# FllL 138 Nev., AdvanceOpinion SD INTHE COURT OFAPPEALS OF THE STATE OF NEVADA

No. 83197-COA YA-LING HUNG AND WEI-HSIANG HUNG, EACH INDIVIDUALLY, AS SURVIVING HEIRS, AND AS COADMINISTRATORS OF THE ESTATE

• OF TUNG-TSUNG HUNG AND PI-LING LEE HUNG, Appellants, vs. GENTING BERHAD; GENTING U.S. INTERACTIVE GAMING, INC.; GENTING NEVADA INTERACTIVE GAMING, LLC;AND RESORTSWORLD LASVEGASLLC, 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, LasVegas, for Appellants. Greenberg Traurig, LLP, and Mark E. Ferrario, Christopher R. Miltenberger, and Elliot T. Anderson, LasVegas, 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 isclear on the proper way to raise andbrief 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 ofthat 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 ofeach such challenge andthusaffirm the district court'sjudgment.

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 appellantsfailed to challenge each ofthe 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 foreclosingtheir appeal asit concernsthe 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.



### FACTSANDPROCEDURAL II1STORY In 2017, an armed assailant walked into ResortsWorld Manila and set fire to furniture in the casino. Patrons ofthe hotel and casino ran for safety. Two ofthose patrons, Tung-Tsung Hung and Pi-LingLee Hung,

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OF NEVADA 2 (0) /9471)sought refuge in their hotel room closet. While hiding in the closet, TungTsung Hung and Pi-LingLee Hungbecame trapped and died due to smoke inhalation. Almost twoyearslater, actingindividually andintheir capacity
asco-administratorsoftheirparents'estate,Ya-Ling HungandWei 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 ofthe named defendants.

Within a month of filing the amended complaint, the Hungs successfully served three ofthe defendants: Genting Nevada, GentingU.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 KokThayLim. 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 reliefcould be granted against ResortsWorld LasVegas; (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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(0) t94711 3and indispensable parties; and (4) the complaint shouldbe dismissed under

the doctrine offorurn 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 servedor unserved, because "ResortsWorld LasVegasandResorts 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 offorurn 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 waswithinitsdiscretion in denyingthe motiontoamend, we disagree. Therefore, we affirm the district court. ANALYSIS An appellant rnust challenge each ofthe alternativegrounds 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 thejurisdiction ofthat court, is deemed to have been waived and will not be considered on appeal." Old Aztec Mine, Inc. v.

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OF NEVADA 4 (0) 194713Brown, 97 Nev. 49, 52, 623 P.2d 981, 983 (1981). It is equally well

establishedthat an appellant'sfailure totimelyraise anissue in itsbriefing
on appeal, even if it raised the issue before the district court, generally results in a waiver ofthat issue. See Kahn v. Morse &Mowbray, 121 Nev. 464, 480 n.24, 117P.3d 227, 238n.24 (2005) (explainingthat.issuesthat are not properly raised on appeal maybe deemed waived);seealso NRAP 28(a) (setting forth the required contents ofan appellant's openingbrief); NRAP 28(c) (settingforth the required contents ofan appellant's reply brief).

A natural result ofthese fundamentalwaiver principlesisthat, when a district court provides independent alternative grounds in support of a decision later challenged on appeal, the appellant generally must successfully challenge allofthose groundsin its appellate briefingtoobtain
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'schallenge to the district court'sultimate ruling."); 5Arn. Jur. 2d AppellateReview § 718 (2022update) ("[W]here a separate andindependent 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 havereached the same conclusion. See, e.g., Hillis v. Heineman, 626 F.3d 1014, 1019 n.1 (9th Cir. 20:10); Utah ex rel. Div. ofForestry, Fire & State Lands v. United States, 528 F.3d 712, 724 (10th Cir. 2008); Kellis v. Estate ofSchnatz, 983 So. 2d 408, 413 (Ala. Civ. App. 2007); Navajo Nation. v. MacDonald, 885P.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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OF NEVADA 5 10) I947E3even ifthey later do so in the reply brief, the failure to raise those issues in

the openingbriefresults in waiver.2 See Sapuppo v.Allstate Floridian Ins. Co., 739 F.3d 678, 682-83 (11th Cir. 2014) (concluding the appellants had waived anychallenge tothe district court's alternative rulings, eventhough they presented arguments concerning those rulings in their reply brief, because "[t]hose arguments c[a]me too late").

In thiscase, the district court's order ofdismissal rested on four independent alternative grounds: NRCP 12(b)(2), NRCP 12(b)(5), NRCP 12(b)(6), and the doctrine offorum 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 oferror as to any ofthe independent alternative grounds.3 And

2Thisis also in harmony with the general rule that argumentsraised for the first time in an appellant's reply briefare 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, 138P.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 ofthe doctrine offorum non conveniens—which appellantsdid notproperly challenge and which we therefore assume tobe correct—is legally sufficient to sustainthe dismissal

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OF NEVADA 6 (0) 19 ,1711 AMMOthe Hungshave not demonstratedotherwise.4 Thislogicallyforeclosestheir

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 dismissalruling, we would have to, first, raise challenges on the Hungs'behalfregarding NRCP 12(b)(5), NRCP 12(b)(6), and forum non conueniens; second, conceive ofreasons tofind fault with the district court's resolution ofthose 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 ofMarinduque 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 ajudgment).

4In fact, in their reply, the Hungs did not even attempt to dispute the extensive arguments made in the answeringbriefregarding waiver.

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### 1983) ("The premise of our adversarial system is that appellate courts do

not sit as self-directed boards oflegal 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 ofthe district court's independent alternative grounds for dismissal of the complaint, we summarily affirm based on the unchallenged grounds. ThedistrictcourtdidnotabuSeitsdiscretionindenyingthemotiontoamend

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 whenjustice so requires," id., it need not do so if the amendment would be futile. See Allum v. Valley Bank ofNev., 109 Nev. 280, 287, 849P.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 newfactualallegationsthat remedythedeficienciesthedistrictcourt 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 wrongdoingontoResortsWorldLasVegasoranyoftheGentingdefendants. See Lorenz v. Beltio, Ltd., 114 Nev. 795, 807, 963 P.2d 488, 496 (1998) (explainingthat to state a claim for alter-egoliabilityin Nevada, a plaintiff must allege that: "(1) [t]he corporation [is] i.nfluenced and governed by the personassertedtobeitsalterego[;](2) [t]here [is]such unityofinterestand 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,becausetheHungs'proposed amendmentwouldhavebeen futile, the district court did not abuseits discretion in denyingtheir 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 theunchallenged grounds. Accordingly,we affirm the district court's order dismissingthe amended complaint and denying the motion to amend.



### 1 Tao

We concur:

, J. Bulla

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