Warburton v. Pedockie

----ooOoo----

Warburton Family Trust
dba First Enterprises
Manufacturing and Distributing,
Plaintiff and Appellant,

v.

Susan Pedockie aka Susan K. Pedockie; Kenneth P. Pedockie;
William Ferro aka William V. Ferro; Susan Ferro;
Calvin H. Callister, individually, and dba Buyers Real Estate Company;
Zions First National Bank; Zions Mortgage;
and Utah Housing Finance Agency,
Defendants and Appellees.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 990326-CA

F I L E D
October 5, 2000 2000 UT App 272 -----

Third District, Salt Lake Department
The Honorable Timothy R. Hanson

Attorneys:
Ronald C. Barker, Salt Lake City, for Appellant
Bruce J. Nelson, Salt Lake City, for Appellees

-----

Before Judges Greenwood, Bench, and Billings.

BILLINGS, Judge:

The trial court granted summary judgment for Defendant, concluding the undisputed facts established Defendant's lack of intent to deliver the warranty deed to the Pedockies at the closing and thus the Pedockies had no interest in the property to which appellant's mechanics' lien could attach.

"Delivery of a deed requires that the grantor either relinquish physical control of the deed or have a present intent to permanently divest himself of title to the property." Bennion v. Hansen, 699 P.2d 757, 759 (Utah 1985); see also Wiggill v. Cheney, 597 P.2d 1351, 1352 (Utah 1979) (stating delivery accomplished if grantor "part[s] with possession of the deed or the right to retain it"). The grantor's intent "is to be arrived at from all the facts and surrounding circumstances." First Sec. Bank of Utah v. Burgi, 122 Utah 445, 451, 251 P.2d 297, 299 (1952).

We conclude the facts and surrounding circumstances create an issue of fact as to whether Defendant intended to divest himself of the right to retain title to the property when he executed the warranty deed in favor of the Pedockies. The Closing Instruction to the title company that Defendant and the Pedockies signed provides: The undersigned buyers and sellers herein understand that the property referred to in this transaction is currently being foreclosed, and that the [sic] there can be no recording until the foreclosure is complete, which could be as long as 4 months.
The undersigned hereby instruct and authorize associated title company to hold all recordings and disbursements until said foreclosure is complete. Defendant argues that, under the Closing Instruction, foreclosure of the Ferro Trust Deed within four months was a "condition precedent" to his delivery of the warranty deed. Nothing in the Closing Instruction supports Defendant's interpretation of that document. The Closing Instruction does not suggest that failure to foreclose the Ferro Trust Deed within any period would void the transaction. Rather, the Closing Instruction states that the Ferro Trust Deed "is currently being foreclosed," and that foreclosure could take as long as four months.

Additional circumstances support this interpretation of the Closing Instruction. Shortly after receiving Susan Pedockie's last payment on August 17, 1995, Defendant sent Susan a letter stating that Susan was in arrears on her monthly payments and demanding payment on amounts due, including the late fee for each month. This letter indicates that Defendant understood that he had conveyed the property to the Pedockies. The Pedockies likewise carried on as if Defendant had conveyed the property to them: they occupied and improved the property and made payments to Defendant in accordance with the sales agreement. Finally, opposing affidavits on the intent of the parties as to delivery of the deed were before the trial court on summary judgment.

In light of the foregoing, we conclude there is a material issue of fact as to Defendant's intent to deliver the warranty deed. The trial court therefore erred by granting summary judgment for Defendant.(1)
 
 
 

______________________________
Judith M. Billings, Judge -----

WE CONCUR:
 
 
 

______________________________
Pamela T. Greenwood,
Presiding Judge
 
 
 
 

______________________________
Russell W. Bench, Judge

1. In light of our disposition we do not reach the other issues raised on appeal.