                       IN THE SUPREME COURT OF THE STATE OF NEVADA


                IN THE MATTER OF THE LAPRADE                                  No. 67570
                FAMILY TRUST ORIGINALLY DATED
                JANUARY 25, 1996 AND RESTATED
                ON SEPTEMBER 23, 2011,
                                                                                  FILED
                ARNE LAPRADE,                                                     MAR 2 5 2016
                Appellant,
                                                                                  TRACIE K. UNDEMAN
                vs.                                                            CLERK F SUPREME COURT
                                                                              BY      •
                ERIK LAPRADE,                                                       DEPUTY CLERK

                Respondent.

                          ORDER VACATING JUDGMENT AND REMANDING

                            This is an appeal from a district court order confirming a
                report and recommendation of the probate commissioner in a trust matter.
                Eighth Judicial District Court, Clark County; Gloria Sturman, Judge.
                            In this appeal, Arne LaPrade (Arne) argues that: (1) this court
                has jurisdiction to hear his undue influence and conflict of interest
                arguments; (2) the district court abused its discretion by failing to
                adequately address Arne's argument that Erik LaPrade's (Erik) counsel
                has a conflict of interest because Erik's counsel represents Erik as trustee
                and owes Arne a duty of care under Charleson v. Hardesty, 108 Nev. 878,
                882-83, 839 P.2d 1303, 1306-07 (1992) 1   ;   (   3) the district court's conclusions


                       'Although we conclude that the district court abused its discretion
                by failing to conduct an evidentiary hearing and by failing to conduct the
                balancing test required under Nev. Yellow Cab Corp. v. Eighth Judicial
                Dist. Court, 123 Nev. 44, 53-54, 152 P.3d 737, 742-43 (2007), we direct the
                parties and the district court to consider on remand NRS 162.310(1),
                which states that "[aln attorney who represents a fiduciary does not, solely
                as a result of such attorney-client relationship, assume a corresponding
                                                                  continued on next page . . .

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                 regarding Arne's undue influence claim are not supported by substantial
                 evidence; (4) the district court erred in accepting the typewritten list for
                 the distribution of personal property; and (5) the district court incorrectly
                 concluded that section 5.2 of the restated trust creates a specific bequest
                 for Erik.
                               For the reasons stated below, we conclude that the district
                 court erred in failing to conduct an evidentiary hearing regarding Arne's
                 undue influence and conflict of interest arguments. However, we decline
                 to address the other issues on appeal because the resolution of those
                 issues may be influenced by the outcome of the undue influence and
                 conflict of interest claims. 2 We therefore vacate the district court's order
                 and remand this matter to the district court so that it may further address
                 the issues and develop the record. Since the parties are familiar with the
                 facts and procedural history of the case, we do not recount them further
                 except as necessary for our disposition.


                 • . continued

                 duty of care or other fiduciary duty to a principal." It appears that the
                 parties and the district court overlooked NRS 162.310. The legislative
                 history of the statute clearly indicates that it was enacted in response to
                 Charleson, 108 Nev. at 882-83, 839 P.2d at 1306-07. See Hearing on S.B.
                 221 Before the Senate Judiciary Comm., 76th Leg. (Nev., March 21, 2011);
                 see also Hearing on S.B. 221 Before the Assembly Judiciary Comm., 76th
                 Leg. (Nev., May 2, 2011).

                           has also been brought to our attention that there is a pending
                        2 It

                 action in the district court challenging the trust on the basis of undue
                 influence, fraud, and mistake. In the interest of judicial economy, the
                 district court should consider consolidating this matter with the pending
                 action.



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                            As a preliminary matter, we first conclude that this court has
                jurisdiction to hear Arne's undue influence and conflict of interest
                arguments. If an order constitutes a final judgment, then it is
                substantively appealable under NRAP 3A(b)(1) (permitting an appeal from
                a final judgment in a civil action). The finality of an order or judgment
                depends on "what the order or judgment actually does, not what it is
                called." Valley Bank of Nev. v. Ginsburg,   110 Nev. 440, 445, 874 P.2d 729,
                733 (1994). To be final, an order or judgment must "dispose[ ] of all the
                issues presented in the case, and leave[ ] nothing for the future
                consideration of the court, except for post-judgment issues such as
                attorney's fees and costs." Lee v. GNLV Corp., 116 Nev. 424, 426, 996 P.2d
                416, 417 (2000). Where all issues have been rendered moot by the district
                court's order, the judgment is final.       See K_DI Sylvan Pools, Inc. v.
                Workman, 107 Nev. 340, 342-43, 810 P.2d 1217, 1219 (1991) (reasoning
                that partial summary judgment was not a final appealable judgment
                where district court order dismissed plaintiffs claims against defendant
                but did not render defendant's counterclaims moot). Here, the district
                court order failed to address Arne's undue influence and conflict of interest
                arguments. Nonetheless, we conclude that the district court order
                rendered those arguments moot and left nothing for the future
                consideration of the court. Therefore, we conclude that the district court
                order constitutes a final, appealable judgment.
                            We next conclude that the district court abused its discretion
                by failing to conduct an evidentiary hearing to adequately address Arne's
                conflict of interest argument and by failing to undertake the balancing test
                required under Nev. Yellow Cab Corp., 123 Nev. at 53-54, 152 P.3d at 742-
                43 (holding that "a district court must undertake a balancing test in

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                determining whether disqualification is warranted in a particular
                situation" and providing that this court reviews a district court's ruling on
                disqualification for a manifest abuse of discretion). Here, the probate
                commissioner refused to make a ruling regarding Arne's conflict of interest
                argument and the district court thereafter refused to make any findings
                concerning the same.    See Carson Ready Mix, Inc., 97 Nev. at 476, 635
                P.2d at 277 ("We cannot consider matters not properly appearing in the
                record on appeal.").
                            We further conclude that the district court erred by failing to
                adequately address Arne's undue influence claim and that the district
                court's tacit dismissal of this issue is not supported by substantial
                evidence.   See In re Estate of Bethurem, 129 Nev., Adv. Op. 92, 313 P.3d
                237, 242 (2013) ("Substantial evidence is evidence that a reasonable mind
                might accept as adequate to support a conclusion." (internal quotation
                omitted)). The probate commissioner made no findings regarding Arne's
                argument that Erik exerted undue influence on the trustor, Ludmilla
                LaPrade. The district court explicitly refused to address any arguments
                that were not included in the probate commissioner's report, including
                Arne's undue influence argument. Accordingly, neither the probate
                commissioner nor the district court determined whether there is a
                presumption of undue influence by a preponderance of the evidence.        See

                In re Estate of Bethurem, 129 Nev., Adv. Op. 92, 313 P.3d at 241 (stating
                that "a presumption of undue influence arises when a fiduciary
                relationship exists and the fiduciary benefits from the• questioned
                transaction" (internal quotation omitted)). As neither the district court
                nor the probate commissioner addressed the issue of undue influence, we
                conclude that the district court erred by failing to conduct an evidentiary

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                    hearing and that the district court's tacit dismissal of this issue is not
                    supported by substantial evidence.
                                    Accordingly, we
                                    ORDER the judgment of the district court VACATED AND
                    REMAND this matter to the district court for proceedings consistent with
                    this order. 3




                                                          --nic‘oPa                   c. J.
                                                         Parraguirre




                                                         Gibbons




                           3 The
                               Honorable James W. Hardesty, Justice, voluntarily recused
                    himself from participation in the decision of this matter.



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                cc: Hon. Gloria Sturman, District Judge
                     Marquis Aurbach Coffing
                     Grant Morris Dodds PLLC
                     Jeffrey Burr, Ltd.
                     Eighth District Court Clerk




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