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Stockwell v. Windham

California Court of Appeals, Second District, Sixth Division
Mar 27, 2008
No. B190924 (Cal. Ct. App. Mar. 27, 2008)

Opinion


HELENA STOCKWELL et al., Plaintiffs and Respondents, v. WILMER E. WINDHAM et al., Defendants and Appellants. B190924 California Court of Appeal, Second District, Sixth Division March 27, 2008

NOT TO BE PUBLISHED

Superior Court County, Super. Ct. No. S.C. 036187of Ventura, Kent M. Kellegrew, Judge

Wilmer E. Windham, in pro. per., and for Defendants and Appellants.

Law Office of Lawrence M. Lebowsky, Andrea Merrell Caster and Lawrence M. Lebowsky for Plaintiffs and Respondents.

GILBERT, P.J.

Plaintiffs prevailed in their action for specific performance of an agreement to convey real property and to quiet title. The judgment, drafted by plaintiffs' attorney, required the defendants to convey title by grant deed. Plaintiffs made motions to correct a clerical error in the judgment by eliminating reference to the grant deed, and for attorney fees pursuant to Civil Code section 3306a. Section 3306a provides for attorney fees for breach of an agreement to deliver a quitclaim deed. The trial court denied both motions. We affirm.

All statutory references are to the Civil Code.

FACTS

In February of 1978, Helena Stockwell and various members of her family (collectively "Stockwells") entered into an agreement to purchase a condominium in Malibu. Because the Stockwells could not qualify for a loan, Wilmer Windham (Windham) agreed to participate. Windham was an attorney, who allegedly had a relationship with one of the Stockwells. The Stockwells made the down payment, and Windham executed documents for a loan. Windham took a one-third interest as a joint tenant.

On November 13, 1978, Windham wrote the Stockwells a letter. The letter stated that a deed executed by Windham was enclosed. The deed clarified that the parties would hold title as tenants in common, instead of joint tenants. The letter also stated that Windham had prepared a deed granting his interest to the Stockwells and leaving it up to them whether to record that deed. The letter said that in order to prevent the title from becoming confused, the deed conveying Windham's interest to the Stockwells cannot be executed until the deed clarifying title as tenants in common is recorded.

Finally, the letter stated: "For your protection in the interim, however, I wish to put our understanding in writing. As I have stated, I will convey my interest in the property without consideration and will maintain the obligation in my name until such time as you choose to dispose of the property. You and Dian and Floyd will assume whatever obligations are involved, however so that my credit rating is not damaged by late payments or the like. [¶] If at some future time you should sell the property and make some money, you might see fit to send me some small honorarium so that I don't feel totally stupid for having gotten into this. The amount is up to you, but I don't think it should be over $50,000."

Thereafter, the Stockwells had no contact with Windham for 20 years. Windham did not participate in any way in ownership of the property. The Stockwells paid all the expenses for the property.

In January of 1998, the Stockwells learned that Windham had offered his one-third interest in the condominium in settlement of an unrelated lawsuit. The offer was not accepted. Beginning in March of 2002, the parties entered into a series of unsuccessful negotiations to obtain the promised conveyance of Windham's interest. Windham demanded compensation for his conveyance. In January of 2003, Windham conveyed his interest to himself and his wife, Jeanne, as joint tenants.

The Stockwells filed an action against Windham and his wife for, among other relief, specific performance of Windham's promise to convey. The trial court granted judgment to the Stockwells and against Windham and his wife.

The formal judgment, prepared by the Stockwells' attorney, required the Windhams to convey their interest to the Stockwells by grant deed. The judgment also provides that the Stockwells may recover attorney fees and costs pursuant to section 3306a.

We affirmed the judgment. (Stockwell v. Windham (August 29, 2006, B183638) [nonpub. opn.].) But we refused to consider the question of attorney fees because the motion for fees was still pending at the time the notice of appeal was filed.

The Stockwells made a motion for $134,586 in attorney fees. The Windhams opposed the motion on the ground, among others, that section 3306a applies only to an agreement to deliver a quitclaim deed. The Windhams argued the agreement did not specify a quitclaim deed and the judgment requires a grant deed.

The Stockwells submitted an ex parte motion to correct a clerical error in the judgment. The Stockwells requested that the court substitute a quitclaim deed for a grant deed. The court denied the motion on both procedural and substantive grounds.

The Stockwells then made a noticed motion to correct the clerical error, requesting the same relief. The court again denied the motion on substantive grounds.

Finally, the Stockwells made a noticed motion to correct the clerical error, this time requesting only that the provision in the judgment requiring the Windhams to deliver a grant deed be deleted. The Windhams opposed the motion and requested sanctions for making repeated motions. The trial court denied the motion to correct clerical error, denied the motion for attorney fees and denied the motion for sanctions.

In denying the motion to correct the clerical error, the court acknowledged that the judgment requiring a grant deed is not consistent with what the court intended. The court said it did not make a factual finding about the medium of conveyance. Nevertheless, the court found any deviation to be immaterial because the agreement did not require Windham to convey by quitclaim deed. The court read section 3306a as allowing a fee recovery only where the parties contemplated the delivery of a quitclaim deed. The court pointed out that the agreement did not expressly provide for a quitclaim deed. Because the agreement is silent on the question of the medium of transfer, the court denied the Stockwells' motion for fees.

DISCUSSION

I

Windham contends the appeal was not timely.

California Rules of Court, rule 8.104 (a)(2) provides, in part, a notice of appeal must be filed on or before the earliest of "60 days after the party filing the notice of appeal serves or is served by a party with a document entitled 'Notice of Entry' of judgment . . . ." Subsection (f) of the rule provides that a judgment includes an appeal able order.

All references to rules are to the California Rules of Court.

The order denying the Stockwells' motions to correct clerical error and for attorney fees was entered on March 3, 2006. The notice of entry of judgment was served on March 10, 2006. The notice of appeal was filed on May 1, 2006. The notice of appeal was filed well within 60 days from service of the notice of entry of judgment.

Windham's reliance on a "notice of ruling" he served on February 21, 2006, is misplaced. Rule 8.104 (a)(2) starts the 60 days from the service of "a document entitled 'Notice of Entry' . . . ." A document entitled "notice of ruling" is not "a document entitled 'Notice of Entry' . . . ." (See 20th Century Ins. Co. v. Superior Court (1994) 28 Cal.App.4th 666, 671-672 [service of document entitled "notice of ruling" is insufficient to start time for filing notice of appeal under rule requiring document entitled "notice of entry"].)

Laraway v. Pasadena Unified School District (2002) 98 Cal.App.4th 579, is easily distinguished. There no notice of entry was served. Thus the time for appeal ran 180 days after entry of judgment. (Id. at p. 582.) The court held the time of appeal was not extended by the filing of a subsequent judgment making the same decision as the prior judgment. (Id. at p. 583.) Here the time to appeal is governed by the notice of entry, and only one notice of entry was served.

Ramirez v. Moran (1988) 201 Cal.App.3d 431, is also easily distinguished. The case was decided under former rule 2(a). That rule began the 60-day period after "written notice of entry of judgment . . . ." (Id. at p. 435.) Counsel sent appellant's counsel a conformed copy of the judgment with a cover letter, but the record contained no proof of service. Nevertheless, the court held appellant's counsel received adequate notice of the judgment. (Id. at p. 436.)

Windham argues Ramirez stands for the proposition that actual knowledge of the judgment is sufficient. Perhaps actual notice was sufficient under former rule 2(a) as it was then written. That rule did not require service of a document entitled notice of entry. Windham points to nothing in the wording of the rules applicable to this appeal to show that actual notice of the judgment is sufficient to start the 60-day period.

We proceed to discuss the merits.

II

We agree with the trial court that the question of clerical error is immaterial because section 3306a does not apply in any event.

Section 3306a provides: "The minimum detriment caused by the breach of an agreement to execute and deliver a quitclaim deed to real property is deemed to be the expenses incurred by the promisee in quieting title to such property, and the expenses incidental to the entry upon such property. Such expenses which shall include reasonable attorneys' fees shall be fixed by the court in the quiet title action."

Here the agreement is silent as to the type of deed to be used for the conveyance. But nothing in section 3306a requires that the agreement expressly provide for conveyance by quitclaim deed. Thus whether the agreement here is an agreement to deliver a quitclaim deed is a question of construction. Because it appears the trial court did not rely on extrinsic evidence, the question of construction is one of law for us to decide de novo. (1 Witkin, Summary of Cal. Law (10th ed. 2005) Contracts, § 741, p. 828.)

The difference between a grant deed and a quitclaim deed is that a grant deed contains implied covenants for title, whereas a quitclaim deed contains no such covenants. (See 1 Witkin, supra, Real Property, §§ 255, pp. 311-312, 257, p. 313.) Both are equally effective to convey real property. (Ibid.) Here the agreement does not specify the type of deed to be used in effecting the transfer. Thus, either a quitclaim or a grant deed would have been sufficient to carry out the agreement. Because Windham's tender of a grant deed would have been sufficient, the agreement here is not an agreement to deliver a quitclaim deed.

Stockwell argues that at the time section 3306a was enacted, a quitclaim deed was the only way Windham could have conveyed his interest. Stockwell cites authority that a quitclaim divests the seller of an interest in the land and vests it in the purchaser. (Citing Graff v. Middleton (1872) 43 Cal. 341, 343.) But Stockwell cites no authority that a quitclaim deed is the only way of accomplishing such a transfer. In fact, a grant deed works perfectly well to divest a person of an interest in property.

Stockwell argues section 3306a is intended to apply where there was no purchase or sale. But nothing in the language of the section so limits its operation. There is no reason why "an agreement to execute and deliver a quitclaim deed" cannot apply to a purchase and sale.

Stockwell argues the trial court found Windham had no interest in the property. Stockwell concludes that because Windham had no interest, he could not warrant anything. But Stockwell cites no authority that a person needs an interest to warrant title. In fact, that the grantor might lack title is the precise reason why the grantee might want a covenant for title.

Stockwell claims that in a letter dated March 29, 2002, Windham asked Stockwell to send him a quitclaim deed for his execution, and Stockwell sent the deed. But the letter was an attempt to settle a dispute between the parties. A 2002 offer to settle a dispute does not necessarily reflect the intention of the parties in 1978, when the agreement was made.

When the parties entered into the agreement, Windham was acting to accommodate the Stockwells' desire to purchase the condominium. At that time, it was highly unlikely the Stockwells cared by what medium Windham would convey his interest to them. Windham was doing them a favor. Nor does the letter that forms the basis of the agreement reflect any consensus on the type of deed that would be used. Under the circumstances, it is not an agreement to execute and deliver a quitclaim deed.

The judgment is affirmed. Costs on appeal are awarded to respondents.

We concur: COFFEE, J., PERREN, J.


Summaries of

Stockwell v. Windham

California Court of Appeals, Second District, Sixth Division
Mar 27, 2008
No. B190924 (Cal. Ct. App. Mar. 27, 2008)
Case details for

Stockwell v. Windham

Case Details

Full title:HELENA STOCKWELL et al., Plaintiffs and Respondents, v. WILMER E. WINDHAM…

Court:California Court of Appeals, Second District, Sixth Division

Date published: Mar 27, 2008

Citations

No. B190924 (Cal. Ct. App. Mar. 27, 2008)