Alcantara v. Wal-Mart Stores, Inc.

• Decision Date: 03 April 2014
• Docket Number: No. 60566.,60566.
• Parties: Hiroko ALCANTARA, as Parent and Guardian on Behalf of Sarah ALCANTARA, Appellant, v. WAL–MART STORES, INC., a Foreign Corporation, Respondent.
• Court: Nevada Supreme Court

321 P.3d 912

130 Nev. Adv. Op. 28

Hiroko ALCANTARA, as Parent and Guardian on Behalf of Sarah ALCANTARA, Appellant,

v.WAL–MART STORES, INC., a Foreign Corporation, Respondent.

No. 60566.

Supreme Court of Nevada.

April 3, 2014.

Law Offices of Mont E. Tanner and Mont E. Tanner, Las Vegas, for Appellant.

Phillips, Spallas & Angstadt, LLC, and Brenda H. Entzminger, Las Vegas, for Respondent.

BEFORE HARDESTY, PARRAGUIRRE and CHERRY, JJ.

OPINION

By the Court, CHERRY, J.:

This appeal concerns the application of claim and issue preclusion to actions brought under different subsections of Nevada's wrongful death statute, NRS 41.085. In the underlying action, an heir asserted a wrongful-death claim against respondent Wal–Mart Stores, Inc., under NRS 41.085(4), even though the decedent's estate had previously attempted, but failed, to succeed on a wrongful death claim against Wal–Mart under NRS 41.085(5). Wal–Mart moved to dismiss the heir's action on claim and issue preclusion grounds, and the district court granted the motion based on claim preclusion. On appeal, we affirm this dismissal, albeit on issue preclusion grounds. We follow the reasoning in Evans v. Celotex Corp., 194 Cal.App.3d 741, 238 Cal.Rptr. 259, 260 (1987), and conclude that the heir is barred from relitigating the issue of Wal–Mart's negligence because it has already been established, in the case brought by the estate on her behalf, that Wal–Mart was not negligent and, thus, not liable. In resolving this appeal, we adopt the Restatement (Second) of Judgments' explanation of what constitutes adequate representation for privity purposes.

FACTS AND PROCEDURAL HISTORY

Appellant Hiroko Alcantara, on behalf of her daughter Sarah, filed a wrongful death action under NRS 41.085 against Wal–Mart and other defendants after Sarah's father was fatally assaulted in a Wal–Mart parking lot. Wal–Mart moved to dismiss the action on claim and issue preclusion grounds, asserting that the decedent's estate, along with three of the decedent's heirs (Sarah's half-brothers), had already filed a wrongful death lawsuit against Wal–Mart and lost. In particular, Wal–Mart pointed out that, in the prior action, the jury had returned a special verdict finding that Wal–Mart was not negligent. The district court granted the motion to dismiss Alcantara's action against Wal–Mart with prejudice, determining that claim preclusion barred the case. Although claims against other defendants remained pending, the court certified the dismissal order as final under NRCP 54(b), and this appeal followed.

DISCUSSION

We rigorously review a district court order granting an NRCP 12(b)(5) motion to dismiss, accepting all of the plaintiff's factual allegations as true and drawing every reasonable inference in the plaintiff's favor to determine whether the allegations are sufficient to state a claim for relief. Buzz Stew, L.L.C. v. City of N. Las Vegas, 124 Nev. 224, 227–28, 181 P.3d 670, 672 (2008). A complaint should be dismissed for failure to state a claim “only if it appears beyond a doubt that [the plaintiff] could prove no set of facts, which, if true, would entitle [the plaintiff] to relief.” Id. at 228, 181 P.3d at 672. We review a district court's conclusions of law, including whether claim or issue preclusion applies, de novo. Id.;G.C. Wallace, Inc. v. Eighth Judicial Dist. Court, 127 Nev. ––––, ––––, 262 P.3d 1135, 1137 (2011).

Statutory framework

The NRS 41.085 statutory scheme creates two separate wrongful death claims, one belonging to the heirs of the decedent and the other belonging to the personal representative of the decedent, with neither being able to pursue the other's separate claim.¹See Alsenz v. Clark Cnty. Sch. Dist., 109 Nev. 1062, 1064, 864 P.2d 285, 286 (1993). NRS 41.085(2) and (3), respectively, provide that “the heirs of the decedent and the personal representatives of the decedent may each maintain an action for damages” and that the causes of action “which arose out of the same wrongful act or neglect may be joined.” (Emphases added.) See Tarango v. State Indus. Ins. Sys., 117 Nev. 444, 451 n. 20, 25 P.3d 175, 180 n. 20 (2001) (explaining that, generally, in statutes, “may” is permissive, while “shall” is mandatory). NRS 41.085(4) further explains that the heirs may recover damages for grief and sorrow, loss of probable support, companionship, and the pain and suffering of the decedent, which may not be used to pay the decedent's debt, while NRS 41.085(5) explains that the estate may recover special damages, including those for medical and funeral expenses, and any penalties that the decedent would have been able to recover, which are liable to pay the decedent's debt.

Whether claim preclusion bars Alcantara's claims

Alcantara contends that, because NRS 41.085 provides for separate claims, the district court erroneously applied claim preclusion to this case. Broadly speaking, claim preclusion bars parties and their privies from litigating claims that were or could have been brought in a prior action concerning the same controversy. Five Star Capital Corp., v. Ruby, 124 Nev. 1048, 1054, 194 P.3d 709, 712–13 (2008). This doctrine is designed to preserve scarce judicial resources and to prevent vexation and undue expense to parties. Univ. of Nev. v. Tarkanian, 110 Nev. 581, 598, 879 P.2d 1180, 1191 (1994). It is premised on fairness to the defendant and sound judicial administration by acknowledging that litigation over a specific controversy must come to an end, even “ ‘if the plaintiff has failed to avail himself of opportunities to pursue his remedies in the first proceeding.’ ” Five Star, 124 Nev. at 1058, 194 P.3d at 715 (quoting Restatement (Second) of Judgments § 19 cmt. a (1982)).

Claim preclusion applies if (1) the same parties or their privies are involved in both cases, (2) a valid final judgment has been entered, and (3) “the subsequent action is based on the same claims or any part of them that were or could have been brought in the first case.” Five Star, 124 Nev. at 1054, 194 P.3d at 713. Because it resolves the issue, we start with the third prong.

Generally, “all claims ‘based on the same facts and alleged wrongful conduct’ that were or could have been brought in the first proceeding are subject to claim preclusion.” G.C. Wallace, 127 Nev. at ––––, 262 P.3d at 1139 (quoting Five Star, 124 Nev. at 1058, 194 P.3d at 715). Here, however, the NRS 41.085 statutory scheme clearly creates separate wrongful death claims, one belonging to the decedent's heirs and the other belonging to the decedent's personal representative. As the claim of the personal representative, or the estate, under NRS 41.085(5) could not include Alcantara's claim under NRS 41.085(4), the two claims are separate and thus fail to meet the requirement that the claims in the second case be the same as those that were or could have been brought in the first case. SeeRestatement (Second) of Judgments § 24 cmt. a (1982) (“[I]f more than one party has a right to relief arising out of a single transaction, each such party has a separate claim for purposes of merger and bar.”). Accordingly, while the claims made by the estate and its heirs, Alcantara included, all arose from the death of the decedent, claim preclusion does not apply. ²See S. Cal. Edison v. First Judicial Dist. Court, 127 Nev. ––––, –––– n. 5, 255 P.3d 231, 237 n. 5 (2011) (“[C]laim preclusion could not be used to contravene the Legislature's policy decision.”). This does not end our inquiry, however, as Wal–Mart alternatively asserts that issue preclusion applies to preclude this action.

Whether issue preclusion bars Alcantara's claims

Wal–Mart argues that issue preclusion provides this court with an independent basis for affirming the dismissal. Because “[a] respondent may, ... without cross-appealing, advance any argument in support of the judgment even if the district court rejected or did not consider the argument,” we address this issue. Ford v. Showboat Operating Co., 110 Nev. 752, 755, 877 P.2d 546, 548 (1994).

A corollary to claim preclusion, issue preclusion is applied to conserve judicial resources, maintain consistency, and avoid harassment or oppression of the adverse party. Berkson v. LePome, 126 Nev. ––––, ––––, 245 P.3d 560, 566 (2010). For this doctrine to apply, the following four elements must be met:

“(1) the issue decided in the prior litigation must be identical to the issue presented in the current action; (2) the initial ruling must have been on the merits and have become final; ... (3) the party against whom the judgment is asserted must have been a party or in privity with a party to the prior litigation”; and (4) the issue was actually and necessarily litigated.

Five Star, 124 Nev. at 1055, 194 P.3d at 713 (alteration in original) (quoting Tarkanian, 110 Nev. at 598, 879 P.2d at 1191). As previously explained, the prior case was finally resolved on the merits. We thus turn to the remaining issue preclusion factors: same issues, same parties, and actually and necessarily litigated.

The same issues

“For ‘issue preclusion to attach, the issue decided in the prior [proceeding] must be identical to the issue presented in the current [proceeding].’ ” Holt v. Regional Tr. Servs. Corp., 127 Nev. ––––, ––––, 266 P.3d 602, 605 (2011) (alterations in original) (quoting Redrock Valley Ranch v. Washoe Cnty., 127 Nev. ––––, ––––, 254 P.3d 641, 646 (2011)). In challenging whether the issues are the same, Alcantara asserts that there are significant differences between the legal theories asserted in the two actions based on her argument that Wal–Mart had a nondelegable duty to provide safe premises, an argument that, she asserts, was not made in the prior case by the estate.

“[A] nondelegable duty imposes upon the principal not merely an obligation to exercise care in his own activities, but to answer for the well-being of those persons to whom the duty runs.” Gen. Bldg. Contractors Ass'n, Inc. v....