Opinion
NO. 30,181
08-30-2011
JOSEPH LUCERO, ROBERT LUCERO, JOSEPH A. LUCERO, HELEN ANN PONTHIER, DONNA LUCERO DENNEY, MICHAEL LUCERO, and MARY POUSSON, Plaintiffs-Appellants, v. PATRICIA LUCERO, MARIA MONTOYA, and MIGUEL MONTOYA, a minor, by and through Maria Montoya, his parent and next friend, Defendants-Appellees.
Catron, Catron & Pottow, P.A. Richard S. Glassman Santa Fe, NM for Appellants Natelson Law Firm Stephen Natelson Taos, NM for Appellees
This memorandum opinion was not selected for publication in the New Mexico Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date.
APPEAL FROM THE DISTRICT COURT OF TAOS COUNTY
John Paternoster, District Judge
Catron, Catron & Pottow, P.A.
Richard S. Glassman
Santa Fe, NM
for Appellants
Natelson Law Firm
Stephen Natelson
Taos, NM
for Appellees
MEMORANDUM OPINION
KENNEDY, Judge.
Plaintiffs contend that the facts do not establish the grantor's intention to make a present and unconditional transfer, so as to irretrievably part with dominion and control over real property. The district court granted Defendants' motion for summary judgment in their counter-claim to quiet title. Plaintiffs appeal, arguing that the deed Defendants rely upon failed to take effect because there was no legal delivery. Because material issues of fact regarding the deceased grantor's intentions exist, we reverse and remand for trial.
I. BACKGROUND
Jose Lucero, the deceased grantor, owned approximately twenty acres of property in Taos County, New Mexico. Plaintiffs are Jose's children, who had lived on the property with Jose and their mother before they moved out of state. Jose subsequently married Patricia Lucero with whom he resided on the property until his death. Jose and Patricia had a daughter, Maria Montoya. Maria subsequently had a son, Miguel Montoya. Both have resided on the property.
Following serious health problems occurring in 2004, Jose drafted a Warranty Deed, appearing to convey the property to Patricia, Maria, and Miguel (Defendants). The Warranty Deed states:
JOSE G. LUCERO, for consideration paid, hereby grants unto PATRICIA F. LUCERO[,] wife, MARIA L. MONTOYA[,] daughter[,] and MIGUEL F. MONTOYA, grandson, as inheritance, [w]hose address is P.O. Box 32[,] Arroyo Seco, New Mexico 87514[,] the following described real estate in Taos County, State of New Mexico[:]Jose had the deed notarized and kept it in a locked filing cabinet to which he had the only key. This is the key he would have Patricia give Maria on his death bed. He showed the deed and the filing cabinet, within which the deed was kept, to Maria many times. Jose "stated on numerous occasions that it was his intent to convey the property mentioned in the Warranty Deed to [Patricia, Maria, and Miguel]." In addition, Jose directed Maria to have the deed recorded if anything happened to him.
. . . .
Containing 19.99 [a]cres more or less, as more fully shown on a [p]lat of survey for Jose G. Lucero together with all water rights and rights of ingress and egress pertaining to said property and all other rights that this property enjoyed.
STIPULATION: I hereby reserve a life estate unto myself[,] stating that this [W]arranty [D]eed will not take effect until my death.
In 2006, Jose was hospitalized again due to a heart condition. That same day, Jose gave the key to the filing cabinet to Patricia, instructing her to give it to Maria and stated that "[Maria would] know what to do." Jose died the next day. Maria subsequently recorded the deed.
Upon hearing of Jose's passing, Plaintiffs filed a claim in district court, arguing that the Warranty Deed was invalid for lack of delivery and that the property should pass under the New Mexico intestate statute due to the lack of a will. In response, Defendants moved for summary judgment in a claim to quiet title, arguing that the deed was properly delivered. Plaintiffs argue that, even after the deed was signed, but prior to any delivery, Jose discussed with them the possibility of providing a portion of his land to all his heirs—Plaintiffs and Defendants. Defendants contend that Jose conveyed the property to Defendants during his lifetime, reserving for himself a life estate.
Plaintiffs then cross-motioned for summary judgment, arguing that Jose lacked the intent for a present conveyance of property that would have produced an irretrievable parting of dominion and control over the property. Plaintiffs allege that Jose never made a final decision with respect to whether all of his children should have a portion of the property. Nevertheless, the district court granted summary judgment in favor of Defendants, holding that "the decedent intended both a life estate and a concurrent grant of the subject property."
II. DISCUSSION
"Summary judgment is appropriate where there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law." Self v. United Parcel Serv., Inc., 1998-NMSC-046, ¶ 6, 126 N.M. 396, 970 P.2d 582. "We review these legal questions de novo." Id. Summary judgment may be proper when the moving party establishes a prima facie case for summary judgment. Romero v. Philip Morris Inc., 2010-NMSC-035, ¶ 10, 148 N.M. 713, 242 P.3d 280. Once this prima facie showing has been made, the burden shifts to the non-movant to adduce evidence that would justify a trial on the merits. Id. The non-moving party may not only rely upon mere allegations. Rather, that party "must set forth specific facts showing that there is a genuine issue for trial." Rule 1-056(E) NMRA. Thus, there must be a genuine material fact in dispute for Plaintiffs to succeed in opposing the motion for summary judgment. A genuine issue of fact "would allow a hypothetical fair-minded factfinder to return a verdict favorable to the non-movant on that particular issue of fact. An issue of fact is 'material' if the existence (or non-existence) of the fact is of consequence under the substantive rules of law governing the parties' dispute." Romero v. Philip Morris, Inc., 2009-NMCA-022, ¶ 12, 145 N.M. 658, 203 P.3d 873 (citations omitted), rev'd on other grounds, 2010-NMSC-035, 148 N.M. 713, 242 P.2d 280. Because resolution on the merits is favored, a reviewing court "view[s] the facts in a light most favorable to the party opposing the motion and draw[s] all reasonable inferences in support of a trial on the merits[.]" Handmaker v. Henney, 1999-NMSC-043, ¶ 18, 128 N.M. 328, 992 P.2d 879.
At issue here is whether Jose properly delivered the deed to Defendants so as to convey title of the disputed property to them. If a grantor desires to convey property by deed and divest himself of title, he must both physically and legally deliver the deed. See Den-Gar Enters. v. Romero, 94 N.M. 425, 428, 611 P.2d 1119, 1122 (Ct. App. 1980). "[E]ffective legal delivery of a deed requires (1) intent by the grantor to make a present transfer and (2) a transfer of dominion and control." Blancett v. Blancett, 2004-NMSC-038, ¶ 7, 136 N.M. 573, 102 P.3d 640.
There is no dispute that Jose kept the signed notarized deed in a locked filing cabinet. The day before he died, Jose gave the key to Patricia to give to Maria, and this gave Maria, one of the grantees, physical possession of the deed. "[A] grantee's possession of a validly executed deed ordinarily raises a presumption of legal delivery," but this presumption may be rebutted by evidence showing that the grantor did not intend to make a present transfer. Id. ¶ 8. "The purpose of the delivery requirement with respect to deeds is to show the grantor's intent to convey the property described in the deed." 23 Am. Jur. 2d Deeds § 105 (2010). In addition, intent "may be inferred from the circumstances." Id. "It must appear that the grantor intended to part with control and dominion over the land irretrievably. There must be no reservation made by the grantor nor any suggestion of recalling the deed." Den-Gar Enters., 94 N.M. at 428-29, 611 P.2d at 1122-23 (citations omitted). "It is well settled in New Mexico that a grantor's intent is central and may be determined from words, actions or surrounding circumstances during, preceding or following the execution of a deed." Blancett, 2004-NMSC-038, ¶ 7.
In the present case, the district court improperly weighed evidence when it granted Defendants' motion for summary judgment. In order for Defendants' title to be valid, the deed that Defendants relied upon had to have been legally delivered. Determining legal delivery depends upon resolving the factual issue of whether Jose intended to make a present conveyance of property, so as to part with control and dominion over the property without any reservations.
Because the record reveals conflicting evidence with respect to how Jose wanted to dispose of his property, the issue of his intent is in dispute. Evidence indicates that Jose may well have intended to grant the land solely to Defendants. The deed-where and how it was kept, the act of giving the key to Patricia to give to Maria, and showing the deed to Maria on more than one occasion together with the discussions Jose had with Maria about the deed-support this inference. However, Plaintiffs have adduced other evidence suggesting that Jose wanted to convey the property to all of his potential heirs, including Plaintiffs. If true, any delivery Jose made may not have been coupled with the proper intent. The deed would consequently be invalid due to legally insufficient delivery. This is a question for the fact finder.
Despite Defendants' prima facie showing, we conclude that, based upon facts adduced by Plaintiffs, genuine material facts related to intent and delivery of the deed are disputed. This dispute necessitates a trial on the merits.
III. CONCLUSION
Because there are disputed material issues of fact, we reverse the district court's grant of summary judgment in favor of Defendants and remand for proceedings consistent with this Opinion.
IT IS SO ORDERED.
RODERICK T. KENNEDY , Judge
WE CONCUR:
CELIA FOY CASTILO, Chief Judge
MICHAEL E. VIGIL, Judge