Sparks v. Emmert

382 Mont. 249

369 P.3d 994

2016 MT 43

Barbara SPARKS, Personal Representative of the Estate of Kurt R. Heigis, Plaintiff and Appellant,

v.Frances EMMERT, Defendant and Appellee.

No. DA 15–0530.

Supreme Court of Montana.

Submitted on Briefs Jan. 27, 2016.

Decided Feb. 23, 2016.

For Appellant: Douglas D. Howard, Heard & Howard Law Office, PLLC, Columbus, Montana.

For Appellee: Ann E. Davey, Vincent Law Office, Columbus, Montana.

Justice LAURIE McKINNON delivered the Opinion of the Court.

¶ 1 Barbara Sparks (Sparks) appeals from an order entered by the Twenty–Second Judicial District Court, Stillwater County, granting Frances Emmert (Emmert) summary judgment. We reverse and remand.

¶ 2 Restated, Sparks presents the following issue for review:

Did the District Court err in granting summary judgment in Emmert's favor?

FACTUAL AND PROCEDURAL BACKGROUND

¶ 3 This case concerns the disputed validity of a quitclaim deed (Deed) executed by Kurt Heigis (Heigis) purportedly conveying certain real property to Emmert, Heigis' long-time friend and former short-term girlfriend. The Deed's subject real property was Heigis' home, which is located on approximately fifty seven acres in Columbus, Montana and has been owned by Heigis' family for three generations (Heigis Property).¹ Heigis and Emmert met and became friends in the early 1970's. For a short time in 2000, Heigis employed Emmert as a hand in his landscaping business. Heigis and Emmert dated for approximately four months beginning in late 2000. After their more intimate relationship ended amicably, Heigis and Emmert remained friends. Emmert describes their relationship as "like family."

¶ 4 On June 17, 2001, Heigis executed and a notary notarized the Deed. According to Emmert, on the same day the Deed was executed, Heigis personally delivered it to Emmert at her home in Reed Point, Montana. Heigis told her to keep it and not record it until "something happened to him." Also, according to Emmert, she and Heigis agreed that Heigis would continue to live on the Heigis Property, maintain it, and pay for its expenses. Heigis explained to Emmert that he was giving her the Deed because he knew she would not sell the Heigis Property. Emmert stored the Deed in her safe. After physically delivering the Deed to Emmert, Heigis continued to live in his home on the Heigis Property. He also maintained the property and paid for its insurance and taxes. On October 31, 2001, Heigis executed a mortgage on the Heigis Property acting as its mortgagor.

¶ 5 At some point in 2003, while Heigis was at Emmert's house visiting her, Emmert explained to Heigis that she was planning to move to Wyoming and asked if he would take back the Deed. Emmert attempted to physically return the Deed to Heigis, but Heigis refused it and reiterated to her that he wanted her to keep it. Emmert replaced the Deed in her safe. Emmert did not move to Wyoming.

¶ 6 On November 1, 2007, Heigis executed an additional mortgage on the Heigis Property acting as its mortgagor. On August 23, 2010, Heigis requested a survey be prepared of the Heigis Property for the purpose of a gift or sale to a family member. The landowner certification on the survey states, "Tract A," comprising approximately twenty acres, "is to be transferred to my daughter Joanna Mong." Heigis told Emmert about his plan to give his daughter some of the Heigis Property and she agreed it was "okay" with her. This contemplated transfer never occurred, apparently because Heigis' daughter moved to Billings, Montana instead. Heigis executed three loan modifications to the additional, November 1, 2007, mortgage on December 17, 2010, December 6, 2011, and November 26, 2013.

¶ 7 On February 9, 2014, Heigis was murdered while vacationing in Costa Rica. On March 5, 2014, Emmert recorded the Deed in the Stillwater County Clerk and Recorder's Office. Sparks, Heigis' daughter, acting as personal representative of his estate, initiated an action against Emmert to quiet title to the Heigis Property. Both parties filed motions for summary judgment. Emmert argued the facts were undisputed and that the Deed was legally delivered on June 17, 2001. Sparks agreed that the facts were undisputed, but countered that the Deed was inoperative because it was never delivered. The District Court concluded that the Deed was legally delivered and granted Emmert summary judgment. Sparks appeals.

STANDARD OF REVIEW

¶ 8 We review an entry of summary judgment de novo, applying the same criteria of M. R. Civ. P. 56 as the district court. Davis v. State, 2015 MT 264, ¶ 7, 381 Mont. 59, 357 P.3d 320.

DISCUSSION

¶ 9 Did the District Court err in granting summary judgment in Emmert's favor?

¶ 10 Summary judgment is appropriate if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. M. R. Civ. P. 56(c)(3). The party opposing entry of summary judgment "must establish with substantial evidence, as opposed to mere denial, speculation, or conclusory assertions, that a genuine issue of material fact exists or that the moving party is not entitled to prevail under applicable law." Hansard Mining Co. v. McLean, 2014 MT 199, ¶ 10, 376 Mont. 48, 335 P.3d 711 (citation omitted).

¶ 11 On appeal, Sparks contends that summary judgment was granted in error because an issue of material fact existed—whether delivery occurred—and substantial evidence supported a conclusion that delivery did not occur. The delivery necessary to legally convey real property did not occur, she argues, because after executing the Deed, Heigis continued to retain exclusive dominion and control over the Heigis Property until his untimely and unfortunate death. Sparks contends further, that because the Deed is ineffective and invalid under § 70–1–508, MCA, because it was not delivered, Heigis' estate owns the Heigis Property. Emmert counters that, under § 70–1–509, MCA, if a deed is executed, its delivery is presumed and the evidence that Heigis continued to live on and manage the property after executing the Deed does not clearly or convincingly rebut that presumption. Emmert argues the District Court correctly granted summary judgment in her favor.

¶ 12 "A grant takes effect so as to vest the interest intended to be transferred only upon its delivery by the grantor." Section 70–1–508, MCA. "A grant duly executed is presumed to have been delivered at its date." Section 70–1–509, MCA. This presumption may be rebutted. Clear and convincing evidence contrary to the presumption is necessary for rebuttal. Gross v. Gross, 239 Mont. 480, 482, 781 P.2d 284, 285 (1989) (citations omitted). A grant may not be delivered conditionally; instead, delivery is deemed to be absolute. Section 70–1–510, MCA. Transfer vests title "unless a different intention is expressed or is necessarily implied." Section 70–1–519, MCA. An unrecorded deed is valid as between the parties. Section 70–21–102, MCA.

¶ 13 Delivery is aquestion of intent. 23 Am. Jur. 2d Deeds § 106 (2013) ; Roman v. Albert, 81 Mont. 393, 407, 264 P. 115, 120 (1928) (citation omitted). "To be valid and effective, the act of delivery of a deed must be accompanied by the intent that it becomes presently operative as such and presently pass title." 23 Am. Jur. 2d Deeds § 106 (2013). The grantor must intend to divest himself of his title so as to lose all dominion, power or control over it and place it beyond the right of recall. Miller v. Talbott, 115 Mont. 1, 10–11, 139 P.2d 502, 507 (1943). "[T]he failure of the grantor to reserve a life estate, and the grantor's remaining in possession of the property and the deed until death, strongly indicates that there was never a delivery of the deed to the grantees." 23 Am. Jur. 2d Deeds § 143 (2013). "The facts and circumstances which have been held sufficient to constitute the actual or constructive delivery of a deed are exceedingly numerous and varied." Springhorn v. Springer, 75 Mont. 294, 300, 243 P. 803, 804 (1926).

¶ 14 Acts or declarations of the grantor subsequent to physically delivering a deed to the grantee to hold until a future time are admissible as bearing on the intention of the grantor to make delivery. 23 Am. Jur. 2d Deeds § 146 (2013). Examples of subsequent statements of the grantee that were considered as evidence to dispute whether delivery had occurred in other jurisdictions include declarations that: 1) the grantor proposed or desired to sell the property purportedly conveyed by the deed; 2) the instrument was in effect a will; 3) the delivery was contingent upon certain eventualities; 4) the grantor intended to destroy the deed; 5) the grantor was under duress during the execution of the instrument; and 6) the grantor, expressly or by necessary inference, indicated that the grantor considered himself or herself to be the owner of the property. 23 Am. Jur. 2d Deeds § 146 (2013).

¶ 15 The grantor's right to recall a deed has been a determining factor in several cases which have similarly focused on whether a deed had been effectively delivered. See Hayes v. Moffatt, 83 Mont. 214, 226–27, 271 P. 433, 437 (1928) ; Miller, 115 Mont. at 8–9, 139 P.2d at 506. Often, the facts presented involve either a third party or a safety deposit box holding an executed deed. Typically, courts hold that where both the grantee and grantor have access to the document, the deed has not been delivered because it is still subject, at least in part, to the grantor's dominion and control. Courts have held that where a grantor has access to and could destroy or retake the Deed if they...