Anderson v. Brinkerhoff

• Decision Date: 09 June 1988
• Docket Number: No. 880122-CA,880122-CA
• Citation: 756 P.2d 95
• Parties: Mont R. ANDERSON, Personal Representative of the Estate of Cloyd H. Brinkerhoff, Lena Brinkerhoff, and Mark J. Brinkerhoff, Plaintiffs and Respondents, v. Elsie BRINKERHOFF, Golda B. Adair, Warren Brinkerhoff, Arlene B. Goulding, and John Does I thru V, Defendants and Appellants.
• Court: Utah Court of Appeals

Page 95

756 P.2d 95

Mont R. ANDERSON, Personal Representative of the Estate of Cloyd H. Brinkerhoff, Lena Brinkerhoff, and Mark J. Brinkerhoff, Plaintiffs and Respondents, v. Elsie BRINKERHOFF, Golda B. Adair, Warren Brinkerhoff Arlene B. Goulding, and John Does I thru V Defendants and Appellants.

No. 880122-CA.

Court of Appeals of Utah.

June 9, 1988.

Hans Chamberlain (argued), Cedar City, for defendants and appellants.

Willard R. Bishop (argued), Cedar City, for plaintiffs and respondents.

Before BILLINGS, GARFF and ORME, JJ.

OPINION

BILLINGS, Judge:

Respondents initiated this action to quiet title in real property and for specific performance of a contract. The trial court found in favor of respondents and specifically enforced the contract, allowed respondents to make up past-due payments, and voided certain instruments signed by Elsie Brinkerhoff. Appellants contend the court committed reversible error in sua sponte finding Elsie incompetent, and thereafter in failing to appoint a guardian ad litem, but instead continuing the trial. Appellants ask this court to reverse the trial court and find the 1966 contract abandoned, and declare the 1979 joint tenancy deed and the 1980 conveyances from Elsie to her five children binding and enforceable. We affirm.

On her husband's death, Elsie Brinkerhoff became the owner of over 1,970 acres of real property located in Kane County, Utah. Cloyd and Mark Brinkerhoff, two of Elsie's sons, used Elsie's land in their farming and grazing business. In 1966, Elsie, represented by independent counsel, entered into an agreement to sell the property to Cloyd and Mark. The contract required Cloyd and Mark to pay a minimum of $53,388 at the rate of $2,000 per year, without interest, for the rest of Elsie's life. The contract provided for an escrow account to hold the deeds and process the payments.

While the contract was not signed until 1966, payments of $2,000 for 1964 and 1965 were made. However, the precise terms of the contract were never followed. All documents were not placed in escrow, and Cloyd and Mark often made payments by paying Elsie's bills or giving her money directly.

The contract provided that upon default, and a failure to remedy the default within 30 days, Elsie had the option to demand a redelivery of all the deeds and escrow documents, and the surrender of the property, with all sums paid to be forfeited as rent and liquidated damages under this forfeiture clause. Notice of default was required if the default of the contract was other than the payment of principal and interest. Elsie never complained about non-payment nor demanded return of the deeds or documents, and Mark and Cloyd ¹ have retained possession of the land.

In June 1979, Elsie purportedly executed a joint tenancy deed, which granted title in the property to herself, Cloyd, and Mark. The circumstances surrounding the execution of the deed are unclear, but the transaction appears to have been made at the request of Cloyd. Elsie and Mark claim no recollection of the deed's inception or execution. While the deed was recorded in Kane County, respondents claim that the deed did not conform to the contract, and was not properly notarized, delivered or accepted.

On October 14, 1979, Cloyd died, vesting record title to the property in Elsie and Mark, each with an undivided one-half interest. On August 15, 1980, Elsie signed an affidavit severing the joint tenancy, and executed a deed from herself to five of her children: Golda Adair, Warren Brinkerhoff, Arlene Goulding, Charles Brinkerhoff, and Betty Esplin. She was not represented by counsel when she executed this deed. The deed gave each child an undivided one-fifth interest of the one-half record interest Elsie maintained in the land. The other one-half interest remained with Mark. A separate deed of trust and promissory note were prepared for each of the five children. Each note was for $10,000, payable at a rate of $30 a month, making the total to be paid by the five children $50,000. The trust deeds were recorded and an escrow account established to receive the children's payments and to hold the deed.

On June 21, 1982, Cloyd's personal representative and his widow, Lena, filed suit seeking to enforce the 1966 contract and to quiet title in the property. During the trial, the court, sua sponte, determined that Elsie did not fully comprehend the matter before the court. Elsie was not represented by counsel at trial. Nevertheless, the trial proceeded with the court, rather than an appointed guardian ad litem, "looking out for Elsie's interests."

After trial, the court ruled that as of 1970 Elsie was not legally competent and, therefore, that all legal documents signed by her from that time forward were invalid. Consequently, the court's ruling voided the 1979 joint tenancy deed and the 1980 conveyances to the other five children. Alternatively, the court found that the 1979 joint tenancy deed and the 1980 conveyances were not the result of Elsie's free will, but were brought about by the undue influence of family members. The court further found that the 1966 contract was in full force and effect. The court determined that $50,655.11 was owed to Elsie, which respondents subsequently paid.

Appellants contend the court committed reversible error in raising the issue of Elsie's incompetence sua sponte. Furthermore, they argue the evidence does not support a finding of incompetence. Appellants also contend that if Elsie was incompetent, then the court's failure to appoint a guardian ad litem before continuing the trial constitutes reversible error. Appellants ask this court to reverse the trial court and declare the 1966 contract abandoned, and the 1979 joint tenancy deed and the 1980 conveyances from Elsie to her five children binding and enforceable.

STANDARD OF REVIEW

We accord the trial court's findings great deference, and will not disturb those findings unless they are against the clear weight of evidence. Adair v. Bracken, 745 P.2d 849, 851 (Utah Ct.App.1987). Therefore, we set aside the factual findings of the trial court only if they are clearly erroneous. See Ashton v. Ashton, 733 P.2d 147, 150 (Utah 1987).

VALIDITY OF THE 1966 CONTRACT

There is no dispute that the 1966 contract, wherein Elsie sold the ranch to her two sons, Cloyd and Mark, was not performed precisely according to its terms. The contract and deeds were not deposited in an escrow account, and payments, when made, were often made directly to Elsie or by paying her bills or making deposits into her bank account. The dispute concerns whether the parties' conduct establishes a waiver of precise performance of the contract or an intent to abandon the contract.

Waiver is defined as the voluntary and intentional relinquishment of a known right. Morgan v. Quailbrook Condominium Co., 704 P.2d 573, 578 (Utah 1985); Bjork v. April Indus., Inc., 547 P.2d 219, 220 (Utah 1976); Barnes v. Wood, 750 P.2d 1226, 1230 (Utah Ct.App.1988). Waiver can be implied from conduct, such as making payments or accepting performance which does not comport with contractual requirements. Udevco Inc. v. Wagner, 100 Nev. 185, 678 P.2d 679, 682 (1984); see B.R. Woodward Marketing, Inc. v. Collins Food Serv., Inc., 82 Utah Adv. Rep. 35, 37, 754 P.2d 99 (Ct.App.1988).

The failure of the parties to adhere to the precise terms of the contract, combined with the parties' failure to give any notice of their intention to insist on strict compliance with the terms of the contract, is ample evidence to support a finding that the parties waived strict compliance with the contractual terms. See Pack v. Hull Dev. Co., Inc., 667 P.2d 39, 40 (Utah 1983); Tanner v. Baadsgaard, 612 P.2d 345, 347 (Utah 1980); Call v. Timber Lakes Corp., 567 P.2d 1108, 1109 (Utah 1977). Moreover, even if the parties had not waived strict compliance, Elsie's failure to comply with the contract's provision for termination would mean the buyer's rights were not effectively terminated.

Abandonment is the intentional, unequivocal relinquishment of a benefit due from another. Pitcher v. Lauritzen, 18 Utah 2d 368, 423 P.2d 491, 493 (1967). A purchaser's intent to abandon rights to property under a contract must be clearly inconsistent with an intention to continue the use of the property. Adair, 745 P.2d at 851; Forsyth v. Pendelton, 617 P.2d 358, 361 (Utah 1980). There must be a substantial failure to perform the material matters of the contract. Tate v. Murphy, 202 Okl. 671, 217 P.2d 177, 187 (1949). When dealing with contract rights, abandonment turns on questions of fact and is to be determined from the circumstances of the case, including the intentions and other actions of the parties. Adair, 745 P.2d at 851; Timpanogos Highlands, Inc. v. Harper, 544 P.2d 481, 484 (Utah 1975).

The court made the following findings to support its conclusion that the contract had not been abandoned, but rather that Elsie had merely waived strict compliance with the contractual terms: Mark and Cloyd had, at all times, remained in possession of the land, and had continued to use the land in their farming and grazing business; even though all payments were not made as required by the contract, Elsie never declared herself dissatisfied with the performance of the contract, nor did she ever declare the contract in default and attempt to terminate it.

Although the 1979 and 1980 conveyances might seem inconsistent with Elsie's intent to honor the 1966 contract, ² it is clear that Elsie did not understand the inconsistencies but rather signed the documents to accommodate her children's wishes. The court found that the parties failed to show a clear unequivocal intent to abandon the contract, and thus found the contract to be in full force and effect. The trial court's findings of fact and conclusions of law based thereon, are consistent with other decisions in this jurisdiction, see, e.g., Adair, 745 P.2d at 851; Tanner, 612 P.2d at 347, and...