UBS Financial Services, Inc v. Carolyn Garrett et al

Filing 109

ORDER referring this matter to USMJ Robert A. McQuaid for a settlement conference; staying the Court's order that the parties submit a joint pretrial order pending settlement negotiations; staying Garrett's 105 and 106 motions pending settlement negotiations; denying Garrett's 107 Second Motion to Stay Pending Appeal. Signed by Judge Larry R. Hicks on 7/21/2015. (Copies have been distributed pursuant to the NEF - KR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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*****

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CAROLYN GARRETT,

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Plaintiff,

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vs.

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GARRETT BULLOCK; DIANN MARTIN;
CATHERINE HINTZEN; JASON
GARRETT,

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Defendants.

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) 3:14-cv-00141-LRH-WGC
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) ORDER
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On July 17, 2015, the Court held a hearing before District Judge Larry R. Hicks and

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Magistrate Judge William G. Cobb regarding the parties’ failure to submit a joint pretrial order

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that was acceptable to the Court. Carolyn Garrett, Garrett Bullock, Diann Martin, Catherine

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Hintzen Garrison, and Jason Garrett all appeared telephonically. The Court suggested to the

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parties that referring this case to a Magistrate Judge for settlement conference would be helpful

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in resolving the parties’ claims. All parties agreed, and the Court stated that it would stay this

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case pending the forthcoming settlement conference before Magistrate Judge Robert A.

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McQuaid.

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The Court also stated that it would file an instruction of law regarding the central issues

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of law before the Court. In Nevada, an amendment to a trust document is presumed to be void if

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the transfer is effective on or after the decedent’s death and the beneficiary of the amendment is a

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caregiver of the transferor. NRS § 155.097(2)(b). A transfer to a caregiver is not presumed void

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if it is reviewed by an “independent attorney” who (1) counsels the transferor about the transfer;

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(2) attempts to determine if the transfer is the result of fraud, duress, or undue influence; and (3)

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signs and delivers to the transferor an original certificate of the review. NRS § 155.0975(3). An

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“independent attorney” is an attorney who did not draft the instrument in question, did not serve

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as the transferor’s caregiver, did not arrange for or pay for the drafting of the instrument in

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question, and did not serve as an attorney for someone who acted as the transferor’s caregiver or

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arranged for the creation of the instrument in question. See NRS § 155.094; NRS § 155.097(2).

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The undisputed facts presented to the Court are that Carolyn Garrett was the caregiver of

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Jo Ann Garrett and that Peter Smith served as the attorney for Jo Ann Garrett and drafted the last

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amendment to the trust agreement at issue in this action. As such, Smith did not qualify as an

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“independent attorney” under Nevada law. See Doc. #26, Ex. B; NRS § 155.094; NRS §

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155.097(2)(a). The effect of his disqualification is that, under the law, the trust amendment is

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presumed to be invalid. This presumption will prevail unless sufficient evidence is presented to

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the Court at trial to satisfy the Court that the presumption has been overcome, in other words,

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that the amendment to the trust was freely, voluntarily and knowingly executed by Jo Ann Garrett

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without undue influence by Carolyn Garrett. If the Court determines that the presumption has

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been overcome, the Court will order that the trust be distributed in accordance with the

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amendment. If the Court is not satisfied that the presumption has been overcome, the Court will

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order that the trust be distributed in accordance with the terms of the original trust.1

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IT IS THEREFORE ORDERED that this matter is referred to Magistrate Judge Robert A.
McQuaid for a settlement conference.

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IT IS FURTHER ORDERED that the Court’s Order that the parties submit a proposed
joint pretrial order is STAYED pending settlement negotiations.

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IT IS FURTHER ORDERED that Garrett’s Motion for Re-Taxation of Costs (Doc. #105)

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and Motion for Miscellaneous Relief (Doc. #106) are STAYED pending settlement negotiations.

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Whatever distribution occurs, it will include payment of the awarded fees and costs to
UBS Financial Services, Inc. (“UBS”).
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IT IS FURTHER ORDERED that Garrett’s Second Motion to Stay Pending Appeal (Doc.

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#107) is DENIED. UBS’s attorney fees and costs will not be paid until the Court enters

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judgment for UBS. Since the Court has not yet entered judgment, it is not necessary to stay the

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Court’s Order granting UBS attorney fees at this time. The Court notes that once the Court

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enters judgment, UBS will be entitled to the attorney fees awarded plus interest at the Nevada

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interest rate beginning May 28, 2015, the date the Court granted UBS’s motion for attorney fees.

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IT IS SO ORDERED.

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DATED this 21st day of July, 2015.

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________________________________
LARRY R. HICKS
UNITED STATES DISTRICT JUDGE

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