Csomos v. Venetian Casino Resort LLC ( 2013 )

 customers. But this time, he asserted causes of action for wrongful
interference with prospective economic advantage and damages sustained
as a third-party beneficiary—both based upon the contractual relationship
between Venetian and its customers. Following a motion from the
Venetian, the district court dismissed the complaint with prejudice on the
basis of claim preclusion. We affirm.
We subject a district court order granting an NRCP 12(b)(5)
motion to dismiss to rigorous review. Sanchez v. Wal-Mart Stores, Inc.,
125 Nev. 818, 823, 221 P.3d 1276, 1280 (2009). We accept the non-moving
party's factual allegations as true, drawing every reasonable inference in
his or her favor, id., but we apply a de novo standard of review to all
questions of law, including decisions applying claim or issue preclusion
principles, Bonnell v. Lawrence, 128 Nev. „ 282 P.3d 712, 716
(2012).
Claim preclusion applies when three elements are present: (1)
the parties or their privies are the same, (2) the final judgment is valid,
and (3) the subsequent action is based on the same claims or any part of
the original claims that were or could have been brought in the initial
action. Five Star Capital Corp. v. Ruby, 124 Nev. 1048, 1054, 194 P.3d
709, 713 (2008). Here, the district court correctly applied Five Star and
held that Csomos's complaint was barred by claim preclusion.
Both parties agree that the first Five Star element is not at
issue because the parties in Csomos / and Csomos // are the same.
The second element is also satisfied because the district court
and this court decided Csomos / on the merits. Csomos argues that the
judgments in Csomos / were not valid because neither the district court
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nor this court properly considered the claims in his amended complaint.
This court disapproves of Csomos's attempt to benefit from his
unapologetic disregard of court rules. But even if we were to assume the
orders in Csomos / are problematic, "whether a decision is correct does not
affect its preclusive effect." Five Star, 124 Nev. at 1057 n.41, 1059, 194
P.3d at 714 n.41, 715 (discussing Reed v. Allen, 286 U.S. 191, 200 (1932)).
Finally, the third element is met because the core issue in
both cases is the same: whether an in-suite dining server is entitled to a
portion of the service charges Venetian collects from its customers. Both
cases involve the same parties and there is no reason that Csomos could
not have brought the two purportedly "new" claims in Csomos I. The fact
that Csomos raised the issues in his first amended complaint
demonstrates that he was aware of the issues and apparently believed
they related to his initial complaint. Csomos failed to amend his
complaint properly, but just because Csomos did not "avail himself of
opportunities to pursue his remedies in the first proceeding" does not
change the fact that Csomos could have brought the "new" claims in
Csomos I. Five Star, 124 Nev. at 1058, 194 P.3d at 715 (internal
quotations omitted).
Thus, because all three Five Star elements apply, the district
court properly dismissed Csomos's complaint.
Even if claim preclusion did not apply, dismissal is still
appropriate because the statute of limitations bars Csomos's claims.
Under NRS 11.190, an action upon a contract, obligation, or liability is
subject to a four-year statute of limitation. Here, Csomos worked for
Venetian until September 18, 2007, and he filed the complaint in Csomos
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II on September 21, 2011. Thus, Csomos filed his complaint more than
four years later than the last possible day that his claims could have
arisen,' and accordingly his claims are barred.
Therefore, for both of the aforementioned reasons we affirm
the district court order dismissing Csomos's complaint with prejudice.
It is so ORDERED. 2
Gibbons
Douglas
/
-
Saitta
1 Csomos sug gests that a six-year limitation applies to his third-
party beneficiary claim because the contract was based on a writing. Even
if this were true, Csomos failed to state a claim upon which relief can be
granted because nothing in the record demonstrates that Venetian and its
customers entered into a contract with the clear intent to benefit banquet
services. Lipshie v. Tracy Inv. Co., 93 Nev. 370, 379-380, 566 P.2d 819,
825 (1977) (explaining the elements a third-party beneficiary must prove).
2 We have carefully considered Csomos's remaining arguments and
find that they are without merit.
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cc: Eighth Judicial District Court Dept. 4
William C. Turner, Settlement Judge
Leon Greenberg Professional Corporation
Haygood, Cleveland, Pierce & Thompson, LLP
Fox Rothschild, LLP, Las Vegas
Eighth District Court Clerk
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