Barmore v. Perrone

• Citation: 145 Idaho 340,179 P.3d 303
• Decision Date: 15 February 2008
• Docket Number: No. 34253.,34253.
• Parties: Kathleen BARMORE, Plaintiff-Appellant, v. Joseph PERRONE, Defendant-Respondent.
• Court: United States State Supreme Court of Idaho

179 P.3d 303

145 Idaho 340

Kathleen BARMORE, Plaintiff-Appellant, v. Joseph PERRONE, Defendant-Respondent.

No. 34253.

Supreme Court of Idaho, Boise, January 2008 term.

February 15, 2008.

Marcus, Christian & Hardee, LLP, Boise, for appellant. Michael Christian argued.

J.E. Sutton & Associates, Boise, for respondent. John Sutton argued.

W. JONES, Justice.

I. FACTS

On April 23, 2005, Perrone signed a quitclaim deed purportedly conveying real property located in Star, Idaho to his then-wife Kathleen Barmore. On September 30, 2005, Barmore sought to annul their marriage. Perrone filed his answer on November 18, 2005.

Barmore moved for partial summary judgment on the issue of whether the relevant Star property was hers. Counsel for Perrone failed to appear to contest the motion and did not file a brief or affidavit in opposition to the motion.¹ The magistrate court granted Barmore's motion.

Perrone moved for reconsideration based on I.R.C.P. 11(a)(2)(B) on April 4, 2006, arguing that the sole purpose of the quitclaim deed was to avoid probate, and not unconditionally presently to convey the property to Barmore². The motion was denied on May 16, 2006.

Perrone appealed to the district court, which reversed the magistrate court's decision.

The quitclaim deed from Perrone to Barmore reads as follows:

For Value Received, Joseph Perrone, husband of grantee, do(es) hereby convey, release, remise, and forever quit claim unto Kathleen Barmore, a married person as her sole and separate property, whose address is 4244 N. Cowboy Lane, Star, ID 83669, (sic) the following described premises in Ada County, Idaho, to-wit:

Lot 13 in Block 1 of MONUMENT RIDGE RANCH SUBDIVISION, according to the plat thereof, filed in Book 63 of Plats at Pages 6335 and 6336, Records of Ada County, Idaho, AMENDED by Affidavit recorded June 15, 1994, as Instrument No. 94056026.

APN: R5782850130

Together with their appurtenances.

Perrone maintained that the reason he quitclaimed the property to Barmore was to avoid probate and not to presently convey title to the property. In Perrone's "Affidavit in Support of Motion to Reconsider," he stated that he quitclaimed the house "to my wife to avoid probate due to my hazardous occupation." The two apparently previously had engaged in a similar transaction with regard to a home in Simi Valley, California, where the home was quitclaimed to Barmore and eventually sold and the parties used the proceeds to obtain the property at issue in this case.

II. STANDARD OF REVIEW

"When reviewing a decision of the district court acting in its appellate capacity, the Supreme Court will review the record and the magistrate court's decision independently of, but with due regard for, the district court's decision." State v. Heredia, 144 Idaho 95, 97, 156 P.3d 1193, 1195 (2007). This Court freely reviews issues of law. Riley v. Rowan, 131 Idaho 831, 833, 965 P.2d 191, 193 (1998).

III. ANALYSIS

Perrone did not fail to preserve for appeal the issue of whether he intended a present conveyance of the property.

Barmore asserts that Perrone failed to preserve for appeal the issue of his intent, or lack thereof, to make a present conveyance of the property.

In support of her position that Perrone failed to preserve an issue for appeal, Barmore sets forth the following four arguments:

1) Because Perrone did not respond to Barmore's motion for partial summary judgment by submitting affidavits or a brief, the magistrate court properly refused to allow Perrone to submit an affidavit on the motion for reconsideration describing his intent in executing the relevant deed.

2) Perrone did not argue to the district court that the magistrate court, in declining to admit his affidavit, abused its discretion under Rule 56(c). He therefore waived that issue on appeal, which means that his appeal lacked a factual basis and consequently the district court erred by not dismissing the appeal.

3) None of the arguments raised to the magistrate court was made to the district court, and as a result the new arguments should not have been considered by the district court.

4) Perrone did not preserve for appeal the issues raised in the motion for reconsideration because he did not submit a brief in response to Barmore's motion for partial summary judgment.

None of Barmore's arguments prevails.

"A litigant may not remain silent as to claimed error during a trial and later urge his objections thereto for the first time on appeal." Hoppe v. McDonald, 103 Idaho 33, 35, 644 P.2d 355, 357 (1982). In addition, "[s]ubstantive issues will not be considered the first time on appeal." Crowley v. Critchfield, 2007 WL 4245905 at *3 (Idaho, Dec. 5, 2007). "The longstanding rule of this Court is that we will not consider issues that are raised for the first time on appeal." Id.

The magistrate court's order granting partial summary judgment to Barmore on April 13, 2006, occurred before the court entered a final judgment on June 19, 2006. It therefore was an interlocutory order. The court erred in refusing to allow Perrone to submit an affidavit on the motion for reconsideration describing his intent in executing the relevant deed because the motion for reconsideration was specifically under Idaho Rule of Civil Procedure 11(a)(2)(B) which states that:

A motion for reconsideration of any interlocutory orders of the trial court may be made at any time before the entry of final judgment but not later than fourteen (14) days after the entry of the final judgment. A motion for reconsideration of any order of the trial court made after entry of final judgment may be filed within fourteen (14) days from the entry of such order; provided, there shall be no motion for reconsideration of an order of the trial court entered on any motion filed under Rules 50(a), 52(b), 55(c), 59(a), 59(e), 59.1, 60(a), or 60(b).

In Coeur d'Alene Mining Co. v. First National Bank of North Idaho, 118 Idaho 812, 800 P.2d 1026 (1990), this Court discussed the difference between a Rule 59(e) motion to amend a judgment and a Rule 11(a)(2)(B) motion for reconsideration of an interlocutory order granting summary judgment:

A Rule 59(e) motion to amend a judgment is addressed to the discretion of the court. An order denying a motion made under Rule 59(e) to alter or amend a judgment is appealable, but only on the question of whether there has been a manifest abuse of discretion. Rule 59(e) proceedings afford the trial court the opportunity to correct errors both of fact or law that had occurred in its proceedings; it thereby provides a mechanism for corrective action short of an appeal. Such proceedings must of necessity, therefore, be directed to the status of the case as it existed when the court rendered the decision upon which the judgment is based.

However, we view the function of the trial court to be different when presented with a motion for reconsideration of an interlocutory order pursuant to I.R.C.P. 11(a)(2)(B). When considering a motion of this type, the trial court should take into account any new facts presented by the moving party that bear on the correctness of the interlocutory order. The burden is on the moving party to bring the trial court's attention to the new facts. We will not require the trial court to search the record to determine if there is any new information that might change the specification of facts deemed to be established.

Id. at 823, 800 P.2d at 1037 (quoting Lowe v. Lym, 103 Idaho 259, 263, 646 P.2d 1030, 1034 (Ct.App.1982)).

Since Perrone did contest Barmore's motion for summary judgment on the motion for reconsideration and the Perrone affidavit should have been admitted on the motion for reconsideration, Barmore's first argument that Perrone failed to preserve the issue by not contesting the summary judgment fails. Additionally, Perrone argues that "[n]owhere in the record on appeal to this court is there any evidence that Barmore ever made a motion to dismiss Perrone's district court appeal." Barmore did not respond to this argument in her reply brief. Thus, Barmore's second and third arguments fail because they apparently were not raised in the district court and "an issue not raised in an intermediate appeal will not be decided by a higher court." Craven v. Doe, 128 Idaho 490, 493, 915 P.2d 720, 723 (1996). Finally, the holding in Coeur d'Alene Mining Co. v. First National Bank of North Idaho, 118 Idaho 812, 800 P.2d 1026 (1990), disposes of Barmore's fourth argument that Perrone did not preserve for appeal the issues raised by the motion for reconsideration because he had not opposed Barmore's motion for partial summary judgment. Coeur d'Alene Mining specifically holds that the trial court should consider new evidence when presented on a Rule 11(a)(2)(B) motion for reconsideration.

The parol evidence rule does not bar admission of evidence of Perrone's intent

The issue therefore is whether the parol evidence rule bars admission of evidence of Perrone's intent.

A deed "does not take effect as a deed until delivery with intent that it shall operate. The intent with which it is delivered is important. This restricts or enlarges the effect of the instrument." Bowers v. Cottrell, 15 Idaho 221, 228, 96 P. 936, 938 (1908) (internal quotations omitted). In addition, "[e]ven where the grantee is in possession of the deed, though that may raise a presumption of delivery, still it may be shown by parol evidence that a deed in possession of the grantee was not delivered." Id. (internal quotations omitted). The "controlling element in the question of delivery" is the intention of the grantor and grantee. Id. "The question of delivery is one of intention, and the rule is that a delivery is complete when there is an intention manifested on the part of the grantor to make the instrument his deed." Id. (internal quotations omitted). "[T]he real test of the delivery of a deed is this: Did the grantor by his acts...