 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 2   see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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        Plaintiffs contend that the facts do not establish the grantor’s intention to make

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

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

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

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

 8 Because material issues of fact regarding the deceased grantor’s intentions exist, we

 9 reverse and remand for trial.

10 I.     BACKGROUND

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

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

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

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

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

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

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

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

19 The Warranty Deed states:



                                              3
 1              JOSE G. LUCERO, for consideration paid, hereby grants unto
 2        PATRICIA F. LUCERO[,] wife, MARIA L. MONTOYA[,] daughter[,]
 3        and MIGUEL F. MONTOYA, grandson, as inheritance, [w]hose address
 4        is P.O. Box 32[,] Arroyo Seco, New Mexico 87514[,] the following
 5        described real estate in Taos County, State of New Mexico[:]

 6               ....

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

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

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

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

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

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

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

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

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

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

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

22 subsequently recorded the deed.




                                               4
 1           Upon hearing of Jose’s passing, Plaintiffs filed a claim in district court, arguing

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

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

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

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

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

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

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

 9 estate.

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

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

12 irretrievable parting of dominion and control over the property. Plaintiffs allege that

13 Jose never made a final decision with respect to whether all of his children should

14 have a portion of the property. Nevertheless, the district court granted summary

15 judgment in favor of Defendants, holding that “the decedent intended both a life estate

16 and a concurrent grant of the subject property.”

17 II.       DISCUSSION

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

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



                                                  5
 1 Parcel Serv., Inc., 1998-NMSC-046, ¶ 6, 126 N.M. 396, 970 P.2d 582. “We review

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

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

 4 Morris Inc., 2010-NMSC-035, ¶ 10, 148 N.M. 713, 242 P.3d 280. Once this prima

 5 facie showing has been made, the burden shifts to the non-movant to adduce evidence

 6 that would justify a trial on the merits. Id. The non-moving party may not only rely

 7 upon mere allegations. Rather, that party “must set forth specific facts showing that

 8 there is a genuine issue for trial.” Rule 1-056(E) NMRA. Thus, there must be a

 9 genuine material fact in dispute for Plaintiffs to succeed in opposing the motion for

10 summary judgment. A genuine issue of fact “would allow a hypothetical fair-minded

11 factfinder to return a verdict favorable to the non-movant on that particular issue of

12 fact. An issue of fact is ‘material’ if the existence (or non-existence) of the fact is of

13 consequence under the substantive rules of law governing the parties’ dispute.”

14 Romero v. Philip Morris, Inc., 2009-NMCA-022, ¶ 12, 145 N.M. 658, 203 P.3d 873

15 (citations omitted), rev’d on other grounds, 2010-NMSC-035, 148 N.M. 713, 242

16 P.2d 280. Because resolution on the merits is favored, a reviewing court “view[s] the

17 facts in a light most favorable to the party opposing the motion and draw[s] all

18 reasonable inferences in support of a trial on the merits[.]” Handmaker v. Henney,

19 1999-NMSC-043, ¶ 18, 128 N.M. 328, 992 P.2d 879.



                                               6
 1        At issue here is whether Jose properly delivered the deed to Defendants so as

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

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

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

 5 1122 (Ct. App. 1980). “[E]ffective legal delivery of a deed requires (1) intent by the

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

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

 8        There is no dispute that Jose kept the signed notarized deed in a locked filing

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

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

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

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

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

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

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

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

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

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

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



                                             7
 1 settled in New Mexico that a grantor’s intent is central and may be determined from

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

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

 4        In the present case, the district court improperly weighed evidence when it

 5 granted Defendants’ motion for summary judgment. In order for Defendants’ title to

 6 be valid, the deed that Defendants relied upon had to have been legally delivered.

 7 Determining legal delivery depends upon resolving the factual issue of whether Jose

 8 intended to make a present conveyance of property, so as to part with control and

 9 dominion over the property without any reservations.

10        Because the record reveals conflicting evidence with respect to how Jose

11 wanted to dispose of his property, the issue of his intent is in dispute. Evidence

12 indicates that Jose may well have intended to grant the land solely to Defendants. The

13 deed–where and how it was kept, the act of giving the key to Patricia to give to Maria,

14 and showing the deed to Maria on more than one occasion together with the

15 discussions Jose had with Maria about the deed–support this inference. However,

16 Plaintiffs have adduced other evidence suggesting that Jose wanted to convey the

17 property to all of his potential heirs, including Plaintiffs. If true, any delivery Jose

18 made may not have been coupled with the proper intent.               The deed would




                                              8
 1 consequently be invalid due to legally insufficient delivery. This is a question for the

 2 fact finder.

 3        Despite Defendants’ prima facie showing, we conclude that, based upon facts

 4 adduced by Plaintiffs, genuine material facts related to intent and delivery of the deed

 5 are disputed. This dispute necessitates a trial on the merits.

 6 III.   CONCLUSION

 7        Because there are disputed material issues of fact, we reverse the district court’s

 8 grant of summary judgment in favor of Defendants and remand for proceedings

 9 consistent with this Opinion.

10        IT IS SO ORDERED.



11                                                 _______________________________
12                                                 RODERICK T. KENNEDY, Judge

13 WE CONCUR:



14 ________________________________
15 CELIA FOY CASTILO, Chief Judge



16 ________________________________
17 MICHAEL E. VIGIL, Judge




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