This memorandum opinion was not selected for pub lication in the New Mexico Reports. Please 1 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 2 Please also note that this electronic memorandum opinion may contain computer-generated 3 errors or other deviations from the official paper version filed by the Court of Appeals and does 4 not include the filing date. 5 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 6
JOSEPH LUCERO, ROBERT LUCERO, 7 JOSEPH A. LUCERO, HELEN ANN 8 PONTHIER, DONNA LUCERO DENNEY, 9 MICHAEL LUCERO, and MARY POUSSON, 10 Plaintiffs-Appellants, 11

v. NO. 30,181 12 PATRICIA LUCERO, MARIA MONTOYA, 13 and MIGUEL MONTOYA, a minor, by and 14 through Maria Montoya, his parent and next 15 friend, 16 Defendants-Appellees. 17

APPEAL FROM THE DISTRICT COURT OF TAOS COUNTY 18 John Paternoster, District Judge 19

Catron, Catron & Pottow, P.A. 20 Richard S. Glassman 21 Santa Fe, NM 22 for Appellants 23 Natelson Law Firm 24 Stephen Natelson 25 Taos, NM 26 for Appellees 2723 MEMORANDUM OPINION 1 KENNEDY, Judge. 2 Plaintiffs contend that the facts do not establish the grantor’s intention to make 3 a present and unconditional transfer, so as to irretrievably part with dominion and 4 control over real property. The district court granted Defendants’ motion for summary 5 judgment in their counter-claim to quiet title . Plaintiffs appeal , arguing that the deed 6 Defendants rely upon failed to take effect because there was no legal delivery. 7 Because material issues of fact regarding the deceased grantor’s intentions exist, we 8 reverse and remand for trial. 9 I. BACKGROUND 10 Jose Lucero, the deceased grantor, owned approximately twenty acres of 11 property in Taos County, New Mexico. Plai ntiffs are Jose’s children, who had lived 12 on the property with Jose and their mother before they moved out of state. Jose 13 subsequently married Patricia Lucero withwhom he resided on the property until his 14 death. Jose and Patricia had a daughter, Maria Montoya. Maria subsequently had a 15 son, Miguel Montoya. Both ha ve resided on the property. 16 Following serious health problems occu rring in 2004, Jose drafted a Warranty 17 Deed, appearing to convey the property to Patricia, Maria, and Miguel (Defendants). 18 The Warranty Deed states: 194 JOSE G. LUCERO, for consideration paid, hereby grants unto 1 PATRICIA F. LUCERO[,] wife, MARIA L. MONTOYA[,] daughter[,] 2 and MIGUEL F. MONTOYA, grandson, as inheritance, [w]hose address 3 is P.O. Box 32[,] Arroyo Seco, New Mexico 87514[,] the following 4 described real estate in Taos County, State of New Mexico[:] 5

. . . . 6 Containing 19.99 [a]cres moreor less, as more fully shown on a [p]lat of 7 survey for Jose G. Lucero together with all water rights and rights of 8 ingress and egress pertaining to said property and all other rights that this 9 property enjoyed. 10 STIPULATION: I hereby reserve a life estate unto myself[,] stating that 11 this [W]arranty [D]eed will not take effect until my death. 12 Jose had the deed notarized and kept it in a locked filing cabinet to which he had the 13 only key. This is the key he would have Patricia give Maria on his death bed. He 14 showed the deed and the filing cabinet, w ithin which the deed was kept, to Maria 15 many times. Jose “stated on numerous occasions that it was his intent to convey the 16 property mentioned in the Warranty Deed to [Patricia, Maria, and Miguel].” In 17 addition, Jose directed Maria to have the deed recorded if anything happened to him. 18 In 2006, Jose was hospitalized ag ain due to a heart condition. That same day, 19 Jose gave the key to the filing cabinet to Patricia, instructing her to give it to Maria 20 and stated that “[Maria would] know what to do.” Jose died the next day. Maria 21 subsequently recorded the deed. 225 Upon hearing of Jose’s passing, Plaintiffs filed a claim in district court, arguing 1 that the Warranty Deed was invalid for lack of delivery and that the property should 2 pass under the New Mexico intestate statute dueto the lack of a will. In response, 3 Defendants moved for summary judgment in a claim to quiet title, arguing that the 4 deed was properly delivered. Plaintiffs arguethat, even after the deed was signed, but 5 prior to any delivery, Jose discussed with them the possibility of providing a portion 6 of his land to all his heirs—Plaintiffs and Defendants. Defendants contend that Jose 7 conveyed the property to Defe ndants during his lifetime, re serving for himself a life 8

estate. 9 Plaintiffs then cross-motioned for summary judgment, arguing that Jose lacked 10 the intent for a present conveyance of property that would have produced an 11 irretrievable parting of domin ion and control over the property. Plaintiffs allege that 12 Jose never made a final deci sion with respect to whether all of his children should 13 have a portion of the property. Neverthe less, the district court granted summary 14 judgment in favor of Defendants, holding th at “the decedent intended both a life estate 15 and a concurrent grant of the subject property.” 16 II. DISCUSSION 17 “Summary judgment is appropriate wh ere there are no genuine issues of 18 material fact and the movant is entitle d to judgment as a matter of law.” Self v. United 196 Parcel Serv., Inc. , 1998-NMSC-046, ¶ 6, 126 N.M. 396, 970 P.2d 582. “We review 1 these legal questions de novo.” Id. Summary judgment may be proper when the 2 moving party establishes a prima facie case for summary judgment. Romero v. Philip 3 Morris Inc ., 2010-NMSC-035, ¶ 10, 148 N.M. 713, 242 P.3d 280. Once this prima 4 facie showing has been made, the burden sh ifts to the non-movant to adduce evidence 5 that would justify a trial on the merits. Id. The non-moving party may not only rely 6 upon mere allegations. Rather, that party “must set forth specific facts showing that 7 there is a genuine issue for trial.” Rule 1-056(E) NMRA. Thus, there must be a 8 genuine material fact in dispute for Plaintiffs to succeed in opposing the motion for 9 summary judgment. A genuine issue of f act “would allow a hypothetical fair-minded 10 factfinder to return a verdict favorable to the non-movant on that particular issue of 11 fact. An issue of fact is ‘mat erial’ if the existence (or non- existence) of the fact is of 12 consequence under the substantive rules of law governing the parties’ dispute.” 13 Romero v. Philip Morris, Inc. , 2009-NMCA-022, ¶ 12, 145 N.M. 658, 203 P.3d 873 14 (citations omitted), rev’d on other grounds , 2010-NMSC-035, 148 N.M. 713, 242 15 P.2d 280. Because resolution on the merits is favored, a reviewing court “view[s] the 16 facts in a light most favorable to th e party opposing the motion and draw[s] all 17 reasonable inferences in support of a trial on the merits[.]” Handmaker v. Henney, 18 1999-NMSC-043, ¶ 18, 128 N.M. 328, 992 P.2d 879. 197 At issue here is whether Jose properly delivered the deed to Defendants so as 1 to convey title of the disput ed property to them. If a grantor desires to convey 2 property by deed and divest himself of title, he must both physically and legally 3 deliver the deed. See Den-Gar Enters. v. Romero , 94 N.M. 425, 428, 611 P.2d 1119, 4 1122 (Ct. App. 1980). “[E]ffec tive legal delivery of a deedrequires (1) intent by the 5 grantor to make a present transfer and (2) a transfer of dominion and control.” 6 Blancett v. Blancett , 2004-NMSC-038, ¶ 7, 136 N.M. 573, 102 P.3d 640. 7 There is no dispute that Jose kept the signed notarized deed in a locked filing 8 cabinet. The day beforehe died, Jose gave the key to Patricia to give to Maria, and 9 this gave Maria, one of the grantees, phys ical possession of the deed. “[A] grantee’s 10 possession of a validly executed deed ordi narily raises a presumption of legal 11 delivery,” but this presumption may be rebutted by evidence showing that the grantor 12 did not intend to make a present transfer. Id. ¶ 8. “The purpose of the delivery 13 requirement with respect to deeds is to show the grantor’s intent to convey the 14 property described in the deed.” 23 Am. Jur. 2d Deeds § 105 (2010). In addition, 15 intent “may be inferred from the circumstances.” Id. “It must appear that the grantor 16 intended to part with contro l and dominion over the land irre trievably. There must be 17 no reservation made by the grantor nor any suggestion of recalling the deed.” Den18 Gar Enters. , 94 N.M. at 428-29, 611 P.2d at 1122-23 (citations omitted). “It is well 198 settled in New Mexico that a grantor’s intent is central and may be determined from 1 words, actions or surrounding circumstances during, preceding or following the 2 execution of a deed.” Blancett , 2004-NMSC-038, ¶ 7. 3 In the present case, the district c ourt improperly weighed evidence when it 4 granted Defendants’ motion for summary judgment. In order for Defendants’ title to 5 be valid, the deed that De fendants relied upon had to havebeen legally delivered. 6 Determining legal delivery depends upon resolving the factual issue of whether Jose 7 intended to make a present c onveyance of property, so as to part with control and 8 dominion over the property without any reservations. 9 Because the record reveals conflicting evidence with respect to how Jose 10 wanted to dispose of his property, the issu e of his intent is in dispute. Evidence 11 indicates that Jose may well have intended to grant the land solely to Defendants. The 12 deed–where and how it was kept, the act of gi ving the key to Patricia to give to Maria, 13 and showing the deed to Maria on more than one occasion together with the 14 discussions Jose had with Maria about the deed–support this inference. However, 15 Plaintiffs have adduced other evidence s uggesting that Jose wanted to convey the 16 property to all of his potential heirs, incl uding Plaintiffs. If true, any delivery Jose 17 made may not have been coupled withthe proper intent. The deed would 189 consequently be invaliddue to legally insufficient delivery. This is a question for the 1 fact finder. 2 Despite Defendants’ prima facie showi ng, we conclude th at, based upon facts 3 adduced by Plaintiffs, genuine material facts related to intent and delivery of the deed 4 are disputed. This dispute necessitates a trial on the merits. 5 III. CONCLUSION 6 Because there are disputed material issues of fact, we re verse the district court’s 7 grant of summary judgment in favor of Defendants and remand for proceedings 8 consistent with this Opinion. 9 IT IS SO ORDERED. 10

_______________________________ 11 RODERICK T. KENNEDY, Judge 12 WE CONCUR: 13

________________________________ 14 CELIA FOY CASTILO, Chief Judge 15

________________________________ 16 MICHAEL E. VIGIL, Judge 17