HUNG v. BERHAD , 2022 NV 50 ( 2022 )

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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 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).
5
EauAT of Bop as
OF
WEVADA
be ae
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
Count OF APPEALE
oy
Hevaos
rhe tee ape
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.
=I
Cowell Of Abra
or
Alteaba
ie at a She
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
ouar or appr
i
Hevwaoe
a im
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
9