                                                   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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