Loo v. Loo ( 2016 )

IN THE SUPREME COURT OF THE STATE OF NEVADA
ROY H. LOO, No. 66403
Appellant/Cross-Respondent,
vs.
JEFFREY LYNN DEETS, AN
INDIVIDUAL,
FILED
Respondent/Cross-Appellant. APR 1 5 2016
and
TRACE K. LINDE.MAN
WENDY L. LOO, AN INDIVIDUAL. CLERK OF SUPREME COURT
BY ___S__Y_Oft.j&31,4aor
Respondent. DEPUTY CLERK
ORDER AFFIRMING IN PART,
VACATING IN PART AND REMANDING
This is an appeal from district court orders dismissing a
contract and tort action and a cross-appeal from a district court order
denying a request for attorney fees. Eighth Judicial District Court, Clark
County; Joanna Kishner, Judge.
Having considered the parties' arguments and the record, we
conclude that the district court properly dismissed appellant's complaint
based on issue preclusion. 1 See Alcantara v. Wal-Mart Stores, Inc., 130
Nev., Adv. Op. 28, 321 P.3d 912, 914 (2014) (reviewing de novo a district
court's application of issue preclusion); Five Star Capital Corp. u. Ruby,
124 Nev. 1048, 1055, 194 P.3d 709, 713 (2008) (setting forth the elements
of issue preclusion). In particular, the claims asserted in appellant's
complaint implicated the issue of how the Loos' marital assets should be
allocated. This identical issue was actually and necessarily litigated in
the Loos' divorce proceeding, as evidenced by the language in the Loos'
marital settlement agreement, which was incorporated into the divorce
'In light of this conclusion, we need not address whether dismissal
SUPREME COURT was also appropriate based on claim preclusion.
OF
NEVADA
(0) IY47A
1 (9 '. I /?7
1,.
decree, and which constituted a final judgment on the merits. Five Star,
124 Nev. at 1055, 194 P.3d at 713; York v. York, 99 Nev. 491, 493, 664
P.2d 967, 968 (1983); Spilsbury v. Spilsbury, 92 Nev. 464, 466, 553 P.2d
421, 422 (1976). Therefore, the district court properly determined that the
elements of issue preclusion were satisfied, and we are not persuaded by
appellant's arguments otherwise. 2
To the extent that appellant's claims against Jeffrey Deets
were premised on an agreement other than the Loos' marital settlement
agreement, the district court properly determined that appellant's
complaint failed to sufficiently allege the existence of a contract. See Buzz
Stew, LLC v. City of N. Las Vegas, 124 Nev. 224, 228, 181 P.3d 670, 672
(2008) (reviewing de novo a district court NRCP 12(b)(5) dismissal). In
particular, appellant's bare assertions that he had an "implied oral
contract" with Deets and that the unidentified terms of that contract were
breached due to various violations of the Nevada Physical Therapy Code of
Ethics were insufficient to satisfy Nevada's notice-pleading standard. See
Breliant v. Preferred Equities Corp., 109 Nev. 842, 846, 858 P.2d 1258,
1260 (1993) ("The test for determining whether the allegations of a
complaint are sufficient to assert a claim for relief is whether the
allegations give fair notice of the nature and basis of a legally sufficient
2 Even if appellant's complaint were treated as an action in equity
challenging the divorce decree, see Doan v. Wilkerson, 130 Nev., Adv. Op.
48, 327 P.3d 498, 501-02 (2014); Day v. Day, 80 Nev. 386, 389, 395 P.2d
321, 322 (1964), appellant still would not have been entitled to relief
because, among other reasons, his complaint failed to identify any
particular asset or property that was omitted from the decree or the value
of which Ms. Loo misrepresented.
SUPREME COURT
OF
NEVADA
2
(0) I947A
claim and the relief requested."). Accordingly, we affirm the district
court's dismissal of appellant's complaint. 3
On cross-appeal, Deets contends that the district court
improperly denied his motion for attorney fees without considering his
arguments as to why fees were warranted under NRS 18.010(2)(b), NRS
7.085, and EDCR 7.60. We agree. Accordingly, we vacate the appealed
orders insofar as they denied Deets' motion for attorney fees and remand
this matter for the district court to consider Deets' request for attorney
fees under the relied-upon statutes and rule. Consistent with the
foregoing, we
ORDER the judgment of the district court AFFIRMED IN
PART AND VACATED IN PART AND REMAND this matter to the
district court for proceedings consistent with this order.
10 vti
Douglas
Cherry
>9:Ider"
Gibbons
cc: Hon. Joanna Kishner, District Judge
Lansford W. Levitt, Settlement Judge
E. Brent Bryson
Law Office of Michael P. Carman
Howard & Howard Attorneys PLLC
Eighth District Court Clerk
3Appellant did not explain to the district court how he could have
cured the pleading defects in his original complaint with an amended
complaint, nor has he done so on appeal. We therefore perceive no
reversible error in the district court's decision to dismiss appellant's
original complaint.
SUPREME COURT
OF
NEVADA
3
(P) 1947A e