Darnold v. Jacoby C/W 66673

• Court: Nevada Supreme Court
• Decided: October 16, 2015
• Docket: 65996
• Status: Unpublished

Opinion

"undivided" interest in the loan. After Desert Land Investment defaulted on the loan, Darnold and Frisco filed the underlying action against the Jacobys, but the other 66 people were never joined in the action. The district court granted the Jacobys' motion for summary judgment but denied both sides' requests for attorney fees based on their offers of judgment. These appeals followed. Having considered the parties' arguments and the record on appeal, we conclude that the district court properly granted the Jacobys' motion for summary judgment. See Wood v. Safeway, Inc., 121 Nev. 724, 729, 121 P.3d 1026, 1029 (2005) (providing that this court reviews a district court's order granting summary judgment de novo). NRS 104.3110(4) provides that "[i]f an instrument is payable to two or more persons not alternatively, it is payable to all of them and may be negotiated, discharged or enforced only by all of them." Because the 68 people had "undivided" interests in the loan, the loan was payable to them not alternatively and could only be enforced by all of them, and thus, Darnold and Frisco lack standing to sue individually. See Piatt v. Medford Highlands, LLC, 22 P.3d 767, 768-71 (Or. Ct. App. 2001) (construing an arrangement where three parties had undivided interests in a promissory note and trust deed as being payable to the three parties not alternatively, and thus, requiring the joinder of all three parties for enforcement); see also Black's Law Dictionary 829 (8th ed. 2004) (defining an undivided interest as lain interest held under the same title by two or more persons"). Darnold and Frisco's argument that they could not join all the other lenders because the Jacobys purchased one of the lenders' interest in the loan and would never agree to join the action lacks merit because they could be compelled to join the action. See Piatt, 22 P.3d at 771-72 (providing that the court could "compel the joinder of the joint payee who SUPREME COURT OF NEVADA

(0) 1947A e refuses to participate as a plaintiff in the enforcement of an instrument" and they could be joined as defendants). We further conclude that the district court did not abuse its discretion in denying either side's request for attorney fees based on their offers of judgment. Gunderson v. D.R. Horton, Inc., 130 Nev., Adv. Op. 9, 319 P.3d 606, 615-16 (2014) (explaining that this court reviews a district court's decision regarding attorney fees for an abuse of discretion). It was not an abuse of discretion for the district court to conclude that the Jacobys' offer of judgment to provide Darnold and Frisco less than one tenth of the amount they loaned Desert Land Investment was unreasonable when considering the Beattie v. Thomas, 99 Nev. 579, 588- 89, 668 P.2d 268, 274 (1983), factors. Additionally, because Darnold and Frisco's offer of judgment to dismiss the action was contingent on pursuing the action in Arizona, which the order granting summary judgment does not require, the Jacobys obtained a more favorable judgment than Darnold and Frisco's offer of judgment. NRCP 68; NRS 17.115 (2005); Saavedra- Sandoval v. Wal-Mart Stores, Inc., 126 Nev. 592, 599, 245 P.3d 1198, 1202 (2010) (explaining that this court will affirm a district court's order if the district court reached the correct result). Accordingly, we ORDER the judgment of the district court AFFIRMED.

J. SUPREME COURT OF NEVADA

(0) 1947A e cc: Hon. Ronald J. Israel, District Judge Cuthbert E.A. Mack Benjamin B. Childs Eighth District Court Clerk

SUPREME COURT OF NEVADA

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