7 K. 77:7777777 

•E 

COURT OF APPEALS 

OF 

NEVADA 

131 Nev., Advance Opinion 51 

IN THE COURT OF APPEALS OF THE STATE OF NEVADA 

MARK ANDERSON, 

Appellant, 

vs. 

SOPHIA SANCHEZ, 

Respondent. 

No. 62059 

FILED 

JUL 2 3 2015 

Appeal from a district court divorce decree. Fifth Judicial 

District Court, Nye County; Kimberly A. Wanker, Judge. 

Reversed and remanded with instructions. 

Abrams Law Firm, LLC, and Vincent Mayo, Las Vegas, 

for Appellant. 

Law Office of Daniel Marks and Daniel Marks and Christopher L. 

Marchand, Las Vegas, 

for Respondent. 

BEFORE GIBBONS, C.J., TAO and SILVER, JJ. 

OPINION 

By the Court, GIBBONS, C.J.: 

This case involves the enforceability of a divorce settlement 

agreement in the face of a claim that the agreement distributes property 

belonging to a third party. At issue here is the district court's denial of 

appellant's motion to set aside the parties' settlement agreement, and join 

his sister to the underlying divorce proceeding, because she claimed an 

(0) 19478 - 40043i t 
interest in property that was treated as community property in the 

settlement agreement. Under NRCP 19(a), a court must join a person to 

an action if complete relief cannot be accorded among the parties already 

present, or the person to be joined claims to have an interest in the subject 

matter of the action, and adjudication of the action in the person's absence 

may either impair the person's ability to protect that interest, or leave any 

of the current parties subject to double, multiple, or otherwise inconsistent 

obligations due to the claimed interest. 

In light of this rule and the facts in this case, we conclude the 

district court should have conducted an evidentiary hearing to decide the 

joinder issues before the court adjudicated the parties' property pursuant 

to the settlement agreement. We therefore vacate the district court's 

divorce decree only as it affects the disposition of the property at issue and 

remand this matter to the district court with instructions to conduct an 

evidentiary hearing to determine whether the sister should have been 

joined under NRCP 19(a). 

BACKGROUND 

This appeal arises out of a divorce between appellant Mark 

Anderson and respondent Sophia Sanchez. Mark filed a complaint for 

divorce in March 2012. Thereafter, the parties immediately agreed to 

participate in mediation before retired district court judge Robert Gaston, 

but not pursuant to a court order or district court rule, which can be used 

to set the parameters of the mediation. At the conclusion of the mediation, 

the parties executed a written Memorandum of Understanding (MOU), 

which provided the framework for dividing their various assets and debts. 

The award of the Wilson property, a residence located on East Wilson 

COURT OF APPEALS 

OF 

NEVADA 2 

(0) 1947R catt3PD 
Avenue, Orange, California, is the only term of the MOU challenged on 

appeal. Under the terms of the MOU, Mark was to receive the Wilson 

property in exchange for the payment of a portion of his retirement funds 

to Sophia. 

After the parties executed the MOU, Mark filed a notice of 

withdrawal of his signature, stating, without any explanation or citation 

to law, that he was revoking his signature from the MOU. In response, 

Sophia filed a motion to enforce the MOU, asserting that the parties had 

entered into a legally binding contract and requesting that the district 

court enter a divorce decree based on the terms of the MOU. Mark then 

filed, among other things, an opposition to the motion to enforce, a 

countermotion to set aside and deem the MOU unenforceable, and a 

countermotion for joinder of his sister, Cheryl Parr. Cheryl also filed a 

motion to intervene in the divorce proceeding based on the same factual 

allegations set forth in Mark's opposition and countermotion regarding 

joinder, and she asked for a finding and order that the Wilson property 

was held in constructive trust, declaratory relief, an injunction, and 

attorney fees. 

In his opposition and countermotions, Mark argued, as 

relevant here, that the MOU was void because it improperly distributed 

property that did not belong to Mark and Sophia. Further, Mark argued 

the MOU was subject to rescission because it was based on a mutual 

mistake, a misrepresentation, or unconscionable terms. In support of 

these arguments, Mark alleged Cheryl had an ownership interest in the 

Wilson property, which he and Cheryl had received as beneficiaries of the 

Jack and Lavonne Anderson Trust (the Jack and Lavonne Trust), which 

COURT OF APPEALS 

OF 

NEVADA 3 

(0) 1947B e 
previously held that property. Mark claimed he and Cheryl had agreed 

Cheryl would keep the Wilson property in exchange for Mark receiving 

other trust assets. Cheryl currently lives on the Wilson property. 

Continuing his arguments in support of joinder and setting 

aside the MOU, Mark alleged that, between May 2005 and May 2006, he 

and Sophia entered into two agreements with Cheryl in which Cheryl 

allowed them to use the Wilson property as collateral to secure loans. In 

order to obtain financing, the second agreement required Mark and 

Cheryl, as trustees of the Jack and Lavonne Trust, to convey the Wilson 

property to Mark and Sophia. Mark and Sophia then transferred the 

Wilson property to their own newly created trust, the Anderson Trust. 

The Anderson Trust provides that the Wilson property is to be conveyed to 

Cheryl should she survive both Mark and Sophia. Additionally, David 

Parr, Cheryl's son, is named as a beneficiary of the Anderson Trust, 

should he survive Cheryl, Mark, and Sophia. The Anderson Trust was not 

made a party in this case. None of Mark and Sophia's five other 

properties are held in a trust. 

Mark contended he and Sophia entered into an oral agreement 

with Cheryl whereby he and Sophia would transfer the Wilson property to 

Cheryl after all loans were satisfied. Until such time, however, Mark and 

Sophia would hold the Wilson property in the trust for Cheryl's benefit. 

Thus, in his opposition and countermotions, Mark argued the agreement 

created a resulting trust or a constructive trust for Cheryl's benefit. 

Mark filed several statements in district court by individuals 

familiar with the arrangement to prove the oral agreements. These 

included an affidavit signed by Mark and Sophia's accountant, who 

COURT OF APPEALS 

OF 

NEVADA 4 

(0) 19475 
provided a loan collateralized by the Wilson property; a letter signed by 

the trust attorney who drafted the Anderson Trust, which recited his 

understanding that the property was held in Mark's name, but was 

actually owned by Cheryl; a notarized statement signed by Israel Sanchez, 

Sophia's brother, which outlined his understanding of Mark and Sophia's 

arrangement with Cheryl, consistent with Mark's contentions; and the 

Anderson Trust agreement, which held the Wilson property at the time of 

divorce and which provided that the Wilson property would go to Cheryl 

free of encumbrances following the deaths of both Sophia and Mark if she 

survived them. Based on his contention that Cheryl was the true owner of 

the Wilson property, Mark maintained that Cheryl must be joined to the 

action pursuant to the provisions of NRCP 19(a). 

Sophia filed a reply in support of her motion to enforce the 

settlement agreement and an opposition to Mark's countermotions. She 

denied the existence of an agreement between herself, Mark, and Cheryl, 

referring to the alleged agreement as "a secret deal between [Mark] and 

his sister." Sophia contended she and Mark were the rightful owners of 

the Wilson property, as they, not Cheryl, paid the mortgage and property 

taxes on the Wilson property and because a quitclaim deed released the 

property to Mark and Sophia forever. 

The district court held two hearings on the various motions. 

In rendering its decisions, the district court stated at the hearings, "I don't 

know how Cheryl [Parr] would—could become a party in this case. We're 

talking about a piece of property in California, so we don't—we don't have 

jurisdiction over a property in California. She's not a party to this 

proceeding. This is a divorce." Second, the district court stated, "[a] 

COURT OF APPEALS 

OF 

NEVADA 5 

(0) 19473 
settlement was reached. . .. It was placed in writing. And now what I 

hear is that somehow that—that really there was this constructive trust 

regarding this California property that fi] s the problem. Those facts were 

known to [Mark]. Those facts were known to [Sophia]." Third, the district 

court emphasized the importance that "[Mark and Sophia are] legal 

owners of the property." 

After the second hearing, the district court issued an order 

that (1) granted Sophia's motion to enforce the MOU, (2) denied all of 

Mark's countermotions, and (3) denied Cheryl's motion to intervene and 

related motions. In addition to concluding the MOU was a valid and 

binding agreement, the district court found that Cheryl lacked standing to 

intervene and that the court lacked jurisdiction to allow her to intervene.' 

The court also entered a decree of divorce dissolving Mark and Sophia's 

marriage and incorporating the MOU. This appeal by Mark followed. 

ANALYSIS 

Mark maintains that the arrangement with Cheryl created an 

implied trust for Cheryl's benefit. Therefore, he asserts that when he and 

Sophia divided the Wilson property as part of their community property, 

they mistakenly included property that belonged to Cheryl. Thus, Mark 

'Cheryl was never made a party to the district court action and is 

thus not a party to this appeal. Moreover, because Cheryl did not file a 

petition for a writ of mandamus challenging the denial of her motion to 

intervene, the denial of that motion is not before us. Nevertheless, the 

district court's comments in this regard are equally relevant to the denial 

of Mark's joinder motion as they were to the denial of Cheryl's motion to 

intervene. 

COURT OF APPEALS 

OF 

NEVADA 6 

(0) 19478 
contends that the MOU should be set aside as to that provision and the 

matter should be remanded to the district court for further proceedings in 

which Cheryl's interest in the Wilson property is determined. Sophia 

disagrees, arguing that the parties entered into an enforceable settlement 

agreement and that joinder of Cheryl was not required. 

This court reviews de novo a district court's legal conclusions 

relating to court rules. Casey v. Wells Fargo Bank, N.A., 128 Nev. , 

290 P.3d 265, 267 (2012). Subject matter jurisdiction is similarly reviewed 

de novo. Ogawa v. Ogawa, 125 Nev. 660, 667, 221 P.3d 699, 704 (2009). 

Generally, when parties to a divorce have entered into a 

signed, written settlement agreement, such agreement is binding and "can 

be enforced by motion in the case being settled." Grisham v. Grisham, 128 

Nev. „ 289 P.3d 230, 233 (2012). Nevertheless, in order to render a 

complete decree in any civil action, "all persons materially interested in 

the subject matter of the suit [must] be made parties so that there is a 

complete decree to bind them all." Gladys Baker Olsen Family Trust ex 

rel. Olsen v. Eighth Judicial Dist. Court, 110 Nev. 548, 553, 874 P.2d 778, 

781 (1994). For that reason, the Nevada Supreme Court has held that the 

failure to join a necessary party to a case was "fatal to the district court's 

judgment." Id. at 554, 874 P.2d at 782. In light of this authority, we 

conclude that, if Cheryl was a necessary party, the district court's 

judgment was invalid to the extent that it affected rights in property in 

which Cheryl claimed an interest. See id. Thus, we begin by considering 

Mark's argument that the district court erred by denying his motion to 

join Cheryl in the underlying action. 

COURT OF APPEALS 

OF 

NEVADA 

7 

(0) 1947B e 
Joinder of necessary parties 

Although NRCP 19(a) refers to parties who are to be joined if 

feasible, a person who falls within that subsection of the rule is generally 

referred to as a "necessary party." See Disabled Rights Action Comm. v. 

Las Vegas Events, Inc., 375 F.3d 861, 878 (9th Cir. 2004) (explaining that 

an individual who should be joined under the analogous federal rule, 

FRCP 19(a), is "referred to as a 'necessary party"); see also Blaine Equip. 

Co., Inc. v. State, 122 Nev. 860, 864 n.6, 138 P.3d 820, 822 n.6 (2006) 

(referring to a party who should be joined under NRCP 19(a) as a 

necessary party). There are three types of circumstances in which an 

absent party is necessary under NRCP 19(a): (1) an individual must be 

joined if the failure to join will prevent the existing parties from obtaining 

complete relief; (2) an individual must be joined if an interest is claimed in 

the subject matter of the action and adjudication of the action in the 

individual's absence may inhibit the individual's ability to protect that 

claimed interest; and (3) an individual must be joined if the person claims 

an interest in the subject matter of the action and adjudication of the 

action in the individual's absence subjects an existing party "to a 

substantial risk of incurring double, multiple, or otherwise inconsistent 

obligations." See NRCP 19(a). 2 

2NRCP 19(a) provides that, if a person is subject to service of process 

and that person's joinder will not deprive the court of subject matter 

jurisdiction, then the person "shall be joined as a party in the action if (1) 

in the person's absence complete relief cannot be accorded among those 

already parties, or (2) the person claims an interest relating to the subject 

of the action and is so situated that the disposition of the action in the 

person's absence may (i) as a practical matter impair or impede the 

continued on next page... 

COURT OF APPEALS 

OF 

NEVADA 

8 

(0) 19478 
Without addressing whether this case presented any of the 

circumstances set forth in NRCP 19(a), the district court declined to join 

Cheryl, apparently based on two preliminary conclusions—that the court 

lacked jurisdiction to determine Cheryl's rights in property located in 

another state and that an outside party could not be joined to a divorce 

action. We now address each of these conclusions in turn. 

Jurisdiction over the Wilson property 

Although the district court failed to make specific factual 

findings, its oral comments indicate that it concluded it lacked jurisdiction 

to adjudicate the ownership rights to the Wilson property because the 

property is located outside of Nevada. To that end, the written order 

recites, "Ms. Parr's remedy lies in a different jurisdiction, this Court does 

not have jurisdiction to allow her to intervene into this matter." 

A court of equity, however, may adjudicate out-of-state 

property rights in a divorce action. Buaas v. Buaas, 62 Nev. 232, 236, 147 

P.2d 495, 496 (1944). In Buass, the former wife appealed a divorce decree 

obtained in Nevada, alleging that the Nevada court lacked jurisdiction to 

adjudicate the status of real property located in California. Id. at 234, 147 

P.2d at 496. The Nevada Supreme Court held that, although the lower 

court could not render a judgment in rem over the California property, it 

could pass indirectly upon the title via its jurisdiction over the parties. Id. 

at 236, 147 P.2d at 496; see also Lewis v. Lewis, 71 Nev. 301, 306, 289 P.2d 

...continued 

person's ability to protect that interest or (ii) leave any of the persons 

already parties subject to a substantial risk of incurring double, multiple, 

or otherwise inconsistent obligations by reason of the claimed interest." 

COURT OF APPEALS 

OF 

NEVADA 

9 

(0) 194711 e 
414, 417 (1955) (stating that a district court possesses control over an outof-state property through jurisdiction over the parties and that the district 

court can exercise such control to avoid multiplicity of suits). 

Here, Mark and Sophia were properly before the district court 

in their divorce proceeding and included the Wilson property among the 

assets to be divided. Further, Cheryl submitted to the district court's 

jurisdiction by filing a motion to intervene in the divorce proceeding. 3 

Thus, although the Wilson property was located in California, the district 

court could have adjudicated the parties' rights to the property based on 

its personal jurisdiction over all of the parties purporting to have an 

interest in the property. See Buass, 62 Nev. at 236, 147 P.2d at 496. 

Consequently, the district court erred in concluding it lacked jurisdiction 

to consider Cheryl's interest in the Wilson property based on the 

property's location. We now turn to the court's other apparent conclusion, 

that it could not join a third party to a divorce action. 

Joinder in a divorce action 

In addition to the district court's conclusions relating to the 

location of the property, the district court's comments and written order 

suggest the court found it would be improper to join or allow intervention 

by a third party to a divorce action. We disagree. 

Nothing in NRCP 19(a) limits the type of civil action to which 

a necessary party must be joined. And although the Nevada Supreme 

Court has not specifically addressed whether a third party may be joined 

3Therefore NRCP 19(b), regarding an absent but indispensable third 

party that could not be feasibly joined, is inapplicable. 

COURT OF APPEALS 

OF 

NEVADA 10 

(0) 19475 e 
to a divorce action, that court has held that joinder was required in certain 

post-divorce proceedings. See, e.g., Johnson v. Johnson, 93 Nev. 655, 659, 

572 P.2d 925, 927 (1977) (holding that an order requiring an absent third 

party to transfer property was void because the absent third-party 

transferee was not joined in the post-divorce action); Olsen Family Trust, 

110 Nev. at 554, 874 P.2d at 782 (holding that a trust created by a third 

party was a necessary party to a post-divorce action in which the district 

court ordered trust property to be transferred to the appellant to satisfy 

spousal support arrearages). Thus, Nevada case law supports the 

possibility that an absent third party may be joined to a family law action 

in certain circumstances. 

Moreover, courts in other jurisdictions have concluded that a 

third party may be joined to a divorce proceeding when such joinder is 

necessary to resolve disputes as to property rights. For instance, in 

Cadwell v. Cadwell, 178 P.2d 266, 267 (Kan. 1947), the district court had 

allowed the wife's mother to intervene in the parties' divorce action 

because she had claimed to be the true owner of certain real and personal 

property held by the husband and wife. 4On appeal, the court noted that, 

generally, "a third person has no legal interest in or right to interfere with 

a divorce action for the purpose of opposing the granting of a decree of 

4Several of the cases discussed herein consider the issue of bringing 

third parties into divorce cases based on the third party's motion to 

intervene. See, e.g., Cadwell, 178 P.2d at 267-69. Although joinder, rather 

than intervention, is at issue in this appeal, these cases are relevant to the 

consideration of whether the third party may properly be made a party to 

a divorce action. Whether a party is necessary, such that joinder is 

required, is discussed separately below. 

COURT OF APPEALS 

OF 

NEVADA 11 

(D) 
divorce." Id. at 268. Nevertheless, the court recognized that, when the 

third person seeks to intervene based on a claim of a right to property held 

by the divorcing parties, courts have typically held that intervention for 

such a purpose is proper. Id. at 268-69. 

Similarly, in Wharff v. Wharff, 56 N.W.2d 1, 2 (Iowa 1952), a 

divorcing wife alleged that real property titled in the parties' names was 

actually purchased with her separate money and was "held in trust for her 

children by a previous marriage." On this basis, the children moved to 

intervene in the divorce to assert their interest in the property. Id. 

Concluding that intervention in divorce cases was typically subject to the 

ordinary rules of civil procedure, the Wharf court noted that intervention 

is generally proper when a third person "claims an interest in property 

involved in litigation." Id. at 3-4. The court recognized that allowing 

intervention would help avoid a multiplicity of suits and the possibility 

that the division of property in a divorce might be rendered inequitable if 

property divided in the divorce is later awarded to the third person in a 

separate action. Id. at 4. 

These cases represent the majority view that a third person 

may be joined as a party to a divorce action based on a claimed interest in 

real or personal property that is to be divided among the divorcing parties. 

See also Copeland v. Copeland, 616 S.W.2d 773, 775 (Ark. Ct. App. 1981) 

("Third parties may be brought into, or intervene in, divorce actions for the 

purpose of clearing or determining the rights of the spouses in specific 

properties."); Gaudio v. Gaudio, 580 A.2d 1212, 1217 (Conn. App. Ct. 1990) 

("The prevailing view in the majority of other jurisdictions is that a third 

person with a claimed interest in property that is the subject of a 

COURT OF APPEALS 

OF 

NEVADA 12 

(0) 194713 
dissolution action may properly be joined as a party."); Lancaster v. 

Lancaster, 291 S.W.2d 303, 308 (Tex. 1956) ("On a petition for divorce and 

for partition of the community property, all persons who have an interest 

in the property are proper parties."). 

Thus, considering this extrajurisdictional authority in light of 

the Nevada Supreme Court cases indicating that joinder may be proper in 

family law cases, we conclude that a third person may be joined to a 

divorce action when that person claims an interest in property that is 

purported to be part of the marital estate. As a result, the district court 

erred to the extent that it apparently found that Cheryl could not be joined 

because the underlying action was a divorce action. 

But having determined that Cheryl could have been joined in 

the underlying divorce action does not end our inquiry because Mark did 

not move for joinder of Cheryl until after he signed the MOU. Generally, 

when parties to a divorce have entered into a signed, written settlement 

agreement, such agreement is binding and "can be enforced by motion in 

the case being settled." Grisham, 128 Nev. at , 289 P.3d at 233. Mark 

attempts to avoid the binding effect of the agreement by arguing both that 

Cheryl was a necessary party under NRCP 19(a) and that the MOU was 

subject to being set aside based on the parties' mutual mistake as to the 

nature of Cheryl's interest in the Wilson property. We address these 

arguments in turn. 

Necessary party 

As noted above, in order to render a complete decree in any 

civil action, "all persons materially interested in the subject matter of the 

suit [must] be made parties so that there is a complete decree to bind them 

COURT OF APPEALS 

OF 

NEVADA 

13 

(0) 1947B 
all." Olsen Family Trust, 110 Nev. at 553, 874 P.2d at 781. For this 

reason, the Nevada Supreme Court has held that the failure to join a 

necessary party to a case was "fatal to the district court's judgment." Id. 

at 554, 874 P.2d at 782; see also Univ. of Nev. v. Tarkanian, 95 Nev. 389, 

396, 594 P.2d 1150, 1163 (1979) (explaining that "the question of waiver is 

not appropriate to the determination of [a joinder] issue, and the trial 

court or the appellate court may raise the issue sua sponte"). Thus, if 

Cheryl was a necessary party, the district court's judgment was invalid to 

the extent it resolved any issues for which Cheryl's joinder was necessary. 

See Tarkanian, 95 Nev. at 396, 594 P.2d at 1163. 

As discussed above, NRCP 19(a) requires joinder in three 

situations—when the failure to join the individual will prevent the parties 

to the case from obtaining complete relief, when the individual claims an 

interest in the subject matter of the action and adjudication in the 

individual's absence may inhibit the ability to protect that claimed 

interest, and when the individual claims an interest in the subject matter 

of the action and adjudication in the individual's absence potentially 

subjects an existing party to "double, multiple, or otherwise inconsistent 

obligations." In applying NRCP 19(a), the Nevada Supreme Court has 

broadly indicated that a third party must be joined if the third party's 

interest "may be affected or bound by the decree," or if the third party 

"claims an interest in the subject matter of the action." Olsen Family 

Trust, 110 Nev. at 553-54, 874 P.2d at 781-82. 

Generally, the subject matter of a divorce action will involve 

the division of the parties' property, but may not necessarily require the 

court to determine title to the property or otherwise establish ownership. 

COURT OF APPEALS 

OF 

NEVADA 

14 

(0) 19478 
See Aniballi v. Aniballi, 842 P.2d 342, 343 (Mont. 1992) (noting that "a 

decree of dissolution resolves rights to the marital property as between the 

parties seeking dissolution of the marriage, but will not determine title in 

rem"). Instead, the parties may simply divide their interest in the 

property, leaving any interests of third parties undisturbed. See id.; see 

also Walters v. Walters, 113 S.W.3d 214, 219 (Mo. Ct. App. 2003) 

(recognizing that the trial court did not need to determine the relative 

interests of a couple and the husband's mother in property being divided 

in a divorce proceeding, but could properly divide only the couple's interest 

by awarding " laJny interest the parties may have' in the property). 

Nevertheless, in some cases, such as this one, the parties may 

dispute the extent of their interest in the property, putting ownership of 

the property at issue in the divorce proceeding See Callnon v. Callnon, 46 

P.2d 988, 990 (Cal. Ct. App. 1935) (recognizing that parties to a divorce 

"may seek a determination of their property rights"). As discussed above, 

in that situation, a third party who claims an interest in the property 

generally may be joined to the action and the action will be binding on 

that party. See id. Conversely, any third party not joined will not be 

bound by the• determination of ownership in the divorce action. See 

Johnson, 93 Nev. at 658, 572 P.2d at 927 (recognizing that a third party 

would not be legally bound by an order entered in an action to which the 

third party had not been joined). 

Here, insofar as Cheryl will not be bound by the action if she is 

not joined, it does not appear that her ability to protect her claimed 

interest in the Wilson property would be impaired or impeded, as she will 

be able to file a separate action to enforce her claimed interest. See 

COURT OF APPEALS 

OF 

NEVADA 15 

(0) 1947D e 
Aniballi, 842 P.2d at 343 (noting that a parent who claimed an interest in 

the parties' marital residence would not be prevented by the divorce 

decree from bringing a separate action to determine the interest in the 

property). Indeed, Sophia asserted in her appellate brief that Cheryl has 

filed a lawsuit in Orange County, California, against Mark and Sophia. 

As a result, Cheryl does not appear to be a necessary party 

under NRCP 19(a)(2)(i), which requires joinder when a third party claims 

an interest in the subject matter of the action and the third party's 

absence from the litigation may impair or impede the person's ability to 

protect that interest. But that ability to file a separate action raises 

questions as to whether, in Cheryl's absence, the existing parties will be 

able to obtain complete relief, and whether the failure to join Cheryl may 

leave Mark "subject to a substantial risk of incurring double, multiple, or 

otherwise inconsistent obligations," and thus, whether Cheryl may be a 

necessary party under NRCP 19(a)(1) or NRCP 19(a)(2)(ii). See 

Tarkanian, 95 Nev. at 397-98, 594 P.2d at 1164 (concluding that complete 

relief could not be afforded among existing parties where resolution in the 

absence of a third party would not "completely and justly" determine the 

rights and obligations presented by the action); see also NRCP 1 (providing 

that the rules of civil procedure "shall be construed and administered to 

secure the just, speedy, and inexpensive determination of every action"). 

Because the district court erroneously determined that it did 

not have authority to join Cheryl based on the location of the Wilson 

property and the nature of the action as a divorce proceeding, the court 

failed to consider whether complete relief could be afforded among the 

parties in Cheryl's absence, or whether Cheryl's absence might leave any 

COURT OF APPEALS 

OF 

NEVADA 16 

(0) 19475 eu 
of the existing parties subject to a substantial risk of double, multiple, or 

otherwise inconsistent obligations. But insofar as Cheryl may seek relief 

in another jurisdiction with regard to the Wilson property, it appears 

reasonably possible that her absence may cause any relief afforded in the 

district court to be incomplete, or may leave Mark subject to a potential 

risk of multiple, double, or inconsistent obligations. See NRCP 19(a)(1), 

(a)(2)(ii). 

Determining the potential effect of any litigation by Cheryl 

may require the resolution of factual issues. Therefore, we reverse the 

district court's denial of joinder and remand this case to the district court 

for that court to consider whether Cheryl was a necessary party within the 

meaning of NRCP 19(a). See Ryan's Express Transp. Servs., Inc. v. 

Amador Stage Lines, Inc., 128 Nev. „ 279 P.3d 166, 172 (2012) ("An 

appellate court is not particularly well-suited to make factual 

determinations in the first instance."); see also Nev. Power Co. v. Fluor 

108 Nev. 638, 645, 837 P.2d 1354, 1359 (1992) (recognizing that an 

evidentiary hearing may be necessary in order to properly decide disputed 

questions of fact). 

If the district court determines that Cheryl is a necessary 

party, the court must then determine the relative rights of Mark, Sophia, 

and Cheryl in the Wilson property, see Callnon, 46 P.2d at 990, and must 

revisit the portions of the MOU concerning that property, as appropriate. 

In the event the district court does not find the circumstances to fall 

within the parameters of NRCP 19(a), Mark contends the MOU may still 

be set aside based on mutual mistake. Thus, in the final section of this 

opinion, we turn to his mutual mistake argument. 

COURT OF APPEALS 

OF 

NEVADA 

17 

(0) 1.947B 
Mutual mistake 

Mark argues the district court erred by failing to set aside the 

MOU based on mutual mistake and other contract defenses. Sophia, on 

the other hand, contends the MOU was properly upheld because no 

mutual mistake occurred. A contract may be set aside based on mutual 

mistake, which "occurs when both parties, at the time of contracting, 

share a misconception about a vital fact upon which they based their 

bargain." Gen. Motors v. Jackson, 111 Nev. 1026, 1032, 900 P.2d 345, 349 

(1995); see also May v. Anderson, 121 Nev. 668, 672, 119 P.3d 1254, 1257 

(2005) (providing that a settlement agreement is a contract that is 

governed by contract law). 

In the divorce decree, the district court found "good cause" to 

adopt the MOU over Mark's objections. And in a related order, the court 

concluded that Mark and Sophia had entered into a valid and binding 

agreement pursuant to Casentini v. Hines, 97 Nev. 186, 625 P.2d 1174 

(1981), which recognizes that a stipulation is enforceable if it is in writing 

and signed by the party against whom enforcement is sought. The district 

court did not, however, specifically address Mark's mutual mistake 

argument by making findings as to whether the MOU was based on the 

parties' "misconception about a vital fact." See Gen. Motors, 111 Nev. at 

1032, 900 P.2d at 349. 

In particular, although the district court generally stated at 

the hearing on the motion to set aside the MOU that certain facts were 

known to the parties at the time they entered into the agreement, nothing 

in the record indicates that the court considered Mark's contentions 

regarding his and Sophia's understanding of their respective rights as to 

COURT OF APPEALS 

OF 

NEVADA 18 

(0) 19470 Rero 
the Wilson property, and the effect of that understanding on their decision 

to execute the MOU. See id. Thus, the district court erred by concluding 

the MOU was enforceable without properly addressing Mark's mutual 

mistake argument. Because determining the understanding of the parties 

when they entered into the MOU will require the resolution of factual 

issues, we also reverse those portions of the district court's orders that 

denied Mark's motion to set aside the MOU based on mutual mistake. See 

Ryan's Express, 128 Nev. at ,279 P.3d at 172. 

If the district court concludes that Cheryl is a necessary party, 

it may not be necessary for the court to revisit the mutual mistake and 

other related arguments. But if the district court finds Cheryl is not a 

necessary party, the court must address the mutual mistake and other 

contract defense arguments to determine whether Mark has demonstrated 

grounds under general contract law for setting aside the MOU. 5 

5If the court concludes that Cheryl was not a necessary party and 

that no contractual basis for setting aside the MOU exists, then Mark 

waived his argument that Cheryl should have been joined as a permissive 

party under NRCP 20 by entering into a binding settlement agreement 

that distributed the parties' interests in the Wilson property without 

seeking joinder of Cheryl. See McKellar v. McKellar, 110 Nev. 200, 202, 

871 P.2d 296, 297 (1994) (explaining that a waiver may be implied from 

"conduct which evidences an intention to waive a right, or by conduct 

which is inconsistent with any other intention than to waive a right"); see 

also Nev. Gold St Casinos, Inc. v. Am. Heritage, Inc., 121 Nev. 84, 89, 110 

P.3d 481, 484 (2005) ("Waiver is generally a question of fact. But when 

the determination rests on the legal implications of essentially 

uncontested facts, then it may be determined as a matter of law." 

(citations omitted)). Thus, we do not address Mark's NRCP 20 arguments 

further in this opinion. 

COURT OF APPEALS 

OF 

NEVADA 

19 

(0) 
CONCLUSION 

Because the district court improperly determined that it did 

not have jurisdiction to join Cheryl to a divorce proceeding involving outof-state property, we reverse the district court's denial of joinder and 

remand this matter to the district court for that court to consider whether 

Cheryl is a necessary party within the meaning of NRCP 19(a). If the 

court determines Cheryl is a necessary party under that rule, the court 

must then consider what interest, if any, Cheryl has in the Wilson 

property and must revisit the portions of the MOU relating to that 

property, as appropriate. If the district court does not find Cheryl to be a 

necessary party, then the court must consider Mark's mutual mistake and 

other contract arguments to determine whether the MOU must be set 

aside on a contract basis, and conduct any further proceedings as 

necessary. The parties do not challenge any other aspect of the divorce 

decree. As a result, we affirm the status of the parties as divorced. 

Gibbons 

C.J. 

We concur: 

ir J 

Tao 

Silver 

COURT OF APPEALS 

OF 

NEVADA 

J. 

20 

(01 194713