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IN THE SUPREME COURT OF THE STATE OF IDAHO

Docket No. 43326

THE DAVID AND MARVEL BENTON 

TRUST,

 Plaintiff-Respondent,

v.

DOROTHY B. MCCARTY,

 Defendant-Appellant.

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Pocatello, September 2016 Term

2016 Opinion No. 131

Filed: November 16, 2016

Stephen W. Kenyon, Clerk

_________________________________________

Appeal from the District Court of the Seventh Judicial District of the 

State of Idaho, Bonneville County. Hon. Gregory M. Moeller, District 

Judge.

The district court’s summary judgment is affirmed. Costs and attorney 

fees on appeal are granted to the Trust. 

Cox, Ohman & Brandstetter, Chtd., Idaho Falls, attorneys for appellant.

John Ohman argued.

Cooper & Larsen, Chtd., Pocatello, attorneys for respondent. Gary 

Cooper argued.

W. JONES, Justice

I. NATURE OF THE CASE

Dorothy B. McCarty (“McCarty” or “Appellant”) appeals a grant of summary judgment

in which the district court held that a quitclaim deed granting certain real property to McCarty 

(the “Quitclaim Deed”) was unenforceable as a matter of law because it did not contain an 

adequate description of the subject property. The following issues were raised on appeal: (1) 

whether Idaho Code section 55-606 bars the grantors’ successors in interest from challenging the 

enforceability of the Quitclaim Deed that the grantors themselves executed; (2) whether the 

district court erred in striking evidence of the grantors’ intent at the time they executed the deed; 

(3) whether the district court erred in finding that the Quitclaim Deed did not contain an adequate 

description of the subject property; (4) whether the district court erred by holding that the 
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grantors were thereafter prevented from transferring the property by an amendment to the trust 

documents; and (6) whether the district court erred in concluding that the doctrines of 

‘reformation,’ ‘interlineation,’ and ‘correction deed’ were not applicable. Both sides request 

attorney’s fees and costs on appeal.

II. FACTUAL AND PROCEDURAL BACKGROUND

On April 23, 1990, David E. Benton (“David”) and Marvel C. Benton (“Marvel” and with 

David, the “Bentons”) established a joint revocable living trust in Bonneville County, Idaho, 

which they entitled the “DAVID AND MARVEL BENTON TRUST, dated April 23, 1990” (the 

“Trust”). The Trust’s foundational documents named David and Marvel as both the “Grantors”

and the “Trustees” of the Trust. 

On July 1, 2010, David and Marvel executed the Quitclaim Deed, which purported to 

convey certain real property owned by the Trust to McCarty. The property subject to the 

Quitclaim Deed is described therein as follows:

The property at 550 Linden Drive and the building known as Benton Engineering

building located upon the property and all adjacent parking lots to the South of the 

Building and to the West of the Building and right of access into the parking lot

located at 550 Linden Drive, Idaho Falls, Idaho located in Bonneville County and

more commonly known as the Benton Engineering Office Building.

On November 1, 2010, David and Marvel executed the Second and Irrevocable 

Amendment to the David and Marvel Benton Trust (the “Second Amendment”). The Second 

Amendment named two of David and Marvel’s children—David Eugene Benton II (“David II”)

and Barbara Baker (“Baker”)—as “Family Co-Trustees.” It established that any future action 

taken by the Trust would have to be authorized by at least one Family Co-Trustee. 

On April 24, 2012, McCarty attempted to record the Quitclaim Deed with the Bonneville 

County Recorder’s Office. Shortly thereafter, she received a letter from the Bonneville County 

Assessor indicating that: (1) “grantor name is not identical to record owner’s name”; (2) “parcel 

legal description is not complete”; and (3) “parcel legal description is not sufficiently certain for 

accurate assessment.” 

On May 4, 2012, McCarty recorded a revised version of the Quitclaim Deed (the 

“Revised Quitclaim Deed”) with the Bonneville County Recorder’s Office. The Revised 

Quitclaim Deed contained an attachment describing the conveyed property as follows:

Beginning at the Northeast corner of the Benton Engineering office building 

property, said point lying S89°30’30”E, 120.52 feet and S65°52’00”E, 103.50 feet 
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and S59°34’00”E, 162.95 feet of the Northwest corner of Linden Park Addition, 

Division No. 1 to the City of Idaho Falls, Bonneville County, Idaho, said point of 

beginning lying on the westerly ROW line of Linden Drive, and running thence 

N59°34’00”W, along the northerly line of said property, 128.00 feet; thence 

S30°26’00”W, 123.00 feet; thence S50°29’26”E, 116.18 feet to said westerly 

ROW line of Linden Drive; thence along said westerly line, 142.05 feet along the 

arc of a 1096.74 foot radius curve to the left, whose long chord bears 

N35°47’57”E, 141.95 feet to the point of beginning. Said property lying in the 

North half of Section 20, T. 2 N., R. 38 E.B.M.

Contains 0.375 acres, more or less.

The Revised Quitclaim Deed was signed by David and Marvel but was not signed by either of

the Family Co-Trustees.

On April 9, 2013, the Trust filed a Complaint to Quiet Title and for Accounting (the 

“Complaint”) seeking a determination that McCarty had no right or interest to any the Trust’s 

real property, including the property described in the Revised Quitclaim Deed, and seeking a 

monetary judgment against McCarty for the use, rents and profits of said property since July 1, 

2010. 

On September 25, 2013, McCarty moved for summary judgment against the Trust. On 

January 3, 2014, the Trust moved for summary judgment against McCarty. In conjunction with 

the cross-motions for summary judgment, McCarty filed twenty-four affidavits, many of which 

contained testimony as to what David and Marvel told the respective affiants regarding their 

intent in drafting the Quitclaim Deed. On January 3, 2014, and September 2, 2014, the Trust 

moved to strike certain testimony offered by McCarty. 

On October 31, 2014, the district court issued its Memorandum Decision on Parties’ 

Cross-Motions for Summary judgment. In that decision the district court held as follows: (1) “the 

Court will strike all statements from the affidavits [filed by McCarty] that purport to describe 

David and Marvel’s intent, understanding, and/or capacity on relevance grounds. . . . David and 

Marvel’s intent at the time they signed the deeds is not a material fact for purposes of the issue 

presented on summary judgment”1

; (2) “whether a property description is legally sufficient is a 

question of law for the court to decide”; (3) “the original Quitclaim Deed is void because it did 

not provide an adequate legal description of the property”; (4) “[b]ecause the [Second 

 1 With respect to the Quitclaim Deed, the district court reasoned that “McCarty does not allege that the legal

description used was not the one she, David, and Marvel intended to use. If the legal description they chose to use 

was inadequate, then neither McCarty nor the grantors can work around the statute of frauds by explaining their 

intent.” 
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Amendment] unambiguously bars David and Marvel from acting as the only two signors on 

behalf of the trust, they did not have power to sign the [R]evised Quitclaim Deed in [sic] behalf 

of the Trust”; (5) “[t]he doctrines of reformation, interlineation, and ‘correction deed’ do not 

apply and cannot remedy the inadequacies of the first Quitclaim Deed.” 

On January 16, 2015, McCarty moved for reconsideration of the district court’s decision 

on summary judgment. Therein, McCarty repeated her arguments that the property description in 

the Quitclaim Deed was sufficient as a matter of law. She attached new expert affidavits in 

support along with a property survey performed by Kim Leavitt. 

On April 17, 2015, the district court entered its Memorandum Decision and Order on 

Defendant’s Motion for Reconsideration. Therein, the district court denied McCarty’s motion for 

reconsideration. It noted that: (1) “[j]ust because an expert believes he or she can interpret the

intent of a legal description does not mean it complies with the statute of frauds,” and (2) “the 

new survey prepared by Leavitt supports the [c]ourt’s prior ruling. Leavitt’s recent survey 

utilizes a ‘reconciled boundary’ which clearly could not have originated solely from the 

description contained in the [Quitclaim Deed].” 

III. STANDARD OF REVIEW

A. This Court Reviews Evidentiary Rulings for Abuse of Discretion.

When reviewing the trial court’s evidentiary rulings, this Court applies an 

abuse of discretion standard. Dulaney v. St. Alphonsus Reg’l Med. Ctr., 137 Idaho 

160, 163–64, 45 P.3d 816, 819–20 (2002). “To determine whether a trial court has 

abused its discretion, this Court considers whether it correctly perceived the issue 

as discretionary, whether it acted within the boundaries of its discretion and 

consistently with applicable legal standards, and whether it reached its decision by 

an exercise of reason.” Perry v. Magic Valley Reg’l Med. Ctr., 134 Idaho 46, 51, 

995 P.2d 816, 821 (2000).

State v. Jones, 160 Idaho 449, __, 375 P.3d 279, 280 (2016).

B. This Court reviews Grants of Summary Judgment De Novo.

On appeal from the grant of a motion for summary judgment, we review 

that decision de novo but apply the same standard used by the district court in 

ruling on the motion. McColm–Traska v. Valley View Inc., 138 Idaho 497, 65 

P.3d 519 (2003); Carnell v. Barker Management, Inc., 137 Idaho 322, 48 P.3d 

651 (2002). As a general rule, this Court will affirm the judgment “if the 

pleadings, depositions, and admissions on file, together with the affidavits, if any, 

show that there is no genuine issue as to any material fact and that the moving 

party is entitled to a judgment as a matter of law.” I.R.C.P. 56(c); Carnell, 137 

Idaho at 327, 48 P.3d at 656. When making its determination, the Court construes 

all facts in the light most favorable to the nonmoving party. Id.
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Cascade Auto Glass, Inc. v. Idaho Farm Bureau Ins. Co., 141 Idaho 660, 662, 115 P.3d 751, 753 

(2005).

IV. ANALYSIS

A. Idaho Code section 55-606 does not bar the Trust’s quiet title action as a matter of 

law.

Idaho Code section 55-606 provides that:

Every grant or conveyance of an estate in real property is conclusive 

against the grantor, also against every one subsequently claiming under him, 

except a purchaser or encumbrancer, who in good faith, and for a valuable 

consideration, acquires a title or lien by an instrument or valid judgment lien that 

is first duly recorded.

I.C. § 55-606.

McCarty asserts on appeal that the statutory language “conclusive against the grantor”

serves to bar a grantor or successor from ever challenging the enforceability of a document 

purporting to grant or convey property. McCarty argues, therefore, that “[b]y law, the trust 

cannot execute and deliver deeds to McCarty and then, years later, after the Trust has been taken 

over by David II and Barbara Baker, file a quiet title action to challenge its own Deeds and quiet 

title to itself.” (Emphasis in original). 

McCarty has misinterpreted Idaho Code section 55-606. Idaho Code section 55-606 is a 

recording statute. It stands for the proposition that an otherwise valid and enforceable grant or 

conveyance is superior to any interest claimed by the grantor or any future successor in interest, 

purchaser, or encumbrancer, unless a purchaser or encumbrancer acted in good faith and first 

duly recorded. Idaho Code section 55-606 does not, and has never been interpreted to, bar 

grantors and their successors from challenging the enforceability of deeds or liens.

2 The reason 

 2 In support of her interpretation, McCarty cites Hartly v. Stibor, 96 Idaho 157, 160, 525 P.2d 352, 355 (1974). 

Hartly is not relevant here. In Hartly this Court overturned a lower court dismissal of a grantee’s action to quiet title. 

96 Idaho at 161, 525 P.2d at 356. The lower court had reasoned that because the grantor had retained possession of 

the property after conveying the deed, the deed must have been intended to be effective only after the grantor’s 

death. Id. at 159, 525 P.2d at 354. This Court reasoned that “[w]here there is a valid delivery of the deed, with the 

requisite intent on the part of the grantor, the fact that the grantor retains possession of the premises does not 

necessarily invalidate the deed.” Id. at 160, 525 P.2d at 355. In coming to the conclusion that dismissal was 

improper, this Court did not discuss Idaho Code section 55-606 beyond quoting its language in passing. Id. We most 

certainly did not find that a grantor is unable to challenge the enforceability grantee’s deed due to Idaho Code 

section 55-606. Id. Indeed, the fact that this Court actually reviewed the grantor’s challenge to the enforceability of 

the grantee’s deed on the merits directly contradicts McCarty’s interpretation of the case.

As additional support for her arguments, McCarty cites Carlson v. Stair, 472 P.2d 598, 599 (Wash. Ct. 

App. 1970), Standring v. Mooney, 127 P.2d 401 (Wash. 1942), Kessinger v. Logan, 779 P.2d 263, 267 (Wash. 

1989), and Maxwell v. Sullivan, 166 So. 575, 576 (Fla. 1936). Unlike Hartly, these out-of-state cases actually do 
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for this is obvious from the language of the statute. Idaho Code 55-606 explicitly applies only 

where there has been a “grant or conveyance.” I.C. § 55-606. Conversely, where no grant or 

conveyance ever legally occurred, Idaho Code section 55-606 is not applicable. 

A conveyance is made under Idaho statue “by an instrument in writing.” I.C. § 55-601. In 

addressing Idaho Code section 55-601, this Court has established that “it is fundamental that a 

written instrument purporting to convey real property must contain a sufficient description of the 

property.” Worley Highway Dist. v. Kootenai Cnty., 98 Idaho 925, 928, 576 P.2d 206, 209 

(1978). A document that does not contain a sufficient property description cannot convey title. 

Id. Accordingly, in Worley, where resolutions made by the Kootenai County Board of 

Commissioners “contained no description of the property to be conveyed,” this Court determined 

that they were “insufficient to pass title.” Id. 

Where a legal description in a document purporting to convey a property interest is 

insufficient as a matter of law, the property interest is not conveyed. Where there has not been a 

conveyance (or grant), Idaho Code section 55-606 is not applicable. It follows that McCarty’s 

argument puts the cart before the horse. She attempts to argue that Idaho Code section 55-606 

prevents a party from raising a legal challenge as to the enforceability of a deed, but applying 

Idaho Code section 55-606 already requires the assumption that the legal challenge is meritless. 

This Court will not read a statute to create an absurd result. Accordingly, we hold that Idaho 

Code section 55-606 does not prevent a grantor or a successor from challenging, in a court of 

law, the enforceability of a written document purporting to convey property on the basis of an 

inadequate property description. 

B. The district court did not err by striking certain testimony submitted as evidence by 

McCarty as irrelevant. 

In order to be enforceable, a description of real property must adequately describe the 

property such that it is possible for someone to identify ‘exactly’ what property the seller is 

conveying to the buyer.” Ray v. Frasure, 146 Idaho 625, 629, 200 P.3d 1174, 1178 (2009) (citing 

Garner v. Bartschi, 139 Idaho 430, 435, 80 P.3d 1031, 1036 (2003)). Whether a description is 

 

conclude that a grantor cannot legally challenge a deed that he or she executed, however, they do not do so by 

interpreting a statute similar to Idaho Code section 55-606. Instead, the holdings in these cases rest on theories of 

estoppel. McCarty did not argue estoppel before this Court. Accordingly, this Court refrains from addressing 

whether a grantor is prohibited from challenging the enforceability of his or her own deed based on theories of 

estoppel. 
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such that the property can be ‘exactly’ identified is an objective determination made by the court. 

This objective determination is not affected by the understanding or intention of the contracting 

parties at the time they drafted the property description. Such considerations are irrelevant. They 

do not aid the court in determining whether the document itself, standing alone (including with 

any outside materials directly referenced therein), meets the necessary qualifications. 

The question before the district court in this case was whether the Quitclaim Deed 

contained an adequate description of the property such that it was enforceable as a matter of law. 

This question is entirely separate from how the Bentons’ interpreted their own deed at the time it 

was drafted. Accordingly, any evidence as to the Bentons’ understanding or intentions with 

respect to the Quitclaim Deed are entirely irrelevant and were properly excluded by the district 

court. 

Furthermore, Idaho precedent is abundantly clear that extrinsic evidence is not permitted 

in order to determine the sufficiency of a property description in a document purporting to 

convey real property (unless that extrinsic evidence is specifically referenced in the document 

itself).

An agreement for the sale of real property must not only be in writing and 

subscribed by the party to be charged, but the writing must also contain such a 

description of the property agreed to be sold, either in terms or by reference, that 

it can be ascertained without resort to parol evidence. Parol evidence may be 

resorted to for the purpose of identifying the description contained in the writing, 

with its location upon the ground, but not for the purpose of ascertaining and 

locating the land about which the particular parties negotiated, and supplying a 

description thereof which may have been omitted from the writing.

Garner, 139 Idaho at 435, 80 P.3d at 1036 (quoting White v. Rehn, 103 Idaho 1, 2, 644 P.2d 323, 

324 (1982)). Where a description of property is inadequate, “allow[ing] parol evidence and the 

surrounding circumstances to be considered would be to supply a description of the property 

which was omitted from the writing in order to ascertain and locate the land about which the 

parties negotiated.” Rehn, 103 Idaho at 3, 80 P.2d 323 and 325. Indeed, this Court put the issue 

to rest in Ray when it stated that “[t]his Court's precedent from the past 100 years permits a party 

to ascertain a property description from extrinsic evidence only when the contract or deed 

references the extrinsic evidence.” 146 Idaho at 629, 200 P.3d at 1178. 

Despite the 100 years of precedent referenced in Ray, McCarty asserts that extrinsic

evidence should have been admitted in this case in order to resolve ambiguities in the property 

description. McCarty cites Ida-Therm LLC v. Bedrock Geothermal, LLC, 154 Idaho 6, 293 P.3d 
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630 (2002), Hall v. Hall, 116 Idaho 483, 484, 777 P.2d 255, 256 (1989), and C&G, Inc. v. Rule, 

135 Idaho 763, 766, 25 P.3d 76, 79 (2001) in support of her position. On review it is abundantly 

clear that these cases are not relevant to our analysis here. In Ida-Therm this Court allowed parol 

evidence in order to determine whether the term “mineral” in a mineral rights deed included 

geothermal resources. 154 Idaho at 8, 293 P.3d at 632. No party in that case challenged the 

enforceability of the deed. This Court did not analyze the legal sufficiency of the property 

description therein. Id. Hall and C&G, Inc. are even less relevant. In those cases, this Court 

merely noted that parol evidence can be admissible in interpreting deeds. Neither case discussed

the legal sufficiency of a property description.

McCarty also argues that the district court erred when it held that “resolution of an 

ambiguous legal description is a legal question for the Court.” McCarty has blatantly and 

inexcusably mischaracterized the district court’s holding. The district court did not hold that 

resolving an ambiguity in a deed is a question of law. In fact, it clearly stated the exact opposite 

when it wrote that “interpreting an ambiguous term is an issue of fact.” The district court’s 

holding, which McCarty has misconstrued, was that “if a description in a contract transferring 

real estate is ambiguous on its face, it is insufficient to transfer the property” and “[w]hether a 

contract is ambiguous is a question of law.” 

In other words, the district court held that it is not within a court’s purview to resolve an 

ambiguous legal description of property where the legal sufficiency of that description has been 

challenged. Once the court determines that the property description in a document purporting to 

convey real property is ambiguous (a legal determination) the document becomes unenforceable

and there is no reason for the court to resolve the ambiguity (which would be a factual 

determination). 

Because McCarty has ignored 100 years of legal precedent, cited to cases that are 

irrelevant, and blatantly mischaracterized the district court’s holding, we hold that the district 

court did not err by striking testimony that was both irrelevant and controverted the parole

evidence rule.

C. The district court did not err in granting summary judgment to the Trust.

1. The district court did not err in determining that the legal description in the 

Quitclaim Deed was insufficient as a matter of law.

Both Idaho Code section 9-503 and Idaho Code section 9-505(4) (the “Statute of 

Frauds”) provide that real property may only be conveyed by law or in writing:
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No estate or interest in real property, other than for leases for a term not 

exceeding one (1) year, nor any trust or power over or concerning it, or in any 

manner relating thereto, can be created, granted, assigned, surrendered, or 

declared, otherwise than by operation of law, or a conveyance or other instrument 

in writing, subscribed by the party creating, granting, assigning, surrendering or 

declaring the same, or by his lawful agent thereunto authorized by writing.

I.C. § 9-503.

In the following cases the agreement is invalid, unless the same or some 

note or memorandum thereof, be in writing and subscribed by the party charged, 

or by his agent. Evidence, therefore, of the agreement cannot be received without 

the writing or secondary evidence of its contents:

. . .

4. An agreement for the leasing, for a longer period than one (1) year, or 

for the sale, of real property, or of an interest therein, and such agreement, 

if made by an agent of the party sought to be charged, is invalid, unless the 

authority of the agent be in writing, subscribed by the party sought to be 

charged

I.C. § 9-505. 

“It is fundamental that a written instrument purporting to convey real property must 

contain a sufficient description of the property.” Worley, 98 Idaho at 928, 576 P.2d at 209. “A 

description of real property must adequately describe the property so that it is possible for 

someone to identify ‘exactly’ what property the seller is conveying to the buyer.” Ray, 146 Idaho 

at 629, 200 P.3d at 1178 (citing Garner, 139 Idaho at 435, 80 P.3d at 1036). In order to exactly 

identify the property that is being conveyed, “a description contained in a deed [must be written 

such that] quantity, identity, or boundaries can be determined.” Garner, 139 Idaho at 435, 80 

P.3d at 1036 (quoting City of Kellogg v. Mission Mountain Interests Ltd., Co., 135 Idaho 239, 

244, 16 P.3d 915, 920 (2000)). 

In accordance with the above standard, this Court determined in Kellogg that an 

agreement purporting to convey “the lodge and the land on which it is located, along with the ski 

lift” (identified elsewhere in the agreement as the ‘Tamarack Lodge” and “Chair Lift No. 4”) was 

sufficient as a matter of law. 135 Idaho at 245, 16 P.3d at 921. This Court reasoned that “the 

quantity of land was only the amount directly underneath the lodge, and not some other, larger 

parcel within the ski resort area.” Id. Accordingly, “it was possible for someone to identify 

exactly what property was being conveyed” from the property description. Id. 
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Conversely, in Garner, this Court reviewed a contract describing the property as 

“Bartschi Property, City ____, Zip 83252, legally described as approx. 500 acres of mountain 

property.” 139 Idaho at 434, 80 P.3d at 1035. An addendum to the contract described the 

property as “Acreage: As deemed by Bear River County Platt and Tax Notices to be 512 acres.” 

Id. The tax notices listed the lots the Bartschis owned as well as the acreage of each. Id. This 

Court held that the descriptions in the contract, addendum, and tax notices were insufficient to 

convey the property as a matter of law. Id. It reasoned that “[w]hile it may be possible for 

someone to identify the property being conveyed by the Bartschis to Garner by referring to the 

descriptions in the tax notices . . . one cannot tell exactly what property was being conveyed by 

the Bartschis merely by the descriptions contained in those referenced documents.” Id. at 435, 80 

P.3d at 1036.

Following Garner, this Court reviewed the sufficiency of a contract for the sale of real 

property in Lexington Heights Dev., LLC v. Crandlemire, 140 Idaho 276, 92 P.3d 526 (2004). 

There, the contract described the property being sold as “the real property situated in Ada 

County, Idaho located at 1400 West Floating Feather Road, consisting of approximately ninety

(90) acres . . . however excluding the residential dwelling (which will include no more than five 

acres) and improvements identified below (herein called ‘Premises’).” Id. at 278, 92 P.3d at 528. 

The Premises were described as “existing residential dwelling situated on the Premises together 

with no more than five (5) acres immediately surrounding the proposed residential development 

(which five (5) acres will include the existing tennis court, volleyball court, and swimming pool), 

the precise size, location, dimensions and configuration of which shall be mutually determined 

by Seller and Buyer.” Id. This Court held that this property description was not sufficient as a 

matter of law. Id at 283, 92 P.3d at 535. It reasoned that “[a]lthough the Agreement provides that 

the parcel excluded from the sale would include the land upon which the residence, swimming 

pool, tennis court, and volleyball court were located, the excluded property was not limited to 

such land.” Id. at 283, 92 P.3d at 533. 

 In Ray, this Court was again presented with an insufficient property description. 146 

Idaho at 630–31, 200 P.3d at 1179–80. In that case the contract at issue contained only the 

physical address of the property and lacked any further description. Id. at 627, 200 P.3d at 1176. 

This Court held that “a property description consisting solely of a physical address does not 

satisfy the statute of frauds.” Id. at 630–31, 200 P.3d 1179–80. This Court reasoned that “[w]e 
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are unwilling to create an area of unsettled law by holding that a real property description that 

does not allow a person to determine exactly what property the seller is conveying to the buyer 

satisfies the statute of frauds.” Id. at 630, 200 P.3d 1179. 

McCarty contends that the district court erred in determining that the legal description in 

the Quitclaim Deed was insufficient as a matter of law. She asserts that “the Quitclaim Deed 

clearly identifies the property conveyed by the Deed” and “the boundaries of the property 

conveyed are easily determined from the face of the Deed.” (Emphasis in original). McCarty 

even goes so far as to argue that “the property description on page 1 of the Quitclaim Deed is not 

only sufficient in all respects, it is superior to the metes and bounds description and takes 

precedence over the metes and bounds description.” (Emphasis in original). She cites minimal

case law for these propositions, instead relying on affidavits of professional engineers and 

surveyors. 

McCarty’s assertions are without merit. The property description contained in the 

Quitclaim Deed does not ‘exactly’ identify the property that it allegedly conveyed, either through 

the use of landmarks or by setting boundaries.

The property description in the Quitclaim Deed can be broken down as follows: (1) “[t]he 

Property at 550 Lindon Drive”; (2) “the building known as the Benton engineering building 

located upon the property”; (3) “all adjacent parking lots to the South of the Building and to the 

West of the Building”; and (4) a “right of access into the parking lot located at 550 Linden 

Drive.” This description gives an address and identifies certain alleged landmarks thereon. It 

follows that under this Court’s precedent in Kellogg, the Quitclaim Deed might have been 

sufficient to transfer the land directly under those identified landmarks. However, McCarty 

claims that the Quitclaim Deed conveyed significantly more property that just the identified 

landmarks. Specifically, she asserts title to: (1) the curtilage located around the building; (2) 

grass lawns (including a strip of grass extending along the west paved parking lot area); and (3) 

paved parking area that is not directly south or west of the building. On review of the maps 

provided to this Court, it is clear that this additional land, which is not identified or referenced in 

the property description, is significant in size. Accordingly, this case is less similar to Kellogg 

than it is to Lexington Heights. In Lexington Heights, this Court made it clear that identifying 

certain landmarks within a piece of property is not legally sufficient where the conveying 

document purports to convey more than that just those landmarks. Lexington Heights, 140 Idaho 
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at 283, 92 P.3d at 533. The same principle proves controlling for our analysis here. The 

Quitclaim Deed has identified landmarks, but McCarty has not limited her claims to those 

landmarks. Because the property description does not identify or describe this additional claimed

property, it cannot be sufficient to convey said property as a matter of law. 

McCarty next argues that the property description does not need to describe all of the 

property contained therein because it sets specific boundaries, and everything within the 

boundaries is presumed to be included. However, on review of McCarty’s proposed boundaries, 

as set forth in the Leavitt survey, it becomes immediately clear that she could not have

ascertained those boundaries from the property description alone (i.e. she must have resorted to 

extrinsic evidence).

For example, on the Leavitt survey map, one corner of the property uses an “S” shaped 

boundary line. Such a boundary line could not possibly have been determined solely from the 

description in the Quitclaim Deed, which makes no reference to any curved boundary. In fact, 

Leavitt admitted that he referred to the deeds of neighboring properties to determine the 

boundaries of his map. Likewise, Leavitt’s survey shows that the strip of grass bordering the 

North side of the building extends further West than the boundary of the Western parking lot, 

creating a narrow 6 x 17 foot section of property. This section of land was not referenced in the 

Quitclaim Deed and could not have been determined from the property description therein.

Perhaps the most damning evidence that the property description is insufficient, however, 

comes from the fact that the survey performed by Leavitt does not match the boundaries 

provided in the Revised Quitclaim Deed. Both of these documents were prepared in support of 

McCarty’s interest, and each purports to describe the property in the Quitclaim Deed. However, 

while Leavitt determined in his survey that the property conveyed by the Quitclaim Deed was .54 

acres in size, the Revised Quitclaim Deed states that the property only contains 0.375 acres. If 

McCarty herself is submitting inconsistent determinations of the boundaries and acreage of the 

property, the Court cannot conclude that the description in the Quitclaim Deed exactly describes 

the property. 

Because the description in the Quitclaim Deed does not make it possible to identify 

exactly what property the seller is conveying to the buyer without resorting to extrinsic evidence,

the Quitclaim Deed is unenforceable under Idaho law. The district court did not err when it 

granted summary judgment in favor of the Trust.
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2. This Court need not address the arguments regarding Reformation, Correction 

Deed, and Interlineation.

McCarty states in her brief that even if the property description in the Quitclaim Deed 

was insufficient, the addition of the metes and bounds property description in the Revised 

Quitclaim Deed is “authorized and enforceable under the legal doctrines of reformation, 

interlineation, and correction deed.” McCarty cites no authority for these arguments in her 

opening brief; instead, she directs this Court to review her arguments in a reply brief that she

previously filed before the district court.

Idaho Appellate Rule 35 provides that:

(a) Appellant's Brief. The brief of the appellant shall contain the following 

divisions under appropriate headings:

. . .

(6) Argument. The argument shall contain the contentions of the appellant with 

respect to the issues presented on appeal, the reasons therefor, with citations to the 

authorities, statutes and parts of the transcript and record relied upon.

I.A.R. 35.

In order to be considered by this Court, the appellant is required to identify legal 

issues and provide authorities supporting the arguments in the opening 

brief. I.A.R. 35. A reviewing court looks to the initial brief on appeal for the 

issues presented on appeal.” Myers v. Workmen’s Auto. Ins. Co., 140 Idaho 495, 

508, 95 P.3d 977, 990 (2004). Accord Suitts v. Nix, 141 Idaho 706, 708, 117 P.3d 

120, 122 (2005) (“A reviewing court looks only to the initial brief on appeal for 

the issues presented because those are the arguments and authority to which the 

respondent has an opportunity to respond in the respondent’s brief.”); State v. 

Raudebaugh, 124 Idaho 758, 864 P.2d 596 (1993).

Hogg v. Wolske, 142 Idaho 549, 557–558, 130 P.3d 1087, 1095–96 (2996).

McCarty’s arguments in regard to reformation, interlineation, and correction deed are 

presented in conclusory fashion and do not contain any legal reasoning or cite to any authorities 

or statutes. By failing to include any law or argument on these issues, McCarty has deprived the 

Trust of a full and fair opportunity to respond. As such, this Court will not consider these

arguments. 

3. The district court did not err in determining that the Second Amendment 

invalidated the Revised Quitclaim Deed.

Because the Quitclaim Deed is unenforceable, McCarty had no interest in the property at 

the time the Bentons executed the Second Amendment. Once the Second Amendment was 
14

executed, David and Marvel no longer had the power to convey Trust property without the 

signature of a Family Co-Trustee. It follows that when McCarty attempted to record the Revised 

Quitclaim Deed, which was signed only by David and Marvel, she could not legally do so 

because David and Marvel did not have authority to convey the subject property. 

McCarty argues that the district court misinterpreted the language of the Second 

Amendment, and that “the plain language of the Second Amendment . . . only applies if the 

Bentons are ‘disabled’ at the time of the ‘transaction.’” (Emphasis in original). We disagree. 

The Second Amendment reads as follows:

Notwithstanding any other provision of the Trust, the following shall irrevocably 

apply and control in priority over all other terms and provisions of the Trust:

Family Co-Trustees. For so long as either David Eugene Benton or Marvel 

Cooley Benton are living, there shall be not less than two co-Trustees serving 

together with them or the survivor of either of them as Family co-Trustees of the 

Trust. In addition to all other powers granted by law or by the Trust instrument, 

the Family Co-Trustees shall have those powers specifically granted to a 

Disability Trustee. The following persons are hereby appointed to serve, 

commencing upon execution of this instrument, as Family co-Trustees:

1. Barbara Baker

2. David Eugene Benton II

Authority to Act for The Trust. For the remainder of Grantors' lives, not less 

than two signatures shall be required on all transactions of any kind or nature 

involving the Trust and all of its property and assets. Subject to the disability of 

Grantors, such two signatures may be made by one Family Co-Trustee and one 

Grantor, or by two Family co-Trustees. In no event shall Grantors be the only two 

signors on behalf of the Trust.

The natural interpretation of the above passages is that they establish: (1) Barbara and 

David are Family Co-Trustees; and (2) “in no event shall Grantors be the only two signors on 

behalf of the trust.” McCarty argues, however, that the qualifier “Subject to the disability of 

Grantors,” which is contained in the second sentence of the Authority to Act subsection, also 

modifies the third sentence of that subsection. We hold that there is no basis for such a reading. 

Indeed, it would serve to make the second and third sentences redundant. Accordingly, the 

district court did not err when it held that “the 2010 Amendment unambiguously prohibits David 

and Marvel from acting alone as signors on behalf of the Trust, and this restriction applies in all

circumstances, regardless of whether David or Marvel are disabled.” 

D. Attorney’s fees are granted to the Trust.
15

An “award of attorney fees under Idaho Code section 12-121 is not a matter of right to 

the prevailing party, but is appropriate [] when the court, in its discretion, is left with the abiding 

belief that the case was brought, pursued, or defended frivolously, unreasonably, or without 

foundation.” Teurlings v. Larson, 156 Idaho 65, 75–76, 320 P.3d 1224, 1234–35 (2013) (quoting 

Michalk v. Michalk, 148 Idaho 224, 235, 220 P.3d 580, 591 (2009)). An award of attorney’s fees 

to the Trust under Idaho Code section 12-121 is appropriate here. The vast majority of 

McCarty’s arguments, especially with respect to the admission of extrinsic evidence, were 

brought before this Court despite substantial and incontrovertible case law to the contrary. 

Furthermore, most of the case law cited by McCarty was irrelevant and that which was not 

irrelevant provided at best minimal support to her arguments. With respect to the issues of 

reformation, interlineation, and correction deed, McCarty made no legal argument and cited no 

case law in her opening brief. Finally, throughout her briefs McCarty misrepresented and ignored 

the holdings of the district court, which were consistently clear and well-reasoned. For these 

reasons, we conclude that McCarty pursued her appeal frivolously, unreasonably, and without 

foundation.

V. CONCLUSION

The district court’s summary judgment is affirmed. Costs and attorneys fees on appeal are 

granted to the Trust. 

Justices EISMANN, BURDIC K and HORTON, CONCUR.

Chief Justice J. JONES, concurring in part and dissenting in part.

With a certain amount of trepidation, I dissent, in part, from the Court’s opinion. 

Although the Court’s result is probably warranted under all of the circumstances, I am concerned 

about the conclusion in Part V, Section C of the opinion that the entire legal description in the 

Quitclaim Deed is insufficient as a matter of law. I agree that part of the legal description—“all 

adjacent parking lots to the South of the Building and to the West of the Building and right of 

access into the parking lot located at 550 Linden Drive”—is insufficient for purposes of a valid 

conveyance. However, the part of the description which identifies “the building known as 

Benton Engineering building located upon the property. . . at 550 Linden Drive, Idaho Falls, 

Idaho located in Bonneville County and more commonly known as the Benton Engineering 

Office Building,” appears to meet the requirements set out by this Court in City of Kellogg v. 

Mission Mountain Interests, Ltd. Co., 135 Idaho 239, 16 P.3d 915 (2000). In that case, the Court 
16

held that the description of a building as “Tamarack Lodge” was sufficient to identify the 

property being conveyed, with the caveat that “the quantity of land involved was only the 

amount directly underneath the lodge, and not some other, larger parcel within the ski resort 

area.” Id. at 244–45, 16 P.3d at 920–21. 

The pertinent question here is whether the legal description is an all-or-nothing 

proposition. That is, does it stand or fall in its entirety? McCarty has seemingly approached the 

issue both ways in the written and oral argument she presented to the Court. The overall thrust of 

McCarty’s argument is that the entire legal description is adequate and that she is entitled to the 

entire property. On the other hand, in a number of instances in her briefing she seems to advance 

a piecemeal approach, e.g., “it cannot be disputed that the deed conveyed the Benton 

Engineering building, because it is expressly called out in the deed” and “[w]ithout question, the 

Quitclaim Deed conveys the Benton Engineering building to McCarty.” When asked at oral 

argument whether the legal description was an all-or-nothing proposition, McCarty’s counsel 

responded with less than absolute certainty. 

In my view, the building was identified with sufficient certainty to meet the requirements 

of this Court’s precedent. Therefore, I am not inclined to disqualify the conveyance for lack of 

certainty with regard to the building. That does not mean that I would give my blessing to the 

purported transfer of the property to McCarty pursuant to the Quitclaim Deed. 

There are some troubling aspects with regard to this purported conveyance. McCarty 

described one of the grantors, David Benton, as “a civil engineer and land surveyor of many 

decades.” It is hard to conceive that a person with such qualifications would prepare or sign a 

quitclaim deed with such an amateurish legal description. The Quitclaim Deed was purportedly 

signed on July 1, 2010, but not notarized at that time, an unusual oversight for an experienced 

engineer and land surveyor. It was not offered to the county for recording until almost two years 

later. The deed was purportedly notarized on April 24, 2012, and then submitted for recording

with the county recorder on that same date. Strangely, on the same day the Quitclaim Deed was 

signed, the Bentons also signed a warranty deed purporting to convey the same property, with a 

slightly different description, to McCarty. That deed was neither notarized nor recorded. 

The title to the property was held by “The David and Marvel Benton Trust” but there was 

no indication on the Quitclaim Deed when it was purportedly signed on July 1, 2010, that any 

trust was involved in the transaction. It appeared to be a conveyance to McCarty by a husband 
17

and wife acting in their own right. When the deed was submitted to the county for recording on 

April 24, 2012, there was still no indication of any trust interest in the property. Shortly 

afterward, the Bonneville County Assessor notified McCarty that the “grantor name is not 

identical to recorded owner’s name.” The deed appears to have been re-recorded on May 4, 

2012, with the printed word “trust” after the names of the grantors, and the addition on its face, 

just above the legal description, of the words “Exhibit ‘A.’” The deed then had a second page 

containing what appears to be a proper legal description. It is odd that a person with some 

sophistication in real estate matters and the trustee of a marital trust would misidentify the 

grantor of a deed conveying property out of the trust. 

Just four months after the Quitclaim Deed was purportedly signed, the Bentons amended 

their trust to require that any transaction with regard to trust assets had to have the signature of a 

family co-trustee, as well as their own, in order to be valid. The amendment also provided “[i]n 

no event at any time shall Dorothy Benton McCarty serve as a Trustee of the Trust or have 

control over any property or business entity owned by the Trust.” The amendment was effective 

November 1, 2010, a year and a half before the Quitclaim Deed was first recorded. Further, 

Respondent points out that David Benton executed a First Codicil to his Will on June 30, 2008, 

stating:

I hereby state that DOROTHY BENTON MCCARTY does not own any part of 

the Benton Engineering Office located at 550 Linden Drive, Idaho Falls, Idaho, 

nor any of the garages or surrounding property. I further declare that DOROTHY 

BENTON MCCARTY does not own any part of the Benton Engineering 

business. I specifically direct that upon my death that she will not become the 

manager of Benton Engineering. I further direct that in the event of my disability 

or incapacity that she shall not become the manager of Benton Engineering.

The trust amendment and will codicil certainly seemed to be contrary to the intent of the deeds 

purportedly signed by the Bentons. In this regard, the record contains allegations by the 

Respondent of lack of mental capacity on the part of David Benton. 

Although I tend to think the end result reached by the Court is probably warranted, based 

upon what is contained in the record, I can’t overlook the fact that the building was adequately 

described in the Quitclaim Deed. For that reason, I would vacate the summary judgment with 

respect to the building and remand for further proceedings regarding the validity of the purported 

conveyance.