                       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
SUPREME COURT
      OF
    NEVADA

(0) 1947A   e
                                                                                    “7-5(012
                   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.


SUPREME COURT
        OF
     NEVADA
                                                           2
(0) 1947A    (e,
                              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.").



SUPREME COURT
        OF
     NEVADA
                                                       3
(01 1947A
                  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.



SUPREME COURT
        OF
     NEVADA
                                                        4
(0) 1947A    eo
                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




SUPREME COURT
        OF
     NEVADA
                                                     5
(0) 1947A
