Cunningham v. Cunningham

Decision Date19 September 1984
Docket NumberNo. 19212,19212
PartiesEvona Hanna CUNNINGHAM, Plaintiff, Respondent and Cross-Appellant, v. Franklin E. CUNNINGHAM and Lola M. Cunningham, Defendants, Appellants and Cross-Respondents.
CourtUtah Supreme Court

Pete N. Vlahos, Ogden, for defendants, appellants and cross-respondents.

C. DeMont Judd, Jr., Ogden, for plaintiff, respondent and cross-appellant.


Defendants appeal from an order of the district court adjudicating interests of the parties in several parcels of real property located in Ogden, Utah. We affirm in part and reverse and remand in part.

In 1975, the plaintiff, who was then 64 years old, owned a savings account and two pieces of real property in Ogden--a home on 34th Street and a home on Polk Avenue. Although she was married, her husband was in very poor health and in a rest home. (He died in October of 1975.) Sometime prior to the fall of 1975, defendant Franklin Cunningham, plaintiff's brother-in-law, and his wife, Lola Cunningham, expressed a desire to help the plaintiff with her affairs. They induced her to place her savings account in joint tenancy with Franklin. Franklin then withdrew $13,000 and placed it in his own account. 1 Thereafter, defendants caused the plaintiff to be hospitalized for chronic alcoholism.

On September 9, 1975, immediately after plaintiff was released from the hospital, Franklin took plaintiff to a friend who was a realtor to effect a "sale" of the Polk Avenue property. The realtor prepared a warranty deed that purported to convey the property to defendants. The deed did not describe any terms of the "sale." And other than the deed, no writing was prepared to reflect the terms of the transaction. At the time plaintiff signed the deed, Franklin Cunningham orally informed her that he would pay her $1,000 immediately and $100 per month until her death. This is the only evidence that related to the terms of the transaction.

A little over a year later, on November 17, 1976, Franklin once again took plaintiff to the same realtor's office where she signed a deed conveying the 34th Street house to defendants. Plaintiff testified that she kept this deed in a drawer in her home and that she intended the title to vest in defendants at the time of her death. Defendant Franklin conceded that this was the understanding, but admitted that he took the deed and recorded it approximately three years later because he was concerned that she might deed the property to someone else.

Defendants have paid plaintiff $100 per month on the Polk Avenue property since 1975 and, in addition, have expended some time and effort fixing up the property. Defendants have been living in the Polk Avenue dwelling.

In 1982, plaintiff sued defendants claiming no delivery on the 34th Street deed and undue influence on the Polk Avenue deed and seeking reconveyance of both properties to plaintiff or invalidation of both deeds. After a bench trial, the court issued its memorandum decision. It found that the deed for the 34th Street property was void for nondelivery and ordered it vacated. With respect to the Polk Avenue property, the court found that plaintiff reposed great trust and confidence in Franklin and a confidential relationship existed between plaintiff and defendant Franklin, that for this reason she did not question the transaction or seek independent advice, that there were no negotiations regarding purchase price or terms, only Franklin's statement of what he would pay plaintiff, and that he substituted his will for hers in the transaction. The court noted the general rule that under such circumstances a presumption of undue influence arises and found it not to be rebutted; therefore, "this transaction must ... fail." However, it also found that Franklin did not "fully appreciate that his actions were wrongful ... and has made some improvements to the Polk property." The court stated that it was "unclear as to its authority" with respect to the proper remedy and asked for further briefs by the parties.

After further briefing, the court filed a supplemental memorandum decision. The findings reflected in the earlier memorandum were not disturbed. The court found that in 1975, the Polk Avenue property was worth approximately $42,000 and had a fair rental value of $300 per month. It also found that since 1975 defendants had paid plaintiff approximately $10,000 in the form of a down payment and monthly payments and that plaintiff had "sat on her rights for a period of time and accepted payments from defendants." The court stated that while plaintiff was not guilty of laches, these circumstances could be taken into account in fashioning a remedy. It concluded that:

the equitable resolution of this case would be to leave defendants in possession and award plaintiff a money judgment for the approximate actual value [of the property] at the time of the deed and not credit payments made [by defendants] because [the] payments did not exceed reasonable rental value.

It summarized by stating the defendants were left in possession for three reasons: (i) plaintiff's delay in asserting her rights; (ii) defendants' having put much time and effort into improvement and upkeep of the property, "which cannot reasonably be accounted for;" and (iii) defendants' "somewhat good faith" belief in the validity of the transaction. Judgment was entered vesting title in defendants and granting plaintiff a judgment in the amount of $42,000.

Both parties appealed, plaintiff seeking to void the Polk Avenue deed and defendants seeking to confirm the 34th Street deed and overturn the $42,000 judgment. Plaintiff asserts that since the trial court found her not barred by laches, it should not have considered the post-transaction delay in fashioning a remedy and should have voided the Polk Avenue deed both as violative of the statute of frauds and because of defendants' undue influence. Defendants contend that the statute of frauds is avoided by part performance; 2 that the trial court's finding of undue influence is based on the finding of a confidential relationship which, in turn, is founded largely on the brother/sister-in-law relationship between Franklin and plaintiff, and that this is not sufficient to support the finding of a confidential relationship; and, finally, that the court's equity powers do not permit it to fashion a remedy without reference to the terms of the underlying transaction.

As to the 34th Street property, we reject defendants' contentions and find that the conclusion of the trial court that the deed is invalid for nondelivery is amply supported by the record evidence. We therefore affirm the judgment voiding the 34th Street deed.

As for the Polk Avenue property, the judgment must be reversed. Rather than void the deed...

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16 cases
  • RHN CORP. v. Veibell
    • United States
    • Utah Supreme Court
    • July 16, 2004 Reformation "is not available to rewrite a contract to include terms never contemplated by the parties." Cunningham v. Cunningham, 690 P.2d 549, 552 (Utah 1984), overruled on other grounds by State v. Mead, 2001 UT 58, ¶ 43, 27 P.3d 1115. Extrinsic evidence is admissible to assis......
  • Estate of Jones v. Jones
    • United States
    • Utah Court of Appeals
    • August 8, 1988
    ...prove a confidential relationship, although the existence of a confidential relationship could be proved otherwise. Cunningham v. Cunningham, 690 P.2d 549, 553 (Utah 1984). Because there is no presumption of a confidential relationship arising solely from the fact that parties to a transact......
  • Warner v. Sirstins
    • United States
    • Utah Court of Appeals
    • September 14, 1992 virtue of its equitable powers has discretion to reform an instrument, such "discretion is narrowly bounded." Cunningham v. Cunningham, 690 P.2d 549, 552 (Utah 1984); accord Briggs v. Liddell, 699 P.2d 770, 772 (Utah 1985). The power to reform a written instrument for mutual mistake exis......
  • State v. Burns
    • United States
    • Utah Supreme Court
    • June 30, 2000 state-funded expert assistance unless she accepted LDA counsel. As support for this position, the State cites Cunningham v. Cunningham, 690 P.2d 549 (Utah 1984), and In re Giles, 657 P.2d 285 (Utah 1982). We find both cases to be distinguishable from the situation before us now. ¶ 17 It ......
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