Kosor v. Southern Highlands: Nevada Supreme Court Holds NRS 38.310’s ADR Requirement is a Waivable Claim-Processing Rule, Not a Jurisdictional Bar

Introduction

The Supreme Court of Nevada, in Kosor, Jr. v. Southern Highlands Community Association, 141 Nev., Adv. Op. 34 (2025), issued a landmark ruling clarifying the procedural nature of Nevada’s statutory alternative dispute resolution (ADR) requirement for homeowner-association (HOA) disputes found in NRS 38.300-38.360. Appellant Michael Kosor, a homeowner in the Southern Highlands common-interest community, sought to set aside an adverse judgment and substantial fee awards on the ground that the district court lacked subject-matter jurisdiction because the parties never engaged in pre-suit mediation as ostensibly required by NRS 38.310. The Nevada Supreme Court unanimously rejected that position, holding that:

• NRS 38.310 does not limit a district court’s jurisdiction; it merely imposes a procedural, claim-processing requirement.
• Because the statute is non-jurisdictional, the requirement can be waived or forfeited if not timely invoked.
• Consequently, a final judgment entered without compliance with NRS 38.310 is not “void” for purposes of NRCP 60(b)(4).

Key Issues

1. Is NRS 38.310’s mandate that certain HOA disputes be submitted to mediation/arbitration before litigation a jurisdictional prerequisite?
2. If not jurisdictional, may a party raise non-compliance for the first time after final judgment to vacate the judgment and fee awards?

Summary of the Judgment

Justice Pickering, writing for the court (joined by Justices Cadish and Lee), affirmed the district court’s denial of Kosor’s NRCP 60(b)(4) motion. The Court held:

• NRS 38.310’s text speaks to procedure, not judicial power.
• The statute contains exceptions and lacks any “clear statement” stripping district courts of jurisdiction; therefore, it is non-jurisdictional.
• Because Kosor never raised the ADR defect until years after litigation had concluded, he forfeited the defense; the judgment and fee awards remain valid.

Analysis

1. Precedents Cited and Their Influence

a. U.S. Supreme Court Authorities

b. Nevada Authorities

2. The Court’s Legal Reasoning

1. Textual Examination: NRS 38.310 never uses the word “jurisdiction.” Its operative phrases (“no civil action may be commenced” and “the court shall dismiss”) govern litigant conduct and timing, not judicial power.
2. Clear-Statement Rule: Under Henderson / Harrow, absence of explicit jurisdictional language means the statute is presumed non-jurisdictional. Multiple statutory exceptions (quiet-title suits, immediate-injunction actions) reinforce that the requirement is procedural.
3. Functional Analysis: The ADR scheme merely pauses litigation to encourage settlement; if ADR fails, the same claims return to court unchanged. That is classic claim-processing, not a boundary on judicial competence.
4. Policy Considerations: Treating the statute as jurisdictional would undermine efficiency by allowing parties to sandbag and relitigate finalized cases—exactly what occurred here. Waiver/forfeiture doctrines better serve finality and judicial economy.

3. Impact on Nevada Law

The decision firmly anchors Nevada’s treatment of pre-suit ADR statutes within modern federal jurisprudence on jurisdiction. Consequences include:

• Finality of Judgments: HOA litigants cannot attack final judgments years later on the sole basis of ADR non-compliance.
• Strategic Litigation: Defendants must timely raise NRS 38.310 defenses—generally in their first responsive pleading—or risk waiver.
• ADR Program Stability: Mediation remains mandatory if timely invoked, but its non-jurisdictional status avoids derailment of cases on technicalities.
• Guidance for Future Statutes: The Legislature, if it wishes to withdraw jurisdiction, must do so with unmistakable clarity.
• NRCP 60(b)(4) Practice: Motions to vacate judgments as “void” will face higher scrutiny; only bona fide jurisdictional defects suffice.

Complex Concepts Simplified

• Subject-Matter Jurisdiction: A court’s legal power to hear a category of case (e.g., contract disputes, torts). If absent, any judgment is automatically void.
• Claim-Processing Rule: A procedural step (deadlines, exhaustion requirements) that organizes litigation. Mandatory if raised timely, but can be waived.
• Waiver vs. Forfeiture: Waiver is the intentional relinquishment of a known right; forfeiture is failure to assert the right in time. Both prevent later reliance on the rule.
• NRCP 60(b)(4): Nevada rule allowing a party to vacate a “void” judgment—available only where the court lacked jurisdiction or violated due process, not for ordinary legal error.
• ADR—Alternative Dispute Resolution: Methods (mediation, arbitration) to resolve disputes without court trial. Under NRS 38.310, mediation is generally first, non-binding, and limited (three hours).

Conclusion

Kosor v. Southern Highlands crystallizes Nevada’s approach to statutory pre-litigation requirements: mandatory, yes, but non-jurisdictional unless the Legislature unmistakably says otherwise. By elevating modern U.S. Supreme Court doctrine and aligning Nevada law with federal principles, the Court safeguards both the integrity of ADR programs and the finality of judgments. Litigants in HOA disputes—and beyond—must now diligently assert statutory defenses early, or they will be lost. The ruling also provides a cautionary blueprint for legislative drafters and positions Nevada courts to manage procedural defaults without the drastic consequence of voiding completed litigation.