Poulsen v. Poulsen

• Decision Date: 21 October 1983
• Docket Number: No. 17957,17957
• Citation: 672 P.2d 97
• Parties: Nancy Barbara POULSEN (Wenzler), Plaintiff and Respondent, v. John Elden POULSEN, Mechanical Installation, Inc., a Utah corporation, and Barr Development, Inc., a Utah corporation, Defendants and Appellants.
• Court: Utah Supreme Court

Page 97

672 P.2d 97

Nancy Barbara POULSEN (Wenzler), Plaintiff and Respondent, v. John Elden POULSEN, Mechanical Installation, Inc., a Utah corporation, and Barr Development, Inc., a Utah corporation, Defendants and Appellants.

No. 17957.

Supreme Court of Utah.

Oct. 21, 1983.

John C. Green, Salt Lake City, for defendants and appellants.

McCoy A. McMurray, Salt Lake City, for plaintiff and respondent.

DURHAM, Justice:

This is an action brought by the plaintiff Nancy Poulsen to quiet title to certain property located in Summit County, Utah. The trial court quieted title in her name and we affirm.

On January 3, 1965, the plaintiff married the defendant John Poulsen. She had two children from a prior marriage and one child from her marriage to John. On January 16, 1975, the defendant filed for divorce. After negotiation, the parties reached a settlement agreement. In addition, the parties entered into two separate, unwritten "side" agreements. First, the parties agreed that the defendant would assist the plaintiff financially by paying her $200 per month, essentially as support for the three children. These payments were subject to four conditions, namely, they would continue: (1) as long as John was financially capable of making the payments, (2) until the children reached majority, (3) until Nancy obtained suitable employment sufficient to support herself and the children, or (4) until Nancy remarried. Second, in a separate agreement, John agreed to convey to Nancy his interest in two lots located in Summit County, which they held as joint tenants, with the understanding that she would reconvey ownership at a subsequent date. The reason for this latter agreement was that John was undergoing severe financial difficulties and feared the possibility of losing the two lots to his creditors. Thus, on April 22, 1975, Nancy was awarded the property in the Decree of Divorce pursuant to the parties' written stipulation. No information about the "side" agreements was provided to the court in the divorce proceedings.

Early in 1977, the defendant stopped making the monthly payments of $200. The plaintiff suggested to the defendant that she convey the property to him, that he borrow against it, and pay her a lump sum child support/alimony payment. The purpose of this suggestion was to allow the plaintiff to purchase a condominium or a home for herself and her children. At that time, the defendant informed her that she had already conveyed the property to him by a quitclaim deed dated May 30, 1975, and recorded on February 26, 1976.

On August 2, 1977, the plaintiff filed suit to quiet title to the two lots. In her complaint, she denied execution of the quitclaim deed and, in the alternative, contended that, if the quitclaim deed did bear her signature, it was obtained by John through fraud, device or artifice.

At trial, in May of 1981, it was proven by expert testimony that the quitclaim deed did in fact bear Nancy's signature. The expert testimony also established that both the date above the signature and the typed version of the plaintiff's name below her signature had been typed on the deed subsequent to the signing of the deed. In addition, the testimony of John's present wife, who notarized the quitclaim deed, was very ambiguous as to whether Nancy's signature was notarized by her contemporaneously with Nancy's signature or sometime afterwards. Nancy testified she never appeared before the new wife to have her signature on the deed notarized. Furthermore, it was established by John's own admission that he gave no consideration for Nancy's signing of the quitclaim deed and conveying of the property to him. At the conclusion of the trial, Nancy moved the trial court for leave to amend the pleadings to conform to the evidence to include the theories of "no delivery" and "lack of consideration." The trial court denied Nancy's motion. However, the trial court quieted title to the two lots in Nancy based on its written Findings of Fact that John presented no evidence regarding delivery of the deed or the giving of any consideration therefor.

The defendant's main contention on appeal is that the trial court erred in entering a judgment based on no delivery and lack of consideration because those issues were not pled or specifically raised at trial. In addition, John argues that the trial court erred in failing to award him his costs and attorney fees incurred in proving the genuineness of Nancy's signature on the quitclaim deed.

Rule 15(b) of the Utah Rules of Civil Procedure reads as follows:

Amendments to Conform to the Evidence.-- When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice him in maintaining his action or defense upon the merits. The court shall grant a continuance, if necessary, to enable the objecting party to meet such evidence.

(Numbering added.) Our analysis regarding the proper application of Rule 15(b) focuses on whether the facts of the case fall within the first or second part of the rule. See General Insurance Company of America v. Carnicero Dynasty Corp., Utah, 545 P.2d 502 (1976). See also First Security Bank of Utah v. Colonial Ford, Inc., Utah, 597 P.2d 859 (1979). See generally, 3 J. Moore, Moore's Federal Practice p 15.13, at 15-157 to 15-180 (2d ed. 1983 & Supp.1982-83); 6 C. Wright & A. Miller, Federal Practice and Procedure § 1493, at 460-74 (1971 & Supp.1982). The present case falls within the first part of Rule 15(b), which makes it mandatory for the trial court to grant leave to amend the party's pleadings to conform to the evidence. See General Insurance Company of America, supra. The trial court's denial of Nancy's motion was therefore error and the issue may be raised sua sponte by this Court. In any event, the "failure to so amend does not affect the result of the trial of these issues." Utah R.Civ.P. 15(b). The issues were therefore properly before the trial court because they were tried by the express or implied consent of the parties.

The question now presented is whether the trial court properly found no delivery and lack of consideration. John argues that the trial court erred in finding no delivery because it ignored the presumption of delivery that arises by a duly executed and acknowledged deed that has been recorded. The rule set forth by John regarding a presumption of delivery is correct. See, e.g., Chamberlain v. Larsen, 83 Utah 420, 29 P.2d 355 (1934). However, it is inapplicable to the present case because the quitclaim deed was not "duly" acknowledged. Expert testimony at trial established that both the date above Nancy's signature and the typed version of her name below her signature were typed on after Nancy signed the deed. In addition, there was evidence from which the trial court could legitimately infer that Nancy's signature was not contemporaneously notarized and that Nancy in fact never appeared before the notary who purported to take her acknowledgment. While it is true that a signature need not be notarized at the time it is executed in order for the notarization to be valid, in this case the evidence that the notarization was placed on the document at a different time from the signature tends to corroborate Nancy's testimony that she never appeared before the notary at all. Thus, the presumption of delivery was not controlling in this case because the trial court could properly find that Nancy's signature was not acknowledged.

John also argues that Nancy had the burden of proof regarding no delivery and that she failed to meet it. It is well established that delivery, or the absence thereof, is a question of fact. See Anderson v. Johnson, 1 Utah 2d 400, 268 P.2d 427 (1954). See also Henry v. Latta, Colo.App., 472 P.2d 694 (1970); Yunghans v. O'Toole, 224 Kan. 553, 581 P.2d 393 (1978); Suburban Properties, Inc. v. Hanson, 234 Or. 356, 382 P.2d 90 (1963). The standard of review applicable...