Opinion
No. 79614-COA
12-30-2020
WILBERT ROY HOLMES, Appellant, v. RAND A. BALLARD, Respondent.
ORDER OF AFFIRMANCE
Wilbert Roy Holmes appeals from a district court order dismissing a complaint in a tort action. Eighth Judicial District Court, Clark County; Stefany Miley, Judge.
In the proceedings below, Wilbert filed suit against respondent Rand Ballard, alleging intentional infliction of emotional distress (IIED) based on his allegation that Rand engaged in an extramarital affair with Wilbert's ex-wife, Capucine Holmes, while Capucine and Wilbert were married and allegedly continuing to date. Notably, Wilbert previously filed a nearly identical complaint for IIED against Rand based on the same set of facts, which was dismissed by the district court and affirmed by this court in Holmes v. Ballard, Docket No. 75378-COA (Order of Affirmance, December 5, 2018). In the instant matter, the district court granted Rand's motion to dismiss, concluding that the complaint was barred by claim preclusion, substantively failed to state a claim pursuant to NRCP 12(b)(5), and was barred by the statute of limitations. This appeal followed.
On appeal, Wilbert challenges the order of dismissal, asserting that the statute of limitations does not apply because the alleged affair is ongoing and that his alleged facts do state a claim for IIED. Wilbert also asserts that the case he filed against Rand in Georgia, making similar allegations, which was likewise dismissed for failure to state a claim, is irrelevant to these proceedings. An order granting an NRCP 12(b)(5) motion to dismiss is reviewed de novo. Buzz Stew, LLC v. City of N. Las Vegas, 124 Nev. 224, 227-28, 181 P.3d 670, 672 (2008); see also Alcantara v. Wal-Mart Stores, Inc., 130 Nev. 252, 256, 321 P.3d 912, 914 (2014). A decision to dismiss a complaint under NRCP 12(b)(5) is rigorously reviewed on appeal with all alleged facts in the complaint presumed true and all inferences drawn in favor of the complainant. Buzz Stew, 124 Nev. at 227-28, 181 P.3d at 672. This court will affirm the decision to dismiss a complaint under NRCP 12(b)(5) when the complaint's factual allegations do not entitle a plaintiff to relief under the claims asserted. Id. at 228, 181 P.3d at 672.
Here, the district court concluded that Wilbert's complaint was barred by claim preclusion as Wilbert previously filed two complaints, one in Nevada and one in Georgia, against Rand, making the same claims, and both complaints were dismissed. Although Wilbert contends his Georgia complaint is irrelevant here, he has failed to offer any argument as to why his complaint is not barred on claim preclusion grounds in light of his prior case in Clark County, Nevada. See 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."). Moreover, we agree with the district court that Wilbert's instant complaint is barred by claim preclusion. See Weddell v. Sharp, 131 Nev. 233, 350 P.3d 80 (2015) (providing, as relevant here, that claim preclusion applies when there is a valid, final judgment in a previous action; the subsequent action is based on the same claims or any part of them that could have been brought in the first action; and the parties or their privies are the same); see also Holmes, Docket No. 75378-COA (Order of Affirmance, December 5, 2018).
Further, we also agree with the district court that the allegations in Wilbert's complaint fail to state a claim. As discussed in this court's Order of Affirmance in Docket No. 75378-COA, although Wilbert titles his claim as one for IIED, the allegations assert a civil cause of action for alienation of affections or criminal conversation, which are barred by NRS 41.370 through 41.420. See Otak Nev., LLC v. Eighth Judicial Dist. Court, 129 Nev. 799, 809, 312 P.3d 491, 498-99 (2013) (explaining that this court analyzes "a claim according to its substance, rather than its label"). Thus, even assuming arguendo that Wilbert's complaint was not barred by claim preclusion, taking Wilbert's allegations as true, his complaint fails to state a claim upon which relief can be granted. Buzz Stew, 124 Nev. at 227-28, 181 P.3d at 672.
Accordingly, we
ORDER the judgment of the district court AFFIRMED.
Insofar as Wilbert raises arguments that are not specifically addressed in this order, we have considered the same and conclude that they either do not present a basis for relief or need not be reached given the disposition of this appeal.
/s/_________, C.J.
Gibbons
/s/_________, J.
Tao
/s/_________, J.
Bulla cc: Hon. Stefany Miley, District Judge
Wilbert Roy Holmes
Thorndal Armstrong Delk Balkenbush & Eisinger/Las Vegas
Eighth District Court Clerk