Massi v. Nobis ( 2016 )

IN THE SUPREME COURT OF THE STATE OF NEVADA
ALBERT D. MASSI, No. 66001
Appellant,
vs.
DONALD NOBIS; AND MARY NOBIS,
Respondents. FILED
FEB 2 6 2016
ORDER OF AFFIRMANCE TRADE K. UNDEMAN
CLERK F - UPREPvIE COURT
BY .
DEPUTY CLERK
This is an appeal from a post-judgment district court order
denying a motion to enforce the parties' settlement agreement. Eighth
Judicial District Court, Clark County; Jerome T. Tao, Judge.
Prior to trial, appellant Albert Massi and respondents Donald
and Mary Nobis engaged in settlement discussions. The proposed
settlement agreement recommended that the Nobises tender three
property interests to Massi, including an interest in a property known as
Buffalo/215. Massi's attorney prepared a settlement agreement stating
that the Nobises had a cost basis of $500,000 in the Buffalo/215 property.
The Nobises did not sign the document.
At a pretrial hearing, the parties informed the district court
that a settlement had been reached. Massi's counsel then read his version
of the settlement agreement to the court, which provided for a $500,000
cost basis for the Buffalo/215 property. Massi also informed the court that
he had the warranty deed for the Buffalo/215 property with a value
declaration of $500,000. The Nobises' counsel later recited their version of
the settlement agreement to the court, omitting any references to the cost
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basis. After Massi's counsel indicated that the Nobises' counsel's
recitation of the settlement agreement was acceptable, the district court
accepted that agreement pursuant to Eighth Judicial District Court Rule
(EDCR) 7.50. 1
It was later determined that the Nobises' basis in the property
was actually only $250,000. Massi moved to enforce the settlement
agreement to give full value to him, arguing that the Nobises
misrepresented the cost basis for Buffalo/215. The district court denied
the motion, finding that the agreement placed on the record and agreed to
by the parties did not incorporate as a material term the $500,000 cost
basis.
'Eighth Judicial District Court Rule 7.50 provides that
[n]o agreement or stipulation between the parties
or their attorneys will be effective unless the same
shall, by consent, be entered in the minutes in the
form of an order, or unless the same is in writing
subscribed by the party against whom the same
shall be alleged, or by the party's attorney.
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Massi argues on appeal that the district court erred in denying
his motion to enforce the settlement agreement because the alleged
$500,000 cost basis was a material term of the settlement agreement. 2 We
disagree. 3
"Because a settlement agreement is a contract, its
construction and enforcement are governed by principles of contract
law . [, which] require . . . an offer and acceptance, meeting of the
minds, and consideration." May v. Anderson, 121 Nev. 668, 672, 119 P.3d
1254, 1257 (2005). "In the case of a settlement agreement, a court cannot
compel compliance when material terms remain uncertain." Id.Moreover, "[a] district court can grant a party's motion to enforce a
2Massi further alleges that the Nobises defrauded him by
misrepresenting the cost basis. However, this issue was not properly
before the district court and is not properly before us. If Massi had filed a
complaint against the Nobises for fraud, the district court would consider
the evidence and then decide whether to award damages; however, this is
not the process used "on a mere motion to enforce a settlement
agreement." Resnick v. Valente, 97 Nev. 615, 617, 637 R2d 1205, 1206
(1981) ("[T]o allow motions [to enforce settlement agreements] to lead to
judgment would result in trial by affidavit; and to enter judgment in
summary proceedings on such a motion is" prohibited).
3 The Nobises argue that the district court did not have jurisdiction
over Massi's post-judgment motion. Although this argument was not
raised in the district court, "[a] court's lack of subject matter jurisdiction
can be raised for the first time on appeal." Swan v. Swan, 106 Nev. 464,
469, 796 P.2d 221, 224 (1990). We conclude that the district court had
jurisdiction pursuant to Eighth Judicial District Court Rule 7.50 to
determine the materials terms of the agreement entered on the record.
See Grisham v. Grisham, 128 Nev., Adv, Op. 60, 289 P.3d 230, 233 (2012)
("An agreement to settle pending litigation can be enforced by motion in
the case being settled.").
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settlement agreement ... if the agreement is either reduced to a signed
writing or entered in the court minutes in the form of an order, ... so long
as the settlement agreement's material terms are certain." The Power Co.
v. Henry, 130 Nev., Adv. Op. 21, 321 P.3d 858, 863 (2014) (citations
omitted). This court defers to the district court's findings of the existence
of a contract unless the findings are clearly erroneous or not based on
substantial evidence. James Hardie Gypsum (Nev.) Inc. v. Inquipco, 112
Nev. 1397, 1401, 929 P.2d 903, 906 (1996), disapproved of on other
grounds by Sandy Valley Assocs. v. Sky Ranch Estates Owners Ass'n, 117
Nev. 948, 955 n.6, 35 P.3d 964, 968 n.6 (2001). Finally, this court reviews
contract interpretation de novo. May, 121 Nev. at 672, 119 P.3d at 1257.
During the pretrial hearing, the district court confirmed the
material terms of the settlement agreement, and the agreed-upon version
was entered in the court minutes pursuant to EDCR 7.50. Based on the
record before us, we conclude that the district court's finding that the
$500,000 cost basis for the Buffalo/215 property was not a material term of
the contract was not clearly erroneous.
Accordingly, we
ORDER the judgment of the district court AFFIRMED.
Harde
J.
Saitta
J.
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cc: Eighth Judicial District Court Dept. 20
Lansford W. Levitt, Settlement Judge
Albert D. Massi, Ltd.
Cap & Kudler
Hutchison & Steffen, LLC
Eighth Judicial District Court Clerk
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