Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County, Super. Ct. No. CV-256450. Sidney P. Chapin, Judge.
Daniel Gilbert Tarr, in pro. per., for Defendant and Appellant.
Law Offices of Richard J. Papst and Richard J. Papst for Plaintiff and Respondent.
OPINION
Kane, J.
This is a dispute between two brothers regarding ownership of real property located near the town of Rosamond in Kern County, California (the Rosamond property). Respondent Oscar Leon Tarr (hereafter Oscar) filed a lawsuit seeking to quiet title to the Rosamond property on the ground that his brother, appellant Daniel Gilbert Tarr (hereafter Gilbert), fraudulently switched the legal description page attached to a grant deed delivered by Oscar to Gilbert as part of a property resolution between the two brothers. Allegedly, when the grant deed was delivered by Oscar, the legal description included only certain lots in Lebec, California (Lots 86 and 87), but when it was recorded by Gilbert, the legal description included Lots 86 and 87 and the Rosamond property. After hearing the testimony of the two brothers and considering the documentary exhibits, the trial court found in favor of Oscar and declared that Gilbert had “no interest” in the Rosamond property. Gilbert appealed, contending the trial court’s finding that he altered the deed was not supported by substantial evidence. We will affirm the judgment.
PROCEDURAL HISTORY
On September 20, 2005, Oscar filed his complaint against Gilbert to quiet title to the Rosamond property. The complaint alleged that Oscar was and is the true owner of the Rosamond property, but that Gilbert claimed ownership adverse to Oscar based on a grant deed recorded on October 19, 2004. The October 19, 2004 grant deed was allegedly “fraudulent, in that at the time [Oscar] executed the grant deed, it contained an Exhibit ‘A’, [sic] which described only Lots 86 and 87 in Block 5 in Tejon Lodge” located in or near Lebec, California. Sometime after the delivery of the grant deed, Gilbert allegedly “removed the Exhibit ‘A’ which was originally attached to the grant deed, and substituted, in its place, an Exhibit ‘A’ which contained the legal description of the [Rosamond] Property, as well as [Lots 86 and 87].” Based on these allegations, the complaint included the following causes of action: (1) quiet title, (2) cancellation of instrument, and (3) fraud. The prayer for relief sought a determination that Oscar was the owner in fee simple of the Rosamond property and that Gilbert had no interest therein adverse to Oscar.
On November 17, 2005, Gilbert filed an answer by which he denied the allegations set forth in the complaint. Gilbert also filed a cross-complaint alleging that the conveyance to him of both the Rosamond property and Lots 86 and 87 (in Lebec) was intended under the parties’ oral agreement. In fact, under said oral agreement, Oscar allegedly still owed Gilbert an additional $10,000, the recovery of which was prayed for in Gilbert’s cross-complaint. The cross-complaint also sought return of certain personal property and/or damages for conversion thereof.
On August 29, 2006, the case proceeded to a court trial. The only witnesses were Oscar and Gilbert, and thus the matter came down to the court’s assessment of credibility. A number of documentary exhibits were also introduced into evidence. The trial court then took the matter under submission.
On October 24, 2006, the trial court issued its ruling for judgment in favor of Oscar on each cause of action in the complaint. The trial court’s findings on the complaint were as follows: “[Oscar] establishe[d] by clear and convincing evidence that [Gilbert] altered [the grant deed] by attaching a false Exhibit A to the document, so as to include in the conveyance the Rosamond ten (10) acres which were intended to be the property of [Oscar]. [Gilbert] was inconsistent and rambling in his testimony concerning the transactions. [Oscar] was credible. [Gilbert] was not credible. The court does not award any monetary damages on the complaint.” (Full capitalization omitted.) Likewise, as to the cross-complaint, the trial court found against Gilbert, who recovered nothing thereon.
On December 1, 2006, formal judgment was entered in favor Oscar, declaring that Gilbert “has no interest” in the Rosamond property, and that the October 19, 2004 deed is “void” as to said Rosamond property.
On January 29, 2007, Gilbert timely filed this appeal, proceeding in propria persona.
SUMMARY OF FACTS
The 10-acre Rosamond property which is the subject of this dispute was originally owned by the parties’ mother and father, Oscar V. Tarr and Devon Tarr (the parents), who acquired it in 1952. The parents executed a revocable living trust in 1992 (the trust), and the Rosamond property thereafter became an asset of the trust. In addition to the Rosamond property, the trust also owned four parcels of real property located in the Tejon Lodge area of Kern County in or near the community of Lebec. Of these four parcels in the Tejon Lodge/Lebec area, one was transferred by Oscar to Gilbert by deed dated June 30, 2004 and recorded October 19, 2004 (i.e., the parcel consisting of Lots 86 and 87), and the other three were sold to a third party on September 15, 2004 (referred to herein as the Three Parcels), as more fully outlined below.
The parties’ father, Oscar V. Tarr, died on March 16, 1998, and their mother, Devon Tarr, as the survivor, became the sole trustee of the trust. Devon Tarr lived in Oregon, in an assisted living facility. In the period between 1998 and 2004, a number of tax liens and abatement liens were assessed against the five properties owned by the trust. In late 2003 and early 2004, a buyer came forward who was interested in purchasing the Three Parcels. After a discussion with Devon Tarr concerning the potential sale and the need to avoid further delay in light of pending tax foreclosures, Oscar began to deal directly with the real estate agent and took steps to get the Three Parcels ready for sale. On May 1, 2004, Devon Tarr, as the surviving trustee, executed grant deeds conveying to Oscar all five of the properties owned by the trust. The deeds were recorded by Oscar on May 3, 2004. The original escrow instructions had the trust listed as the seller, therefore the escrow documents for the proposed sale of the Three Parcels were amended to name Oscar as the seller. Oscar took steps to prevent tax foreclosures and endeavored to complete the sale of the Three Parcels. It was his intention to make an equitable division of the former trust property or proceeds thereof among Ethel (the parties’ sister), Gilbert and himself.
While the sale of the Three Parcels was in escrow, Oscar and Gilbert had a conversation concerning the parcel that is comprised of Lots 86 and 87. According to Oscar’s testimony, Gilbert “begged” him to deed Lots 86 and 87 to Gilbert since “he needed a place to live because he was on parole and it had to be in Kern County.” Oscar agreed to do so. In the same conversation, the brothers agreed that Oscar would retain title to the Rosamond property. Oscar prepared a grant deed to convey Lots 86 and 87 to Gilbert. The property description was set forth in an attached exhibit A which referred only to Lots 86 and 87. Oscar executed the grant deed at the end of June 2004 and mailed it to Gilbert. Along with the grant deed, Oscar sent Gilbert a check for $5,000 because Gilbert had asked for financial help in moving and clearing his personal property (e.g., vehicles and miscellaneous equipment) off of the Three Parcels that were in escrow. The buyers would not conclude the purchase unless all of the personal property items were completely removed. Ultimately, Oscar came down from Oregon to personally help Gilbert move the property items from the Three Parcels to Lots 86 and 87 and into storage.
According to Oscar, in a previous conversation Gilbert had insisted that Oscar and their sister assume all the debts on the properties and that Gilbert receive all of the sale proceeds.
Escrow closed concerning the sale of the Three Parcels on September 15, 2004. In addition to any capital gains taxes, a number of expenses were deducted or reimbursed from the sales proceeds, including Oscar’s own “fee” for having to travel to California multiple times regarding the property issues.
On October 10, 2004, Oscar paid the property taxes on the Rosamond property. In the summer of 2004, Oscar had paid the delinquent taxes (accruing from 1998 to 2003) on the Rosamond property. Gilbert, however, did not pay any taxes on the Rosamond property.
In October of 2004, after the proceeds of the sale of the Three Parcels had been distributed, Gilbert telephoned Oscar and asked if he (Gilbert) was going to receive any additional money. Oscar said, “‘No.’” Gilbert then responded in a “tiff” that “he was going to cloud the title to the [Rosamond] property.”
Oscar had decided that Gilbert’s fair share of the assets would be Lots 86 and 87 plus the $5,000 cash Gilbert had already received. Oscar believed that Lots 86 and 87 were worth approximately $30,000. Gilbert later sold Lots 86 and 87 in 2005 for approximately $70,000.
On October 19, 2004, Gilbert recorded the grant deed from Oscar relating to Lots 86 and 87. However, the exhibit A of the recorded deed also contained a description of the Rosamond property. At trial, Gilbert testified that he waited approximately three and one-half months to record the deed because he was “sick.” On cross-examination, however, he admitted that during September 2004 he was able to travel to the escrow company to sign papers, and he also spent four or five days moving personal property from the Three Parcels to Lots 86 and 87.
In December of 2004, Oscar received a letter from the county counsel’s office indicating that the Rosamond property had been transferred to Gilbert. This was surprising news to Oscar and led to his filing the instant lawsuit to quiet title.
After initially receiving this news, Oscar ordered a copy of the recorded deed from the title company. When he reviewed the deed, he noticed that the exhibit A attachment in which the property description was contained had been altered. Oscar testified that the original exhibit A included only Lots 86 and 87, while the recorded exhibit A also included the Rosamond property. Oscar also observed that the Assessor’s Parcel Number (APN) regarding the Rosamond property was incorrect on the recorded deed. Oscar knew the correct APN because when he previously recorded the deed from the trust to himself in May of 2004, he was advised by the county recorder of the correct APN and a handwritten correction was made at that time.
The erroneous APN regarding the Rosamond property was reasonably traceable to a prior deed recorded by Gilbert in 1998. Apparently, in 1998, prior to his father’s death, Gilbert used a power of attorney to transfer all five properties from the trust to both Oscar and himself (80 percent/20 percent respectively). At trial, Oscar’s counsel claimed the 1998 deed was void, a claim which the trial court implicitly adopted when it held Gilbert had “no interest” in the Rosamond property. The 1998 deed, however, was offered into evidence as a basis for showing the probable source of the erroneous APN and as circumstantial support for Oscar’s theory that Gilbert switched or altered the exhibit A attachment.
Gilbert’s appeal makes no challenge to the implied finding that the 1998 deed was void or invalid. The only discern able claim of error in Gilbert’s appeal is that there was no evidence he switched or altered the legal description in the 2004 grant deed. Since appellant failed to demonstrate any legal or factual error in regard to the trial court’s implied finding that said 1998 deed was void or invalid, that finding is presumed correct. (See 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 349, p. 394; State Farm Fire & Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 610 [judgment presumed correct and appellant has burden to affirmatively demonstrate error]; McComber v. Wells (1999) 72 Cal.App.4th 512, 522-523 [appellant must support contention with argument and citation to authority].) Moreover, all intendments and presumptions are indulged to uphold the judgment. (State Farm Fire & Casualty Co. v. Pietak, supra, at p. 610.) As pointed out in Oscar’s brief herein, the trial court’s implied finding is supported under the general principle of law that a power of attorney conferring authority to sell, exchange, transfer or convey real property for the benefit of the principal does not authorize a conveyance as a gift without consideration. (See Shields v. Shields (1962) 200 Cal.App.2d 99, 101 [“a conveyance without the scope of the power conferred is void”].)
The gist of Gilbert’s testimony at trial was that he did not alter or switch the grant deed’s legal description, that he recorded the same grant deed and attachment as he received from Oscar without any alteration, and that he (Gilbert) was supposed to receive Lots 86 and 87 and the Rosamond property under the oral agreement reached with Oscar regarding how to divide the assets. According to Gilbert, he was also to receive an additional $10,000 from the sales proceeds, which Oscar failed and refused to pay.
DISCUSSION
The only discernible contention of error in Gilbert’s appeal is that the evidence presented in the trial court was insufficient to support the conclusion that he fraudulently switched or altered the grant deed’s legal description. We review such a contention under the substantial evidence test.
The appeal is largely unintelligible.
I. Standard of Review
“When findings of fact are challenged in a civil appeal, we are bound by the familiar principle that ‘the power of the appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted,’ to support the findings below. [Citation.]” (Oregel v. American Isuzu Motors, Inc. (2001) 90 Cal.App.4th 1094, 1100.) We must therefore view the evidence in the light most favorable to the prevailing party, giving it the benefit of every reasonable inference and resolving all conflicts in its favor. (Bickel v. City of Piedmont (1997) 16 Cal.4th 1040, 1053.) “‘“[W]e have no power to … weigh the evidence, to consider the credibility of the witnesses, or to resolve conflicts in the evidence or in the reasonable inferences that may be drawn therefrom.”’ [Citation.]” (Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 766.) The appellate court does not evaluate the credibility of witnesses, but defers to the trial court’s assessment of which witnesses were credible. (Lenk v. Total-Western, Inc. (2001) 89 Cal.App.4th 959, 968.) If any substantial evidence supports the findings below, the judgment will be affirmed. (Bickel v. City of Piedmont, supra, at p. 1053.)
II. Substantial Evidence Supported Trial Court’s Findings
Preliminarily, we note that Oscar’s complaint clearly alleged the substantive basis for the relief sought. The complaint sought to quiet title; that is, to resolve the adverse claims of the two brothers to ownership of the Rosamond property, including the specific relief of cancellation of the grant deed recorded by Gilbert on October 19, 2004 to the extent it referred to the Rosamond property. Specific allegations of fraud were alleged, namely the altering of the legal description attached to the grant deed, as grounds for such relief.
A quiet title action may be used as a remedy to establish title to real property between adverse claimants. (Code Civ. Proc., §§ 760.010-760.020.) It is cumulative to other remedies provided by law for establishing or quieting title. (Code Civ. Proc., § 760.030, subd. (a).) The specific relief of “cancellation” is set forth at Civil Code section 3412 as follows: “A written instrument, in respect to which there is a reasonable apprehension that if left outstanding it may cause serious injury to a person against whom it is void or voidable, may, upon his application, be so adjudged, and ordered to be delivered up or canceled.” Cancellation is an appropriate remedy to nullify or cancel a deed procured by fraud. (See, e.g., Smith v. Williams (1961) 55 Cal.2d 617, 620-621; Schiavon v. Arnaudo Bros. (2000) 84 Cal.App.4th 374, 378.) As in the case at hand, the remedies of quiet title and cancellation may operate in conjunction with each other. For example: “This situation arises where the defendant has title of record and the plaintiff attacks the instrument constituting the defendant’s title. The judgment quieting title would be merely incidental to the main object of the action: Cancellation or other nullification of the instrument for fraud.” (5 Witkin, Cal. Procedure (4th ed. 1997) Pleading, § 628, p. 93 [noting fraud should be specifically alleged in such cases].)
Here, a grant deed conveying title to the Rosamond property from the trust to Oscar was recorded in May of 2004. Hence, the cancellation of the subsequent grant deed recorded by Gilbert on October 19, 2004 -- insofar as it referred to the Rosamond property -- would leave Gilbert with “no interest” therein, as the trial court held.
See footnote 3, ante.
The basis for the relief granted by the trial court was its conclusion that Gilbert committed fraud. Specifically, the trial court found that the grant deed delivered by Oscar included only Lots 86 and 87, but that Gilbert fraudulently switched or altered the attached legal description so as to include the Rosamond property and then recorded the altered grant deed on October 19, 2004.
These findings were supported by substantial evidence. The two brothers were the only witnesses at trial. Because they gave conflicting testimony about what happened in the relevant transactions, the case largely turned on issues of credibility that were resolved by the trial court. The trial court evaluated each brothers’ demeanor and testimony and found that Oscar was “credible,” but Gilbert was “inconsistent,” “rambling” and “not credible.” Oscar testified that he and Gilbert agreed Lots 86 and 87 would go to Gilbert, as Gilbert had requested, and that Oscar would retain title to the Rosamond property. Moreover, Oscar specifically recalled that the legal description attached to the grant deed delivered to Gilbert included only Lots 86 and 87, and did not include the Rosamond property. Other evidence tending to support the trial court’s determination of fraud included the existence of the erroneous APN on the grant deed recorded by Gilbert on October 19, 2004 (which APN was also in the prior 1998 deed recorded by Gilbert), Oscar’s testimony that Gilbert specifically threatened to cloud Oscar’s title to the Rosamond property, the fact that Oscar paid the property taxes on the Rosamond property, and the inconsistencies in regard to Gilbert’s asserted reason for waiting until October 19, 2004 to record the grant deed. For all of these reasons, we conclude the trial court’s determination of fraud was readily supported by substantial evidence in the record.
DISPOSITION
The judgment is affirmed. Respondent Oscar Leon Tarr is entitled to costs on appeal.
WE CONCUR: Vartabedian, Acting P.J., Gomes, J.