132 Nev., Advance Opinion )15
IN THE SUPREME COURT OF THE STATE OF NEVADA
IN THE MATTER OF THE No. 65598
GUARDIANSHIP OF THE PERSON
AND ESTATE OF JEAN RUTH
ECHEVARRIA, AN ADULT WARD. FILED
MICHAEL A. ECHEVARRIA, JUN 3 0 2016
Appellant,
vs.
ROBERT L. ANSARA; AND ANGEL
ECHEVARRIA,
Respondents.
Appeal from a district court order in a guardianship
proceeding under MRS Chapter 159, authorizing the distribution of estate
funds to pay administrative claims. Eighth Judicial District Court,
Family Court Division, Clark County; Charles J. Hoskin, Judge.
Vacated and remanded.
Karen K. Wong, Las Vegas,
for Appellant.
Trent, Tyre11 & Phillips and Elyse M. Tyre11, Las Vegas,
for Respondent Robert L. Ansara.
Solomon Dwiggins & Freer, Ltd., and Mark A. Solomon, Las Vegas,
for Respondent Angel Echevarria.
BEFORE HARDESTY, SANTA and PICKERING, JJ.
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OPINION
By the Court, SAITTA, J.:
This opinion addresses whether NRS 159.1365 governs the
distribution of funds in an operating account tied to real property. We
hold that the determination of whether NRS Chapter 159 or a district
court's distribution order applies requires a finding by the district court
identifying the source of the funds. If the source of the funds is the sale of
real property, NRS Chapter 159 applies. If the source of the funds was not
the sale of the California property, the district court must determine
whether its distribution order or NRS 159.103, NRS 159.105, and NRS
159.183 apply.
This opinion further addresses the requirements for a valid
stipulation. We hold that a valid stipulation requires mutual assent to its
terms and either the presence of all interested parties or a signed writing
indicating assent by the party against whom the stipulation is offered.
FACTUAL AND PROCEDURAL HISTORY
Robert Ansara is the successor guardian of the estate of Jean
Ruth Echevarria, having been appointed to serve in that capacity in 2007,
and is also the successor trustee of Jean's living trust. Angel Echevarria is
Jean's daughter and previous guardian. Michael Echevarria is Jean's son
and judgment creditor, pursuant to an earlier judgment against his
mother and her trust entered in the state of Tennessee, which he later
domesticated in California and Nevada." Michael's judgment lien was in
the amount of $625,814.
'In the interest of clarity, because some of the parties involved share
a last name, they are referred to by their first names.
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During the course of the guardianship proceedings, the district
court entered several orders authorizing the payment of Ansara's
guardian fees and costs, as well as payment of attorney fees and costs
incurred by Elizabeth Brickfield of Lionel Sawyer & Collins and Trent,
Tyre11 & Associates, on behalf of the original and successor guardian and
trustee. This included a district court distribution order entered on
August 15, 2012.
Ansara also filed a report with the district court regarding
Jean's trust asset, in which it was reported that an offer had been
submitted and that it had been accepted by Ansara for the purchase of
real property located in California, in which Jean had a partnership
interest. Ansara indicated to the district court that Michael's judgment
lien from an earlier judgment that he obtained against Jean and her trust
in the state of Tennessee would be partially satisfied from the proceeds of
the sale Ansara further informed the court that Jean would not receive
any funds from the sale but that Michael had agreed to assist in funding
the guardianship estate so as to provide for his mother's basic needs.
The district court approved and ratified Ansara's plan to sell
the California property and authorized and directed the sale thereof.
Ansara stated that after transaction costs, satisfaction of the existing
mortgage, and an IRS lien, the remaining sale proceeds of approximately
$200,000 were to be paid to Michael to partially satisfy his judgment
claim.
After the sale of the California property had closed, Angel
petitioned the district court for distribution of money held in an operating
account associated with the California property. The district court held a
hearing on the distribution petition. Ansara, Brickfield, and Ansara's
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attorney Elyse M. Tyre11 of Trent, Tyre11 & Associates were present for the
hearing. Michael did not attend the hearing Ansara represented that
there were funds currently held in the operating account and that he
objected to Michael receiving any of those funds as Michael had already
received the net proceeds from the sale of Jean's property. Ansara
proposed that he, Brickfield, and Tyre11 distribute the funds amongst
themselves, and they stipulated to an agreement on the appropriate
distribution.
Following the hearing, the district court entered the
stipulation and order, without obtaining Michael's participation,
signature, or agreement. On appeal, Michael raises the following issues:
(1) whether the district court erred by failing to distribute the operating
account funds in accordance with NRS 159.1365, and (2) whether the
district court erred by approving the stipulation without Michael's
participation, signature, or agreement.
DISCUSSION
The district court erred by failing to identify the source of the funds in the
operating account
A district court's factual determinations will be upheld if not
clearly erroneous and if supported by substantial evidence. Ogawa v.
Ogawa, 125 Nev. 660, 668, 221 P.3d 699, 704 (2009).
Michael argues that the source of the funds in the operating
account was the sale of the California real property, and therefore, the
distribution of those funds is governed by NRS 159.1365. In the
alternative, Michael argues that the funds should be distributed in
accordance with the district court's August 15, 2012, order. Conversely,
Ansara argues that the funds were not from the sale of the real property,
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and therefore, NRS 159.1365, regarding distribution of money from the
sale of a ward's real property, does not apply to them.
The record is devoid of any indication of the source of the
funds in the operating account. The transcript of the district court's
hearing on the distribution petition; the minutes of the district court; and
the August 15, 2012, order suggest that neither the guardianship
commissioner nor the district court reached this dispositive issue.
Furthermore, neither party provides any evidence regarding the source of
funds, and the purchase agreement for the sale of the California property
is silent on whether any of the proceeds from the sale would be deposited
into the operating account. Therefore, the district court's finding that
Ansara, Brickfield, and Tyre11 could stipulate as to the distribution terms
of the funds in the operating account was made in clear error and was not
supported by substantial evidence.
If the funds in the operating account are proceeds from the sale of
Jean's real property, NRS 159.1365 governs
NRS 159.1365, dealing with the sale of a ward's property,
states:
If real property of the estate of a ward is sold that
is subject to a mortgage or other lien which is a
valid claim against the estate, the money from the
sale must be applied in the following order:
1. To pay the necessary expenses of the
sale.
2. To satisfy the mortgage or other lien,
including, without limitation, payment of interest
and any other lawful costs and charges. If the
mortgagee or other lienholder cannot be found, the
money from the sale may be paid as ordered by the
court and the mortgage or other lien shall be
deemed to be satisfied.
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3. To the estate of the ward, unless the
court orders otherwise.
(Emphasis added.) Thus, if the funds in the operating account were
proceeds from the sale of Jean's real property, NRS 159.1365 applies to
those funds and dictates the order in which those funds must be
distributed. 2
Here, Jean's property located in California was sold with court
approval for $6,570,000. The record indicates that Ansara complied with
NRS 159.1365. Specifically, Ansara reported that the transaction costs,
satisfaction of the existing mortgage, and the IRS lien were paid first from
the sale proceeds. The remainder of the sale proceeds, in the amount of
$200,000, was paid to Michael to partially satisfy his judgment claim of
$625,814.
2Ansara argues that Michael's judgment was not properly
domesticated in this jurisdiction pursuant to NRS 17.350 and, as such,
was not a valid lien and would be excluded from the payment priority
outlined in NRS 159.1365. This argument is without merit. Michael
complied with all of the requirements of NRS 17.350. First, he filed an
exemplified copy of the Tennessee judgment, attested "to be a true and
perfect copy of the original instrument on file in this case." Second, he
filed an affidavit on June 27, 2007, including the judgment debtor's name
and last known address, a statement that the foreign judgment was valid
and enforceable, and the extent to which it had been satisfied. Third,
Michael filed a notice of lien and judgment in Clark County on May 16,
2007, to all interested persons, including Angel, who was Jean's guardian
at the time. Although the record indicates that this filing contained an
illegible exhibit containing the exemplified copy of the Tennessee
judgment, the record also indicates that the guardianship court recognized
the Tennessee judgment and that counsel for Jean's successor guardian,
Ansara, acknowledged as much. Furthermore, in 2013, Michael filed an
affidavit of renewal of judgment pursuant to NRS 17.214 and filed a notice
of levy for enforcement of judgment with the district court. As such, we
hold that Michael's judgment was properly domesticated.
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However, the funds in the operating account were not
distributed to Michael. If the funds in the operating account were sale
proceeds from Jean's real property, those funds should have also been
distributed to Michael pursuant to NRS 159.1365 because the sale
proceeds only partially satisfied Michael's judgment claim.
If the source of the funds was not the sale of the California property,
then the August 15, 2012, distribution order partially governs
If the source of the funds was not the sale of the California
property, the August 15, 2012, distribution order governs to the extent
that the source of the funds was the rental income from the real property.
On August 15, 2012, the district court directed Ansara:
to utilize up to $3,000.00 of [Jean's] monthly
income, to satisfy, on a pro-rated basis, the
following expenses, until the same are paid in full,
or until there is no income with which to satisfy
the same, to-wit:
a. Michael Echevarria, in the original
amount of $625,814.00 + 10% interest per year, for
a judgment which was secured by him
b. Elizabeth Brickfield, in the amount of
$103,032.10, for attorney{ ] fees and costs.
c. Trent, Tyrell & Associates, in the amount
of $13,203.25, as and for attorney[ ] fees and costs.
d. Robert L. Ansara, in the amount of
$20,771.75, as and for the Guardian's fees and
costs, as well as Successor Trustee's fees and costs.
In his petition for his instructions preceding the August 15,
2012, order, Ansara indicated that since Jean's trust was generating
approximately $3,000 in excess income per month, Ansara requested that
he be authorized to use up to that amount to satisfy the payments owed to
him; Michael; Brickfield; and Trent, Tyrell & Associates. In his status
narrative filed near the time of the order, as part of his fourth account and
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report, Ansara reported that Jean's income was solely comprised of social
security and rental income from the real property. He further reported
that "so long as [the property] remains fully leased, it will continue to
augment Jean's monthly income."
Therefore, the August 15, 2012, order only governs if the funds
in the operating account are attributable to the excess monthly rental
income that Jean received prior to the sale of the California property.
This is because Jean's income was solely comprised of social security and
rental income from the real property and because she no longer owns the
real property. Indeed, the operating account is acknowledged to be the
final asset of any value in Jean's estate.
If the source of the funds is neither the sale of real property nor Jean's
excess monthly income, then NRS 159.103, NRS 159.105, and NRS
159.183 apply
It is entirely possible for the funds in the operating account to
be attributable to something other than the sale of real property or Jean's
excess monthly income. For example, the operating account may have
been holding money that was originally deposited to cover any necessary
maintenance that the property needed. If the funds from the operating
account are determined to be from a source other than the sale of real
property or Jean's excess monthly income, the district court must
determine distribution in accordance with NRS 159.103, NRS 159.105,
and NRS 159.183. See NRS 159.103 (dealing with claims against the
estate of the ward); NRS 159.105 (dealing with payment of claims of a
guardian and claims for attorney fees); NRS 159.183 (dealing with
compensation and expenses of a guardian).
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The district court erred by approving the stipulation
"This court has recognized that [valid] [s]tipulations are of an
inestimable value in the administration of justice, and valid stipulations
are controlling and conclusive and both trial and appellate courts are
bound to enforce them." Lehrer McGovern Bovis, Inc. v. Bullock
Insulation, Inc., 124 Nev. 1102, 1118, 197 P.3d 1032, 1042 (2008) (second
alteration in original) (internal quotations omitted). A valid stipulation
requires "mutual assent to its terms and either a signed writing by the
party against whom the stipulation is offered or an entry into the court
minutes in the form of an order." Id.; see also Taylor v. State Indus. Ins.
Sys., 107 Nev. 595, 598, 816 P.2d 1086, 1088 (1991) ("A stipulation is an
agreement made before a judicial tribunal which requires, as does a
contract, the assent of the parties to its terms ")
Here, although Michael had notice of the hearing during
which the stipulation was created, he was not present at that hearing.
The record does not show that Michael, as the party against whom the
stipulation is now being offered, assented to the terms of the parties'
stipulation. Therefore, we hold that the district court erred by approving
the stipulation without Michael's presence or signature indicating
Michael's assent.
It is axiomatic that a valid stipulation requires mutual assent
by all interested parties. Without mutual assent, the stipulation is void.
CONCLUSION
We, therefore, vacate the district court order and remand for
further proceedings. Upon remand, the district court will determine the
source of funds in the operating account. If the source of the funds was
the sale of the California property, then NRS 159.1365 applies. If the
source of the funds was not the sale of the California property, the August
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15, 2012, order applies, to the extent that the source of the funds was the
rental income from the real property. Finally, if the funds from the
operating account are determined to be from a source other than the sale
of real property or Jean's excess monthly income, NRS 159.103, NRS
159.105, and NRS 159.183 apply.
IA7
Saitta
J.
We concur:
, J.
Hardesty
J.
Pickering
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