 1   This memorandum opinion was not selected for publication in the New Mexico Reports. Please
 2   see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.
 3   Please also note that this electronic memorandum opinion may contain computer-generated
 4   errors or other deviations from the official paper version filed by the Court of Appeals and does
 5   not include the filing date.
 6   IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO


 7   JOSEPH LUCERO, ROBERT LUCERO,
 8   JOSEPH A. LUCERO, HELEN ANN
 9   PONTHIER, DONNA LUCERO DENNEY,
10   MICHAEL LUCERO, and MARY POUSSON,

11          Plaintiffs-Appellants,

12 v.                                                                           NO. 30,181

13   PATRICIA LUCERO, MARIA MONTOYA,
14   and MIGUEL MONTOYA, a minor, by and
15   through Maria Montoya, his parent and next
16   friend,

17          Defendants-Appellees.


18 APPEAL FROM THE DISTRICT COURT OF TAOS COUNTY
19 John Paternoster, District Judge


20 Catron, Catron & Pottow, P.A.
21 Richard S. Glassman
22 Santa Fe, NM

23 for Appellants

24 Natelson Law Firm
25 Stephen Natelson
26 Taos, NM

27 for Appellees
2
 1                             MEMORANDUM OPINION

 2 KENNEDY, Judge.

 3        This Court filed an Opinion in this case on August 30, 2011. Defendants filed

 4 a motion for rehearing. Due consideration having been had by the panel, the motion

 5 for rehearing is hereby granted. The Opinion previously filed in this matter on August

 6 30, 2011, is hereby withdrawn, and the following Opinion is being issued in its place.



 7        Plaintiffs contend that the facts do not establish the grantor’s intention to make

 8 a present and unconditional transfer, so as to irretrievably part with dominion and

 9 control over real property. The district court granted Defendants’ motion for summary

10 judgment in their counter-claim to quiet title. Plaintiffs appeal, arguing that the deed

11 Defendants rely upon failed to take effect because there was no legal delivery.

12 Because we hold that Plaintiffs failed to rebut Defendants’ prima facie case for

13 summary judgment, we affirm the district court.

14 I.     BACKGROUND

15        Jose Lucero, the deceased grantor, owned approximately twenty acres of

16 property in Taos County, New Mexico. Plaintiffs are Jose’s children, who had lived

17 on the property with Jose and their mother before they moved out of state. Jose

18 subsequently married Patricia Lucero with whom he resided on the property until his



                                              3
 1 death. Jose and Patricia had a daughter, Maria Montoya. Maria subsequently had a

 2 son, Miguel Montoya. Both have resided on the property.

 3        Following serious health problems occurring in 2004, Jose drafted a Warranty

 4 Deed, appearing to convey the property to Patricia, Maria, and Miguel (Defendants).

 5 The Warranty Deed states:

 6              JOSE G. LUCERO, for consideration paid, hereby grants unto
 7        PATRICIA F. LUCERO[,] wife, MARIA L. MONTOYA[,] daughter[,]
 8        and MIGUEL F. MONTOYA, grandson, as inheritance, [w]hose address
 9        is P.O. Box 32[,] Arroyo Seco, New Mexico 87514[,] the following
10        described real estate in Taos County, State of New Mexico[:]

11              ....

12        Containing 19.99 [a]cres more or less, as more fully shown on a [p]lat of
13        survey for Jose G. Lucero together with all water rights and rights of
14        ingress and egress pertaining to said property and all other rights that this
15        property enjoyed.

16        STIPULATION: I hereby reserve a life estate unto myself[,] stating that
17        this [W]arranty [D]eed will not take effect until my death.

18 Jose had the deed notarized and kept it in a locked filing cabinet to which he had the

19 only key. This is the key he would have Patricia give Maria on his death bed. He

20 showed the deed and the filing cabinet, within which the deed was kept, to Maria

21 many times. Jose “stated on numerous occasions that it was his intent to convey the

22 property mentioned in the Warranty Deed to [Patricia, Maria, and Miguel].” In

23 addition, Jose directed Maria to have the deed recorded if anything happened to him.



                                               4
 1           In 2006, Jose was hospitalized again due to a heart condition. That same day,

 2 Jose gave the key to the filing cabinet to Patricia, instructing her to give it to Maria

 3 and stated that “[Maria would] know what to do.” Jose died the next day. Maria

 4 subsequently recorded the deed.

 5           Upon hearing of Jose’s passing, Plaintiffs filed a claim in district court, arguing

 6 that the Warranty Deed was invalid for lack of delivery and that the property should

 7 pass under the New Mexico intestate statute due to the lack of a will. In response,

 8 Defendants moved for summary judgment in a claim to quiet title, arguing that the

 9 deed was properly delivered. Plaintiffs argue that, even after the deed was signed, but

10 prior to any delivery, Jose discussed with them the possibility of providing a portion

11 of his land to all his heirs—Plaintiffs and Defendants. Defendants contend that Jose

12 conveyed the property to Defendants during his lifetime, reserving for himself a life

13 estate.

14           Plaintiffs then cross-motioned for summary judgment, arguing that Jose lacked

15 the intent for a present conveyance of property that would have produced an

16 irretrievable parting of dominion and control over the property.                  Although

17 characterizing the facts concerning Maria being told to record the 2004 deed if

18 anything happened to Jose and that Maria was given the key and told that she “knew

19 what to do” just prior to his death as undisputed, Plaintiffs allege that Jose never made



                                                  5
 1 a final decision with respect to whether all of his children should have a portion of the

 2 property. They submitted affidavits with their motion, stating that Jose had talked

 3 with several of them at various times, even after the deed was originally signed in

 4 2004, indicating that he wanted to give them a part of the property. The district court

 5 granted summary judgment in favor of Defendants, holding that “the decedent

 6 intended both a life estate and a concurrent grant of the subject property.”

 7 II.    DISCUSSION

 8        “Summary judgment is appropriate where there are no genuine issues of

 9 material fact and the movant is entitled to judgment as a matter of law.” Self v. United

10 Parcel Serv., Inc., 1998-NMSC-046, ¶ 6, 126 N.M. 396, 970 P.2d 582. “We review

11 these legal questions de novo.” Id. Summary judgment may be proper when the

12 moving party establishes a prima facie case for summary judgment. Romero v. Philip

13 Morris Inc., 2010-NMSC-035, ¶ 10, 148 N.M. 713, 242 P.3d 280. This evidence must

14 be sufficient in law to raise a presumption in fact or establish the fact in question

15 unless rebutted. Id. Once this prima facie showing has been made, the burden shifts

16 to the non-movant to adduce evidence that would justify a trial on the merits. Id. The

17 non-moving party may not only rely upon mere allegations. Rather, that party “must

18 set forth specific facts showing that there is a genuine issue for trial.” Rule 1-056(E)

19 NMRA. Thus, there must be a genuine material fact in dispute for Plaintiffs to



                                               6
 1 succeed in opposing the motion for summary judgment. A genuine issue of fact

 2 “would allow a hypothetical fair-minded factfinder to return a verdict favorable to the

 3 non-movant on that particular issue of fact. An issue of fact is ‘material’ if the

 4 existence (or non-existence) of the fact is of consequence under the substantive rules

 5 of law governing the parties’ dispute.”            Romero v. Philip Morris, Inc.,

 6 2009-NMCA-022, ¶ 12, 145 N.M. 658, 203 P.3d 873 (citations omitted), rev’d on

 7 other grounds, 2010-NMSC-035, 148 N.M. 713, 242 P.2d 280. Because resolution

 8 on the merits is favored, a reviewing court “view[s] the facts in a light most favorable

 9 to the party opposing the motion and draw[s] all reasonable inferences in support of

10 a trial on the merits[.]” Handmaker v. Henney, 1999-NMSC-043, ¶ 18, 128 N.M. 328,

11 992 P.2d 879.

12        At issue here is whether Jose properly delivered the deed to Defendants so as

13 to convey title of the disputed property to them. If a grantor desires to convey

14 property by deed and divest himself of title, he must both physically and legally

15 deliver the deed. See Den-Gar Enters. v. Romero, 94 N.M. 425, 428, 611 P.2d 1119,

16 1122 (Ct. App. 1980). “[E]ffective legal delivery of a deed requires (1) intent by the

17 grantor to make a present transfer and (2) a transfer of dominion and control.”

18 Blancett v. Blancett, 2004-NMSC-038, ¶ 7, 136 N.M. 573, 102 P.3d 640.




                                              7
 1        There is no dispute that Jose kept the signed, notarized deed in a locked filing

 2 cabinet. The day before he died, Jose gave the key to Patricia to give to Maria, and

 3 this gave Maria, one of the grantees, physical possession of the deed. “[A] grantee’s

 4 possession of a validly executed deed ordinarily raises a presumption of legal

 5 delivery,” but this presumption may be rebutted by evidence showing that the grantor

 6 did not intend to make a present transfer. Id. ¶ 8. “The purpose of the delivery

 7 requirement with respect to deeds is to show the grantor’s intent to convey the

 8 property described in the deed.” 23 Am. Jur. 2d Deeds § 105 (2010). In addition,

 9 intent “may be inferred from the circumstances.” Id. “It must appear that the grantor

10 intended to part with control and dominion over the land irretrievably. There must be

11 no reservation made by the grantor nor any suggestion of recalling the deed.” Den-

12 Gar Enters., 94 N.M. at 428-29, 611 P.2d at 1122-23 (citations omitted). “It is well

13 settled in New Mexico that a grantor’s intent is central and may be determined from

14 words, actions or surrounding circumstances during, preceding or following the

15 execution of a deed.” Blancett, 2004-NMSC-038, ¶ 7.

16        The undisputed facts show that, from 2004, when Jose executed the deed,

17 through the day prior to his death, when he gave Maria the key that provided her with

18 sole physical possession of it along with his instruction to file it, Jose continuously

19 acted toward Maria in a way confirming his intent to grant the land and physically



                                              8
 1 delivered possession of the deed. The existence of a life estate does not defeat Jose’s

 2 intent, it only reinforces the intent to transfer the property to Maria upon his death, in

 3 accord with other evidence supporting the prima facie case, as it would not affect the

 4 transfer of title, merely possession of the land. See Vigil v. Sandoval, 106 N.M. 233,

 5 235, 741 P.2d 836, 838 (Ct. App. 1987).

 6        We hold that Defendants established a prima facie case for both required

 7 elements of transfer: intent to make a present transfer and valid delivery of dominion

 8 and control. The deed, its execution, and the showing of the deed to Maria on more

 9 than one occasion, together with the discussions Jose had with Maria about filing the

10 deed, where and how it was kept and, finally, the act of giving the key to Patricia to

11 give to Maria thus delivering the deed, supports the presumption of legal delivery

12 discussed in Blancett. As such, Plaintiffs acquire the burden to demonstrate the

13 existence of specific evidentiary facts that would both rebut the presumption of legal

14 delivery, but also require trial on the merits. See Blancett, 2004-NMSC-038, ¶ 8.

15 Roth v. Thompson, 113 N.M. 331, 334-35, 825 P.2d 1241, 1244-45 (1992). Despite

16 the district court’s apparent weighing the merits of the facts, rather than solely

17 speaking to their materiality, the result does not change. To determine which facts are

18 material, a court’s focus should be on whether, under the pertinent substantive law,

19 “the fact is necessary to give rise to a claim.” Romero, 2010-NMSC-035, ¶ 11



                                               9
 1 (internal quotation marks and citation omitted). We therefore turn to the facts shown

 2 to the district court by Plaintiffs.

 3        To follow Blancett, rebutting evidence of a grantor’s intent may be determined

 4 by the circumstances surrounding the execution of a deed. 2004-NMSC-038, ¶ 7.

 5 Here, the three affidavits submitted in rebuttal all state that various conversations took

 6 place with Jose about the property. In contrast to the certainty of the dates of

 7 execution of the deed to Defendants and the circumstances of the deed’s delivery to

 8 Maria, the affidavits are quite amorphous about specific plans, contain few specific

 9 dates, and fail to state that Jose ever took specific action as to carrying out anything

10 he talked about with Plaintiffs. Describing conversations about various plans,

11 including building a house, a summer house, and general division of the property

12 among his descendants tracks the form, but fails to produce substance. Unlike Jose’s

13 actions with regard to Maria, Plaintiffs’ acts are not tied to any specific times. They

14 do not concern actions beyond making conversational statements of general intention.

15 Hence, they do not rise to the level of suggesting that a fact finder might return a

16 verdict favorable to Plaintiffs. Indeed, Plaintiffs’ briefing centers on the deficiency

17 of the deed and the lack of a valid delivery because of the deed residing in the file

18 cabinet and not the sufficiency of intent as shown by the conversations talked about

19 in the affidavits. Thus, Plaintiffs fail to affirmatively demonstrate how their affidavits



                                               10
 1 rebut the evidence that Jose intended to transfer the property by his execution of the

 2 deed and its delivery to Maria by the tendering of the key to the filing cabinet.

 3        We conclude that a prima facie case has been established as a matter of law

 4 based on the undisputed facts and that Plaintiffs’ assertions fall short. They lack the

 5 factual basis to rebut the facts shown by the execution of the deed in 2004 and Jose’s

 6 subsequent actions demonstrating his clear intent to pass title to the land through

 7 Maria filing the deed upon his death. This was the finding of the district court in the

 8 final paragraph of its letter decision and being in accord with the reasoning of the

 9 district court, we affirm.

10 III.   CONCLUSION

11        Because Plaintiffs failed to rebut Defendants’ prima facie case for summary

12 judgment by adducing material issues of fact, we affirm the district court’s grant of

13 summary judgment in favor of Defendants.

14        IT IS SO ORDERED.



15                                                _______________________________
16                                                RODERICK T. KENNEDY, Judge




                                             11
1 WE CONCUR:



2 ________________________________
3 CELIA FOY CASTILO, Chief Judge



4 ________________________________
5 MICHAEL E. VIGIL, Judge




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