Bale v. Allison

294 P.3d 789

Dennis BALE and Clarence Bale, Respondents,

v. Garry L. ALLISON, individually and as personal representative of the Estate of Robert E. Fletcher, Defendant,John F. Fletcher and Robert G. Fletcher, Appellants.

No. 67395–5–I.

Court of Appeals of Washington, Division 1.

Feb. 11, 2013.

Saphronia R. Young, Federal Way, WA, Kenneth W. Masters, Shelby R. Frost Lemmel, Masters Law Group PLLC, Bainbridge Island, WA, for Appellant.

Karen R. Bertram, Kutscher, Hereford, Bertram, Burkart, PLLC, David L. Tuttle, Law Office of Mary Stoll, Seattle, WA, for Respondent.

LAU, J.

¶ 1 Robert E. Fletcher used a quitclaim deed to gift his Winthrop cabin to his nephews,John and Robert G. Fletcher.¹ John and Robert appeal the trial court's determination that the failure to recite consideration invalidated the deed. We conclude the deed is valid because it met all statutory requirements and no recital is required to effectively gift real property. Accordingly, we reverse the judgment awarding title to Denny and Allen Bale. On cross appeal, the Bales challenge the trial court's use of the clear, cogent, and convincing standard of proof to find that the Bales failed to establish an oral contract to devise existed between Bob and the Bales. We conclude the trial court applied the correct standard of proof at trial to determine insufficient evidence of an oral contract to devise existed. We remand to the trial court to consider an award of attorney fees and costs to John and Robert but deny fees and costs on appeal.

FACTS

¶ 2 Neither party assigns error to the trial court's findings of fact and, thus, they are verities on appeal. Moreman v. Butcher, 126 Wash.2d 36, 40, 891 P.2d 725 (1995).

¶ 3 Bob Fletcher owned a parcel of real property including a cabin in Winthrop, Washington. John and Robert Fletcher were Bob's nephews. Starting around 1960, Bob took his nephews to visit the cabin two or three times a year. John and Robert's father (Bob's brother) died in 1964 when the boys were young, so Bob “took [them] under his wing.” Report of Proceedings (RP) (June 9, 2011) at 508. Bob lived with John and Robert for two years and married their mother (Bob's brother's widow) in 1968. That marriage lasted only two years. Until 1971, John continued visiting the cabin property two or three times a year.

¶ 4 Bob married Edna Fletcher in 1971. Denny and Allen Bale (“the Bales”) are Edna's adult sons from a previous marriage. When Bob and Edna married, the cabin on the Winthrop property was a small, rustic Forest Service cabin that lacked indoor plumbing and running water.

¶ 5 Bob and Edna were married 28 years. During that time, the Bales made numerous improvements to the Winthrop property, including

building a woodshed; installing exterior lighting; building a storage shed; clearing a parking area near the cabin; clearing and seeding lawn areas near the cabin; cutting down trees and removing tree stumps; planting ornamental bushes, evergreen trees, and fruit trees; rebuilding, grading, and graveling the driveway; and building a horse coral; adding on a bedroom, a bathroom, and a porch to the cabin; installing a complete water system to the cabin property, including a well; adding complete interior plumbing and septic systems to the cabin property; remodeling the living room; extending and enlarging the kitchen space; installing countertops and cabinets to the kitchen; rewiring the entire electrical system; replacing the roof on the old section of the cabin and roofing the new additions to the cabin; insulating all of the original walls and ceiling portions, plus the new additions; replacing all the windows; installing new flooring and related structural supports; re-sheeting the exterior walls; installing a new water heater; making major repairs to the wood burning and cooking stoves; installing a propane fireplace; and replacing the two chimneys.

They also contributed furnishings and appliances to the cabin. They “provided the time and labor, and materials and payments necessary for these extensive renovations, improvements, and maintenance in reliance on their understanding that they would own the Winthrop property after [Bob] died.” John and Robert stopped visiting the cabin during Bob and Edna's marriage because Edna did not “appreciate” them.

¶ 6 Edna died in 1999 and Bob again invited John and Robert to visit the cabin. John visited the property a couple times a year. He did maintenance work each time: “I did as much as I had to do to maintain the property while I was there and leave it like it was better than it was when I got there, just like [Bob] always told everyone to do.” RP (June 7, 2011) at 385. About a year and a half after Edna died, Bob married Garry Allison.

¶ 7 Bob executed a will in October 2003 in which he made three bequests: (1) to his stepsons, “Dennis Bale and [Allen] Bale, I give my property in Winthrop, WA, share and share alike”; (2) $2,000 to his adopted daughter; and (3) the rest, residue, and remainder of his estate to Garry Allison. Resp't's Reply Br. at Appendix A. In devising the Winthrop property to the Bales, Bob indicated his desire that they allow Garry Allison, John, and Robert to use the property for their enjoyment “ ‘at the discretion of Dennis Bale and [Allen] Bale.’ ” Resp't's Reply Br. at Appendix A.

¶ 8 Bob was diagnosed with terminal lung cancer in the fall 2008. John testified that after the diagnosis, Bob invited him and Robert over for lunch. Garry Allison was also present at the lunch. John and Robert both testified that Bob told them at that time, “I want you boys to have the cabin.” RP (June 9, 2011) at 559, 587. John found a preprinted quitclaim deed online and filled it out. John and Robert then took Bob to Bank of America to get the deed notarized. Bob signed the deed, and the notary acknowledged his signature. John recorded the deed in Okanogan County on December 19, 2008.

¶ 9 The deed “conveys and quitclaims” the cabin property to John and Robert. The spaces after “in consideration of” and “quit claims to” are blank. Ex. 2. Handwritten at the top of the deed after “Grantee” are the names “Robert Gary Fletcher” and “John Franklin Fletcher” and “Robert Ernest Fletcher” after the word “Grantor.” Ex. 2. In the preprinted real estate excise tax affidavit (REETA) and supplemental statement, under the heading “Gifts without consideration,” Bob checked the box indicating, “There is no debt on the property; Grantor (seller) has not received any consideration towards equity. No tax is due.” Ex. 4. Also handwritten after “Reason for exemption” is “gift, w/no debt.” Ex. 4. The REETA also lists Bob as grantor and John and Robert as grantees. The Okanogan County treasurer stamped the REETA “Not Subject to Excise Tax.” Ex. 4.

¶ 10 Bob died in April 2009 and Garry Allison was named personal representative under the 2003 will. After Bob's death, John amended the previously recorded quitclaim deed by adding “for love and affection” and also wrote in his name and Robert's name in the “quit claim to” blank.² Resp't's Br. at App. C; RP (June 7, 2011) at 390. John also prepared a new REETA to include considerable personal property in and around the cabin. Garry Allison signed the REETA in her capacity as personal representative of Bob's estate. John rerecorded the quitclaim deed on June 26, 2009.

¶ 11 When the Bales learned that Bob quitclaimed the Winthrop property to John and Robert, they filed a “complaint for specific performance, damages and further equitable relief” against John, Robert, and Garry Allison, requesting that the Winthrop property be transferred from John and Robert to them. (Capitalization omitted.) They alleged numerous claims, including breach of oral contract, breach of implied contract, promissory estoppel, undue influence, and tortious interference.

¶ 12 Garry Allison moved for summary judgment on all claims. The court granted summary judgment dismissal on the undue influence, tortious interference, and promissory estoppel claims ³ but denied summary judgment on the oral and implied contract issues. The trial evidence related primarily to the Bales' oral contract to devise claim.

¶ 13 The court entered a judgment awarding clear title to the Bales and entered writtenfindings and conclusions. Regarding the quitclaim deed, the court's conclusions of law state:

1. The quit claim deed executed by [Bob] in December 2008 lacks specific and necessary terms to effectively transfer title. The quit claim deed is incomplete and fails to state what consideration, if any, was given for the deed. There were blanks left as to whom the property was conveyed. Because of the fatal defects as to consideration, the quit claim deed is ineffective and did not transfer title to John and Robert G. Fletcher.

2. The quit claim deed executed by [Bob] in December 2008 does not meet the fundamental statutory requirements for a “good and sufficient conveyance, release and quitclaim to the grantee[s]” pursuant to RCW 64.04.050, and therefore, is ineffective to transfer the Winthrop property to John and Robert G. Fletcher.

3. Because [Bob] is deceased and died testate, the December 2008 quit claim deed cannot be reformed by the personal representative, and the post-death alterations to the December 2008 deed are improper and of no legal effect.

(Third alteration in original.) The court concluded that given the deed's invalidity, Bob's October 2003 will controlled distribution of his estate and the property passed to the Bales.

¶ 14 The court rejected the Bales' oral contract to devise and implied contract claims. The relevant conclusions state:

6. [The Bales] were unable to establish [by] clear, cogent and convincing evidence that there was an implied contract between themselves and [Bob] to transfer the Winthrop property in exchange for the work that the Bales performed.

7. [The Bales] were unable to establish that Defendant Ms. Garry Allison had knowledge of any contract, oral or...