Kroeger v. King
Kroeger v. King
Opinion of the Court
OPINION
Appellants Henry and Kathryn Kroeger were the developers of Tahoe Village #2. Respondents Allan and Michael King purchased a townhouse on Lot 16. The structure, which was completed after title passed, contained numerous defects. Respondents brought suit against appellants, the real estate agent and the general contractor. Appellants stipulated to entry of judgment against them in an amount not to exceed $11,000.00, provided certain conditions were met. The district court granted respondents’ motion for entry of judgment in the full amount. Appellants contend respondents were not entitled to entry of judgment. In the alternative, they argue they were entitled to a reduction in the amount of the judgment.
By the terms of the stipulation, respondents were to use due diligence and all legal remedies to collect on judgments obtained against the co-defendants by April 1, 1985. Any sum collected would reduce the amount of the judgment against appellants. Appellants contend respondents were not entitled to entry of judgment because they did not act with due diligence. We disagree.
Diligence is defined as a steady application to business of any
The trial court’s findings will not be disturbed if supported by substantial evidence. Consolazio v. Summerfield, 54 Nev. 176, 179, 10 P.2d 629, 630 (1932). A rarely found exception exists where it is clear the court reached a wrong conclusion. Id. Despite all the evidence supporting the trial court’s determination, appellants argue a wrong conclusion was reached because respondents’ failure to take certain steps precluded a finding of due diligence. In view of all respondents’ efforts, we disagree that any of the alleged shortcomings in their collection strategy required the trial court to find due diligence was not exercised as a matter of law.
Appellants question why respondents did not execute on the two parcels of property revealed in the real asset search. Respondents concluded there was no equity subject to execution in one. The other was listed on a computer print-out of information a year and a half old. Although respondents did not document their subsequent discovery that the property had been sold, there was also no evidence the Alleys still owned property. Appellants challenge respondents’ failure to levy on property seen near Alley’s residence and business. One truck was only leased to Alley. Another, registered in the name of Thunderbird Helicopters, was valued at no more than $200.00. In a field near the business’ former offices, respondents’ investigator spied a
Appellants further contend the trial court erred in entering judgment for the amount of $11,000.00. Paragraph 3C of the stipulation provided for a reduction in the judgment if respondents obtained a “judgment against the other defendants” for less than $11,000.00. Alley stipulated to entry of judgment for $20,000.00, to be partially reduced by any sum collected from MacMurray. The case went to trial against MacMurray. The court rendered judgment for respondents in the amount of $8,159.81, plus costs and interest. The trial court found appellants were only entitled to a reduction in the judgment if the collective amount of the judgments against the co-defendants was less than $11,000.00. Appellants argue they were entitled to a reduction if judgment were rendered against any co-defendant for less than $11,000.00.
In interpreting a contract, a court should ascertain the intention of the parties from the language employed as applied to the subject matter in light of the surrounding circumstances. Mohr Park Manor, Inc. v. Mohr, 83 Nev. 107, 112, 424 P.2d 101, 105 (1967). Reading the stipulation as a whole, we are convinced that appellants’ interpretation is correct. It was clearly the intent of the parties to limit appellants’ liability to respondents’ out-of-pocket losses. Paragraph 3A proportionately reduces the judgment “if plaintiff’s proof of out-of-pocket expenses relating to
Accordingly, we reverse the judgment of the district court and remand the cause for entry of judgment consistent with this opinion.
Reference
- Full Case Name
- HENRY KROEGER and KATHRYN KROEGER v. ALLAN KING and MICHAEL KING
- Cited By
- 1 case
- Status
- Published