                tolled the five-year rule was the stay entered by this court in Docket No.
                58533 and that the five-year period thus expired on September 14, 2013.
                D.R. Horton contends that the district court erred when it relied on the
                Boren tolling exception to NRCP 41(e), which permits tolling where "the
                parties are prevented from bringing an action to trial by reason of a stay
                order." Boren v. City of N. Las Vegas,     98 Nev. 5, 6, 638 P.2d 404, 405
                (1982). D.R. Horton argues that this court should clarify the holdings
                from Boren and its progeny and require a court to examine the parties'
                diligence in bringing an action to trial when determining if the tolling
                exception is appropriate. Alternatively, D.R. Horton asks this court to
                specifically preclude tolling for all stays imposed to complete the NRS
                Chapter 40 process.
                                               DISCUSSION
                Writ relief is appropriate
                            "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."
                Humphries v. Eighth Judicial Dist. Court, 129 Nev., Adv. Op. 85, 312 P.3d
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                484, 486 (2013) (quoting Int'l Game Tech., Inc. v. Second Judicial Dist.
                Court, 124 Nev. 193, 197, 179 P.3d 556, 558 (2008)); see also NRS 34.160.
                Generally, "hAdrit relief is not available. . . when an adequate and speedy
                legal remedy exists." Int'l Game Tech., 124 Nev. at 197, 179 P.3d at 558.
                "While an appeal generally constitutes an adequate and speedy remedy
                precluding writ relief, we have, nonetheless, exercised our discretion to
                intervene 'under circumstances of urgency or strong necessity, or when an
                important issue of law needs clarification and sound judicial economy and
                administration favor the granting of the petition."      Cote H. v. Eighth
                Judicial Dist. Court, 124 Nev. 36, 39, 175 P.3d 906, 908 (2008) (quoting
                State v. Second Judicial Dist. Court, 118 Nev. 609, 614, 55 P.3d 420, 423
                (2002)). 6
                              These petitions merit our consideration as they raise
                important issues concerning Nevada's constructional defect law.
                Specifically, the petitions present important questions of law—whether
                NRS 40.647(2)(b) allows for this type of stay and, if so, whether the stay
                tolls the running of the five-year period under NRCP 41(e). Although the
                case was filed in 2007, litigation is in the very early stages and the answer
                to these questions now would thus promote judicial economy and

                       6 Inthe alternative, D.R. Horton seeks a writ of prohibition. A writ
                of prohibition is appropriate when a district court acts "without or in
                excess of [its] jurisdiction." NRS 34.320; see also Club Vista Fin. Servs. v.
                Eighth Judicial Dist. Court, 128 Nev., Adv. Op. 21, 276 P.3d 246, 249
                (2012). A writ of prohibition is improper in this case because the district
                court had jurisdiction to hear and determine the outcome of the motion to
                stay and the motion to dismiss. See Goicoechea v. Fourth Judicial Dist.
                Court, 96 Nev. 287, 289, 607 P.2d 1140, 1141 (1980) (stating that we will
                not issue a writ of prohibition "if the court sought to be restrained had
                jurisdiction to hear and determine the matter under consideration").


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                  administration. See Thran v. First Judicial Dist. Court, 79 Nev. 176, 178,
                  380 P.2d 297, 298-99 (1963) (entertaining petition for writ relief from a
                  district court order denying a motion to dismiss under NRCP 41(e)); see
                  also Smith v. Eighth Judicial Dist. Court, 113 Nev. 1343, 1345, 1345 n.1,
                  950 P.2d 280, 281, 281 n.1 (1997). Accordingly, we choose to entertain
                  these writ petitions.
                  The August 2007 stay
                                High Noon's complaint alleged four claims for relief: (1) breach
                  of implied warranties of workmanlike quality and habitability, (2) breach
                  of contract, (3) breach of express warranties, and (4) breach of fiduciary
                  duty. In the complaint, High Noon never alleges that the claims for relief
                  fall under NRS Chapter 40. 7
                                High Noon based its August 2007 ex parte stay motion on
                  NRS 40.647(2)(b). The statuteS specifically states that if a plaintiff who
                  files a constructional defect suit before completing the prelitigation
                  process would be prevented from filing another suit based on the
                  expiration of the statute of limitations or repose, then the court must stay
                  the case rather than dismiss it in order to allow for compliance with the
                  NRS Chapter 40 requirements. NRS 40.647(2)(b).
                                In its stay motion, High Noon alleged that, pursuant to NRS
                  116.4116(1), D.R. Horton "attempted to limit the implied [and express]
                  warranties in their sales documents to [a] two [-1 year period." High Noon
                  alleged that D.R. Horton began selling units on August 31, 2004, and High
                  Noon filed its complaint on June 7, 2007, more than two years later. For


                        7 The parties' briefs do not dispute whether the stay applied to all
                  claims for relief.


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                 that reason, some of High Noon's claims would face a contractual
                 limitations defense if a stay was not granted under MRS 40.647(2)(b).
                 Further, MRS 40.635(3) provides that NRS Chapter 40 does not "bar or
                 limit any defense otherwise available, except as otherwise provided in
                 those sections." Since NRS Chapter 40 does not prevent any defense
                 otherwise available, D.R. Horton could argue a shorter limitations period
                 based on its sales contracts. If the NRS Chapter 116 limitation period for
                 warranties was contractually modified to two years, as permitted by NRS
                 116.4116(1), this shorter period should allow the district court to enter a
                 stay under NRS 40.647(2)(b), just as it would for a statutory limitation
                 period, so that High Noon could undertake the prelitigation process
                 without jeopardizing its claims. 8 Thus, based on High Noon's argument
                 that it may or may not have MRS Chapter 40 claims, it would have been
                 appropriate for the district court to extend the time to allow completion of
                 the prelitigation process. 9


                       8 We recognize that NRS 40.695 generally tolls statutes of limitation
                 or repose for constructional defect claims during the prelitigation process.
                 However, High Noon sought a stay because it was unclear whether that
                 statute would apply to preserve its claims, given that they were brought
                 under NRS Chapter 116 and the existence of a contractual limitations
                 period.

                       9 NRS 40.645 requires that a claimant provide prelitigation notice
                 before a claimant can amend a complaint to add a cause of action for a
                 constructional defect. And, under NRS 40.603(2),

                               "Amend a complaint to add a cause of action for a
                               constructional defect" means any act by which a
                               claimant seeks to:

                                     2. Amend the pleadings in such a manner
                               that the practical effect is the addition of a
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                The August 2007 stay tolled the five-year rule
                               D.R. Horton claims that the district court erred in finding that
                the August 2007 stay precluded the parties from litigating as the parties
                were actually engaged in the NRS Chapter 40 process. We disagree.
                               Where a motion to dismiss under NRCP 41(e) is improperly
                denied, the district court lacks any further jurisdiction, rendering its
                subsequent orders going to the merits of the action void. Cox v. Eighth
                Judicial Dist. Court, 124 Nev. 918, 924-25, 193 P.3d 530, 534 (2008).
                Therefore, if we determine that dismissal was required under NRCP 41(e),
                any subsequent orders entered by the district court would necessarily be
                void.
                               NRCP 41(e) states, in pertinent part, that:
                               Any action heretofore or hereafter commenced
                               shall be dismissed by the court in which the same
                               shall have been commenced or to which it may be
                               transferred on motion of any party, or on the
                               court's own motion, after due notice to the parties,
                               unless such action is brought to trial within 5
                               years after the plaintiff has filed the action, except
                               where the parties have stipulated in writing that
                               the time may be extended. ... A dismissal under
                               this subdivision (e) is a bar to another action upon
                               the same claim for relief against the same
                               defendants unless the court otherwise provides.




                •..continued
                               constructional defect that is not otherwise
                               included in the pleadings.
                               The term does not include amending a complaint
                               to plead a different cause for a constructional
                               defect which is included in the same action.


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                    In addressing NRCP 41(e), we have concluded that it "is clear and
                    unambiguous and requires no construction other than its own language."
                    Thran v. First Judicial Dist. Court, 79 Nev. 176, 181, 380 P.2d 297, 300
                    (1963). Additionally, where a case has not been brought to trial after five
                    years, dismissal is mandatory, affording the district court no discretion.
                    Morgan v. Las Vegas Sands, Inc., 118 Nev. 315, 320, 43 P.3d 1036, 1039
                    (2002). Notably, though, this court has recognized exceptions to the
                    mandatory nature of NRCP 41(e).
                          The Boren exception
                                Under current Nevada law, "[ably period during which the
                    parties are prevented from bringing an action to trial by reason of a stay
                    order shall not be computed in determining the five-year period of [NRCP]
                    41(e)." Boren, 98 Nev. at 6, 638 P.2d at 405. The holding in Boren was
                    based on the fact that the district court prohibited the parties from going
                    to trial and then dismissed their action for failure to bring it to trial,
                    circumstances that were unarguably "unfair and unjust."       Id. at 5-6, 638
                    P.2d at 404. In Boren, our short opinion provided no facts from the case,
                    but we indicated that the district court had stayed the proceedings for
                    more than four years. Id. at 5, 638 P.2d at 404. Boren had argued that
                    the plaintiffs "had some kind of duty of diligence in seeking vacation of the
                    stay order [and to bring the case to trial]."    Id. at 6, 638 P.2d at 404.
                    However, we disagreed and determined that the plaintiffs' lack of
                    diligence was "immaterial," as "we would be hard-pressed to formulate a
                    rule describing the degree of diligence required under such
                    circumstances." Id. at 6, 638 P.2d at 404-05.
                                D.R. Horton argues that, unlike in Boren, the parties here
                    were not prevented from bringing the action to trial because of the stay

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                order. It claims that High Noon intentionally prolonged the stay by not
                immediately filing its NRS Chapter 40 notice and denying D.R. Horton
                access to properties containing alleged constructional defects.
                               While High Noon may have prolonged the process, prompting
                D.R. Horton to file several motions to compel, 1° the matter was "stayed
                until the completion of the NRS 40.600 et seq. pre-litigation process."
                Because the stay prevented the case from proceeding," Boren's rule
                applies, and the court-ordered August 2007 stay tolls the prescriptive
                period under NRCP 41(e) while the district court-ordered stay is in effect.
                      Boren and its progeny do not require a district court to evaluate the
                      diligence of the parties before determining if a court-ordered stay
                      tolls the prescriptive period under NRCP 41(e)
                               D.R. Horton also argues that a court must evaluate the
                circumstances and the parties' diligence in bringing a matter to trial
                before determining that a stay tolls the prescriptive period. We disagree.
                While some of our holdings post-Boren cite diligence requirements and
                consider the resulting unfairness to the plaintiff, unlike the circumstances


                      1 °Thedistrict court also stated that it shared part of the blame for
                the length of the August 2007 stay for not imposing any end or sunset
                provision.

                       "We have maintained that litigation should conclude within a
                reasonable amount of time. See, e.g., Massey v. Sunrise Hosp., 102 Nev.
                367, 369, 724 P.2d 208, 209 (1986). "Rule 41(e) accomplishes this end by
                requiring counsel's diligence in pursuing claims." Id. While D.R. Horton
                alleges that High Noon did not pursue the matter swiftly, it appears from
                the record that D.R. Horton shares in the blame for the delay of this case
                as it did not seek any remedy until now. For example, the record does not
                include any motions that D.R. Horton might have filed seeking to vacate
                the August 2007 stay or challenging the validity of the stay before
                bringing the instant writ petition.


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                 here, those cases did not involve a court-ordered stay. For example, D.R.
                 Horton cites Baker v. Noback, 112 Nev. 1106, 1110-11, 922 P.2d 1201,
                 1203-04 (1996), for the proposition that an evaluation is required to look at
                 the unique facts of the case and resulting unfairness to the plaintiff.
                 However, Baker did not involve a court-ordered stay, and this court
                 examined the circumstances of the case, which involved a statutory
                 requirement to first proceed through a medical malpractice screening
                 panel. 112 Nev. at 1110, 922 P.2d at 1203. D.R. Horton also cites to
                 Morgan v. Las Vegas Sands, Inc., 118 Nev. 315, 43 P.3d 1036 (2002),
                 arguing that we determined that a mandatory arbitration period was not
                 an exception to NRCP 41(e), and the plaintiffs lack of diligence ultimately
                 contributed to proper dismissal under the five-year rule. However,
                 Morgan also did not involve a court-ordered stay. 118 Nev. at 317-18, 43
                 P.3d at 1037-38. Finally, for further support, D.R. Horton cites to
                 Edwards v. Ghandour, 123 Nev. 105, 112-13, 159 P.3d 1086, 1091 (2007)
                 (holding that the district court's stay, based on misinformation and later
                 rescinded, did not toll NRCP 41(e) when plaintiff knew the stay was
                 invalid and he "did not take appropriate action to move his case forward
                 and set aside the stay"), rejected on other grounds by Five Star Capital
                 Corp. v. Ruby, 124 Nev. 1048, 1053-54, 194 P.3d 709, 712-13 (2008).
                 However, this too is distinguishable, as here, the district court issued a
                 valid stay.
                               D.R. Horton also argues that courts consider the diligence of
                 parties in determining other motions related to NRCP 41(e), citing to
                 Carstarphen v. Milsner, 128 Nev., Adv, Op. 5, 270 P.3d 1251, 1254 (2012),
                 for support. There, we held that when a district court evaluates a motion
                 for a preferential trial date to circumvent the five-year rule, it "must

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                consider the time remaining in the five-year period when the motion is
                filed and the diligence of the moving party and his or her counsel in
                prosecuting the case." Id. at 1252. This case is also distinguishable, as a
                court-ordered stay prevents parties from prosecuting the case, while a
                motion for a preferential trial date in a case presumptively has no such
                impediment.
                              As a result of the court-ordered stay in this case, the district
                court was not required to evaluate the parties' diligence. However, given
                the lapse of time in this matter, neither the parties nor the district court
                have been diligent in monitoring the status of the NRS Chapter 40
                prelitigation process, which was the subject of the stay order.
                         We do not adopt a new exemption to the Boren rule excepting
                         constructional defect stays from tolling
                              Finally, D.R. Horton argues, in the alternative, that this court
                should hold that a stay imposed to complete the NRS Chapter 40 process
                should not toll the NRCP 41(e) five-year period because the statutes
                provide ample time for a claimant to complete the process without risking
                a statute of limitations issue. 12 D.R. Horton also argues that the purpose
                of NRS Chapter 40 is to ensure a quick and fair resolution to construction
                defect disputes, and that premature complaints and tolling all counter the
                purpose behind the statutes. We conclude that these arguments also lack
                merit.




                         D.R. Horton also argues that High Noon knew that the stays did
                         12

                not toll the five-year rule and that the district court warned of this on
                multiple occasions. However, in the hearing on the motion to dismiss, the
                district court stated that it erred in that analysis.


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                            Certainly, NRS Chapter 40's mechanisms provide
                opportunities to repair and otherwise resolve constructional defects before
                a claimant can pursue litigation. See D.R. Horton, Inc. v. Eighth Judicial
                Dist. Court, 123 Nev. 468, 476, 168 P.3d 731, 737 (2007). But D.R.
                Horton's argument fails to consider the purpose behind NRS 40.647(2)(b).
                In that statute, the Legislature recognizes the importance of completing
                the prelitigation process before a claimant can pursue a case even where a
                suit has been filed to avoid the expiration of a limitation period. 13 Surely
                the prelitigation purposes of NRS Chapter 40 of repair, mediation, and
                settlement are furthered by court-ordered stays under NRS 40.647(2)(b)
                while parties complete the constructional defect prelitigation process.
                Excluding an NRS 40.647(2)(b) stay from the full period allowed by NRCP
                41(e) would be unfair, and we see no reason to exclude NRS Chapter 40
                litigants from the Boren exception.
                                              CONCLUSION
                            We choose to exercise our discretion and entertain the writ
                petitions in these cases. We deny the writ petition in Docket No. 66085,
                concluding that the August 2007 stay is valid. Similarly, we deny the writ




                      13 NRS  Chapter 40's only reference to a "stay" is in NRS 40.647(2)(b),
                and this subsection has remained unchanged with the recent
                constructional defect amendments enacted by the Legislature and
                subsequently approved by the Governor. See A.B. 125, 78th Leg. (Nev.
                2015) (effective Feb. 24, 2015).


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                 petition in Docket No. 66101, as the court-ordered stay tolled the five-year
                 prescriptive period under NRCP 41(e), pursuant to Boren. Accordingly, we
                 deny both writ petitions.


                                                            7 .-At., tee..42ti   , C.J.
                                                      Hardesty
                 We concur:


                                                 J.
                 Douglas




                 Gibbons



                 Pickering




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