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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Dixon v. Dixon (10/20/2017) sp-7207

Dixon v. Dixon (10/20/2017) sp-7207

           Notice:   This opinion is subject to correction before publication in the P                     ACIFIC  REPORTER.  

           Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,  

                                                                                                                         

           303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email  

                                                                                                                            

           corrections@akcourts.us.  



                       THE SUPREME COURT OF THE STATE OF ALASKA                                        



DANIEL  DIXON,                                                   )  

                                                                 )          Supreme  Court  No.  S-16182  

                                 Appellant,                      )  

                                                                                                                                       

                                                                 )          Superior Court No.  1KE-15-00056 CI  

                      v.                                         )  

                                                                                                 

                                                                 )          O P I N I O N  

                      

CAROLYN DIXON,                                                   )  

                                                                                                                     

                                                                 )          No. 7207 - October 20, 2017  

                                 Appellee.                       )  

                                                                 )  



                                                                                                                 

                                                  

                      Appeal from the Superior Court of the State of Alaska, First  

                                                                                                    

                      Judicial District, Ketchikan, William B. Carey, Judge.  



                                                                                                                  

                      Appearances: David S. Katz, Anchorage, for Appellant. Leif  

                                                                                                                  

                      Thompson,  Leif  Thompson  Law  Office,  Ketchikan,  for  

                                        

                      Appellee.  



                                                                                                            

                      Before:  Stowers, Chief Justice, Winfree, Maassen, Bolger,  

                                                           

                      and Carney, Justices.  



                                            

                      MAASSEN, Justice.  



I.         INTRODUCTION  



                                                                                                                                        

                      A mother and son dispute ownership of a house in Ketchikan.  The son  



                                                                                                                                        

contends that his mother gave him the property following her husband's death, and that  



                                                                                                                                       

he spent years repairing and renovating it on the understanding that it was his.   His  



                                                                                                                               

mother argues that she still owns it.  She contends that she agreed to transfer title only  



                                                                                                                                      

if her son repaired the property and paid off the mortgage, which he failed to do.  


----------------------- Page 2-----------------------

                    Following a bench trial on the son's quiet title claim, the superior court  

                                                                                                                           



found that he failed to prove his mother's intent to transfer the property.  Because the  

                                                                                                                              



superior court properly applied the relevant legal doctrines and did not clearly err in its  

                                                                                                                               



findings of fact, we affirm its judgment.  

                                              



II.       FACTS AND PROCEEDINGS  

                                 



          A.        Facts  



                    In 1982 David Dixon purchased a one-bedroom house on Warren Street in  

                                                                                                                                



Ketchikan. In 1998 he conveyed the property by quitclaim deed to himself and his wife,  

                                                                                                                           



Carolyn Dixon. Carolyn testified at trial that the couple lived in the Warren Street house  

                                                                                                                          



until 2002; thereafter David continued using it as a workshop and art studio.  

                                                                                                                     



                    David died in 2005, and Carolyn had little interest in dealing with the  

                                                                                                                              



Warren Street property.  Her son Dan Dixon proposed that she refinance the house -  

                                                                                           



encumbered  by an  approximately  $30,000  mortgage - and  offered  to renovate it.  

                                                                                                                                    



According to Carolyn, Dan "was supposed to fix [the house] up and rent it and . . . pay  

                                                                                                                              



the mortgage, pay any expenses that came up, and then keep the rest of the money." Dan  

                                                                                                                             



testified that "the goal was [to] get [the house] refinanced in [his] name" and "get  

                                                                                                                            



[Carolyn's] name off the mortgage"; he would then pay Carolyn back whatever she had  

                                                                                                                              



to lend him to make this happen.  

                                                   



                    Carolyn signed a quitclaimdeed on December 16, 2007. The deed says that  

                                                                                                                              



she "convey[ed] and quitclaim[ed]" her interest in the Warren Street house to Austin  

                                                                                                                        



Dixon, Dan's son.  According to Dan, Carolyn named Austin as the grantee at Dan's  

                                                                                                                          



request; Dan "wanted [the house] to be for [his] son," but he was also concerned about  

                                                                                                                          



"IRS issues" if the house was deeded to him.   He testified, though, that he was sure  

                                                                                                                            



Carolyn would have made out the deed in his name if he had asked her to.  

                                                                                                                 



                                                               -2-                                                        7207
  


----------------------- Page 3-----------------------

                    The quitclaim deed was not notarized or formally witnessed. Carolyn gave  

                                                                                                                             



it to Dan, but neither he nor Austin recorded it.  Carolyn testified at trial that she did not  

                                                                                                                               



believe the deed could effectively transfer her interest in the house until the mortgage had  

                                                                                                                               



been paid off.  

                 



                    In 2008 Carolyn refinanced the Warren Street property.   She used the  

                                                                                                                               



money from the refinance to pay off the first mortgage; she also added $33,000 of the  

                                                                                                                               



proceeds to a shared checking account Dan could access for house-related expenses,  

                                                                                                                     



including mortgage payments.  Dan eventually depleted the account, apparently mostly  

                                                                                                                          



on repairs to the house, though some of the money may have gone toward his dental bills  

                                                                                                                              



and other unrelated debt.  Between 2007 and 2014 Carolyn made ten of the mortgage  

                                                                                                                     



payments, at Dan's request; Dan apparently made the rest of the payments out of the  

                                                                                                                               



shared account.  

            



                    Between 2008 and 2010 Dan made a number of repairs and renovations to  

                                                                                                                                 



the house, including plumbing and electrical work, reframing and foundation work, floor  

                                                                                                                             



refinishing, repainting, and remodeling the kitchen and bathroom.  He claimed he paid  

                                                                                                                             



for the work with a combination of the refinance money from Carolyn and his own  

                                                                                                                             



money.  At trial he was unable to give any accounting of these expenses, and he could  

                                                                  



not distinguish between what he paid for with his own money and what he paid for with  

                                                                                                                             



money from Carolyn.  

                     



                    Dan lived in the house with his son for about a year in 2010.  Starting in  

                                                                                                                                 



2011 he rented it out for the summer season.  Between 2011 and 2014 he found three  

                                                                                                                            



different tenants and brought in approximately $17,000 in rental income.  

                                                                                                                



                    In spring 2014 Carolyn's insurance company informed her that the policy  

                                                                                                                          



on the Warren Street house had to be rewritten to reflect that the property was no longer  

                                                                                                                          



owner-occupied.  Carolyn asked for a landlord policy instead but was informed that the  

                                                                                                                               



                                                               -3-                                                         7207
  


----------------------- Page 4-----------------------

house would need to be rewired before it could be insured at all.   Around this time  

                                                                                                                            



Carolyn also learned that the utilities were about to be cut off because the bill had not  

                                                                                                                              



been paid, and she received notice fromthe mortgage company that the checking account  

                                                                                                                       



she  shared  with  Dan  was  overdrawn  and  would  not  cover  the  monthly  mortgage  

                                                                                                                    



payment.  Carolyn emailed Dan in May 2014, telling him that she had closed the shared  

                                                                                                                         



bank account and her account with the utility company.  She also informed Dan that she  

                                                                                                                              



had written the mortgage company to let it know he would be handling the mortgage  

                                                                                                                    



from then on.  When Dan failed to respond she resent the email a week later, following  

                                                                                                                    



up with a handwritten note on the June mortgage statement. In both the handwritten note  

                                                                                                                             



and the email, Carolyn wrote, "The house is yours."  

                                                                                



                    But Dan was in Seattle for the summer, and he made no further mortgage  

                                                                                                                     



payments. And though he apparently planned to rewire the house himself in September,  

                                                                                                                  



the insurance company informed Carolyn that it had to be done by late July in order to  

                                                                                                                                



preserve coverage.  Carolyn "realized [she] had to take . . . the house over" to address  

                                                                                                                    



the wiring issue and to pick up the mortgage payments. After the rewiring was done she  

                                                                                                                              



had her son Bruce and his daughter Amanda remove Dan's belongings, board up the  

                                                                                                                              



house, and change the locks.  

                                              



                    But Dan managed to get back inside.  Carolyn eventually sought police  

                                                                                                                         



assistance to remove him, and in October 2014 she obtained a 20-day restraining order  

                                                                                                                           



to keep him away from the house.  

                                                      



          B.        Proceedings  



                    In February 2015, after repeated calls to the police about Dan's alleged  

                                                                                                                        



trespass on the Warren Street property, Carolyn filed a complaint to recover the house  

                                                                                                                    



from him and in March sought a writ of assistance, which was granted.  Dan filed an  

                                                                                                                               



                                                               -4-                                                        7207
  


----------------------- Page 5-----------------------

 answer to Carolyn's complaint and counterclaimed "[f]or a judgment quieting title to the                                                                                                                                                                                     



Warren Street house in [Dan]."                                                                          



                                           The superior court held a three-day bench trial on the quiet title issue. The                                                                                                                                                  



 court found that Dan failed to prove by clear and convincing evidence that Carolyn had                                                                                                                                                                                     



given him the property, and it dismissed Dan's counterclaim.                                                                                                                                               Dan filed a motion for                                            



reconsideration, but the court denied it, explaining that "overwhelming circumstantial                                                                                                                                                   



 evidence" demonstrated Carolyn's intent to transfer ownership of the property to Dan                                                                                                                                                                                    



 "only upon the fulfillment" of certain conditions, which Dan had failed to satisfy.                                                                                                                                                                                     



                                           Dan appeals.   



III.                  STANDARDS OF REVIEW                                              



                                           "We review the trial court's findings of fact under the 'clearly erroneous'                                                                                                                              

 standard"1  

                                                                                                                                                                                                                                                                          

                                    and "will reject a factual finding only if we are 'left with the definite and firm  



                                                                                                                                                                                                                                2 

                                                                                                                                                                                                                                    "[W]hen a trial  

 conviction on the entire record that a mistake has been committed.' " 



                                                                                                                                                                                                                                                                           

 court's decision of a factual issue depends largely on conflicting oral testimony, the trial  



                                                                                                                                                                                                                                                                              

 court's competence to judge credibility of witnesses provides even a stronger basis for  



                                                                                                                3  

                                                                                          

 deference by the reviewing court." 



                      1                     Vezey v. Green                                 , 35 P.3d 14, 19-20 (Alaska 2001) (quoting                                                                                              Peters v. Juneau             



Douglas Girl Scout Council                                                                 , 519 P.2d 826, 833 (Alaska 1974)).                                                         



                      2                    Id. at 20 (quoting Alaska Foods, Inc. v. Am. Mfrs. Mut. Ins. Co. , 482 P.2d  

                                                                                                                                                                                                                                                                         

 842, 848 (Alaska 1971)).  

                                                          



                      3                    Id.  (quoting  Tenala, Ltd. v. Fowler, 921 P.2d 1114, 1118 n.5 (Alaska  

                                                                                                                                                                                                                                                             

 1996)).  



                                                                                                                                        -5-                                                                                                                            7207
  


----------------------- Page 6-----------------------

                          "We use our independent judgment in reviewing the trial court's legal                                                              



                   4  

analysis."                                                                                                                                                   

                         In  evaluating  legal  questions,  we  adopt  "the  rule  of  law  that  is  most  



                                                                                                     5  

                                                                                       

persuasive in light of precedent, reason, and policy." 



IV.	         DISCUSSION  



                                                                                                                                                           

                          In  support of his contention  that Carolyn  gave him the Warren  Street  



                                                                                                                                                     

property, Dan's primary argument is that she memorialized the gift in 2007 by preparing  



                                                                                                                                                          

and signing the quitclaim deed.   Dan argues in the alternative that his claim fits an  



                                                                                                             

exception to the statute of frauds for parol gifts of land.  



                                                                                                                                                  

             A.	          The Superior Court Did Not Err In Rejecting The 2007 Quitclaim  

                                                                                               

                          Deed As Proof Of A Transfer To Dan.  



                                                                                                                                                   

                          Dan  argues  that  the  2007  quitclaim  deed,  though  lacking  necessary  

formalities,6  

                                                                                                                                                                   

                        nonetheless proves Carolyn's intent that the Warren Street house belong to  



                                                                                                                                                                

him.         The lack of notarization and recording, he argues, is not fatal because case law  



                                                                                                                                                                 

holds that an unacknowledged or unrecorded deed may still be valid as between the  



                                       7  

                                                                                                                                                                

parties to the deed.                       Dan further contends that the deed's naming of Austin as the  



                                

grantee made it ambiguous, and that the deed must therefore be reformed to recognize  



             4           Id.  (citing   Walsh  v.  Emerick,  611  P.2d  28,  30  (Alaska   1980)).  



             5           Id.  (quoting  Guin  v.  Ha,  591  P.2d   1281,   1284  n.6  (Alaska   1979)).  



             6            AS 09.25.010(b) requires  that a transfer of an interest in real property be  



                                                                                                                                                              

conveyed in a writing "subscribed by the party . . . transferring [the interest] . . . and  

                          

executed with the formalities that are required by law."  And AS 34.15.040 states that   

a quitclaim deed conveys the grantor's interest in property "when . . . duly executed."                                                                                  

See also         AS 34.15.010.   



             7            Smalley v. Juneau Clinic Bldg. Corp., 493 P.2d 1296, 1301(Alaska 1972);  

                                                                                                                                                          

see also Maddox v. Hardy, 187 P.3d 486, 492 (Alaska 2008) (An "unacknowledged deed  

                                                                                                                                                              

is only valid 'as between the parties.' " (quoting Smalley, 493 P.2d at 1301)).  

                                                                                                                                       



                                                                                 -6-	                                                                        7207
  


----------------------- Page 7-----------------------

that Dan was the intended grantee. Based on these arguments, he claims that the superior                                                                                                          



court erred in treating the deed as a "legal nullity."                                                   



                                 But the superior court did not err in concluding that the quitclaim deed did                                                                                                 



not validly convey title to Dan.                                                 To interpret a deed a court "first look[s] to the four                                                                    



corners of the document to determine the parties' intent.                                                                                  If the deed is open to only one                                   



                                                                                                                                                          8  

reasonable   interpretation,   [the   court's]   analysis   ends   there."                                                                                                                                       

                                                                                                                                                                 "Only  if  the  deed  is  



                                                                                                                                 9  

                                                                                                                                                                                                         

ambiguous" will the court take steps to interpret it.                                                                                  The "four corners" of the 2007  



                                                                                                  10 

document do not contain an ambiguity.                                                                                                                                                                         

                                                                                                       The document unambiguously identifies the  



                                                                                                                                                                                                              

grantor (Carolyn), the grantee (Austin), the property at issue, the consideration, and the  



                                                                                      

date; it makes no mention of Dan.  



                                                                                                                                                                                                               

                                 Dan argues that Austin's name was used on the deed "as a pseudonym for  



                                                                                                                                                                                                         

[Dan]," but if that is so, it is not evident from the document itself. And while deeds made  



                                                                                                                                                                                                            

out  to  grantees  under  assumed  names  are  not  unlawful,  the  grantee  must  be  "so  



                                                                                                                                                                                                      11  

                                                                                                                                                                                                            

designated and described as to distinguish him [or her] from the rest of the world."                                                                                                                        The  



                 8               Offshore Systems-Kenai v. State, Dep't of Transp. & Pub. Facilities                                                                                                     , 282  



P.3d 348, 354 (Alaska 2012) (citing                                                        Dias v. State, Dep't of Transp. & Pub. Facilities                                                                        ,  

240 P.3d 272, 274 (Alaska 2010)).                                   



                 9               Id. at 355-56.  Cf. Fink v. Municipality of Anchorage, 379 P.3d 183, 191  

                                                                                                                                   

(Alaska 2016) (finding deed ambiguous where it failed to note the location of important  

                                                                                                                                                                                              

natural landmarks in relation to the lot boundaries, when an earthquake had caused the  

                                                                                                                                                                                                              

natural landmarks to shift).  

                                                     



                 10              "Ambiguous" means "capable of being understood in two or more possible  

                                                                                                                                                                                                  

senses                    or          ways."                           MERRIAM -WEBSTER .COM ,                                                           https://ww.merriam- 

                                                                  

                                                                                                                                              

webster.com/dictionary/ambiguous (last visited Aug. 29, 2017).  



                 11              Roeckl v. Fed. Deposit Ins. Corp.                                                     , 885 P.2d 1067, 1071 (Alaska 1994)
                                            



(alteration in original) (quoting 6 GEORGE   W. T                                                                           HOMPSON, C                      OMMENTARIES   ON   THE
  

                                                                                       

                                                                                                                                                                                     (continued...)
  



                                                                                                       -7-                                                                                               7207
  


----------------------- Page 8-----------------------

use of another person's real name does not satisfy that standard, especially when that                                                                                                



other person is known to both parties.                                                As the superior court aptly noted, "I don't see                                                  



how you can get around the fact that [the document quitclaimed the property] to Austin,"                                                                                    

not to Dan.              12  



                                                                                                                                                                                    

                             The evidence also supports the superior court's refusal to reform the deed  



                                                                                                                                                                                   

to accommodate Dan's claim of ownership.  "Reformation of a writing is justified when  



                                                                                                                                                                                          

the parties have come to a complete mutual understanding of all the essential terms of  



                                                                                                                                                                                         

their bargain, but by reason of mutual mistake . . . the written  agreement is not in  



                                                                                    13 

                                                 

conformity with such understanding."                                                     The "party urging reformation must establish  



                                                                                                                                              14  

                                                                                                                                                                          

the elements of reformation by clear and convincing evidence."                                                                                      Here, the evidence  



                                                                                                                                                                               

failed to support Dan's claim that he and Carolyn had "come to a complete mutual  



                                                                                                                                                                                     

understanding of all the essential terms of their bargain," as we discuss below. And Dan  



                                                                                                                                                                                  

testified that the deed names Austin as the grantee at Dan's own request, in part to avoid  



                                                                                                                                      

tax consequences; there is no evidence of a mutual mistake.  



                                                                              

                             We conclude that the superior court did not err when it rejected the 2007  



                                                                                                                                                                                    

quitclaim deed as persuasive evidence that Carolyn intended to give the property to Dan.  



               11(...continued)  



MODERN  LAW OF  REAL  PROPERTY    3006, at 349 (John S. Grimes repl. ed. 1962)).                                                                                      



               12            We are not asked to decide whether the quitclaim deed was valid as to                                                                                        



                                                                                         

Austin, and we have not considered the issue.  



               13            AAA Valley Gravel, Inc. v. Totaro , 219 P.3d 153, 164-65 (Alaska 2009)  

                                                                                                                                                                                 

(alteration in original) (emphasis omitted) (quoting Groff v. Kohler, 922 P.2d 870, 873  

                                                                                                                                                                                      

(Alaska 1996)).  

                   



               14            Id. (quoting Wasser & Winters Co. v. Ritchie Bros. Auctioneers, 185 P.3d  

                                                                                                                                                                                    

73, 82 (Alaska 2008)).  

                                  



                                                                                            -8-                                                                                    7207
  


----------------------- Page 9-----------------------

            B.	          The Superior Court Did Not Err In Finding There Was No Parol Gift                                                              

                         Of Land.   



                         Alaska's statute of frauds generally requires that a transfer of land be                                                          



                                                                                                 15                                                          16  

memorialized in a writing in order to be enforceable,                                                                                   

                                                                                                     but the rule has its exceptions. 



                                                                                                                                                

In Vezey v. Green we considered claims of adverse possession, noting that the elements  



                                                                                                                                                          

of hostility and notoriety may be presumed when the claim is based on a gift from the  



                         17  

                                                                                                                                                      

record owner.                 As an aside we noted that in addition to adverse possession, "some states  



                                                                                                                                                                 

have adopted an alternate theory to support parol gift donees' claims to real property":  



                                                                                                                                                           

under this theory a donee "may establish ownership despite the statute of frauds" by  



                                                                                                                                                          

proving "(1) the donor's intent to make a gift and (2) [the donee's] own reliance on the  



                                                                                                      18 

                                                                                    

gift in making valuable improvements to the property."                                                     But we did not consider this  



                                                                                                                                                            

theory any further in Vezey because it "was not argued by either party or considered by  



                                    19  

                                         

the superior court." 



                                                                                                                                              

                         Dan asks us to apply this theory of recovery to the facts of this case.  But  



                                                                                                                                                            

as in  Vezey it is again unnecessary for us to adopt the theory, since even if we did its  



                                                                                                                                                    

elements would not be satisfied here. As usually formulated, the theory requires a donee  



            15           AS  09.25.010.  



            16           AS  09.25.020.  



            17           35  P.3d   14,  24  (Alaska  2001).  



            18          Id.  at  24  n.35  (citing   Locke  v.  Pyle,  349  So.  2d  813,  815  (Fla.  1977);  Gran  



v. Gran, 290 N.W. 241, 242-43 (N.D. 1940); Holohan v. McCarthy, 281 P. 178, 181 (Or.  

                                                                                                                                                         

                         

 1929); Adams v. Adams , 205 S.W.2d 801, 802 (Tex. 1947); Kelly v. Crawford, 88 N.W.  

                                                                                                                                                      

296, 299 (Wis. 1901)).  

                              



            19	         Id.  



                                                                             -9-	                                                                     7207
  


----------------------- Page 10-----------------------

                                                                                                                               20  

to prove three elements by clear and convincing evidence.                                                                           First, the donee must show                      



that the donor made a present gift of land, meaning that "the donor must, at the time [s]he                                                                                          



makes [the gift], intend an immediate divestiture of the rights of ownership out of                                                                                                       



                                                                                                                                                                21  

 [her]self and a consequent immediate vesting of such rights in the donee."                                                                                                              

                                                                                                                                                                      Second, the  



                                                                                                                                         22  

                                                                                                                                                                                    

donee must show that he took the land believing it was a gift.                                                                                Third, the donee must  



                                                                                                                                                                                         23  

                                                                                                                                                                                 

have made permanent and valuable improvements to the land in reliance on the gift. 



                                                                                                                                                                                      

                              The superior court, in evaluating whether Dan had proven a parol gift,  



                                                                                                 24  

                                                                                                                                                                                           

relied on Alaska promissory estoppel cases                                                            as well as an Arkansas case, Hendrix v.  



               20             See, e.g.         ,   Hendrixv.             Hendrix, 506 S.W.2d 848, 852 (Ark. 1974);                                                      Gran, 290   



N.W.  at 243;                Conradi v. Perkins                        , 941 P.2d 1083, 1085 (Or. 1997);                                        Estate of Wright                    , 482   

 S.W.3d 650, 657 (Tex. App. 2015);                                             see also Vezey                  , 35 P.3d at 24 (implying that a parol                              

gift of land must be proven by clear and convincing evidence).                                                       



               21            Estate of Wright, 482 S.W.3d at 657; Adams , 205 S.W.2d at 802, cited in  

                                                                                                                                                                                           

 Vezey, 35 P.3d at 24 n.35; see also Roberson v. Manning, 268 P.3d 1090, 1094 (Alaska  

                                                                                                                                                                              

2012) (requiring, when evaluating whether a party made a gift of a mobile home, that the  

                                                                                                                                                                                         

alleged donor's "donative intent . . . be clear, unmistakable, and unequivocal").  

                                                                                                                                               



               22            Locke, 349 So. 2d at 815 (citing Green v. Price, 63 So. 2d 337 (Fla. 1953));  

                                                                                                                                                                               

 Gran, 290 N.W. at 243; Holohan, 281 P. at 181; Estate of Wright, 482 S.W.3d at 657;  

                                                                                                                                                                                      

Adams , 205 S.W.2d at 802.  

                                                    



               23              Locke, 349 So. 2d at 815; Gran, 290 N.W. at 243 ("[W]here in reliance  

                                                                                                                                                                              

upon a parol gift of real property the donee takes possession and makes improvements  

                                                                                                                                                                

 so it would work a substantial injustice to hold the gift void, the gift is good and the  

                                                                                                                                                            

 statute of frauds . . . cannot be invoked to defeat it." (citing Heuer v. Heuer, 253 N.W.  

                                                                                                                                                                                   

 856 (N.D. 1934))); Conradi, 941 P.2d at 1085 (citing Thayer v. Thayer, 138 P. 478 (Or.  

                                                                                                                                                                                      

 1914); Luckey v. Deatsman, 343 P.2d 723 (Or. 1959)); Holohan, 281 P. at 181; Estate  

                                                                                                                                                                                  

of Wright, 482 S.W.3d at 657.  

                                                          



               24            Kiernan v. Creech, 268 P.3d 312, 315-19 (Alaska 2012) (holding that the  

                                                                                                                                                                                         

evidence could support application of promissory estoppel exception to statute of frauds  

                                                                                                                                                                                  

based on claimant's partial payment of costs involved in purchasing commercial towing  

                                                                                                                                                                                

                                                                                                                                                                 (continued...)  



                                                                                           -10-                                                                                     7207
  


----------------------- Page 11-----------------------

                                                                                                                                                          25  

Hendrix, which laid out the elements of a parol gift claim as described above.                                                                                 The  



court found that Dan failed to prove the first element:                                                  that Carolyn intended to make a                              



                                                                                       26  

"present gift" of the Warren Street property.                                                                                                          

                                                                                             The court found instead that although  



                                                                                                                                                           

Carolyn intended to give the house to Dan, certain "things had to happen" first.  



                                                                                                                                                              

                          Dan argues that the superior court mistakenly required that he "prove [that]  



                                                                                                                                                                  

the precise terms of the gift were clear and unambiguous"; he notes that a gift need not  



                                                                                                                           

include all the terms necessary to a contract, such as price and duration.  But although  



                                                                                                                                                          

the superior court did allude to "the terms of the gift," it decided the case on the ground  



                                                                                                                                                            

that Dan failed to prove Carolyn's intent to make a present gift of the property; it found  



                                                                                                                                                                      

that Dan did not show "clear[ly] and unambiguous[ly] . . . that this was intended as a  



                                                                                                                                                        

gift."  In our view, the court was appropriately focused on Carolyn's intent.  



                                                                                                                                                          

                          We further conclude that the superior court did not err in its factual finding  



             24(...continued)  



                                                                                                                                                             

lot, performance of improvements, and payment of half the monthly mortgage and utility  

                                                                                                                                                  

costs, where defendant claimed that claimant was a renter rather than a co-owner);  

                                                                                                                                                        

 Valdez Fisheries Dev. Ass'n v. Alyeska Pipeline Serv. Co., 45 P.3d 657, 668 (Alaska  

                                                                                                                                                                    

2002) (holding that a letter was too indefinite to constitute a "promise" for purposes of  

                                                                                                                                                         

promissory estoppel); Alaska DemocraticPartyv. Rice , 934P.2d1313, 1316-17 (Alaska  

                                                                                                                                                 

 1997)  (affirming  jury  finding  of  promissory  estoppel  based  on  former  employee's  

                                                                                                                                  

substantial change in position in reliance on employer's promise).  



             25           Hendrix, 506 S.W.2d at 852.  

                                                                          



             26           See Estate of Wright, 482 S.W.3d at 657 ("[T]he donor must, at the time he  

                                                                                                                                                                    

makes [the gift], intend an immediate divestiture of the rights of ownership out of himself  

                                                                                                                                                          

and a consequent immediate vesting of such rights in the donee."); see also Roberson,  

                                                                                                                                   

268 P.3d at 1094 ("The superior court must . . . determine if [the alleged donor] had the  

                                                                                                                                                                  

necessary donative intent to make a gift of his share of the mobile home to [the alleged  

                                                                                                                                                          

donee], rather than a mere promise to make a gift in the future."); 38 AM. J   UR. 2                                                                    D  GIFTS  

                                                                                                                                     

  18 ("A promise to make a gift in the future is not a gift, and it is revocable at any time                                                                  

until the gift is executed.").         



                                                                                -11-                                                                          7207
  


----------------------- Page 12-----------------------

 about what Carolyn intended.                                                                                                                   The primary evidence on which Dan relied to prove her                                                                                                                                                                                                        



intent to make an unconditional, present gift of the property - the 2007 quitclaim deed                                                                                                                                                                                                                                                                                                               



-  is at best weak support for his claim; as explained above, the deed does not even                                                                                                                                                                                                                                                                                                                 



mention Dan, and it was never formally acknowledged or recorded.                                                                                                                                                                                                                                                                        And the superior   



 court could reasonably reject Dan's argument that Carolyn "repeat[ed] the gift" in the                                                                                                                                                                                                                                                                                                                       



 email and handwritten note from May 2014 when she stated, "The house is yours." The                                                                                                                                                                                                                                                                                                                      



notes are in the context of the unpaid mortgage and utility bills, which both parties agree                                                                                                                                                                                                                                                                                                        



Dan was supposed to be paying.                                                                                                                                The court could reasonably conclude that Carolyn's                                                                                                                                                             



 statements were intended to emphasize that the house was Dan's responsibility, not that                                                                                                                                                                                                                                                                                                                   



it had already transferred to his ownership.                                                                                                                                                                     Carolyn testified consistently that "it was                                                                                                                                             



 [her] intention that [Dan] would have [the house] when the mortgage was paid off," and                                                                                                                                                                                                                                                                                                                     



the superior court found her "much more credible" on this subject than Dan.                                                                                                                                                                                                                                                                                                                           She  



testified that even when drafting the 2007 quitclaimdeed she did not intend an immediate                                                                                                                                                                                                                                                                                    



 divestiture of her ownership interest, because she believed she could not legally transfer                                                                                                                                                                                                                                                                                              



it "until the mortgage was paid off."                                                                                                                                       We conclude that the superior court did not clearly                                                                                                                                                              



 err in finding there was no "immediate divestiture" of Carolyn's rights to the house, no                                                                                                                                                                                                                                                                                                                        



                                                                                                                                                                                                                                                                                                                                                                                                                      27  

 "consequent immediatevesting"ofownership                                                                                                                                                                                rights inDan, and thereforeno                                                                                                                  parol gift.                                               



                                                                                                                                                                                                                                                                                                                                                                                                

                                                                Nor  did  the  superior  court  clearly  err  in  concluding  that  Dan  made  



                                                                                                                                                                                                                                                                                                                                                                                                                      

improvements to the property in reliance on a "conditional agreement" rather than a  



                                                                          

 completed gift.  Dan testified about significant improvements he made to the property  



                                                                                                                                                                                                                                                                                                                                                                                               

 even  before  2007,  when  he  claims  the  gift  was  made.                                                                                                                                                                                                                                   The  superior  court  could  



                                                                                                                                                                                                                                                                                                                                                                                                

reasonably conclude from this that Dan did not make improvements to the house solely  



                                27                              See Estate of Wright, 482 S.W.3d at 657.  

                                                                                                                                                                                                                                              



                                                                                                                                                                                                      -12-                                                                                                                                                                                                                  7207  


----------------------- Page 13-----------------------

                                                                      28  

because he believed it was his.                                             And again we defer to the superior court's assessment                                              



that   Carolyn's   characterization   of   the   agreement   was   "much   more   credible   and  



reasonable" than Dan's.                                   



                               We therefore affirm the superior court's judgment that Dan failed to prove                                                                                   



a parol gift of land that would warrant quieting title to the Warren Street house in him.                                                                                                                  



We further conclude that the superior court did not clearly err in declining to find that   

Dan was entitled to the house under another equitable theory.                                                                                  29  



                28             See Pocius v. Fleck                             , 150 N.E.2d 106, 111 (Ill. 1958) (finding no                                                                    oral  



contract when plaintiff performed services before promise was allegedly made).                                                                                            



                29             Dan briefly argues that he is entitled to specific performance under the  

                                                                                                                                                                                                 

doctrine of promissory estoppel.  But that doctrine first requires "[a]n actual promise"  

                                                                                                                                   

that is " 'definitive, . . . very clear, . . . and must use precise language.' "  Sea Hawk  

                                                                                                                                                                                           

Seafoods, Inc. v. City of Valdez, 282 P.3d 359, 366 (Alaska 2012) (quoting Safar v. Wells  

                                                                                                                                                                                             

Fargo Bank, N.A., 254 P.3d 1112, 1119 (Alaska 2011)).  The superior court concluded  

                                                                                                                                                                                 

that Dan did not meet his burden to prove an "actual promise," and Dan concedes this  

                                                                                                                                                                          

point in his appellant's brief; he argues that there was no definite agreement between him  

                                                                                                                                                                                                

and Carolyn and therefore no way he could be found to have failed to fulfill his part of  

                                                                                                                                                                                                    

the bargain.  

                              



                               We recognize the parallels between promissory estoppel and the parol gift  

                                                                                                                                                                                                 

theory of recovery; some courts treat them as derivative doctrines.  See Aiello v. Knoll  

                                                                                                                                                             

 Golf Club, 165 A.2d 531, 535 (N.J. App. 1960) ("[E]quitable relief [from the Statute of  

                                                                                                                                                                                                    

Frauds] is based upon the reliance of the transferee on the representations of the promisor  

                                                                                                                                                                                     

- a form of promissory estoppel - rather than on the theory that part performance is  

                                                                                                      

a substitute for the written evidence required by the Statute of Frauds."); Montoya v. N.  

                                                                                                                                                                                                    

M. Human Servs. Dep't, Income Support Div., 771 P.2d 196, 199 (N.M. App. 1989)  

                                                                                                                                                                                           

("The same equitable rules, including promissory estoppel, protect oral gifts as well as  

                                                                                                                                                                                                    

oral contracts for the sale of land.").  We analyzed Dan's claim as a parol gift of land  

                                                                                                                                                                                               

because that is the way he presented it; as explained above, however, the result would  

                                                                                                                                            

be the same applying principles of promissory estoppel.  

                                                                                                                                         



                                                                                                -13-                                                                                         7207
  


----------------------- Page 14-----------------------

V.                     CONCLUSION  



                                             We AFFIRM the superior court's dismissal of Dan's counterclaim to quiet                                                                                                                                                                



title.  



                                                                                                                                                     -14-                                                                                                                          7207
  

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