HUNG v. BERHAD

2022 NV 50

• Court: Nevada Supreme Court
• Decided: June 30, 2022
• Docket: 83197-COA
• Status: Published

Opinion

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138 Nev., Advance Opinion =D (IN THE COURT OF APPEALS OF THR STATE OF NEVADA

YA-LING HUNG AND WEI-HSIANG No. 83197-COA HUNG, EACH INBIVIDGALLY, AS SURVIVING HEIRS, AND AS CO-

ADMINISTRATORS OF THE ESTATE -

OF TUNG-TSUNG HUNG AND PILLING . ‘ LEK AUNG, ; FILED - Appellants, JUN 39 2020

VS,

GENTING BERHAD:; GENTING U.S. appr pas DeURT

INTERACTIVE GAMING, INC.: BY GENTING NEVADA INTERACTIV li GAMING, LLC; AND RESORTS WORLD LAS VEGAS LLC,

Respondents.

Appeal from a district court order dismissing an amended complaint and denying a motion to amend in a tort action, Eighth Judicial District Court. Clark County: Nancy [.. Allf, Judge.

Afftrinecd,

Law Oflfices of Kevin R. Hansen and Kevin R. Hansen and Amanda

Greenberg Traurig. LLP, and Mark E. Ferrario, Christopher f. Miltenberger, and Elhot T. Anderson, Las Vegas, for Respondents.

BEFORE THE COURT OF APPEALS, GIBBONS, C.J., TAO and BULLA, ded.

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OPINION Lv the Court, TAO, J.:

The purpose of an appeal is to remedy an error, whether procedural or substantive, made during the proceedings in the district court. And appellate procedure is clear on the proper way to raise and brief those crrors to the reviewing court. Somewhat less clear, however, is how this court will treat an appeal when the appellant only praperly challenges a district court's order on a singular issue, even though the outcome of that ardcr rests on multiple alternative grounds. For that narrow reason alone, we take this opportunity te clarify that when a district court provides alrernative bases ta support its ullimate ruling, and an appellant fails to challenge the validity of each alternative basis on appeal, this court will generally deem that failure a waiver of each such challenge and thus affirm the district court's judgment.

The district court dismissed the operative complaint in the proceedings below on several alternative grounds and denied the appellants mation to amend. Bul in their opening brief an appeal, the appellants fatled to challenge each of the alternative grounds for dismissal, instead attempting to raise such arguments for the first time in their reply brief. Consequently, we conelude that the appellants waived cach such challenge, thereby foreclosing their appeal as it concerns the district court’s dismissal paling, Vee further conclude that the distriet court did not abuse lis daseretian in denving the motion tu amend. Accordingly, we affirm.

FACTS AND PROCEDURAL HISTORY

In 2017, an armed assailant walked inte Resorts World Manila

ane set fire to furniture in the casino. Patrons of the hotel and casino ran

for safety. Two of those patrons, Tung-Tsung Hung and Pi-Ling Lee Hung,

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aqught refuge in their hotel room closet. While hiding in the closet, ‘Tung- Tsung Hung and Pi-Ling Lee Hung became trapped and died due to smoke inhalation.

Almost two years later, acting individually and in their capacity as co-administrators of their parents’ estate, Ya-Ling Hung and Wei Hsiang Hung filed a two-count complaint in Clark County, Nevada, alleging wrongful death and negligence, against Genting Berhad; Genting U.S. Interactive Gaming, Inc.; Genting Nevada Interactive Gaming, LLC; Gentine Intellectual Property Pte. Ltd.; Resorls World Inc. Pte. Ltd. Resorts World Las Vegas LLC; Resorts World Manila: and Kok Thay Lim. Shortly thereafter, the Hungs filed an amended complaint, which ultimately did not change the identity of the named defendants.

Within a month of filing the amended complaint, the Hungs successfully served three of the defendants: Genting Nevada. Genting U.8.. and Resorts World Las Vegas. The district court then approved two requests to extend the Lime lo serve the remaining defendants: Genting Berhad, Genting Intellectual Property, Resorts World inc.. Resorts World ‘\tanila, and Kak Thay Lim. These defendants. however, were never served.

Together, Genting Nevada, Genting U.S., and Resorts World Las Vegas, along with Genting Berhad, moved to dismiss the amended complaint. arguing that (1} under NRCP 12(b)(2), the district court could nol exercise general or specific personal jurisdiction over the Genting defendants: (2) under NRCP 12(b)(5), the amended complaint did not state a claim upon which relief could be granted against Resorts World Las Vegas: (3) under NRCP 12( bhi because of the Hungs’ failure to serve Resorts

World Manila and others. the amended complaint failed to join necessary

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and indispensable parties: and (4) the complaint should be dismissed under the doctrine of forum nor conventens.

In opposing the motion to dismiss, the Hungs’ only substantive argument was that the district court could exercise general personal jurisdiction aver all the defendants listed in the amended complaint. whether served or unserved, because "Resorts World Las Vegas and Resorts World Manila are [| for all intents and purposes, one and the same, owned by the Genting entities.” To remedy any other deficiency in the amended eomplaint. the Hungs moved to amend and submitted a proposed second amended complaint, which they stated would “narrow| | down the proposed parties and dismiss| | certain parties who... are not known to be directly involved.” After holding a hearing on the motions, the district court dismissed the amended complaint under NRCP 12(b}(2). 12(b)¢5), 12(b)(6), and the doctrine of forum non conveniens and denied the Hungs’ mation te amend,

The Hungs now appeal, arguing that reversal is warranted hecause the district court erred in determining that it could not exercise personal jumsdiction and abused its discretion tn denying their motion to amend, Dut because the Hungs’ appeal of the dismissal of the amended complaint suffers from a fatal procedural flaw, and because the district eourt was within its discretion in denving the motion to amend, we disagree. Therefore, we affirm the district court.

ANALYSIS

An appellant must chatlenge each of the alternative grounds supporting the district courts udtimate ruling in his or her opening brief

Tt ia well established in Nevada that “[a] point not urged in the trial court, unless it gues to the jurisdiction of that court. is deemed to have

heen waived and will not be considered on appeal.” Old Actec Mine, fae. v.

Broun, 97 Nev. 49, 52, 623 P.zd 981, 983 981}. It is equally well estublished that an appellant's failure to timely raise an issue in its briefing on appeal, even if if raised the issue before the district court, generally results ina waiver ofthat issue. See Kahn ve. Morse & Mowbray. 121 Nev. 464, 480 0.24, 717 Po8d 227, 238 1.24 (2005) (explaining that issues that are not properly raised en appeal may be deemed waived); see also NRAP 28{a) (selling forth the required contents of an appellant's opening brief); NRAP !8ic) (setting forth the required contents of an appellant's reply brief).

A natural result of these fundamental waiver principles is that, when a district court provides independent alternative grounds in support aloo decision tater challenged on appeal, the appellant generally must successtully challenge all of those grounds in its appellate briefing to obtain a reversal! See State vo Willis, 358 P.dd 107. 121 (Kan. Ct. App. 2015) (When a district court provides alternative bases to support its ultimate ruling on an issue and an appellant fails to challenge the validity of each alternative basis on appeal, an appellate court may decline to address the appellant's challenge to the district court's ultimate ruling.”); 5 Am, Jur. 2d Appellate Review § 718 (2022 update) CPW] here a separate and independent ground from the one appealed supports the judgment made below, and 1s nat challenged on appeal. the appellate court must affirm.”) And when

appellants fail te challenge the alternative grounds in their opening brief,

Many other appellate courta have reached the same conclusion. See, es, Tillis vu. Hetneman, 626 F.3d 1014, 1019 n.1 (th Cir. 2010); Utah ex ref. Div, of Forestry, Fire & State Lands v. United States, 528 F.3d 712, 724 (0th Cir, 2008); Hellis v. Estate of Schnatz, 983 So. 2d 408, 413 CAla. Civ. App. 2007); Navajo Nation uv. MacDonald, 885 P.2d 110-4, 1112-15 (Ariz. Ct. App, 199-0); Poxtlev ce. Foxley, 939 P.2d 455, 459 (Colo. App. 1996); AED, frc. tn ADC favs., LLC. 307 P.ad 176, 181 (Idaho 2013); Selt Lake County vu. Butler, Crockett & Walsh Dev. Corp., 297 P.3d 38, -bb (Utah Ct. App. 2018).

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even if they later do so in the reply brief. the failure to raise those issues in the opening brief results in waiver.? See Sapuppe vu. Allstate Floridian Ins. Co.. 739 F.3d 678, 682-83 (11th Cir. 2014) (concluding the appellants had waived anv challenge to the distriet court's alternative rulings, even though they presented arguments concerning those rulings in their reply brief, because “[t]hose arzuments cla|me too late’).

In this ease, the district court's order of dismissal rested on four independent alternative grounds: NRCP 12(b)(2), NRCP 12(b)(5), NRCP 12(b}(6}, and the doctrine of forum non conveniens. But the Hungs’ opening brief challenged only the district court's determination regarding personal jurisdiction. Under these circumstances, the failure to properly challenge cach of the district court's independent alternative grounds leaves them unchallenged and therefore intact, which results in a waiver of any

assignment of error as to any of the independent alternative grounds.* And

“This is also in harmony with the general rule that arguments raised for the first time in an appellant's reply brief are deemed waived. See, ¢.g., NRAP 28(c) Khoury vo. Seastrand, 132 Nev, 620, 530 n.2, 377 P.3d 81, 88 n.Z (2016) (citing NRAP 28(c} and concluding that an issue raised for the first time in an appellant’s reply brief was waived): Francis vu. Wynn Las Vewus, LLC. 127 Nev, 657. 671 n.7, 262 P.jd 705, 715 n.7 (2011) (dechning to consider an argument that the appellant “raised... for the first time in his reply brief, thereby depriving [the respondent] of a fair opportunity to respond): Powell i Liberty Mut. Pire fas. Ca., 127 Nev. 156, 161 1.3, 252 Pi3d 668, 672 n.3 (2011) (Tssues not raised in an appellant’s opening brief are deemed waived.) Bougeom vo Sullivan, 122 New. 656, 570n.5, 138 Pood 459, 444 1.4 (2006) (declining to consider an argument that the appellant lirst raised in his reply brief. explaining that “reply briefs are limited to answering any matter set forth in the opposing brief’),

3For example, the district court’s application of the doctrine of form Aon conventens—which appellants did net properly challenge and which we therefore assume to be correct—is legally sufficient to sustain the dismissal

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the Hungs have not demonstrated otherwise.’ This logically forecloses their appeal as il cancerns the district court's dismissal of the amended complaint.

Indeed, from a practical point of view, for us to reverse the district court's dismissal ruling, we would have to, first, raise challenges on the Itunes’ behalf regarding NRCP l2(b5), NRCP 12(5)(6). and forum: non contentens: second, conecive of reasons to find fault with the district court's resalution of those issues: and then, third, use those reasons to reverse the district courts order. As another court persuasively reasoned in an analogous situation, “|s]uffice it to say, such an exercise of sua sponte judicial power would impermissibly place us in the role of advocate—far oulside the boundaries of cur traditional adjudicative duties.” Jofinsorn tv. Commonwealth, 600 S h.2d 58, 60-60 Va. Ct. App. 2005}; see Senjab v.- Alhufathi, 137 Nev., Adv. Op. 64, 497 P.8d 618, 619 (2021) C'We wall not supply an argument una party's behalf but review only the issues the

parties present, ose afso Crediaee! e. fegan, 714 Po2d 171. 177 OC. Cir,

as to all defendants. See Provtnea! Gort of Martndugque v. Placer Dome, fue., TS) Nev. 200, dG SAO Pood $02, 497% (2073) (providing that a court may properly dismiss an cetion for forum reat couveniens without deciding the issue of person jurisdiction) We further point oul that dismissal is proper under NROP 12(b)(5) and NRCP 12(b)(6), assuming, as we must in the absence of a praper challenge by appellants, that the district court correctly applied these rules. See, eg. Sanches vu. Wal-Mart Stores, inc., 1A Nev. 818, 825, 221 Ed 1276, 1280 (2009) (stating the standard for dismissal tmder NRO T2thiidh: Gisen Permits Preou Brghthe Judicial Dist. Cutert, 110) Nev. fd. 548-6, S74 Pid P78. 741-82 (1991) (explaining that failure to join a necessary and indispensable party to a ease is fatal to the district courts ability ta enter a judginent).

‘In fact, in thet repls, the Hungs did nut even attempt to dispute the extensive arguments made inthe answering hrief regarding waiver.

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1983) CThe premise of our adversarial system is that appellate courts do iat ait as self-directed boards of legal inquiry and research, but essentially as arbiters of legal questions presented aud argucd by the parties before them,”}. So applying this principle, because the Hungs did net challenge cach and every one of the district court’s independent alternative grounds tor dismissal of the complaint, we summarily affirm based on the unchallenged grounds.

The district court did mot abuse its discretion in denying the motion lo amend

NRCP 1ifav2) states that after a party has amended its pleading ance as a matter of course, “[the} party may amend its pleading only with the opposing party's written consent or the court's leave.” Although "|t|he court should freely give leave when justice so requires, id, it need not do so if the amendment would be futile. See Alfwien vu. Valley Benak af Nev, 109 Nev, 280, 287, 849 P.2d 297, 302 (1993). On appeal, this court reviews the denial of leave to amend a pleading for an abuse of discretion, Connell. Carl’s Air Conditioning, 97 Nev. 496. 439, 634 P.2d 673, 675 (1981).

The Hungs’ proposed secoud amended complaint contains no ny tacttial allegatiatis that remedy the deficiencies the district caurt found in the first amended complaint. Mainly, they did not plead the necessary elements of an alter-ego theory tu impute Reserts World Manila's alleged wrongdoing onto Resorts World Las Vegas or any of the Genting defendants. See Lorenz oo Belito, Lid. 114 Nev, 798, SO7, 963 P.2d 488, 496 (1998) (explaining that to state a claim for alter-ego liability in Nevada. a plaintiff must allege that: “{1} [t]he corporation [is] influenced and governed hy the person asserted to be ite alter ego[:] (2) [tphere [is] such unity of interest and awnership that ane is inseparahle from the other: and (3) [t]he facta fare]

such that adherence to the fietion of separate entity would. under the

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circumstinces, sanction a fraud or promote injustice” (third alteration in oniginal)). Thus, because the Hungs’ proposed amendment would have been futile, the district court did not abuse its discretion in denying their motion for leave te amend, CONCLUSION

We clarify the basic appellate principle that when a district court provides independent alternative grounds to support its ultimate ruling on oan issue, an appellant must properly challenge all those independent alternative grounds, Otherwise, affirmance is warranted on Lhe un¢hallenged grounds, Accordingly, we affirm the district. court's order

dismissing the amended cumplaint and denying the motion to amend,

We concur:

LL pre “.

Gibbons

4—.. , od,

Bulla