Appellants Opening Brief

Alan Levin

P.O. Box 4703

Incline Village, Nevada 89451

775/771-9076

FliteQuack@AOL.com

IN THE SUPREME COURT OF THE STATE OF NEVADA

IN THE MATTER OF THE

GUARDIANSHIP OF THE ESTATE

OF EDWARD FEIN, A PROTECTED

PERSON

CASE NO. 82630

District Court Case No.: GR18-00187

Dept. No. 6

Appellant’s Opening Brief

Alan Levin.

P.O. Box 4703

Incline Village, Nevada 89451

775/771-9076

FliteQuack@AOL.com

Pro Per

DISCLOSURE STATEMENT

Pursuant to NRAP 26.1, the undersigned Appellant certifies that the

Appellant is an individual, therefore there are no parent corporations or publicly-

held companies that own 10% or more of the party’s stock.

John C. Smith appeared for and on behalf of the Appellant in proceedings

in the District Court. Appellant has appeared for and on behalf of himself before this Court.

DATED this             day of June, 2021.

By:____________________

ALAN LEVIN,

P.O. Box 4703

Incline Village, Nevada 89451

775/771-9076

FliteQuack@AOL.co

Pro Per

TABLE OF CONTENTS

DISCLOSURE STATEMENT 2

TABLE OF CONTENTS 3

TABLE OF AUTHORITIES 4

I. JURISDICTIONAL STATEMENT 6

II. ROUTING STATEMENT 6

III. ISSUES ON APPEAL 6

IV. STATEMENT OF RELEVANT FACTS 7

V. SUMMARY OF ARGUMENT 8

VI. ARGUMENT 8

1. Standard of Review 8

2. The District Court erred in construing the language

of a settlement agreement concerning the required

actions of the Successor Guardian. 9

3. Imposing mandatory sanctions against the Appellant. 13

VII. CONCLUSION 15

TABLE OF AUTHORITIES

Cases

May v. Anderson, 121 Nev. 668, 672, 119 P.3d 1254, 1257 (2005)……………….7

Keddie v. Beneficial Insurance,

Inc., 94 Nev. 418, 421, 580 P.3d 955, 956 (1978)… ………………………………8

Ellison v. California State Auto. Ass’n,

106 Nev. 601, 603, 797 P.2d 975, 977 (1990).. ……………………………………8

Metronet Servs. Corp. v. U.S. West Comm’n,

329 F.3d 986, 1013-14 (9th Cir. 2003).. ……………………………………………8

Goodkin v. Phillips, Harper & Harper, LLC, 2012

U.S. Dist. LEXIS 23550 (D Nev. 2012).. …….……………………………………9

Sheehan & Sheehan v. Nelson Malley & Co.,

121 Nev. 481, 488, 117 P.3d 219, 224 (2005).. ……………………………………9

VATACS Group v. HomeSide Lending,

276 Ga.App. 386, 389(1), 623 S.E.2d 534 (2005).. …………………………………9

Siggelkow v. Phoenix Ins. Co.,

109 Nev. 42, 44, 846 P.2d 303, 304 (1993).. ………………………………………9

Thomas v. B & I Lending,

261 Ga.App. 39, 41(1), 581 S.E.2d 631 (2003).. …………………………………10

Mayfield v. Koroghli,

124 Nev. 343, 351, 184 P.3d 362, 367-68 (2008). …………………………….….14

Statutes

Restatement (Second) of Contracts § 237.. …………………………………….…13

Restatement (Second) of Contracts § 243. ………………………………………..13

Restatement (Second) of Contracts at § 309(2).. ………………………………….13

Court Rules

NRAP 17(a)(6) ………………………………………………………………….…6

NRAP 3A(b)(1) ……………………………………………………………………6

  1. JURISDICTIONAL STATEMENT

This Court has jurisdiction pursuant to NRAP 3A(b)(1) because the district

court’s February 9, 2021 order is a final order resolving all claims between all

parties. The February 9, 2021 order was served on February 10, 2021 by E-Flex.

  1. ROUTING STATEMENT

This case involves a ballot question and is therefore presumptively retained by

the Supreme Court pursuant to NRAP 17(a)(6).

  • ISSUES ON APPEAL
  1. Whether the District Court erred in construing the language of a settlement agreement concerning the required actions of the successor guardian?
  • Whether the District Court erred in assessing the Appellants standing to seek to enforce the settlement agreement in the proceedings below?
  • Whether the District Court erred in imposing mandatory sanction against the Appellant?
  • The District Court in making its decision failed to consider the evidence before it.
  1. STATEMENT OF RELEVANT FACTS

On October 1, 2018, the Appellant herein was appointed by the Judge Frances Doherty, Department 12 of the Second Judicial District Court, to be the Guardian of the Estate of one Edward Fein as and in accordance with NRS 159. Mr. Fein has for the majority of his life remained a bachelor. At the time of the Appellant’s appointment as Guardian, Mr. Fein was in a cohabitation agreement with Pearl Landrith. On April 16th, 2019, Mr. Fein and Ms. Landrith wedded and became husband and wife. Shortly after, the now Mrs. Fein filed a petition in the District Court seeking to have the Petitioner removed as Guardian of the Estate of Edward Fein. Nonetheless, prior to hearing and determination of the Petitioner, Appellant continued to discharge his duties. As Guardian, Appellant exercised his authority with the best interest of Mr. Fein and his estate in mind. The duties, among other things, included receiving monthly statements for Mr. Fein’s accounts, including one held with Wells Fargo. On or about August 26, 2019, Seth Fein, son to Edward Fein, visited Wells Fargo Bank where he came upon the information that the bank is in possession of a dossier regarding Mrs. Fein. The dossier alluded to the possibility that Mrs. Fein’s activities suggest exploitation.

The Allegation and information were brought to the attention of the Honorable Judge Simons, who was the presiding judge.  

VI. SUMMARY OF ARGUMENT

This appeal challenges the order of February 9, 2021 as given by the Second Judicial District Court of the state of Nevada. The Appellant filed Motion for Order Appointing State Guardian Compliance Office to complete performance of settlement agreement. The District Court found the Appellant to be in breach of the terms of the agreement. However, the Appellant alludes that it was the Guardian of the Estate who initially breached the contract by failing to perform his obligations as per the terms of the Contract. By provision of law, a party that breaches a contractual agreement beforehand, cannot claim to enforce terms of the contract against the other party to the agreement. As such the District Court exceeded its discretion by finding breach against the Appellant and imposing sanction against the Appellant in form of attorney fees.

VII. ARGUMENT

  1. Standard of Review

The district court’s findings of fact will be upheld on appeal unless they are clearly erroneous or are not supported by substantial evidence. May v. Anderson, 121 Nev. 668, 672, 119 P.3d 1254, 1257 (2005). The Nevada Supreme Court has long held “because a settlement agreement is a contract, its construction and enforcement are governed by principles of contract law.” May v. Anderson, 121 Nev. 668, 672, 119 P.3d 1254, 1257 (2004) (citing thirty-year old case law when announcing its holding) (Keddie v. Beneficial Insurance, Inc., 94 Nev. 418, 421, 580 P.3d 955, 956 (1978). Those principles of interpretation state, “where a document is clear on its face, it “will be construed from the written language and enforced as written.” Ellison v. California State Auto. Ass’n, 106 Nev. 601, 603, 797 P.2d 975, 977 (1990).

  • The District Court erred in construing the language of a settlement agreement concerning the required actions of the Successor Guardian.

The trial court has inherent authority to enforce settlement agreements between parties in pending cases. See Metronet Servs. Corp. v. U.S. West Comm’n, 329 F.3d 986, 1013-14 (9th Cir. 2003).

A settlement agreement is binding when the parties have a meeting of the minds as to all essential terms to resolve the case. See May v. Anderson, 119 P.3d 1254, 1258 (Nev. 2005). A settlement agreement need not be memorialized by a signed release to be enforceable. Id. at 1259. In May, the Nevada Supreme Court found:

“Because a settlement agreement is a contract, its construction and enforcement are governed by principles of contract law. Basic contract principles require, for an enforceable contract, an offer and acceptance, meeting of the minds, and consideration . . . A contract can be formed . . . when the parties have agreed to the material terms, even though the contract’s exact language is not finalized until later. Id. at 1257.”

The 14th February 2020 settlement is clear on its face and must be construed and enforced as written. The agreement laid out in the letter is clearly a “mutual, objective manifestation of assent to material terms, as well as consideration, by the parties or by agents with authority to bind the parties.” Goodkin v. Phillips, Harper & Harper, LLC, 2012 U.S. Dist. LEXIS 23550 (D Nev. 2012).

The purpose of contract construction interpretation is to determine the parties’ intent when they entered into the contract. See Sheehan & Sheehan v. Nelson Malley & Co., 121 Nev. 481, 488, 117 P.3d 219, 224 (2005). Thus, a contract must be interpreted to give the greatest effect possible to all provisions rather than to leave any part of the contract unreasonable or having no effect. And, one of the most fundamental principles of construction is that a court should, if possible, construe a contract so as not to render any of its provisions meaningless. see VATACS Group v. HomeSide Lending, 276 Ga.App. 386, 389(1), 623 S.E.2d 534 (2005).

Interpretation of the settlement agreement must be approached “from the perspective of one not trained in law or in insurance, with the terms of the contract viewed in their plain, ordinary and popular sense.” Siggelkow v. Phoenix Ins. Co., 109 Nev. 42, 44, 846 P.2d 303, 304 (1993) “The construction of the contract should give a reasonable, lawful and effective meaning to all manifestations of intention by the parties rather than an interpretation which leaves a part of such manifestations unreasonable or of no effect.” See Thomas v. B & I Lending, 261 Ga.App. 39, 41(1), 581 S.E.2d 631 (2003).

On September 3rd, 2019, was the hearing of two matters before the District Court. (1) PR18-0052, In the Matter of the Edward Fein Trust, and (2) GR18-00187, the Guardianship of Edward Fein. In the latter, a petition was filed seeking the appointment of an interim guardian of the Estate of Edward Fein. Being that the Appellant had already been serving as the Permanent Guardian of the Estate, the effect of the Petition for appointment essentially intended to remove the Appellant and replace a newly appointed interim Guardian.

The order of March 24th, 2020, acknowledged the resignation of the Appellant as the Guardian of the Estate of Edward Fein and the Appointment of Randal S. Kuckemeister as the interim Guardian. The Order further acknowledged the settlement agreement entered into by the parties, which agreement the Appellant willingly executed on the premise that Mr. Kuckenmeister as Guardian cause investigation allegations of extortion by Mrs. Pearl Fein, the main bone of contention straining the relationship between the Appellant and, Mr. and Mrs. Fein.

Following ascent of the settlement agreement by the parties, on April 24th, 2020, the District Court so ordered under page 4 line 1 – 2 of the order, that

“6. Mr. Kuckenmeister shall perform all duties required of him under the settlement agreement referred to in the March 24 Order.”

Mr. Randal L. Kuckenmeister swore a declaration on July 7th, 2020, where he alludes performance of the settlement agreement while at the same time heavily misconstruing the terms of the agreement. Under paragraph 1 of Kuckenmeisters declaration, Kuckenmeister confirms he

“Was a party to that confidential settlement agreement”

And goes on to state under paragraph 3 that

“the plain language of the confidential settlement agreement does not requirement to use a subpoena and does not require me to prepare a report to provide the same to this court”

Mr. Kuckenmeister knowingly and willingly misinterpreted the agreement to satisfy his own lack of compliance with the agreement. Yet during the hearing of 9/03/2019 it was apparently clear the issues alleged by the Appellant. Mr. Young, counsel for Seth Fein stated under page 90 line 12 through 18:

“And now when we have the suggestion that there may have been a compilation of a dossier by a well-respected banking institution of prior actions of an inappropriate nature by Pearl, Dr. Levin, as guardian of the estate, is actually obligated to investigate and move his efforts into looking into that. That can only be done if he is given an opportunity to conduct proper discovery.”

Durign the motion hering on August 12th, 2020, the court agreed with the Appellant’s motion stating that

“With regard to the contempt, you asked — in your relief you asked for contempt. My inclination would be, one, I have declared that he was in violation of the settlement agreement, and two, I’m not inclined to hold him in contempt of court at this time. I think I can achieve the additional admonishment, the consequences based on the violation of the settlement agreement, but I’d prefer not to go further down the contempt proceedings.”

However, notwithstanding the court’s finding, no action has been taken to enforce the agreement or further address the breach in light of the circumstances that surround the agreement and the proceedings of this matter so far. Instead, the court ruled in favour of the Guardian of the Estate of Edward Fein and in favour of Mrs. Pearl Fein, by finding that the Appellant to be in violation of the agreement.

  • Imposing mandatory sanctions against the Appellant.

The district court erred in holding that the Appellant is liable for mandatory sanction to pay attorney fees in accordance with the Settlement Agreement. The Guardian of the Estate of Edward Fein bound themselves to the terms of the Settlement Agreement. It was also the Guardian of the Estate of Edward Fein that refused to comply with, or otherwise violated, the terms of the Agreement. That being the Case, the Appellant is not liable for any obligation under the terms of the agreement for the following reasons. When parties exchange promises to perform, one party’s material breach of its promise discharges the non-breaching party’s duty to perform. Restatement (Second) of Contracts § 237 (Am. Law Inst. 1981). If the non-breaching party’s duty was to a third-party beneficiary, the same principle applies: the breaching party’s “failure of performance” discharges the beneficiary’s right to enforce the contract. Moreover, a material breach of contract also “gives rise to a claim for damages.” Restatement (Second) of Contracts § 243(1). Thus, the injured party is both excused from its contractual obligation and entitled to seek damages for the other party’s breach. See Restatement (Second) of Contracts § 243.

Here, the Settlement Agreement was an exchange of one promise to perform for another promise to perform. The Appellant was bound by his promise until the Guardian materially breached the contract by failing to issue any subpoena or investigating as required under the agreement. At that point, the Appellant was released from his promise. See Restatement (Second) of Contracts at § 309(2). The complication in this case stems from the allegations of extortion and the evidence continually preached in the district court yet never actually reviewed by the district court. Based on those facts, the district court reasoned that the Appellant elected to continue to be bound by the terms of the agreement. In so reasoning, the district court conflated two remedy concepts: specific performance and damages for total breach of contract. Specific performance requires the parties to perform as they promised in the original agreement. See Mayfield v. Koroghli, 124 Nev. 343, 351, 184 P.3d 362, 367-68 (2008)(discussing when it is appropriate for a court to order specific performance). Damages for total breach, by contrast, awards the non-breaching party a monetary award sufficient to place that party in the position it expected to find itself had all parties honored the contract. See Restatement (Second) of Contracts § 347. In the present case, the district court erroneously interpreted the Appellant’s motion for order appointing the state guardianship compliance office to complete performance of settlement agreement as a violation of the terms fo the agreement. But the Appellant simply sought an action against the Guardian for breach of the terms of the contract, which breach the court acknowledged.

The Guardian’s breach of the Settlement Agreement relieved the Appellant of their obligation to be bound by the terms of the Agreement. The Appellant therefore seeks reversal of the district court’s sanction order directing the Appellant to pay attorney’s fees for the other parties.//// 

VIII. CONCLUSION

For the foregoing reasons, Appellant Levin respectfully requests this Court

vacate the district court’s order and remand for the district court to make findings

of fact regarding the settlement agreement and enter judgment on those findings.

DATED this day of June, 2021.

By: __________________________

Alan Levin

P.O. Box 4703

Incline Village, Nevada 89451

775/771-9076

FliteQuack@AOL.com

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