HUNG v. BERHAD ( 2022 )

138 Nev., Advance Opinion SD
IN THE COURT OF APPEALS OF THE STATE OF NEVADA
YA-LING HUNG AND WEI-HSIANG No. 83197-COA
HUNG, EACH INDIVIDUALLY, AS
SURVIVING HEIRS, AND AS CO-
ADMINISTRATORS OF THE ESTATE
•OF TUNG-TSUNG HUNG AND PI-LING
LEE HUNG,
FllL
Appellants,
vs.
GENTING BERHAD; GENTING U.S.
INTERACTIVE GAMING, INC.;
GENTING NEVADA INTERACTIVE
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 L. Allf, Judge.
Affirrned.
Law Offices of Kevin R. Hansen and Kevin R. Hansen and Amanda A.
Harmon, Las Vegas,
for Appellants.
Greenberg Traurig, LLP, and Mark E. Ferrario, Christopher R.
Miltenberger, and Elliot T. Anderson, Las Vegas,
for Respondents.
BEFORE THE COURT OF APPEALS, GIBBONS, C.J., TAO and BULLA,
JJ.
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OPINION
By 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 errors to the reviewing court. Somewhat less clear, however, is how
this court will treat an appeal when the appellant only properly challenges
a district court's order on a singular issue, even though the outcome of that
order rests on multiple alternative grounds. For that narrow reason alone,
we take this opportunity to clarify that when a district court provides
alternative bases to support its ultimate 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' motion to amend. But in their opening brief on appeal, the
appellants failed 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 conclude that the appellants waived each such
challenge, thereby foreclosing their appeal as it concerns the district court's
dismissal ruling. We further conclude that the district court did not abuse
its discretion in denying the motion to amend. Accordingly, we affirm.
FACTS AND PROCEDURAL II1STORY
In 2017, an armed assailant walked into Resorts World Manila
and 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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sought 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;
Genting Intellectual Property Pte. Ltd.; Resorts 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.S.,
and Resorts World Las Vegas. The district court then approved two
requests to extend the time to serve the remaining defendants: Genting
Berhad, Genting Intellectual Property, Resorts World Inc., Resorts World
Manila, and Kok 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
not 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(b)(6), 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 forurn non conveniens.
In opposing the motion to dismiss, the Hungs' only substantive
argument was that the district court could exercise general personal
jurisdiction over 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
complaint, 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 forurn non conveniens and denied the Hungs' motion to
amend.
The Hungs now appeal, arguing that reversal is warranted
because the district court erred in determining that it could not exercise
personal jurisdiction and abused its discretion in denying their motion to
amend. But because the Hungs' appeal of the dismissal of the amended
complaint suffers from a fatal procedural flaw, and because the district
court was within its discretion in denying the motion to amend, we disagree.
Therefore, we affirm the district court.
ANALYSIS
An appellant rnust challenge each of the alternative grounds supporting the
district court's ultimate ruling in his or her opening brief
It is well established in Nevada that "[a] point not urged in the
trial court, unless it goes to the jurisdiction of that court, is deemed to have
been waived and will not be considered on appeal." Old Aztec Mine, Inc. v.
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Brown, 97 Nev. 49, 52, 623 P.2d 981, 983 (1981). It is equally well
established that an appellant's failure to timely raise an issue in its briefing
on appeal, even if it raised the issue before the district court, generally
results in a waiver of that issue. See Kahn v. Morse & Mowbray, 121 Nev.
464, 480 n.24, 117 P.3d 227, 238 n.24 (2005) (explaining that. issues that are
not properly raised on appeal may be deemed waived); see also NRAP 28(a)
(setting forth the required contents of an appellant's opening brief); NRAP
28(c) (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
of a decision later challenged on appeal, the appellant generally must
successfully challenge all of those grounds in its appellate briefing to obtain
a reversal.' See State u. Willis, 358 P.3d 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 Arn. Jur. 2d
Appellate Review § 718 (2022 update) ("[W]here a separate and independent
ground from the one appealed supports the judgment made below, and is
not challenged on appeal, the appellate court must affirm."). And when
appellants fail to challenge the alternative grounds in their opening brief,
'Many other appellate courts have reached the same conclusion. See,
e.g., Hillis v. Heineman, 626 F.3d 1014, 1019 n.1 (9th Cir. 20:10); Utah ex
rel. Div. of Forestry, Fire & State Lands v. United States, 528 F.3d 712, 724
(10th Cir. 2008); Kellis v. Estate of Schnatz, 983 So. 2d 408, 413 (Ala. Civ.
App. 2007); Navajo Nation. v. MacDonald, 885 P.2d 1104, 1112-13 (Ariz. Ct.
App. 1994); Foxley v. Foxley, 939 P.2d 455, 459 (Colo. App. 1996); AED, Inc.
v. KDC Invs., LLC, 307 P.3d 176, 181 (Idaho 2013); Salt Lake County v.
Butler, Crockett & Walsh Dev. Corp., 297 P.3d 38, 44 (Utah Ct. App. 2013).
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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.2 See Sapuppo v. Allstate Floridian Ins.
Co., 739 F.3d 678, 682-83 (11th Cir. 2014) (concluding the appellants had
waived any challenge to the district court's alternative rulings, even though
they presented arguments concerning those rulings in their reply brief,
because "[t]hose arguments c[a]me too late").
In this case, 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
each 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.3 And
2 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, e.g.,
NRAP 28(c); Khoury v. Seastrand, 132 Nev. 520, 530 n.2, 377 P.3d 81, 88
n.2 (2016) (citing NRAP 28(c) and concluding that an issue raised for the
first time in an appellant's reply brief was waived); Francis v. Wynn Las
Vegas, LLC, 127 Nev. 657, 671 n.7, 262 P.3d 705, 715 n.7 (2011) (declining
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 v. Liberty Mut. Fire Ins. Co., 127 Nev. 156, 161 n.3, 252
P.3d 668, 672 n.3 (2011) ("Issues not raised in an appellant's opening brief
are deemed waived."); Bongiovi v. Sullivan, 122 Nev. 556, 570 n.5, 138 P.3d
433, 444 n.5 (2006) (declining to consider an argument that the appellant
first 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 forum
non conveniens—which appellants did not properly challenge and which we
therefore assume to be correct—is legally sufficient to sustain the dismissal
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AMMO
the Hungs have not demonstrated otherwise.4 This logically forecloses their
appeal as it concerns 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 Hungs' behalf regarding NRCP 12(b)(5), NRCP 12(b)(6), and forum non
conueniens; second, conceive of reasons to find fault with the district court's
resolution of those issues; and then, third, use those reasons to reverse the
district court's 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
outside the boundaries of our traditional adjudicative duties." Johnson v.
Commonwealth, 609 S.E.2d 58, 59-60 (Va. Ct. App. 2005); see Senjab v.
Alhulaibi, 137 Nev., Adv. Op. 64, 497 P.3d 618, 619 (2021) ("We will not
supply an argument on a party's behalf but review only the issues the
parties present"); see also Carducci v. Regan, 714 F.2d 171, 177 (D.C. Cir.
as to all defendants. See Provincial Gov't of Marinduque v. Placer Dome,
Inc., 131 Nev. 296, 303, 350 P.3d 392, 397 (2015) (providing that a court
may properly dismiss an action for forum non conveniens without deciding
the issue of personal jurisdiction). We further point out that dismissal is
proper under NRCP 12(b)(5) and NRCP 12(b)(6), assuming, as we must in
the absence of a proper challenge by appellants, that the district court
correctly applied those rules. See, e.g., Sanchez v. Wal-Mart Stores, Inc.,
125 Nev. 818, 823, 221 P.3d 1276, 1280 (2009) (stating the standard for
dismissal under NRCP 12(b)(5)); Olsen Family Tr. v. Eighth Judicial Dist.
Court, 110 Nev. 548, 553-54, 874 P.2d 778, 781-82 (1994) (explaining that
failure to join a necessary and indispensable party to a case is fatal to the
district court's ability to enter a judgment).
fact, in their reply, the Hungs did not even attempt to dispute the
4 In
extensive arguments made in the answering brief regarding waiver.
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1983) ("The premise of our adversarial system is that appellate courts do
not sit as self-directed boards of legal inquiry and research, but essentially
as arbiters of legal questions presented and argued by the parties before
them."). So applying this principle, because the Hungs did not challenge
each and every one of the district court's independent alternative grounds
for dismissal of the complaint, we summarily affirm based on the
unchallenged grounds.
The district court did not abuSe its discretion in denying the motion to amend
NRCP 15(a)(2) states that after a party has amended its
pleading once 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 Allum v. Valley
Bank of 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 v. Carl's Air Conditioning, 97 Nev. 436, 439, 634 P.2d
673, 675 (1981).
The Hungs' proposed second amended complaint contains no
new factual allegations that remedy the deficiencies the district court found
in the first amended complaint. Mainly, they did not plead the necessary
elements of an alter-ego theory to impute Resorts World Manila's alleged
wrongdoing onto Resorts World Las Vegas or any of the Genting defendants.
See Lorenz v. Beltio, Ltd., 114 Nev. 795, 807, 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] i.nfluenced and governed by the
person asserted to be its alter ego[;] (2) [t]here [is] such unity of interest and
ownership that one is inseparable from the other; and (3) [t]he facts [are]
such that adherence to the fiction of separate entity would, under the
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circumstances, sanction a fraud or promote injustice" (third alteration in
original)). Thus, because the Hungs' proposed amendment would have been
futile, the district court did not abuse its discretion in denying their motion
for leave to amend.
CONCLUSION
We clarify the basic appellate principle that when a district
court provides independent alternative grounds to support its ultimate
ruling on an issue, an appellant must properly challenge all those
independent alternative grounds. Otherwise, affirmance is warranted on
the unchallenged grounds. Accordingly, we affirm the district court's order
dismissing the amended complaint and denying the motion to amend.
1
Tao
We concur:
, J.
Bulla
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