Webbe v. McGhie Land Title Co.

• Decision Date: 17 February 1977
• Docket Number: No. 76-1095,76-1095
• Parties: Sorkis J. WEBBE, Plaintiff-Appellee, v. McGHIE LAND TITLE COMPANY and Lawyers Title Insurance Corporation, Defendants-Appellants. Sorkis J. WEBBE and Lawyers Title Insurance Corporation, Third-Party Plaintiffs, v. Dorothy Cobb KITT, Third-Party Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1358

549 F.2d 1358

Sorkis J. WEBBE, Plaintiff-Appellee, v. McGHIE LAND TITLE COMPANY and Lawyers Title Insurance

Corporation, Defendants-Appellants.

Sorkis J. WEBBE and Lawyers Title Insurance Corporation, Third-Party Plaintiffs, v. Dorothy Cobb KITT, Third-Party Defendant-Appellee.

No. 76-1095.

United States Court of Appeals, Tenth Circuit.

Argued and Submitted Nov. 16, 1976.

Decided Feb. 17, 1977.

Richard J. Leedy, Salt Lake City, Utah, for Sorkis J. Webbe, plaintiff-third party plaintiff-appellee.

Earl P. Staten, Salt Lake City, Utah (Tibbals & Staten and Bill Thomas Peters, Salt Lake City, Utah, on the brief), for appellants.

Ned Warnock, Salt Lake City, Utah, for Dorothy Cobb Kitt, third party defendant-appellee.

Before SETH, BREITENSTEIN and McWILLIAMS, Circuit Judges.

McWILLIAMS, Circuit Judge.

The trial court entered summary judgment in the amount of $400,000 in favor of the plaintiff and against the defendant insurer on a policy of title insurance. At the same time the trial court also entered summary judgment dismissing the defendant's third party complaint and entered judgment quieting title to certain real property in the third party defendant. The insurer appeals both judgments thus entered against it. We reverse.

On appeal the main issue is whether on the basis of the record then before it the trial court was justified in concluding by way of summary judgment that a certain deed was a forgery. One Sorkis J. Webbe, a St. Louis attorney with interests in Nevada, was the grantee in a deed conveying title to certain real property in Utah. The grantor was a company known as Consolidated Investment Corp. Consolidated's grantor in the chain of title was one Dorothy Cobb Kitt.

At or about the time that Webbe received a warranty deed from Consolidated, he obtained a commitment for a policy of title insurance from the Lawyers Title Insurance Corporation, the latter acting through its Salt Lake City agent, McGhie Land Title Co. Lawyers Title Insurance Corporation will hereinafter be referred to as Title Insurance.

A few months after the property was deeded to Webbe by Consolidated, a question arose as to the genuineness of the deed purportedly executed by Dorothy Cobb Kitt conveying the property to Consolidated. The questioned deed, bearing what was ostensibly the signature of Dorothy Cobb Kitt, had been notarized and duly recorded. Kitt executed an affidavit declaring that her signature on the questioned deed was a forgery, and this affidavit was itself duly Webbe thereafter made demand on Title Insurance and, when his demand was not met, he brought suit under the terms of the title insurance policy against the insurance company. Title Insurance then brought, on behalf of Webbe, a third party action against Kitt, attempting thereby to quiet title to the premises in Webbe.

recorded. Title Insurance apparently learned of the Kitt affidavit, but, pursuant to its prior commitment, issued a title insurance policy to Webbe for the face amount of $400,000.

Numerous depositions were taken by way of pretrial discovery. Webbe and Kitt each then filed a motion for summary judgment. At hearing it was the position of respective counsel for both Webbe and Kitt that the only issue in the case was the genuineness of the Kitt deed, and that based on the depositions it had been established that the deed was a forgery.

The trial judge at the outset of the hearing on the motion for summary judgment indicated that a "factual hearing" was necessary. However, based upon the argument of counsel for Webbe and Kitt, the trial judge apparently changed his mind and granted summary judgment in favor of both Webbe and Kitt. In so doing the trial judge indicated quite clearly that he had not himself read the depositions relied on. When counsel for the title insurance company asked to be heard, the trial judge's immediate response was, "You're stuck." The judge did thereafter hear counsel for the insurance company, but only briefly, and then followed through on his previously announced intention, and granted judgment in favor of Webbe and against Title Insurance in the sum of $400,000, the face amount of the policy. Thereafter the judge also entered summary judgment dismissing Title Insurance's third party complaint and quieted title, not in Webbe, but in Kitt.

By appendix we have attached to this opinion what purports to be a complete transcript of the hearing held on the motions for summary judgment. In granting these motions for summary judgment the trial court obviously acted most hastily and, more important, the record does not support the action taken.

The issue as to whether a signature on a deed is genuine, or a forgery, presents an issue which in our view can seldom be resolved by summary judgment. Under Utah law it appears that an acknowledged and recorded deed, as was the instant deed, is presumed to be valid and such presumption can only be overcome by clear and convincing proof. Northcrest, Inc. v. Walker Bank & Trust Co., 122 Utah 268, 248 P.2d 692 (1952). Whether the quantity and quality of evidence offered is sufficient to overcome such presumption is to us a matter which cannot be satisfactorily resolved by summary judgment. Such determination necessarily involves the delicate task of assessing the respective credibility of the witnesses, which is difficult to do on the basis of depositions.

We have examined the depositions relied on by counsel in their respective motions for summary judgment. Counsel suggests that Kitt categorically denied that it was her signature affixed to the deed. Our reading of the Kitt deposition does not leave us with such a firm conviction. To us her testimony is something less than straightforward and tends to be equivocal.

The grantee on the Kitt deed refused to testify on Fifth Amendment grounds when his deposition was taken, refusing to testify not just as to the circumstances surrounding the execution of the deed, but refusing to give any testimony concerning any of the several related land transactions in which the deed here in question played a part.

The notary upon deposition testified that she could not recall the particular acknowledgement under attack, but stated, in effect, that she had never acknowledged a signature unless the purported signor was present.

No good purpose would be served by setting forth any further statement of the rather tangled factual situation out of which the present controversy arises. It is sufficient to simply hold that the trial court erred in granting summary judgment for Webbe and Kitt, both here and in the trial court, state that the only issue is the genuineness of the Kitt deed. Such may indeed be a pivotal issue, but it would appear that such is not the only issue in the case. We note that Title Insurance has raised other defenses. And certainly the propriety of the trial court's entering judgment for Webbe for $400,000, the full face amount of the policy, without a real showing of actual loss, is doubtful.

either Webbe or Kitt. Summary judgment is a drastic action available only in cases where there are no material issues of fact and a formal trial would be fruitless. Frey v. Frankel, 361 F.2d 437 (10th Cir. 1966). Summary judgment is particularly inappropriate in the instant case where the trial judge, who has not had an opportunity to evaluate the demeanor of the deponent, is nonetheless in a real sense being called upon to determine whether the deponent is telling the truth. See American Manufacturers Mutual Insurance Co. v. American Broadcasting-Paramount Theatres, Inc., 388 F.2d 272, 284 n. 18 (2d Cir. 1967). Suffice it to say, the genuineness of the Kitt deed must be resolved at trial of the matter, and not by summary judgment. By reversing, we do not wish to be understood as indicating that we feel the deed was genuine. We are simply holding that the question of genuineness was not a fit subject for summary judgment.

Title Insurance further asks that on remand we direct that the case be heard by a judge other than the one who has entered summary judgment against it. We agree. 28 U.S.C. § 455 provides that a judge should disqualify himself in any proceeding in which his impartiality "might reasonably be questioned." Hence, appearance of...