In Re: Estate Of Schwartz C/W 79464 ( 2022 )

IN THE SUPREME COUR.T OF THE STATE OF NEVADA
IN THE MATTER OF THE ESTATE OF No. 78341
MILTON I. SCHWARTZ, DECEASED.
A. JONATHAN SCHWARTZ,
EXECUTOR OF THE ESTATE OF FILED
MILTON I. SCHWARTZ,
Appellant/Cross-Respondent, MAR 30 2022
vs. ELIZABETH A. BROWN
THE DR. MIRIAM AND SHELDON G. CLERK OF S PREME COURT
BY
ADELSON EDUCATIONAL
INSTITUTE,
Res • ondent/Cross-A I ellant.
IN THE MATTER OF THE ESTATE OF No. 79464
MILTON I. SCHWARTZ, DECEASED.
THE• DR. MIRIAM AND SHELDON G.
ADELSON EDUCATIONAL
INSTITUTE,
Appellant,
vs.
A. JONATHAN SCHWARTZ,
EXECUTOR OF THE ESTATE OF
MILTON I. SCHWARTZ,
Res iondent.
ORDER OF AFFIRMANCE
These are consolidated appeals from a district court order
granting summary judgment and entering judgment after a jury verdict and
from an order awarding attorney fees and costs in a will enforcement and
contract matter. Eighth Judicial District Court, Clark County; Gloria
Sturman, Judge.
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In 1989, Milton I. Schwartz donated $500,000 to the school now
named the Dr. Miriam and Sheldon G. Adelson Education Institute (the
School), and because of his donation, the School was originally named after
him. He continued to donate additional funds to the School, and in his will
left a $500,000 bequest to the School. After his death, the School was
renamed. The School moved to compel distribution of the bequest, and the
Estate of Milton I. Schwartz filed a petition to construe the bequest as void,
for damages from breach of contract, and to recover the lifetime gifts Milton
had given to the School. The district court granted the School summary
judgment, concluding that any naming rights agreement Milton had with
the School was an oral agreement, and thus the breach of contract claim
was barred by the statute of limitations. After a jury trial, the district court
denied the School's petition to compel distribution of the bequest and the
Estate's petition regarding rescission of lifetime gifts. However, it granted
the Estate's petition in part, concluding that the bequest was void. The
district court then awarded the Estate its costs as the prevailing party.
Docket No. 78341
On appeal, the Estate first argues that the district court erred
in granting the School's summary judgment motion regarding the statute
of limitations barring the Estate's breach of contract claim. We disagree.
See Wood v. Safeway, Inc., 121 Nev. 724, 729, 121 P.3d 1026, 1029 (2005)
(explaining that this court reviews the granting of summary judgment de
novo). A four-year statute of limitations applies for actions regarding a
contract "not founded upon an instrument in writing." NRS 11.190(2)(c).
The evidence in the record supports the district court's conclusion that
Milton's naming rights agreement was an oral contract because no witness
testified there was a written contract, the School's bylaws could not qualify
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as an enforceable contract with a third party, and the only written
document reflecting the agreement was unsigned by the School. See El
Ranco, Inc. v. N.Y. Meat & Provision Co., 88 Nev. 111, 114, 493 P.2d 1318,
1320 (1972) (explaining that "bin order to be founded upon an instrument
in writing, the instrument must itself contain a contract (obligation or
liability) to do the thing for the nonperformance of which the action is
broughr (internal quotation marks omitted)), disagreed with on other
grounds by State v. Am. Bankers Ins. Co., 105 Nev. 692, 696 n.2, 782 P.2d
1316, 1318 n.2 (1989) .
Additionally, the district court properly found that the Estate
did not bring the action within four years of being placed on inquiry notice.
A plaintiff is on inquiry notice when he or she knows or should know facts
that would lead an ordinary, prudent person to investigate the matter
further. Winn v. Sunrise Hosp. & Med. Ctr., 128 Nev. 246, 252, 277 P.3d
458, 462 (2012). The executor of the Estate, Milton's son, A. Jonathan
Schwartz, testified that he took a tour of the School in 2008 when the
entrance to the campus and the middle school bore the Adelson name, and
he acknowledged that the renaming of the middle school was a breach of
Milton's naming rights agreement. Despite this inquiry notice, the Estate
did not file its action until 2013. Thus, the district court properly concluded
the statute of limitations barred the Estate's breach of contract claim.
Second, the Estate contends that the district court abused its
discretion by refusing to give the Estate's proposed jury instructions
'Any use of letterhead with Milton's name on it after the 2008 School
tour would not alone undermine Jonathan's inquiry notice. See Siragusa v.
Brown, 114 Nev. 1384, 1393-94, 971 P.2d 801, 807 (1998) (explaining that a
plaintiff cannot be willfully ignorant or ignore pertinent facts that are
reasonably accessible to them).
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regarding• contract modification and the implied covenant of good faith and
fair dealing. The Estate failed to present evidence of a modification, as
there was no evidence of consideration Milton provided to the School in 1996
when his name was placed back on the School, and even Jonathan referred
to the 1996 restoration of Milton's name as a cure of a previous breach of
the naming rights agreement, not as a modification. See Ins. Co. of the W.
v. Gibson Tile Co., 122 Nev. 455, 464, 134 P.3d 698, 703 (2006) (recognizing
that modification of a contract requires additional consideration).
Additionally, the Estate did not plead a breach of the covenant of good faith
and fair dealing claim and the Estate does not assert that the parties tried
that issue by consent. Thus, we conclude the district court did not abuse its
discretion when it denied the Estate's requested jury instructions. Wyeth v.
Rowatt, 126 Nev. 446, 464, 244 P.3d 765, 778 (2010) (explaining that this
court reviews a district court's decision not to give a proposed jury
instruction for an abuse of discretion).
. Lastly, the Estate argues that the district court erred in
denying its claim for rescission of Milton's lifetime gifts because the gifts
were conditioned on the School bearing his name in perpetuity. Generally,
gifts are irrevocable once accepted. Simpson v. Harris, 21 Nev. 353, 362, 31
P. 1009, 1011 (1893). There was no evidence that Milton conditioned each
of his lifetime gifts on the School being named after him. Additionally, the
Estate failed to show by clear and convincing evidence that each of the
lifetime gifts were based on Milton's mistaken belief that the school would
bear his name in perpetuity. See In re Irrevocable Tr. Agreement of 1979,
130 Nev. 597, 607, 331 P.3d 881, 888 (2014) (providing that in order to
obtain relief from a gift, the donor must demonstrate that the gift was made
on the donor's unilateral mistake and the donor's intent must be proven by
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clear and convincing evidence). While there was evidence that Milton would
not have given large donations to charities without naming rights
associated with those gifts, many of the subject lifetime gifts were
significantly smaller and there is no evidence he would not have made those
gifts if the School was not named after him in perpetuity. Thus, we conclude
the district court did not err in denying the rescission claim. See Hannam
v. Brown, 114 Nev. 350, 357, 956 P.2d 794, 799 (1998) (providing that this
court will not disturb a district court's factual findings "unless they are
clearly erroneous and are not based on substantial evidence (internal
quotation marks omitted)).
Docket No. 79464
On cross-appeal, the School contends that the district court
erred when it failed to enforce the bequest in Milton's will. "Mt is the long
accepted position of this court that the primary aim in construing the terms
of a testamentary document must be to give effect, to the extent consistent
with law and policy, to the intentions of the testator." Adkins v. Oppio, 105
Nev. 34, 36, 769 P.2d 62, 64 (1989) (internal quotation marks omitted). The
record supports the jury's findings that Milton's intent was clear in that he
was only providing the bequest to the School because he believed the School
was named after him in perpetuity. Thus, the district court did not err in
giving effect to Milton's intentions and denying the bequest to the School
after the School was renamed.
The School also argues that the district court abused its
discretion when it awarded the Estate its costs because the Estate was not
the prevailing party and $11,160.93 of the cost award were unsupported,
unreasonable, or unnecessary. While the School prevailed on defending the
Estates claim that Milton had an enforceable naming rights agreement,
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because the School did not prevail on the claim it brought for distribution
of the bequest and the Estate did prevail on one of the claims it brought, the
district court did not err in concluding that the Estate was the prevailing
party. See Golightly & Vannah, PLLC v. TJ Allen, LLC, 132 Nev. 416, 422,
373 P.3d 103, 107 (2016) ("A prevailing party must win on at least one of its
claims."); 20 C.J.S. Costs § 12 (2019) (providing that "where each party
succeeds on one or more of the causes of action, claims, or issue, a plaintiff
who has obtained a judgment for a part of the relief requested is regarded
as the 'prevailing party entitled to cost?).
Additionally, the record does not demonstrate that the district
court abused its discretion in awarding the Estate the challenged costs.
Bobby Berosini, Ltd. v. People for the Ethical Treatment of Animals, 114
Nev. 1348, 1352, 971 P.2d 383, 385 (1998) (The determination of allowable
costs is within the sound discretion of the trial court"); see also Bergmann
v. Boyce, 109 Nev. 670, 680, 856 P.2d 560, 566 (1993) (explaining that a
witness does not have to testify in order to recover costs associated with that
witness), superseded by statute on other grounds as recognized in In re DISH
Network Derivative Litig., 133 Nev. 438, 451 n.6, 401 P.3d 1081, 1093 n.6
(2017). The Estate provided documentation demonstrating the costs were
actually incurred. Further, the district court considered the School's
challenges to the Estate's costs and actually granted many of those
challenges, reducing the costs by $59,517.67. Thus, the record does not
demonstrate that the district court abused its discretion in failing to further
reduce the costs. Vill. Builders 96, L.P. v. US. Labs., Inc., 121 Nev. 261,
276, 112 P.3d 1082, 1092 (2005) (A district court's decision regarding an
award of costs will not be overturned absent a finding that the district court
abused its discretion.").
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In sum, the district court did not err in (1) granting the School's
summary judgment motion because the Estate's breach of contract claim
was barred by the statute of limitations, (2) denying the Estate's claim for
rescission, or (3) denying the School's request to enforce the bequest.
Additionally, the district court did not abuse its discretion in failing to give
the Estate's requested jury instructions or in awarding the Estate costs.
Accordingly, we
ORDER the judgments of the district court AFFIRMED.
J.
Cadish
J.
v J.
Herndon
cc: Hon. Gloria Sturman, District Judge
Carolyn Worrell, Settlement Judge
Kemp Jones, LLP
Solomon Dwiggins & Freer, Ltd.
Lewis Roca Rothgerber Christie LLP/Las Vegas
Eighth District Court Clerk
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