                                                   130 Nev., Advance Opinion 28
                         IN THE SUPREME COURT OF THE STATE OF NEVADA


                  HIROKO ALCANTARA, AS PARENT                        No. 60566
                  AND GUARDIAN ON BEHALF OF
                  SARAH ALCANTARA,
                  Appellant,                                               FILED
                  vs.
                                                                            APR 0 3 2014
                  WAL-MART STORES, INC., A
                                                                                IE K. LINDEMAN
                  FOREIGN CORPORATION,                                        •

                                                                        CLEW( ALIVIAEW76qUR
                  Respondent.                                          BY
                                                                          CHIEF   Dkpu-ry CLERK




                             Appeal from a district court order, certified as final under
                  NRCP 54(b), dismissing Wal-Mart Stores, Inc., from a torts action on
                  claim preclusion grounds. Eighth Judicial District Court, Clark County;
                  Joanna Kishner, Judge.
                             Affirmed.


                  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
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                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., 238 Cal. Rptr. 259, 260 (Ct. App. 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 representationS 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
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                    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 plaintiffs factual
                    allegations as true and drawing every reasonable inference in the
                    plaintiffs 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.; C. 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
                    otherS belonging to the personal representative of the decedent, with
                    neither being able to pursue the other's separate claim.'        See Alsenz v.


                           1 NRS   41.085 provides, in relevant part, that

                                      •  2. When the death of any person, whether
                                   or not a minor, is caused by the wrongful act or
                                   neglect of another, the heirs of the decedent and
                                   the personal representatives of the decedent may
                                   each maintain an action for damages against the
                                   person who caused the death, or if the wrongdoer
                                   is dead, against the wrongdoer's personal
                                                                         continued on next page...
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                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


                ...continued
                               representatives, whether the wrongdoer died
                               before or after the death of the person injured by
                               the wrongdoer. . . .
                                      3. An action brought by the heirs of a
                               decedent pursuant to subsection 2 and the cause of
                               action of that decedent brought or maintained by
                               the decedent's personal representatives which
                               arose out of the same wrongful act or neglect may
                               be joined.

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                  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

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                the first case. See Restatement (Second) of Judgments § 24 cmt. a (1982)
                ("Ulf 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. 2 See 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


                      2Wal-Mart does not raise an argument that preclusion can be based
                on the relationship between Alcantara and the heirs who were involved in
                the prior action; therefore, we do not address this issue.

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                            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 Bedrock 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. Pennsylvania, 458 U.S. 375, 395 (1982) (citing
                Restatement (Second) of Agency § 214 (1958)) (finding no nondelegable
                duty under 42 U.S.C. § 1981). Even the use of utmost care in hiring and
                delegating the duty to an independent contractor, such as a security

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                 company, will not discharge the duty. Id.; Rockwell v. Sun Harbor Budget
                 Suites, 112 Nev. 1217, 1223, 925 P.2d 1175, 1179 (1996) ("[W]here a
                 property owner hires security personnel to protect his or her premises and
                 patrons, that property owner has a personal and nondelegable duty to
                 provide responsible security personnel. . . . even if the property owner
                 engaged a third party to hire the security personnel.").
                             Although Alcantara's complaint attempted to plead
                 nondelegable duty as a separate cause of action, it is not an independent
                 cause of action, but instead one way to establish the duty requirement for
                 proving negligence. See Armiger v. Associated Outdoor Clubs, Inc., 48 So.
                 3d 864, 869 (Fla. Dist. Ct. App. 2010) ("[A] claim based on the breach of a
                 nondelegable duty is [not] a separate and distinct cause of action from a
                 cause of action based on what [a party] termed 'active' or 'direct'
                 negligence."). Thus, her attempt at asserting a nondelegable duty does not
                 preclude application of issue preclusion, as the issue of Wal-Mart's
                 liability based on negligence remains the same. Issue preclusion cannot
                 be avoided by attempting to raise a new legal or factual argument that
                 involves the same ultimate issue previously decided in the prior case. See
                 LaForge v. State, Univ. and Cmty. Coll. Sys. of Nev.,      116 Nev. 415, 420,
                 997 P.2d 130, 134 (2000) ("Issue preclusion may apply 'even though the
                 causes of action are substantially different, if the same fact issue is
                 presented." (quoting Clark v. Clark, 80 Nev. 52, 56, 389 P.2d 69, 71
                 (1964))); Paulo v. Holder, 669 F.3d 911, 918 (9th Cir. 2011) (stating that
                 "Ulf a party could avoid issue preclusion by finding some argument it
                 failed to raise in the previous litigation, the bar on successive litigation
                 would be seriously undermined"); Restatement (Second) of Judgments, §
                 27 cmt. c (1982). The issue here of Wal-Mart's negligence for the

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                decedent's death is the same in both cases. The nondelegable duty is not
                separate and distinct from the negligence determination—it is based on
                the same facts. Because the issues are the same, we conclude that this
                element is met.
                      The same parties or their privies
                             "Issue preclusion can only be used against a party whose due
                process rights have been met by virtue of that party having been a party
                or in privity with a party in the prior litigation."   Bower v. Harrah's
                Laughlin, Inc., 125 Nev. 470, 481, 215 P.3d 709, 718 (2009). The district
                court addressed the privity requirement in the context of its claim
                preclusion analysis and determined that privity existed between the estate
                and Alcantara because the estate adequately represented Alcantara's
                interest in the prior lawsuit, as provided in Restatement (Second) of
                Judgments section 41. The Restatement (Second) of Judgments section
                41, provides that
                            (1) A person who is not a party to an action but
                            who is represented by a party is bound by and
                            entitled to the benefits of a judgment as though he
                            were a party. A person is represented by a party
                            who is:
                                 (a) The trustee of an estate or interest of
                            which the person is a beneficiary; or
                                  (b) Invested by the person with authority to
                            represent him in an action; or
                                  (c) The executor, administrator, guardian,
                            conservator, or similar fiduciary manager of an
                            interest of which the person is a beneficiary; or
                                 (d) An official or agency invested by law with
                            authority to represent the person's interests; or
                                 (e) The representative of a class of persons
                            similarly situated, designated as such with the

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                            approval of the court, of which the person is a
                            member.
                            (2) A person represented by a party to an action is
                            bound by the judgment even though the person
                            himself does not have notice of the action, is not
                            served with process, or is not subject to service of
                            process.
                            Exceptions to this general rule are stated in § 42.
                (Emphasis added.)
                            Alcantara argues that she is not in privity with the estate and
                that the district court's reliance on the Restatement (Second) of
                Judgments section 41 for an example of privity is in error, as that section
                has not been adopted by this court. Wal-Mart counters that Alcantara, as
                a beneficiary of the estate, was adequately represented in the estate's
                litigation of Wal-Mart's alleged negligence in the prior action, rendering
                her in privity with the estate and subject to preclusion on that issue. Wal-
                Mart points out that Alcantara fails to explain why her parallel interests
                with the estate would alter the outcome, as regardless of who brought the
                issue before the court, the estate on her behalf failed to demonstrate
                negligence on Wal-Mart's part.
                            This court has not previously specifically addressed whether
                privity can be established through adequate representation as outlined in
                the Restatement (Second) of Judgments section 41. We take this
                opportunity to adopt the Restatement (Second) of Judgments section 41's
                examples of privity that arises when a plaintiffs interests are being
                represented by someone else. We do so because of our long-standing
                reliance on the Restatement (Second) of Judgments in the issue and claim




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                preclusion context3 and because it provides a clear framework for
                determining whether privity exists under an adequate representation
                analysis.
                               In applying the Restatement section 41(1)(c) to this case, we
                conclude that Alcantara is in privity with the estate. While Alcantara was
                not a party to the prior action, the estate was representing Alcantara's
                beneficiary interests in the wrongful death recovery. There is no dispute
                here as to Alcantara's beneficiary status—she was listed as a beneficiary
                under the petition for administration. Alcantara was bound to the
                judgment because the estate represented her as an heir of the estate in the
                estate's action. This representation is sufficient for privity.   See Young v.
                Shore, 588 F. Supp. 2d 544, 548-49 (D. Del. 2008) (relying on Restatement
                (Second) of Judgments § 41 (2008), to determine that because plaintiff is a
                beneficiary of the estate, she was in privity with the estate for purposes of
                the prior action and issue preclusion barred the subsequent action).
                Moreover, since the issue for determining relief under NRS 41.085(4) and




                      3 See,i.e., Frei v. Goodsell, 129 Nev.  „ 305 P.3d 70, 72 (2013)
                (relying on Restatement (Second) of Judgments § 27 cmt. d (1982)); G.C.
                Wallace, Inc. v. Eighth Judicial Dist. Court, 127 Nev. „ 262 P.3d
                1135, 1138-39 (2011) (relying on Restatement (Second) of Judgments § 24
                cmt. g (1982) and on Restatement (Second) of Judgments § 26(1)(d)
                (1982)); Personhood Nev. v. Bristol, 126 Nev. „ 245 P.3d 572, 576
                (2010) (relying on Restatement (Second) of Judgments § 28(1) (1982)); In
                re Sandoval, 126 Nev. „ 232 P.3d 422, 424 (2010) (relying on
                Restatement (Second) of Judgments § 27 (1982)); Bower, 125 Nev. at 481-
                82, 215 P.3d at 718 (citing to Restatement (Second) of Judgments § 41
                (1982)); Five Star, 124 Nev. at 1054 n.27, 1058 & n.46, 194 P.3d at 713
                n.27, 715 & n.46 (relying on Restatement (Second) of Judgments § 19
                (1982)).

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                 NRS 41.085(5) is the same—Wal-Mart's negligence—the estate fully
                 represented Alcantara's interests as to the issue of negligence.
                             Although a beneficiary can assert an independent cause of
                 action from the decedent's estate's claim pursuant to NRS 41.085, as was
                 the case here, the issue of liability is interrelated because both claims are
                 based on the same wrong. The estate already represented its
                 beneficiaries, including Alcantara, as to the determination of liability.
                 Restatement (Second) of Judgments § 41 (1982). As a result, the privity
                 requirement is met and, if the other factors are met, issue preclusion may
                 apply to prevent relitigation of the issue concerning Wal-Mart's liability.
                 This outcome is further supported by Restatement (Second) of Judgments
                 section 46(3) and section 47. While these sections involve procedural
                 scenarios different than this case, as section 46 deals with a situation in
                 which a decedent brings a claim prior to his or her death and the
                 beneficiaries then bring a separate claim after the decedent's death and
                 section 47 involves a situation where after death two separate cases are
                 brought under a survival statute and a death statute, the circumstances
                 are sufficiently similar to the present case in regard to determining
                 whether preclusion should apply. Both section 46(3) and section 47 state
                 that preclusion will apply to a second case brought by a beneficiary of the
                 decedent if the prior case brought by the decedent or the decedent's estate
                 is unsuccessful. See also comment c to both section 46 and section 47.
                 Accordingly, we determine that the privity element is satisfied here
                 because the estate already represented Alcantara in the NRS 41.085(5)
                 suit, of which she was a beneficiary.
                       Actually and necessarily litigated
                             The fourth factor concerns whether the issue was actually and
                 necessarily litigated. "When an issue is properly raised .. . and is
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                  submitted for determination, . . . the issue is actually litigated."     Frei v.
                  Goodsell, 129 Nev. „ 305 P.3d 70, 72 (2013) (quoting Restatement
                  (Second) of Judgments § 27 cmt. d (1982)). Whether the issue was
                  necessarily litigated turns on whether 'the common issue
                  was . . . necessary to the judgment in the earlier suit." Id. (quoting
                  Tarkanian, 110 Nev. at 599, 879 P.2d at 1191. Resolving whether Wal-
                  Mart was negligent was necessary to determine whether Wal-Mart was
                  liable for the decedent's death in the previous case. As the previous case
                  was determined on the merits, it is clear that the issue of Wal-Mart's
                  negligence was actually and necessarily litigated in the prior action.
                                Based on the foregoing, we conclude that issue preclusion can
                  apply to prevent Alcantara's lawsuit against Wal-Mart, as each of the
                  necessary factors are met This conclusion is supported by the analysis set
                  forth in Evans v. Celotex Corp., 238 Cal. Rptr. 259, 260 (Ct. App. 1987). In
                  Evans, the decedent's heirs commenced a wrongful death action against a
                  defendant who had already successfully defended a prior suit related to
                  asbestosis brought when the decedent was alive.       Id.   The heirs argued
                  that the emergence of new facts from, inter alia, the autopsy barred the
                  application of collateral estoppel, that is, issue preclusion. Id. at 262. The
                  court determined that because the new evidence "did not establish a
                  previously undiscovered theory of liability nor did it denote a change in
                  the parties' legal rights," it did not prevent the application of issue
                  preclusion.    Id. at 263. It explained that "[am!' exception to collateral
                  estoppel cannot be grounded on the alleged discovery of more persuasive




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                evidence. Otherwise, there would be no end to litigation."     Id. The court
                also rejected the heirs' argument that the issues in their lawsuit were not
                the same as those in the prior case, explaining that in both cases recovery
                depended on whether the defendant was liable for the injuries. Id. at 261.
                Further, the Evans court held that the heirs were in privity with the
                decedent, as their claims arose based on the same allegations against the
                defendant as the decedent's did, and the decedent adequately represented
                the heirs' interest in the prior action. Id. As a result, the court concluded
                that issue preclusion applied to bar relitigating the issue of the
                defendant's liability.
                             We follow the reasoning in Evans and determine that the
                finding of non-liability in the action brought by the estate bars relitigation
                of Wal-Mart's liability here. While the statute allows for the NRS
                41.085(4) claims to be brought independently, the issue of negligence on
                the part of Wal-Mart was already litigated and a jury determined that
                Wal-Mart was not negligent. No new facts or issues arose after the estate
                litigated the issue of Wal-Mart's liability. Because the issue of Wal-Mart's
                negligence was properly raised in the case brought by the estate, we
                conclude that issue preclusion applies to prevent Alcantara from re-
                litigating the issue of Wal-Mart's negligence. Therefore, we affirm the
                decision of the district court to dismiss this case.




                We concur:


                                            ,J.
                Hardesty                                     Parraguirre
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