In re Irrevocable Trust Agreement of 1979

130 Nev., Advance Opinion 415
IN THE SUPREME COURT OF THE STATE OF NEVADA
IN THE MATTER OF THE No. 62160
IRREVOCABLE TRUST AGREEMENT
OF 1979.
CHARRON C. MONZO, AS
FILED
BENEFICIARY OF THE CHARRON C. AUG 0 7 2014
MONZO REAL ESTATE TRUST !E K. LINDE
EMAN
AGREEMENT OF 2005, CLE RT
By I
Petitioner, CHI F 13 Itt ERK
vs.
THE EIGHTH JUDICIAL DISTRICT
COURT OF THE STATE OF NEVADA,
IN AND FOR THE COUNTY OF
CLARK; AND THE HONORABLE
GLORIA STURMAN, DISTRICT
JUDGE,
Respondents,
and
DAISY MONZO,
Real Party in Interest.
Original petition for a writ of mandamus or prohibition
challenging a district court order granting partial summary judgment.
Petition granted.
Bailus Cook & Kelesis, Ltd., and Marc P. Cook and Kathleen T. Janssen,
Las Vegas,
for Petitioner.
Snell & Wilmer, LLP, and Patrick G. Byrne, Las Vegas; Gordon Silver and
Bradley J. Richardson and Puneet K. Garg, Las Vegas,
for Real Party in Interest.
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BEFORE THE COURT EN BANC.
OPINION
By the Court, HARDESTY, J.:
Real party in interest Daisy Monzo executed a deed gifting a
condominium that she owned to an irrevocable trust for the benefit of her
daughter, petitioner Charron C. Monzo. Daisy later rescinded that
transfer based on alleged unilateral mistakes in the execution of the deed
conveying the property to the trust. We are asked to determine whether
unilateral mistakes, if proven, will allow the donor to rescind or reform an
errant gift. We hold that a donor may obtain relief from an erroneous gift
if he or she proves by clear and convincing evidence that the donor's intent
was mistaken and was not in accord with the donative transfer. Further,
remedies available to correct such mistakes, which include rescission or
reformation of the deed transferring the property, depend on the nature of
the unilateral mistake in question.
FACTS AND PROCEDURAL HISTORY
Daisy and her three adult daughters, Charron, Charlene, and
Michelle, established three irrevocable inter vivos real estate trusts, each
benefiting a daughter, and into each of which a one-third interest in
properties located in Arizona and New York was transferred. Daisy was
the sole original trustee of each of the trusts. Michelle lived in the Arizona
property and Charlene lived in the New York property. These properties
were each valued at approximately $500,000. Charron lived with Daisy in
a Las Vegas condominium owned by Daisy that is valued at over $2
million, but that had not been transferred into any of the trusts.
When Charron and Daisy considered transferring the Las
Vegas condo into a trust for Charron's use, Charron introduced Daisy to
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Las Vegas attorney Michael Rasmussen who met with them several times
about the proposed transfer. During these meetings, they discussed
whether Daisy would retain control over the Las Vegas condo if it was
transferred into a trust, whether Daisy needed to transfer the condo to
avoid having it escheat to the state upon her death, and how the condo
should be transferred and titled if it were to be placed into a trust.
Despite the ongoing consultations with Rasmussen over the transfer of the
condo, Daisy never provided Rasmussen with any of her prior estate
planning documents or authorized him to contact her other attorneys.
Rasmussen prepared a deed, which Daisy signed, gifting a
100-percent interest in the Las Vegas condo from Daisy to Charron's trust.
But Rasmussen later learned that, when transferring real property into
her family trusts, Daisy typically transferred a one-third interest in the
subject properties to each daughter's trust, rather than the 100-percent
interest in the condo that she had transferred to Charron's trust.
Rasmussen prepared a correction deed to rectify this situation, but Daisy
refused to sign that deed Instead, three months after Daisy signed the
deed transferring the Las Vegas condo into Charron's trust, Daisy signed
another deed, prepared by a different attorney, transferring the condo
back into her own name.
After Daisy rescinded the prior gift, Charron filed a petition in
the district court seeking accountings of the various family trusts and an
order requiring Daisy to transfer the Las Vegas condo back to Charron's
trust. The accounting actions were consolidated and the Las Vegas condo
issue was addressed separately. Daisy filed counterclaims against
Charron based on the original transfer of the Las Vegas condo into
Charron's trust for, among other things, fraudulent misrepresentation,
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elder abuse, breach of contract, conversion, undue influence, and mistake.
Daisy also moved the district court for partial summary judgment, seeking
rescission of the initial gift deed based on at least three mistakes that
Daisy allegedly made in transferring the condo into Charron's trust. First,
Daisy asserted that she mistakenly believed that the deed would transfer
the condo into a trust that she controlled while granting her estate
planning flexibility. Second, she argued that she mistakenly thought that
transferring the property was necessary to avoid having it escheat to the
state upon her death. And third, she contended that she mistakenly
believed that, consistent with prior estate planning practices, the deed
would transfer a one-third interest in the property to each daughter's
trust, rather than conveying the full interest to Charron's trust. Charron
filed a countermotion for partial summary judgment on Daisy's
counterclaims and, in the alternative, for reformation of the deed
transferring the condo into Charron's trust, if the district court ultimately
determined that Daisy mistakenly transferred a 100-percent interest in
the condo into Charron's trust, instead of a one-third interest into each
daughter's trust.
Following briefing and a hearing on these motions, the district
court denied Charron's countermotions and entered partial summary
judgment in Daisy's favor, concluding that Daisy made unilateral
mistakes in executing the gift deed and rescinding the initial deed. The
district court purported to apply Nevada's general unilateral mistake law,
together with gift law from other jurisdictions, in granting summary
judgment. But although the district court held that Daisy's execution of
the deed transferring title to the condo into the trust was based on
unilateral mistakes, it made no findings as to what specific mistakes
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affected the execution of the deed or what Daisy's intent was when she
made the donative transfer. Charron then filed this original writ petition
challenging the district court's partial summary judgment order.
DISCUSSION
In her petition, Charron contends that summary judgment
was improperly granted in Daisy's favor on the unilateral mistake and
rescission issues because questions of material fact remained as to Daisy's
intent in transferring a 100-percent interest in the Las Vegas condo into
Charron's trust. Charron contends that the summary judgment evidence
demonstrated that Daisy did not make any mistake in the transfer, but
alternatively asserts that if a mistake was made, this court should clarify
the proper remedy to address mistakes in a donative transfer. In
response, Daisy argues that no genuine issues of material fact remained,
as the evidence demonstrated that she made unilateral mistakes in
executing the deed transferring the property into Charron's trust, and that
she, as the donor, was entitled to elect rescission to correct these mistakes.
The parties and the district court all recognize that this court has not
addressed unilateral mistake in the context of a donative transfer.
Standard of review
Although this court generally declines to exercise its discretion
to consider writ petitions challenging district court orders granting or
denying summary judgment, Smith v. Eighth Judicial Dist. Court, 113
Nev. 1343, 1344, 950 P.2d 280, 281 (1997), we nevertheless will exercise
our discretion to consider such petitions when "an important issue of law
needs clarification and considerations of sound judicial economy and
administration militate in favor of granting the petition." Int'l Game
Tech., Inc. v. Second Judicial Dist. Court, 124 Nev. 193, 197-98, 179 P.3d
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556, 559 (2008). We have not previously addressed whether a donor
making an inter vivos gift or donative transfer may rely on his or her
unilateral mistake in making the gift to obtain relief from the property
transfer. As this original writ proceeding provides us with the opportunity
to address and clarify this important issue of donative transfer law, we
exercise our discretion to consider this matter on the merits. Smith v.
Eighth Judicial Dist. Court, 107 Nev. 674, 677, 818 P.2d 849, 851 (1991).
This court typically reviews a petition for a writ of mandamus
to determine whether the district court engaged in an arbitrary or
capricious exercise of discretion, and we review de novo issues of law
presented in the context of such an extraordinary writ proceeding.' Ina
Game Tech., 124 Nev. at 197-98, 179 P.3d at 558-59.
Mutual and unilateral mistake in the contract context do not apply to
donative transfers
In granting rescission of the transfer deed, the district court
held that Daisy's transfer of the property into Charron's trust was affected
by unilateral mistake. Charron's arguments in her original writ petition,
however, initially focus on whether a mutual mistake occurred in this
transfer, although she also subsequently addressed the application of
unilateral mistake to this dispute in responding to Daisy's assertion that
the transfer of the property was, as the district court concluded, based on
unilateral mistakes.
'Because mandamus, rather than prohibition, constitutes the proper
vehicle for challenging the rulings at issue here, we deny Charron's
alternative request for a writ of prohibition. See NRS 34.320 (noting that
prohibition relief is available to address proceedings in excess of a
tribunal's jurisdiction).
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Contract-based mistake
We have previously held, in the contract context, that a
mutual mistake may provide a basis for relief from a contract. Gramanz v.
Gramanz, 113 Nev. 1, 8, 930 P.2d 753, 758 (1997). A "ImIutual mistake
occurs when both parties, at the time of contracting, share a misconception
about a vital fact upon which they based their bargain." Id. (internal
quotation omitted). But as other courts have concluded, mutual mistake is
entirely inapplicable in the gift context because a gift, by its very nature,
is unilateral. This is because "[w]hen a deed is exchanged in a contractual
relationship, both the grantor and grantee are obligated to perform in
some type of fashion, which creates the opportunity for a mutual mistake
to occur. Whereas, when a deed is given as a gift, the grantor is the only
party with an obligation, and, thus, only a unilateral mistake is likely to
occur." Wright v. Sampson, 830 N.E.2d 1022, 1027 (Ind. Ct. App. 2005).
This court has also recognized that the occurrence of
unilateral mistakes may allow a party to a contract to obtain relief from
that agreement. Home Savers, Inc. v. United Sec. Co., 103 Nev. 357, 358-
59, 741 P.2d 1355, 1356-57 (1987) (adopting Restatement (Second) of
Contracts § 153 (1981)). A unilateral mistake occurs when one party
makes a mistake as to a basic assumption of the contract, that party does
not bear the risk of mistake, and the other party has reason to know of the
mistake or caused it. Id. Although the district court in this case partially
relied on this line of reasoning in making its decision, and Daisy likewise
relies on this authority in responding to Charron's petition, contractual
unilateral mistake is also inapplicable in the donative transfer context
because, like contract-based mutual mistake, this concept is premised
upon an agreement between two parties giving rise to mutual obligations
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amongst the parties. See Wright, 830 N.E.2d at 1027. But in the gift
context, it is only the grantor whose intent and acts matter. See Twyford
v. Huffaker, 324 S.W.2d 403, 406 (Ky. Ct. App. 1958). Aside from the
donee's acceptance or refusal of the gift, the donor is the only party
available to bear the risk of mistake. See id. Whether a donee knew of or
caused a mistake is likely irrelevant. See id.
Donative transfer and trust law
In Nevada, a valid inter vivos gift or donative transfer
requires a donor's intent to voluntarily make a present transfer of
property to a donee without consideration, the donor's actual or
constructive delivery of the gift to the donee, and the donee's acceptance of
the gift. 2 Schmanski v. Schmanski, 115 Nev. 247, 252, 984 P.2d 752, 756
(1999); Edmonds v. Perry, 62 Nev. 41, 61, 140 P.2d 566, 575 (1943);
Simpson v. Harris, 21 Nev. 353, 362, 31 P. 1009, 1011 (1893); see also
Restatement (Third) of Prop.: Wills & Other Donative Transfers § 6.1
(2003). Unless conditional, a gift becomes irrevocable once transferred to
and accepted by the donee. Simpson, 21 Nev. at 362-63, 31 P. at 1011
(noting that a donor giving a gift may not reclaim or expect repayment for
the gift). In this regard, Nevada's long-standing position on the issue is
consistent with that of other jurisdictions that have also opined, in more
recent decisions, that a gift becomes irrevocable once the transfer and
2Although the deed at issue here recited that the Las Vegas condo
was given "for good and valuable consideration," the district court found
that the Las Vegas condo was a gift to Charron's trust, and Charron does
not challenge that determination in her writ petition. As a result, we do
not consider the effect of this language on the nature of the transfer in this
writ proceeding.
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acceptance of that gift have occurred. See Albinger v. Harris, 48 P.3d 711,
719 (Mont. 2002) ("Such a gift, made without condition, becomes
irrevocable upon acceptance."); Cooper v. Smith, 800 N.E.2d 372, 379
(Ohio Ct. App. 2003) ("Generally, a completed inter vivos gift is absolute
and irrevocable."). Given the irrevocable nature of a gift, it is apparent
that the donor cannot simply resort to self-help to undo the donative
transfer, absent the donee's agreement to return or modify the gift.
As Charron points out, in the trust context, Nevada statutes
place similar restrictions on the unwinding of transfers into irrevocable
trusts like the one at issue here. In particular, NRS 163.560(1) provides
that if a donor transfers property into a trust that is expressly irrevocable,
that trust, and the donative transfer, "shall be irrevocable for all
purposes." And NRS 163.050, which applies to trusts in general, requires
a trustee to either obtain the consent of all trust beneficiaries or seek court
approval before engaging in a self-interested transaction, such as
transferring property from the trust into the trustee's name.
Considering these statutes in light of the situation presented
here, once the donor transfers property into an irrevocable trust, of which
the donor is also the trustee, Nevada's trust scheme restricts the
donor/trustee's ability to resort to self-help to transfer trust property to
himself or herself in an attempt to remedy perceived problems with the
transfer. See NRS 163.050. Resort to such self-help remedies may also
raise concerns surrounding the donor/trustee's possible breach of fiduciary
duties to the trust beneficiaries. While Charron argues that these statutes
prohibited Daisy's second transfer of the property out of the trust and back
into her own name, the subsequent transfer of this property is not at issue
here, as the district court has not addressed the effect of Daisy's actions in
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this regard. 3 Instead, the focus of this petition is limited to the district
court's determination that unilateral mistake affected the initial transfer
of the property into Charron's trust and its rescission of the transfer deed.
Thus, the issues before us involve the applicability of unilateral mistake to
the original donative transfer, what remedies are available if unilateral
mistake does apply, and whether the district court properly granted
partial summary judgment to Daisy and rescinded the initial transfer.
Unilateral mistake in the donative transfer context
Having examined our existing contract-based mistake law and
gift law, it is apparent that Nevada's established law does not address the
instant matter, and we therefore review extrajurisdictional approaches to
this issue. In this regard, Charron's arguments before this court focus on
whether genuine issues of material fact preclude partial summary
judgment and whether reformation is a more appropriate remedy than
rescission. Her arguments do not substantively address a donor's
unilateral mistake in a donative transfer. Daisy, however, strenuously
argues that a donor's unilateral mistakes in executing a donative transfer
permits the donor to elect a remedy, at his or her discretion, to correct his
or her mistakes in executing the donative transfer.
'We note that, in the absence of the donee's or a trust beneficiary's
consent, the preferred method for a donor to seek relief for perceived
problems with a donative transfer is to petition a district court for relief.
We decline to further address Daisy's resort to self-help in this case,
because that question is not before us. The impact, if any, of Daisy's resort
to self-help through the second deed transferring the Las Vegas condo
from the trust back into her own name remains to be determined, in the
first instance, by the district court.
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The vast majority of jurisdictions address this issue
consistently with the modern Restatement approach, which allows a donor
to obtain relief from a donative transfer based on unilateral mistake
through reformation or rescission. 4 See, e.g., Pullum v. Pullum, 58 So. 3d
752, 757-58 (Ala. 2010); Yano v. Yano, 697 P.2d 1132, 1135-36 (Ariz. Ct.
App. 1985); Wright, 830 N.E.2d at 1027-28; Twyford, 324 S.W.2d at 406;
EstateS of Irvine v. Oaas, 309 P.3d 986, 990-91 (Mont. 2013); Generaux v.
Dobyns, 134 P.3d 983, 989-90 (Or. Ct. App. 2006). Under the Restatement
approach, a donor whose gift is induced by a unilateral mistake, who
mistakenly transfers something more than or different from the intended
transfer, or who mistakenly makes a gift to someone other than the
intended recipient, may pursue an action to remedy his or her unilateral
mistake. Restatement (Third) of Restitution & Unjust Enrichment § 11
(2011). In such an action, the party advocating the mistake has the
burden of proving the donor's intent and the alleged mistake by clear and
convincing evidence. Restatement (Third) of Prop.: Wills & Other
Donative Transfers § 12.1 & cmts. c, e & g (2003).
The Restatements identify two types of unilateral mistakes
that may occur: invalidating mistakes and mistakes in the content of a
document. Restatement (Third) of Restitution & Unjust Enrichment § 5
4A minority of courts have declined to grant relief from a donative
transfer based on allegations of unilateral mistake absent fraud or
inequitable conduct. See, e.g., Willis v. Willis, 722 S.E.2d 505, 507-08
(N.C. 2012) (holding that reformation is not available for unilateral
mistakes not induced by fraud even in cases of a gift). This approach,
however, is inconsistent with Nevada's general formulation of unilateral
mistake, which is not limited to cases of fraud or inequitable conduct. See
generally Home Savers, 103 Nev. at 358-59, 741 P.2d at 1356-57.
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(2011); Restatement (Third) of Prop.: Wills & Other Donative Transfers §
12.1 (2003). An invalidating mistake occurs when "but for the mistake the
transaction in question would not have taken place." Restatement (Third)
of Restitution & Unjust Enrichment § 5(2)(a) (2011). "The donor's mistake
must have induced the gift; it is not sufficient that the donor was
mistaken about the relevant circumstances." Id. § 11 cmt. c. A mistake in
the content of a document arises through either a mistake of expression or
a mistake of inducement. Restatement (Third) of Prop.: Wills & Other
Donative Transfers § 12.1 & cmt. i (2003). A mistake of expression occurs
when a document misstates the donor's intention, fails to include a specific
term that the donor intended to be included, or includes a term that was
not intended. Id. A mistake of inducement occurs when a donor
intentionally includes or omits a term, but the intent to include or omit
the term was a product of mistake. Id. Whether a donor's mistake is
characterized as a mistake of fact or law is irrelevant. Restatement
(Third) of Restitution & Unjust Enrichment § 11 cmt. c (2011).
The Restatement affords the donor different remedies
depending on the type of mistake. 5 Rescission is an appropriate remedy to
address an invalidating mistake. Restatement (Third) of Restitution &
Unjust Enrichment § 5(1) (2011); see also Generaux, 134 P.3d at 990. In
contrast, reformation is an appropriate remedy to address mistakes in the
5 The Restatement permits a party to seek other restitutionary
remedies in addition to the equitable remedies of rescission and
reformation. Restatement (Third) of Restitution & Unjust Enrichment §
11(1) (2011). Because neither party here seeks remedies other than
rescission or reformation, we do not address other potential remedies at
this time.
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content of the document, where the donative transfer was intended but
mistakes affected the expression of the transfer. Restatement (Third) of
Prop.: Wills & Other Donative Transfers § 12.1 cmts. a, g & h (2003); see
also Skinner v. Northrop Grumman Ret. Plan B, 673 F.3d 1162, 1166 (9th
Cir. 2012); Pullum, 58 So. 3d at 757-60; Estate of Irvine, 309 P.3d at 990-
91, The Restatements' discussion of when rescission or reformation may
be appropriate is consistent with Nevada contractual law addressing
remedies. See Home Savers v. United Sec. Co., 103 Nev. 357, 358-59, 741
P.2d 1355, 1356 (1987) (permitting rescission for a mistake "as to a basic
assumption on which" the contract was made (internal citations omitted));
25 Corp. v. Eisenman Chem. Co., 101 Nev. 664, 672, 709 P.2d 164, 170
(1985) (stating that reformation is available to correct drafting mistakes in
a contract to reflect the parties' true intentions). 6
Based on our review of the relevant Restatement sections and
extrajurisdictional decisions evaluating the Restatement approach to
unilateral mistake in the donative transfer context, we conclude that the
Restatement's position corresponds with Nevada's overall treatment of
mistake and our application of the remedies of rescission and reformation
in the contract realm. Accordingly, we join the majority of jurisdictions in
recognizing that a donor's unilateral mistake in executing a donative
transfer may allow a donor to obtain relief from that transfer if the
mistake and the donor's intent are proven by clear and convincing
6 1n light of our adoption of the Restatement approach to donative
transfers and the consistency of the Restatement remedies with Nevada's
contractual remedies, we necessarily reject Daisy's assertion that, as the
donor, she possesses the exclusive right to determine what remedy is
applied.
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evidence. 7 And depending on whether the unilateral mistake constitutes
an invalidating mistake or a mistake in the content of the document, the
donor may be entitled to rescission or reformation of the transfer. Having
adopted this approach, we now examine whether the district court
arbitrarily or capriciously exercised its discretion when determining that
Daisy's execution of the transfer deed was affected by unilateral mistakes
and whether no genuine issues of material fact remained.
Genuine issues of fact remain as to Daisy's alleged intent and unilateral
mistakes
In the underlying case, Daisy moved for partial summary
judgment and rescission on her unilateral mistake counterclaim, which
the district court granted over Charron's opposition and competing motion
for partial summary judgment. In reaching this conclusion, the district
court found that Daisy made unilateral mistakes in executing the gift deed
and that rescission of the deed transferring the property to Charron's trust
was warranted. In her petition challenging the district court's
determination, Charron argues that there were no mistakes in the
execution of the transfer deed but that, if mistakes were made,
reformation of the deed, rather than rescission, was the appropriate
remedy. Daisy disagrees, asserting that her execution of the deed was
based on several unilateral mistakes and that rescission was the correct
remedy.
7 While we phrase our opinion in terms of the donor obtaining relief,
circumstances may exist where other interested parties, such as the
donee, the intended donee, or the beneficiary, may also request relief for a
donative transfer affected by mistake. Because that issue is not directly
before us, we do not further address it here.
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Under the Restatement approach adopted here today, the
party advocating unilateral mistake as a basis for obtaining relief from a
donative transfer (in this case Daisy, the donor/trustee) must prove his or
her case by clear and convincing evidence. Restatement (Third) of Prop.:
Wills & Other Donative Transfers § 12.1 & cmts. c, e & g (2003). And
demonstrating unilateral mistakes in the execution or transfer of a gift
depends on the donor's intent at the time of the donative transfer.
McClung v. Green, 80 So, 3d 213, 216 (Ala. 2011) (examining the donors'
intent to determine whether a mistake was made); Generaux, 134 P.3d at
990 ("[T]he mistake must have existed when the instrument was
created."). Thus, unilateral mistakes cannot be said to have been made
without first determining the donor's intent at the time when delivery and
all other elements necessary to complete a donative transfer were
completed. If the donor's intent is not in accord with the facts, then a
mistake may have occurred warranting relief. Determining a donor's
donative intent and beliefs is a question for the fact-finder, and the
presence of ambiguity in a donor's intent in making a gift creates genuine
issues of material fact that preclude summary judgment. Anvui, L.L.C. v.
G.L. Dragon, L.L.C., 123 Nev. 212, 215-16, 163 P.3d 405, 407 (2007);
Mullis v. Nev. Nat'l Bank, 98 Nev. 510, 513, 654 P.2d 533, 535-36(1982).
In this case, Daisy argues that she made three unilateral
mistakes in transferring the condo into Charron's trust. First, even
though she was sole trustee of the trust, she alleged that she mistakenly
believed that she would retain control over the Las Vegas condo once it
was transferred into trust. Second, she purported that she mistakenly
thought that the transfer was necessary to avoid having the Las Vegas
condo escheat to the state upon her death. And third, she asserted that
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she mistakenly believed that the deed would transfer a one-third interest
in the condo to each daughter's trust. The evidence presented regarding
Daisy's intent and these alleged mistakes is also conflicting.
At various times in her deposition, Daisy testified that she did
not have a problem with the transfer to Charron's trust, that she wanted
the transfer to be one-third into each daughter's trust, and that she did
not want to transfer the Las Vegas condo at all 8 Rasmussuen testified in
his deposition that he thoroughly reviewed the proposed transaction with
Daisy, including whether she would retain control over the Las Vegas
condo, whether it would escheat to the state, and that the entire interest
in the condo would be transferred into Charron's trust. Rasmussen
further testified that he believed that Daisy understood the ramifications
of the donative transfer, that she was making her own decisions, and that
she intended to transfer a 100-percent interest in the Las Vegas condo into
Charron's trust. And although this transfer was inconsistent with Daisy's
prior estate planning, Daisy expressly prohibited Rasmussen from
contacting her other attorneys before she executed the transaction.
Finally, while Charron appeared to concede in her deposition testimony
that Daisy intended a one-third interest in the Las Vegas condo to be
placed into each daughter's trust, rather than a 100-percent interest in
8 VVhile Daisy's counsel sought to dismiss this conflicting testimony
as something to be expected from someone who is 86 years old, such
conflicts, regardless of their basis, are inherently inappropriate for
resolution through a summary judgment motion. See Wood v. Safeway,
Inc., 121 Nev. 724, 729, 121 P.3d 1026, 1029 (2005) (recognizing that
summary judgment is only appropriate if the pleadings and other evidence
on file, viewed in the light most favorable to the nonmoving party,
demonstrate that no genuine issue of material fact remains in dispute and
that the moving party is entitled to judgment as a matter of law).
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Charron's trust, her testimony is conflicting in this regard, and she
nonetheless testified that Daisy intended to make the donative transfer.
Given the conflicting testimony from Daisy, Charron, and
Rasmussen, it is uncertain what Daisy's donative intent was at the time of
the donative transfer. Because the donor's intent at the time of the
transaction is determinative of whether unilateral mistakes affected the
execution or transfer of the gift, McClung, 80 So. 3d at 216, genuine issues
of fact necessarily remain as to whether unilateral mistakes affected
Daisy's execution of the deed transferring the Las Vegas condo into
Charron's trust, and thus, the district court was precluded from granting
partial summary judgment. Wood, 121 Nev. at 729, 121 P.3d at 1029.
With regard to the issue of available remedies, however, even
if Charron had conceded that Daisy intended the transfer, but made a
mistake in the content of the deed by transferring 100 percent of the
interest in the property to Charron, rather than one-third to each
daughter, we would still decline to address the appropriate remedy for this
mistake. In this regard, Daisy did not move for reformation and the
ultimate remedy in this matter will depend on the Restatements'
treatment of available remedies, as discussed above, for this or any other
mistake that Daisy is found to have made and the remedies available for
the parties' other causes of action, if they are also proven. Accordingly, it
is inappropriate to discuss a remedy on extraordinary review of a partial
summary judgment when conflicting testimony and other causes of action
remain to be resolved.
For the reasons discussed above, we grant the petition and
direct the clerk of this court to issue a writ of mandamus directing the
district court to vacate the portion of its order granting Daisy's motion for
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partial summary judgment and enter an order denying that motion. We
do not disturb the remainder of the district court's order denying
Charron's countermotions. 9
J.
Hardesty
J.
CLAJ-Cticr
Parraguirre
J. c 7n." 1 11 41a
Douglas.
J.
J. J.
9 Charron's writ petition primarily addressed the district court's
grant of Daisy's motion for partial summary judgment, but also included a
request for reformation of the deed transferring the Las Vegas condo into
trust. As discussed herein, however, genuine issues of material fact
remain concerning Daisy's intent that precludes summary judgment. We
thus decline to disturb the portion of the district court's order denying
Charron's countermotions.
In light of our resolution of this matter, we vacate the stay imposed
by our March 26, 2013, order and clarified by our July 1, 2013, order.
SUPREME COURT
OF 18
NEVADA
(0) 1947A en,