FILED 

AUG 0 7 2014 

!E K. LINDEEMAN 

I 

CHI F 13 Itt ERK 

By 

CLE RT 

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 

BENEFICIARY OF THE CHARRON C. 

MONZO REAL ESTATE TRUST 

AGREEMENT OF 2005, 

Petitioner, 

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 Daisy later rescinded that 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. 3Instead, 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. 5Rescission 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 

5The 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 

61n 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. 7And 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. 

7While 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 8Rasmussuen 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 

8VVhile 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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CLAJ-Cticr 

Parraguirre 

J. 

J. 

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 

c7n."1111 41a 

Douglas. 

J. 

J. 

J. 

9Charron'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,