Dennis Bale, / Cross v. Robert E. Fletcher, / Cross ( 2013 )


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  •            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
    o
    -Her
    DENNIS BALE and CLARENCE                         NO. 67395-5-1
    BALE,                                                                                 m
    Respondents,                DIVISION ONE
    >» ~Ci.-"'
    GARRY L. ALLISON, individually and
    as personal representative of the
    ESTATE of ROBERT E. FLETCHER,
    Defendant,
    JOHN F. FLETCHER and                             ORDER GRANTING MOTION
    ROBERT G. FLETCHER,                              FOR RECONSIDERATION
    RE ATTORNEY FEES
    Appellants.
    Appellants John and Robert Fletcher moved on February 21, 2013, to reconsider
    the court's February 11, 2013 opinion denying attorney fees on appeal. The court has
    determined that the motion should be granted. The Fletchers are awarded their
    reasonable fees solely for responding to the meritless cross appeal. Therefore, it is
    ORDERED that appellants' motion for reconsideration is granted and the
    determination of attorney fees is remanded to the trial court, consistent with this order.
    DATED this /3 day of March 2013.
    FOR THE PANEL:
    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
    DENNIS BALE and CLARENCE                         NO. 67395-5-1
    BALE,
    Respondents,                DIVISION ONE
    o
    wo
    53
    C3
    GARRY L. ALLISON, individually and                                                          -n '-n
    j> —
    as personal representative of the
    ESTATE of ROBERT E. FLETCHER,                                                       3E
    CD      cof
    Defendant,                  PUBLISHED OPINION                  •   •
    cn
    no      11
    JOHN F. FLETCHER and                             FILED: February 11, 2013
    ROBERT G. FLETCHER,
    Appellants.
    Lau, J. — Robert E. Fletcher used a quitclaim deed to gift his Winthrop cabin to
    his nephews, John and Robert G. Fletcher.1 John and Robert appeal the trial court's
    determination that the failure to recite consideration invalidated the deed. We conclude
    the deed is valid because it met all statutory requirements and no recital is required to
    1For clarity, we refer to Robert E. Fletcher as "Bob." We refer to Bob's nephews,
    John and Robert G. Fletcher, by their first names.
    67395-5-1/2
    effectively gift real property. Accordingly, we reverse the judgment awarding title to
    Denny and Allen Bale. On cross appeal, the Bales challenge the trial court's use of the
    clear, cogent, and convincing standard of proof to find that the Bales failed to establish
    an oral contract to devise existed between Bob and the Bales. We conclude the trial
    court applied the correct standard of proofat trial to determine insufficient evidence of
    an oral contract to devise existed. We remand to the trial court to consider an award of
    attorney fees and costs to John and Robert but deny fees and costs on appeal.
    FACTS
    Neither party assigns error to the trial court's findings offact and, thus, they are
    verities on appeal. Moreman v. Butcher, 
    126 Wash. 2d 36
    , 40, 
    891 P.2d 725
    (1995).
    Bob Fletcher owned a parcel of real property including a cabin in Winthrop,
    Washington. John and Robert Fletcher were Bob's nephews. Starting around 1960,
    Bob took his nephews to visit the cabin two orthree times a year. John and Robert's
    father (Bob's brother) died in 1964 when the boys were young, so Bob "took [them]
    under his wing." Report ofProceedings (RP) (June 9, 2011) at 508. Bob lived with
    John and Robert for two years and married their mother (Bob's brother's widow) in
    1968. That marriage lasted only two years. Until 1971, John continued visiting the
    cabin property two or three times a year.
    Bob married Edna Fletcher in 1971. Denny and Allen Bale ("the Bales") are
    Edna's adult sons from a previous marriage. When Bob and Edna married, the cabin
    on theWinthrop property was a small, rustic Forest Service cabin that lacked indoor
    plumbing and running water.
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    67395-5-1/3
    Bob and Edna were married 28 years. During that time, the Bales made
    numerous improvements to the Winthrop property, including
    building a woodshed; installing exterior lighting; building a storage shed; clearing
    a parking area near the cabin; clearing and seeding lawn areas near the cabin;
    cutting down trees and removing tree stumps; planting ornamental bushes,
    evergreen trees, and fruit trees; rebuilding, grading, and graveling the driveway;
    and building a horse coral; adding on a bedroom, a bathroom, and a porch to the
    cabin; installing a complete water system to the cabin property, including a well;
    adding complete interior plumbing and septic systems to the cabin property;
    remodeling the living room; extending and enlarging the kitchen space; installing
    countertops and cabinets to the kitchen; rewiring the entire electrical system;
    replacing the roof on the old section of the cabin and roofing the new additions to
    the cabin; insulating all of the original walls and ceiling portions, plus the new
    additions; replacing all the windows; installing newflooring and related structural
    supports; re-sheeting the exterior walls; installing a new water heater; making
    major repairs to the wood burning and cooking stoves; installing a propane
    fireplace; and replacing the two chimneys.
    They also contributed furnishings and appliances to the cabin. They "provided the time
    and labor, and materials and payments necessary for these extensive renovations,
    improvements, and maintenance in reliance on their understanding that they would own
    the Winthrop property after [Bob] died." John and Robert stopped visiting the cabin
    during Bob and Edna's marriage because Edna did not "appreciate" them.
    Edna died in 1999 and Bob again invited John and Robertto visit the cabin.
    John visited the property a couple times a year. He did maintenance work each time: "I
    did as much as I had to do to maintain the property while Iwas there and leave itlike it
    was better than it was when Igot there, just like [Bob] always told everyone todo." RP
    (June 7, 2011) at 385. About a year and a half after Edna died, Bob married Garry
    Allison.
    Bob executed a will in October 2003 in which he made three bequests: (1) to his
    stepsons, "Dennis Bale and [Allen] Bale, Igive my property in Winthrop, WA, share and
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    67395-5-1/4
    share alike"; (2) $2,000 to his adopted daughter; and (3) the rest, residue, and
    remainder of his estate to Garry Allison. Resp't's Reply Br. at Appendix A. In devising
    the Winthrop property to the Bales, Bob indicated his desire that they allow Garry
    Allison, John, and Robert to use the property for their enjoyment "'at the discretion of
    Dennis Bale and [Allen] Bale."' Resp't's Reply Br. at Appendix A.
    Bob was diagnosed with terminal lung cancer in the fall 2008. John testified that
    after the diagnosis, Bob invited him and Robert over for lunch. Garry Allison was also
    present at the lunch. John and Robert both testified that Bob told them at that time, "I
    want you boys to have the cabin." RP (June 9, 2011) at 559, 587. John found a
    preprinted quitclaim deed online and filled it out. John and Robert then took Bob to
    Bank ofAmerica to get the deed notarized. Bob signed the deed, and the notary
    acknowledged his signature. John recorded the deed in Okanogan County on
    December 19, 2008.
    The deed "conveys and quitclaims" the cabin property to John and Robert. The
    spaces after "in consideration of and "quit claims to" are blank. Ex. 2. Handwritten at
    the top of the deed after "Grantee" are the names "Robert Gary Fletcher" and "John
    Franklin Fletcher" and "Robert Ernest Fletcher" after the word "Grantor." Ex. 2. In the
    preprinted real estate excise tax affidavit (REETA) and supplemental statement, under
    the heading "Gifts without consideration," Bob checked the box indicating, "There is no
    debt on the property; Grantor (seller) has not received any consideration towards equity.
    No tax is due." Ex. 4. Also handwritten after "Reason for exemption" is "gift, w/no debt."
    Ex. 4. The REETA also lists Bob as grantor and John and Robert as grantees. The
    Okanogan County treasurer stamped the REETA "Not Subject to Excise Tax." Ex. 4.
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    67395-5-1/5
    Bob died in April 2009 and Garry Allison was named personal representative
    under the 2003 will. After Bob's death, John amended the previously recorded quitclaim
    deed by adding "for love and affection" and also wrote in his name and Robert's name
    in the "quit claim to" blank.2 Resp't's Br. at App. C; RP (June 7, 2011) at 390. John
    also prepared a new REETA to include considerable personal property in and around
    the cabin. Garry Allison signed the REETA in her capacity as personal representative
    of Bob's estate. John rerecorded the quitclaim deed on June 26, 2009.
    When the Bales learned that Bob quitclaimed the Winthrop property to John and
    Robert, they filed a "complaint for specific performance, damages and further equitable
    relief against John, Robert, and Garry Allison, requesting that the Winthrop property be
    transferred from John and Robert to them. (Capitalization omitted.) They alleged
    numerous claims, including breach of oral contract, breach of implied contract,
    promissory estoppel, undue influence, and tortious interference.
    Garry Allison moved for summary judgment on all claims. The court granted
    summary judgment dismissal on the undue influence, tortious interference, and
    promissory estoppel claims3 but denied summary judgment on the oral and implied
    contract issues. The trial evidence related primarily to the Bales' oral contract to devise
    claim.
    2When asked why he altered the language, John testified that in February 2009,
    he had discussed the deed with an attorney friend. The friend advised him to rerecord
    the deed because the original deed failed to recite consideration. John asked the friend
    "if it was standard to correct verbiage on a quitclaim and rerecord it, and she said yes,
    we do it all the time." RP (June 9, 2011) at 564. John decided to rerecord the deed and
    did so in June 2009, two months after Bob died.
    3The Bales do not appeal the trial court's dismissal of these claims.
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    67395-5-1/6
    The court entered a judgment awarding clear title to the Bales and entered
    written findings and conclusions. Regarding the quitclaim deed, the court's conclusions
    of law state:
    1. The quit claim deed executed by [Bob] in December 2008 lacks
    specific and necessary terms to effectively transfer title. The quit claim deed is
    incomplete and fails to state what consideration, if any, was given for the deed.
    There were blanks left as to whom the property was conveyed. Because of the
    fatal defects as to consideration, the quit claim deed is ineffective and did not
    transfer title to John and Robert G. Fletcher.
    2. The quit claim deed executed by [Bob] in December 2008 does not
    meet the fundamental statutory requirements for a "good and sufficient
    conveyance, release and quitclaim to the grantee[s]" pursuant to RCW
    64.04.050, and therefore, is ineffective to transfer the Winthrop property to John
    and Robert G. Fletcher.
    3. Because [Bob] is deceased and died testate, the December 2008 quit
    claim deed cannot be reformed by the personal representative, and the post-
    death alterations to the December 2008 deed are improper and of no legal effect.
    (Third alteration in original.) The court concluded that given the deed's invalidity, Bob's
    October 2003 will controlled distribution of his estate and the property passed to the
    Bales.
    The court rejected the Bales' oral contract to devise and implied contract claims.
    The relevant conclusions state:
    6. [The Bales] were unable to establish [by] clear, cogent and convincing
    evidence that there was an implied contract between themselves and [Bob] to
    transfer the Winthrop property in exchange for the work that the Bales performed.
    7. [The Bales] were unable to establish that Defendant Ms. Garry Allison
    had knowledge of any contract, oral or implied, or that she took any actions that
    would have breached either agreement.
    10. Although [the Bales] established that they performed significantwork
    to improve the Winthrop property, they did not establish by clear, convincing and
    cogent evidence the existence of an oral contract to devise.
    11. [The Bales] did not establish that [John or Robert] had knowledge of
    any oral contract that might have existed between them and [Bob]. Therefore,
    [the Bales] did not establish that [John or Robert] took action that interfered with
    any alleged contract.
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    67395-5-1/7
    12. [The Bales] did not establish that [John or Robert] exerted undue
    influence on [Bob], nor was there sufficient evidence that [Bob] lacked
    testamentary capacity.
    The court ordered John and Robert to transfer all rights and title to the Winthrop
    property to the Bales under a quitclaim deed.
    John and Robert appeal the trial court's conclusion that the quitclaim deed was
    invalid for failure to recite consideration. The Bales cross appeal the court's conclusion
    that they failed to establish an oral contract to devise.
    ANALYSIS
    Quitclaim Deed Validity
    John and Robert contend the trial court erred in ruling that "fatal defects as to
    consideration" rendered the quitclaim deed ineffective. They argue that transferof real
    property intended as a gift requires no recital ofconsideration under Washington law.
    Construction of deeds is a matter of law. Niemann v. Vaughn Cmtv. Church, 
    154 Wash. 2d 365
    , 374,113 P.3d 463 (2005). Whether the trial court properly determined the
    legal consequences ofthe deed's failure to recite consideration is subject to de novo
    review. The goal ofdeed construction is to effectuate the parties' intent. 
    Niemann. 154 Wash. 2d at 374
    . "In other words, 'it is a factual question to determine the intent of the
    parties' with the court then 'applying] the rules of law to determine the legal
    consequences ofthat intent.'" 
    Niemann. 154 Wash. 2d at 374
    -75 (alteration in original)
    (quoting Veach v. Culp, 
    92 Wash. 2d 570
    , 573, 
    599 P.2d 526
    (1979)).
    Real property conveyances, including gifts, must be accomplished by deed.
    RCW 64.04.010; Oman v. Yates, 
    70 Wash. 2d 181
    , 185-86, 
    422 P.2d 489
    (1967) (gifts in
    general); Holohan v. Melville. 
    41 Wash. 2d 380
    , 385, 
    249 P.2d 777
    (1952) (gift of real
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    67395-5-1/8
    property). "Every deed shall be in writing, signed by the party bound thereby, and
    acknowledged by the party before some person authorized ... to take acknowledgment
    of deeds." RCW 64.04.020. Deeds also require a complete legal description of the
    property conveyed. Berg v. Ting. 
    125 Wash. 2d 544
    , 551, 
    886 P.2d 564
    (1995).
    Washington courts have affirmed both real property gifts and gifts without
    consideration. See Kessler v. Kessler. 
    55 Wash. 2d 598
    , 600, 
    349 P.2d 224
    (1960) ("It
    was not against public policy, under the facts of this case, for the competent and
    grateful mother to have executed a deed of gift to her son of her residence property.");
    Stringfellow v. Stringfellow. 
    53 Wash. 2d 639
    , 641, 
    335 P.2d 825
    (1959) (father gifted
    stocks to son by "caus[ing] the issuance of the stock certificate in the son's name" no
    consideration recited) (italicization omitted); State v. Superior Court of Snohomish
    County, 
    165 Wash. 648
    , 650, 
    5 P.2d 1037
    (1931) (parents could have deeded their
    home to their daughter"without any consideration at all," but never made that
    argument). The real estate tax regulation WAC 458-61A-201(1) treats a gift ofreal
    property as a nontaxable event. It provides:
    Generally, a gift of real property is not a sale, and is not subject to the real estate
    excise tax. A gift of real property is a transfer for which there is no consideration
    given in return for granting an interest in the property. Ifconsideration is given in
    return for the interest granted, then the transfer is not a gift, but a sale, and it is
    subject to the real estate excise tax to the extent of the consideration received.
    (Emphasis added.)
    Bob used a quitclaim deed to gift the Winthrop property to John and Robert
    without any recital of consideration. RCW 64.04.050 provides a sample quitclaim deed
    form containing a blank for consideration:
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    67395-5-1/9
    Quitclaim deeds may be in substance in the following form:
    The grantor (here insert the name or names and place of residence), for
    and in consideration of (here insert consideration) conveys and quitclaims to
    (here insert grantee's name or names) all interest in the following described real
    estate (here insert description), situated in the county of         , state of
    Washington. Dated this .... day of             , 19 ...
    Every deed in substance in the above form, when otherwise duly executed, shall
    be deemed and held a good and sufficient conveyance, release and quitclaim to
    the grantee, his or her heirs and assigns in fee of all the then existing legal and
    equitable rights of the grantor in the premises therein described, but shall not
    extend to the after acquired title unless words are added expressing such
    intention.
    (Emphasis added.) In Newport Yacht Basin Ass'n of Condominium Owners v. Supreme
    Northwest. Inc., 
    168 Wash. App. 56
    , 
    277 P.3d 18
    (2012), we explained that "a quitclaim
    deed need not precisely match the form described in RCW 64.04.050 in order to convey
    fee title." Newport 
    Yacht, 168 Wash. App. at 67
    . We further explained that "the operative
    words of a quitclaim deed are 'conveys and quitclaims.'" Newport 
    Yacht, 168 Wash. App. at 67
    (quoting 18 William B. Stoebuck &John W. Weaver, Washington Practice:
    Real Estate: Transactions § 14.2, at 116 (2d ed. 2004)).
    In Newport Yacht, we discussed consideration in the context of quitclaim deeds:
    As our Supreme Court has long recognized, "[generally speaking, inadequacy of
    price is not sufficient, standing by itself, to authorize a court of equity to set aside
    a deed." Downing v. State, 
    9 Wash. 2d 685
    , 688, 
    115 P.2d 972
    (1941). Only where
    the inadequacy of consideration for conveyance of realty is so great as to shock
    the conscience may a court invoke its equitable power to set aside the
    conveyance. 
    Downing. 9 Wash. 2d at 688
    , 
    115 P.2d 972
    ; see also Binder v. Binder,
    
    50 Wash. 2d 142
    , 150, 
    309 P.2d 1050
    (1957). However. Quitclaim deeds are
    commonly used in transactions that are not the result of a sale for value. 17
    Stoebuck &Weaver, supra. § 7.2, at 472. Such instruments are "used in
    donative transactions, in which, despite the recital of consideration in the deed,
    no actual consideration passes except perhaps love and affection." 17
    STOEBUCK &WEAVER, supra, § 7.2, at 472. Similarly, quitclaim deeds are
    often used "to clear title, to correct errors in prior deeds, and to adjust disputed
    boundaries between adjoining landowners." 17 Stoebuck &Weaver, supra. §
    7.2, at 472. In such circumstances, "the common practice inWashington ... to
    recite consideration of 'ten dollars and other good and valuable consideration' is
    67395-5-1/10
    sufficient to support a conveyance by deed." 17 Stoebuck &Weaver, supra. §
    7.7, at 483.
    Newport 
    Yacht, 168 Wash. App. at 82-83
    (alteration in original) (emphasis added).
    No Washington case addresses whether a quitclaim deed must recite
    consideration when the grantor intends to convey real property as a gift. Professors
    Stoebuck and Weaver address this question in their authoritative real property treatise:
    The Washington statute that gives the general form of a deed, RCWA
    64.04.020, does not say that the deed must recite consideration. However, the
    statutes that set out the three statutory forms all say, "for and in consideration of
    (here insert consideration)." Two questions arise: Must consideration in fact be
    given? Must a Washington deed recite consideration?
    Washington authority on the question is not as clear as might be wished,
    but the Supreme Court of Washington does seem to have adopted the rule that a
    deed is valid without valuable consideration. In other words, land may be
    conveyed by deed as a gift. The gift cases involve gifts between close relatives,
    such as spouses or parent to child, but gifts should be possible between non-
    relatives, though perhaps more subject to being set aside on grounds of fraud or
    some related equitable ground than are gifts to close relatives. Gift deeds have
    been upheld between wife and husband and between parent and child. Dictum
    in two other gift cases that a gift may be supported by "consideration" in the form
    of love and affection or of past consideration is confusing, since a true gift need
    not be supported by any form of consideration. When some consideration is
    given, it need not be in an "adequate" amount; le^, mere inadequacy of
    consideration is not ground to set aside a deed. Thus, the common practice in
    Washington, as in other states, to recite consideration of "ten dollars and other
    good and valuable consideration" is sufficient to support a conveyance bydeed.
    However, the lack of consideration or inadequacy of consideration, along with
    other suspicious circumstances, maygive grounds to set a deed aside for fraud
    or upon some related equitable theory. That subject will be discussed later in
    this chapter.
    A deceptively simple question in Washington is, what is the correct form of
    deed to make a gift? In the gift cases reported in the preceding paragraph, or in
    any Washington appellate decision that can be found, the courts eitherdid not
    quote the language ofa gift deed or described a deed that recited nominal
    consideration. The problem is that Washington lawyers habitually use one of the
    three special statutory deed forms, and, as previously noted, those forms all call
    for at least a recital of consideration. A common practice is to use one of the
    statutory forms, usually the quitclaim deed form, so that the grantor will not
    "donate" warranties as well as title, and to recite as consideration the rote
    phrase, "ten dollars and other good and valuable consideration," or the phrase,
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    67395-5-1/11
    "ten dollars, love and affection, and other good and valuable consideration."
    Aside from the fact that the deed contains a false recital, this works, but on its
    face, the deed is subject to a small amount of the excise tax imposed on real
    estate sales by RCWA Chapter 82.45. To get around that slight embarrassment,
    some Washington lawyers insert a recital, a sort of "P.S.," in some convenient
    blank space in the deed, reciting that the deed is one of gift, and no consideration
    of money value actually passed. Since no excise tax is due on gifts, this moves
    the county treasurer to stamp the deed "No Tax Due," but it compounds the
    falsity of the previous recital of consideration. Cautious draftsmen, who tend to
    be fussy about such details, may wonder if there is a better, truer way to draft a
    gift deed.
    It should be possible to rely upon the general deed statute, RCWA
    64.04.020. and to draft a deed that meets the three essentials, in writing, signed
    by the grantor, and acknowledged, without any recital of consideration, since the
    statute does not reguire it. In fact, such deeds are used to grant easements in
    Washington, and easements, being "interests" in land, are just as much within
    the deed statutes as are conveyances in fee simple. Of course the deed needs
    to name the grantor and grantee, describe the land, and contain appropriate
    words of conveyance. The general deed statute does not give words of
    conveyance, and the draftsman wants to avoid using the words of any of the
    three special deed forms; so, the word "conveys" or the phrase "grants and
    conveys" might be used. Assuming the donor does not want to make warranties,
    it would be well to add a disclaimer of warranties, to avoid any argument that the
    grantor intended one of the special statutory forms. The following is a form of
    deed that should be sufficient to make a gift of a fee simple estate in Washington:
    Grantors, John Doe and Jane Doe, husband and wife, hereby grant and
    convey as a gift, without warranties, to Richard Roe and Mary Roe,
    husband and wife, the following described real estate in fee simple
    absolute: (legal description), situated in the County of           , State of
    Washington.
    Dated this         day of           , 20          .
    17 Stoebuck &Weaver § 7.7, at 482-84 (footnotes omitted).4
    The Bales rely exclusively on RCW 64.04.050, quoted above, to argue that the
    December 2008 quitclaim deed was ineffective because it was "devoid of any statement
    4We agree with Professors Stoebuck and Weaver's comment that dictum in gift
    cases that a gift may be supported by consideration in the form of love and affection or
    of past consideration promotes confusion. See Whalen v. Lanier, 
    29 Wash. 2d 299
    , 308-
    11,186 P.2d 919 (1947) (past consideration; dictum); Lehman v. Columbia Fire Ins.
    Co., 
    188 Wash. 640
    , 643, 
    63 P.2d 442
    (1936) (love and affection; dictum).
    -11-
    67395-5-1/12
    of consideration." Resp't's Reply Br. at 9. The Bales do not dispute that Bob intended
    to gift the real property to John and Robert.5 They cite no statute or case authority
    requiring a deed to recite consideration when the grantor intends to convey the real
    property as a gift. See State v. Logan. 
    102 Wash. App. 907
    , 911 n.1,10 P.3d 504 (2000)
    ("'Where no authorities are cited in support of a proposition, the court is not required to
    search out authorities, but may assume that counsel, after diligent search, has found
    5Even if the deed is ambiguous as to Bob's intent, "deeds are construed to give
    effect to the intentions of the parties, and particular attention is given to the intent of the
    grantor when discerning the meaning of the entire document." Zunino v. Rajewski. 
    140 Wash. App. 215
    , 222,165 P.3d 57 (2007). Where a deed's plain language is
    unambiguous, we will not consider extrinsicevidence. Newport 
    Yacht, 168 Wash. App. at 64
    . But"where ambiguity exists, extrinsic evidence may be considered in ascertaining
    the intentions of the parties. In such a situation, we will consider the circumstances of
    the transaction and the subsequent conduct of the parties in determining their intent and
    the time the deed was executed." Newport 
    Yacht. 168 Wash. App. at 65
    (citation omitted);
    see also Standrina v. Moonev. 
    14 Wash. 2d 220
    , 227,127 P.2d 401 (1942) ("'[l]n order to
    ascertain the intention of the parties, separate deeds or instruments, executed at the
    same time and in relation to the same subject matter, between the same parties, or in
    other words, made as parts of substantially one transaction, may be taken together and
    construed as one instrument'") (quoting 16 Am. Jur. Deeds, § 175, at 537). Here, Bob
    signed a REETA and supplemental statement, both ofwhich related to the deed and
    were filed at the time John initially recorded the deed. Both were entered into evidence.
    The REETA lists Bob as the grantor and John and Robert as the grantees. It also
    claims a tax exemption under WAC 458-61A-201 for the reason "gift w/no debt." Ex. 4.
    The supplemental statement describes the transaction as a gift without consideration,
    stating, "There is no debt on the property. Grantor (seller) has not received any
    consideration towards equity. No tax is due." Ex. 4. These documents reflect Bob's
    donative intent. The deed required no recital of consideration.
    The Bales contend that in Newport Yacht, we "rejected the use of a [REETA] and
    testimony as inadmissible extrinsic evidence about the effect ofa quit claim deed."
    Reply Br. Supp. Cross App. at 11. The Bales mischaracterize our holding. In Newport
    Yacht, we held that the trial court erred in relying on a REETA as extrinsic evidence in
    that particular case because the deed unambiguously documented the grantors' intent.
    Newport 
    Yacht. 168 Wash. App. at 71-72
    . We merely reiterated the well-established rule
    "that a deed must be ambiguous before extrinsic evidence is properly considered ...."
    Newport 
    Yacht. 168 Wash. App. at 70
    . Nowhere in Newport Yacht did we hold or imply
    that REETAs are inadmissible extrinsic evidence where the deed's language is
    ambiguous.
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    67395-5-1/13
    none.'") (quoting DeHeer v. Seattle Post-Intelligencer. 
    60 Wash. 2d 122
    , 126, 
    372 P.2d 193
    (1962)). The Bales' reliance on RCW 64.04.050 is questionable because the statute's
    use of the term "may" is permissive, not mandatory. Nor do they challenge Professors
    Stoebuck and Weaver's analysis discussed above. For the reasons discussed above,
    we hold no recital of consideration is required to effectively gift real property. The trial
    court erred when it concluded the deed's invalidity premised on the recital of
    consideration omission.
    The Bales also claim the deed's invalidity because "the notary failed to enter in
    her acknowledgment the identity of the person appearing before her." Resp't's Br. at
    13. They offer no additional argument on this issue and cite no authority supporting
    their claim that this omission invalidated the deed, and we can decline to address it.
    See Palmer v.Jensen, 
    81 Wash. App. 148
    , 153, 
    913 P.2d 413
    (1996) ("Passing treatment
    of an issue or lack of reasoned argument is insufficient to merit judicial consideration.").
    Even if we consider this argument, it fails.6 Review of the disputed deed shows that the
    grantor's and grantees' names appear on the document. Bob signed and dated the
    deed. The notary's signature appears directly beneath Bob's signature. The deed
    contains a blank in the certification: "I certify that I know or have satisfactory evidence
    that           , the person(s) who appeared before me ...." Ex. 2. Despite this
    omission, it is clear that the notary acknowledged Bob's signature because he was the
    6Given our decision, we need not address the Bales' argument that John and
    Robert knew the deed was defective when they attempted to rerecord it after Bob's
    death. We also need not address whether the attempted alteration cured the allegedly
    defective deed Regardless, John and Robert do not argue that the rerecorded deed
    cured any alleged error. They argue that the original December 2008 deed was valid as
    written and recorded.
    -13-
    67395-5-1/14
    only person who signed the deed. The notary's uncontroverted trial testimony supports
    this conclusion.7 See RP (June 9, 2011) at 458-69.
    Cross Appeal
    Timeliness of Cross Appeal
    John and Robert contend the Bales' cross appeal was untimely under RAP 5.2.8
    They argue that the Balesfiled theirtardy notice of cross appeal 31 days after (1) John
    and Robert filed their initial notice of appeal and (2) the trial court entered findings and
    conclusions. The Bales respond that they timely filed their cross appeal within 14 days
    after John and Robert filed an amended notice of appeal. No RAP rules or case
    authority address the effect, if any, an amended notice ofappeal has on the time to file
    a cross appeal. But we need not address this question. Even assuming without
    deciding thatthe cross appeal was timely, the Bales' argument fails on the merits as
    discussed below.
    7To the extent the Bales also argue that the failure to enter the grantees' names
    in the middle part of the deed results in invalidity, the above reasoning applies. Again,
    the Bales cite no authority for their argument that such an omission invalidates the
    deed. And as discussed above, the deed elsewhere makes clear that John and Robert
    are the grantees. We construe the deed to give effect to the grantor's intent. 
    Zunino, 140 Wash. App. at 222
    .
    8Under RAP 5.2(a), a party must generally file a notice of appeal within 30 days
    of the decision for which review is sought. RAP 5.2(f) provides that if a timely notice
    of appeal or for discretionary review is filed, any other party who wants relief from the
    decision must file a notice ofappeal or for discretionary review within the later of
    (1)14 days after service by the trial court clerk of the notice filed by the party initiating
    review or (2) the time within which notice must be given under RAP 5.2(a), (b), (d), or
    (e).
    -14-
    67395-5-1/15
    Oral Contract to Devise
    The Bales contend that the trial court incorrectly applied the "clear, cogent, and
    convincing" standard of proof in determining that they failed to prove the existence of an
    oral contract to devise. They argue that a lower standard of proof applies in cases
    where a will consistent with the alleged contract exists.9 In the alternative, they argue
    that they presented sufficient evidence, even under the "clear, cogent, and convincing"
    standard, to prove such a contract existed.
    A party asserting the existence of an express or implied contract bears the
    burden of proving the essential elements of a contract, including mutual intent. Bogle &
    Gates. PLLC v. Holly Mountain Res.. 
    108 Wash. App. 557
    , 560, 
    32 P.3d 1002
    (2001).
    While equity will recognize oral contracts to devise, they are not favored and will be
    enforced only upon very strong evidence that the promise was made in exchange for
    valuable consideration and deliberately entered into by the decedent. Bentzen v.
    Demmons. 
    68 Wash. App. 339
    , 347, 
    842 P.2d 1015
    (1993). To establish the agreement,
    the claimant must prove that (1) the decedent agreed to will or leave the claimant
    9John and Robert argue that the Bales waived this claim of error because the
    Bales argued at trial that their evidence met the "clear, cogent, and convincing"
    standard of proof. But the Bales argued before trial that existence of a will "'is strong
    confirmatory proofthat such an agreement [to devise] was entered into. A case of this
    kind would not require the same degree of convincing evidence as those cases where
    no will had been made in conformity with an alleged oral contract.'" Plaintiffs Trial Br. at
    6 (quoting Worden v. Worden, 
    96 Wash. 593
    , 
    165 P. 501
    , 506 (1917)). While the Bales
    argued throughout the proceedings that their evidence met the highest burden of proof,
    they drew the court's attention to the cases they now cite for the proposition that a lower
    standard of proof applies. Regardless, "[i]t is our duty to correctly apply the lawand we
    are not confined by the legal issues and theories that the parties argued." Bainbridge
    Citizens United v. Dep't of Natural Res.. 
    147 Wash. App. 365
    , 371, 
    198 P.3d 1033
    (2008).
    "Additionally, we may sustain a trial court's ruling on any correct ground, even if the trial
    court did not consider it." Bainbridge 
    Citizens, 147 Wash. App. at 371
    . We conclude the
    Bales did not waive this claim of error.
    -15-
    67395-5-1/16
    certain property, (2) the services contemplated as consideration for the agreement were
    actually performed, and (3) the services were performed in reliance on the agreement.
    Cook v. Cook. 
    80 Wash. 2d 642
    , 645-46, 
    497 P.2d 584
    (1972); 
    Bentzen, 68 Wash. App. at 347
    . The claimant must establish each of these elements to a "'high probability.'"
    
    Bentzen. 68 Wash. App. at 347
    (quoting 
    Cook, 80 Wash. 2d at 647
    ). "Statements of intention
    alone do not necessarily support the existence of an express contract to devise."
    
    Bentzen, 68 Wash. App. at 347
    .
    Washington courts equate the "highly probable" standard of proof to the "clear,
    cogent, and convincing" standard. See In re Welfare of Seoo. 
    82 Wash. 2d 736
    , 739, 
    513 P.2d 831
    (1973); Thompson v. Henderson, 
    22 Wash. App. 373
    , 376 n.2, 
    591 P.2d 784
    (1979). When findings subjected to this burden of proof are appealed, "the question to
    be resolved is not merely whether there is 'substantial evidence' to support the trial
    court's ultimate determination of the factual issue but whether there is 'substantial
    evidence' to support such findings in light of the 'highly probable' test." 
    Sego. 82 Wash. 2d at 739
    .
    Cook originally set forth the "high probability" standard for establishing an oral
    contract to devise. Before Cook, "the burden of proof in these cases [was] expressed in
    the terms 'conclusive, definite, certain, and beyond all legitimate controversy."' 
    Cook. 80 Wash. 2d at 645
    (quoting Arnold v. Beckman. 
    74 Wash. 2d 836
    , 841, 
    447 P.2d 184
    (1968)). Cook responded to these varying terms used in cases to express the standard
    of proof: "We think the expressed burden of proof. .. bears fresh explanation." 
    Cook. 80 Wash. 2d at 645
    . The court then clarified the standard of proof in cases involving oral
    contracts to devise:
    -16-
    67395-5-1/17
    As thus viewed, the burden of proof in these cases requires that the party
    asserting an oral contract to devise must produce substantial evidence tending to
    establish the three elements of agreement, performance by claimant and
    claimant's reliance, as noted in Jennings v. D'Hooghe. [
    25 Wash. 2d 702
    , 
    172 P.2d 189
    (1946)]. Further, the evidence of the first element (decedent's agreement)
    must include the specific factor of evidence which objectively manifests the
    decedent's recognition of an existing agreement during his lifetime. From this
    evidence, the trier of fact must be convinced to a high probability that all required
    elements are truly fact.
    
    Cook. 80 Wash. 2d at 647
    (emphasis added). Cook also discussed the role of the trial
    court in evaluating the evidence under this standard of proof:
    It is for the trier of fact to assess the credibility and weight to be attached to the
    evidence, to measure that evidence in the light of applicable legal requirements
    and presumptions, and to determine whether the evidence on the point
    establishes to a high probability that the alleged contract in fact existed.
    
    Cook. 80 Wash. 2d at 646
    .
    In In re Thornton's Estate. 
    81 Wash. 2d 72
    , 76, 
    499 P.2d 864
    (1972), our Supreme
    Court reiterated that Cook modified the former standard of proof: "[l]n Cook, we have
    modified and reduced [the "conclusive, definite, certain, and beyond all legitimate
    controversy"] standard of proof by requiring only that the trier of fact be convinced to a
    'high probability' that the required elements of a contract are present." (Citation
    omitted.) See also 
    Bentzen. 68 Wash. App. at 347
    (citing Cook for the proposition that a
    plaintiff must establish each element ofan alleged oral contract to a high probability).
    The Bales cite Worden v. Worden. 
    96 Wash. 592
    , 
    165 P. 501
    (1917), Ellis v.
    Wadleigh. 
    27 Wash. 2d 941
    , 
    182 P.2d 49
    (1947), and Jansen v. Campbell, 
    37 Wash. 2d 879
    ,
    
    227 P.2d 175
    (1951)—all of which pre-date Cook—for the proposition that, because
    Bob's October 2003 will left the Winthrop property to the Bales consistent with the
    •17-
    67395-5-1/18
    alleged oral contract, "the appropriate standard of proof is less than clear, cogent, and
    convincing: sometimes stated as 'reasonable certainty."' Resp't's Br. at 4.
    In Worden, the court upheld an oral contract to devise where unrebutted
    testimony from eight disinterested witnesses established two nephews' agreement to
    take care of their uncle and his farm in exchange for owning the land when the uncle
    died. 
    Worden, 96 Wash. at 601-05
    . The uncle's will documented the agreement but was
    unenforceable for failure to comply with statutory requirements. 
    Worden, 96 Wash. at 594-95
    , 609. No evidence contradicted the alleged agreement. 
    Worden. 96 Wash. at 604-05
    . The court explained:
    The will itself is strong confirmatory proof that such an agreement was entered
    into. A case of this kind would not require the same degree of convincing
    evidence as those cases where no will had been made in conformity with an
    alleged oral contract. Here the will as actually made fully corroborates the other
    evidence.
    
    Worden, 96 Wash. at 605
    . The court neither discussed the applicable standard of proof
    for oral contracts nor mentioned "reasonable certainty."
    In EJIis. the court upheld an oral contract to devise based on a will consistent with
    the alleged oral contract and unequivocal testimony from the deceased's attorney—a
    disinterested witness—establishing the oral contract. 
    EJIis, 27 Wash. 2d at 946-50
    , 959.
    The court reaffirmed the ore-Cook "rule that oral contracts to devise and bequeath real
    and personal property are enforc[ea]ble, if they are established by evidence that is
    conclusive, definite, and beyond legitimate controversy        " 
    EJHs, 27 Wash. 2d at 949
    .
    The court cited Worden for the proposition that "The will itself is strong confirmatory
    proof that such an agreement was entered into. Acase of this kind would not require
    the same degree of convincing evidence as those cases where no will had been made
    -18-
    67395-5-1/19
    in conformity with an alleged oral contract.'" 
    Ellis, 27 Wash. 2d at 948-49
    (quoting 
    Worden, 96 Wash. at 605
    ). In response to the appellant's argument that the terms of the contract
    were not sufficiently definite, the court explained:
    Absolute certainty as to terms is not exacted; reasonable certainty is
    sufficient. ...
    "It is undoubtedly true that, in order to warrant a decree of specific
    performance, the terms of the contract must be so clear, definite, certain, precise,
    and free from obscurity or self-contradiction, that neither party can reasonably
    misunderstand them, and that the court can discern the intention of the parties
    and interpret the contract without supplanting any of its provisions or supplying
    anything additional. However, absolute certainty is not exacted; reasonable
    certainty is all that is required. 58 C.J. 930, § 96. If, from all the evidence in the
    case, the court can ascertain and determine the contract with reasonable
    certainty, that is sufficient."
    
    Ellis. 27 Wash. 2d at 949-50
    (quoting Luther v. Nat'l Bank of Commerce. 
    2 Wash. 2d 470
    ,
    477-78, 
    98 P.2d 667
    (1940)). The court's "reasonable certainty" statement was
    specifically directed at the terms of a contract and did not refer to the standard of proof
    applied in cases involving an alleged oral contract to devise.
    In Jansen, the court cited cases establishing the pre-Cpok "'conclusive, definite,
    certain and beyond legitimate controversy'" standard and the rule that "cases seeking
    specific performance of contracts to devise are not favored and, when the promise rests
    in parol, are even regarded with suspicion, and such a contract will not be enforced
    except upon the strongest evidence that it was founded upon a valuable consideration
    and deliberately entered into by the deceased." 
    Jansen. 37 Wash. 2d at 884
    (quoting
    Blodgett v. Lowe. 
    24 Wash. 2d 931
    , 938, 
    167 P.2d 997
    (1946)). Contrary to the Bales'
    argument, the Jansen court applied no "reasonable certainty" standard. The court
    explained:
    -19-
    67395-5-1/20
    We adhere to the rules stated in the above mentioned cases. Most
    witnesses in cases of this kind are usually partisan, and, although sincere, they
    quite often permit their enthusiasm for the litigant for whom they are testifying, to
    color their testimony. In addition is the fact that the oral contract sought to be
    established cannot be disputed by the deceased person with whom the contract
    is alleged to have been made. As a result the courts look upon such alleged
    contracts with suspicion and reouire strict proof thereof. Nevertheless, the courts
    will consider independent written corroborative evidence to determine whether or
    not such a contract has been made.
    
    Jansen, 37 Wash. 2d at 884
    (emphasis added). The court held an oral contract
    enforceable "[b]ased on all of the testimony, both oral and written," including the fact
    that both the decedent sister and brother in law executed wills making the plaintiff a
    beneficiary. 
    Jansen. 37 Wash. 2d at 885
    .
    We question the Bales' reliance onWorden. Ellis, and Jansen in light ofCook's
    modified standard of proof discussed above. These cases provide no support for the
    Bales' claim that the standard of proof is less than "clear, cogent, and convincing."
    Instead, they stand for the unremarkable proposition that the burden of persuasion is
    reduced for the proponent of an oral contract to devise when a will consistent with the
    alleged contract exists. We conclude the trial court applied the proper clear, cogent,
    and convincing standard.
    The Bales' remaining contentions fail because, in essence, they attempt to refute
    the trial court's findings with contrary evidence and testimony that was rejected by the
    trial court. The Bales contend they presented sufficient evidence, even at the "clear,
    cogent, and convincing" level, to prove the existence of an oral contract to devise. We
    do not reweigh or rebalance competing testimony and inferences even if we may have
    resolved the factual dispute differently. Brown v. Superior Underwriters, 
    30 Wash. App. 303
    , 305-06, 
    632 P.2d 887
    (1980). This is especially true when the trial court finds the
    -20-
    67395-5-1/21
    evidence unpersuasive. As Division Three of this court explained in Quinn v. Cherry
    Lane Auto Plaza. Inc.. 
    153 Wash. App. 710
    , 717, 
    225 P.3d 266
    (2009):
    The function of the appellate court is to review the action of the trial courts.
    Appellate courts do not hear or weigh evidence, find facts, or substitute their
    opinions for those of the trier-of-fact. Instead, they must defer to the factual
    findings made by the trier-of-fact....
    It is one thing for an appellate court to review whether sufficient evidence
    supports a trial court's factual determination. That is, in essence, a legal
    determination based upon factual findings made by the trial court. In contrast,
    where a trial court finds that evidence is insufficient to persuade it that something
    occurred, an appellate court is simply not permitted to reweigh the evidence and
    come to a contrary finding. It invades the province of the trial court for an
    appellate court to find compelling that which the trial court found unpersuasive.
    Yet, that is what appellant wants this court to do. There was conflicting evidence
    in this case. The trial judge weighed that conflicting evidence and chose which of
    it to believe. That is the end of the story.
    (Emphasis added); see also 
    Thompson. 22 Wash. App. at 376
    ("Where, as here, the trial
    court determines that a plaintiff has failed to meet the high burden of proof [for showing
    the existence of an oral contract to devise], it becomes doubly hard for an appellate
    court to rule in the plaintiffs favor.").
    The Bales presented evidence that (1) at various times Bob said he was going to
    leave the Winthrop property to the Bales, (2) Bob occasionally mentioned the work the
    Bales had done to improve the property, and (3) the Bales assumed they would inherit
    the property based on the work they did. The Bales claimed a contract with Bob based
    on their work and their agreement to build a memorial for Edna at the Winthrop
    property. But there was also contrary evidence presented. No clearcontract terms
    were established. Witnesses testified that anyone who used the cabin worked on itto
    make it a better place. Evidence also indicated that Bob also worked extensively on the
    property. John, Robert, and other witnesses testified they knew nothing about a
    -21-
    67395-5-1/22
    contract. The will mentions no contract. See 
    Thompson. 22 Wash. App. at 378
    ("The
    wills' failure to mention a previous contract implies there was no contract."). The deed
    may also serve as evidence against a contract.10 "The trial court heard and sawthe
    witnesses, and was thus afforded an opportunity, which is not possessed by this court,
    to determine the credibility of the witnesses." Garofalo v. Commellini. 
    169 Wash. 704
    ,
    705,13 P.2d 497 (1932). The court found the evidence insufficient to persuade it that
    an oral contract existed between Bob and the Bales. We decline to disturb the trial
    court's credibility determinations, and its resolution of the truth from conflicting evidence
    will not be disturbed on appeal.11 See 
    Garofalo. 169 Wash. at 705
    (credibility); Du Pont v.
    10 Ifan oral contract existed under which Bob promised to leave the property to
    the Bales, presumably Bob would not have deeded the property to his nephews.
    11 The Bales' evidence established that (1) they performed a substantial
    amount of work on the property, including building a memorial for their mother Edna,
    and (2) they and their friends understood that Bob would leave them the property
    because of this work. But as this court noted in 
    Thompson, 22 Wash. App. at 378
    n.3,
    "the amount of work done by [the claimant] is immaterial to the question of whether
    there was an oral contract." Put another way, "The argument that nobody would have
    worked so hard ... without a contract with [decedent] to leave him the farm and other
    property is a pure nonsequitur as proof ofthe existence ofsuch a contract.'"
    Thompson. 
    22 Wash. App. 378
    n.3 (alteration in original) (quoting Bicknell v. Guenther. 
    65 Wash. 2d 749
    , 760, 
    399 P.2d 598
    (1965)). In Thompson, this court rejected statements of
    testamentary intent similar to those the Bales contend Bob made here:
    Several of plaintiffs witnesses testified as to what the father said:
    Mervin Anderson: [D]ecedent mentioned the fact many times how
    involved [plaintiff] was in working on the place and improving it. He mentioned
    the fact that he knows it will be his any way.
    Bill McCowan: [Decedent] stated that [plaintiff] was going to have the farm
    some day because [plaintiff] was doing all the work.
    Lawrence Wilhelm: [Decedent] just outright stated that he was going to
    leave it to [plaintiff].
    Wilma Wilhelm: [Decedent] said that [plaintiff] was always taking care of
    him and he'd leave it to [plaintiff].
    Henry King: [Decedent said] I'm leaving this to [plaintiff] for taking care of
    me.
    -22-
    67395-5-1/23
    Dep't of Labor & Indus.. 
    46 Wash. App. 471
    , 479, 
    730 P.2d 1345
    (1986) (resolving truth
    from conflicting evidence).
    Attorney Fees and Costs
    The Bales contend the trial court erred in failing to award fees and costs under
    RCW 11.96A.150. John and Robert contend the trial court should have awarded them
    fees under the same statute, which provides in part:
    Either the superior court or any court on an appeal may, in its discretion, order
    costs, including reasonable attorneys' fees, to be awarded to any party: (a) From
    any party to the proceedings; (b) from the assets of the estate or trust involved in
    the proceedings; or (c) from any nonprobate asset that is the subject of the
    proceedings. The court may order the costs, including reasonable attorneys'
    fees, to be paid in such amount and in such manner as the court determines to
    be equitable. In exercising its discretion under this section, the court may
    consider any and all factors that it deems to be relevant and appropriate, which
    factors may but need not include whether the litigation benefits the estate or trust
    involved.
    RCW 11.96A.150(1). We review a trial court's fee decision under this statute for abuse
    of discretion, meaning we will uphold the court's decision unless it is manifestly
    unreasonable or based on untenable grounds or reasons. In re Estate of Black. 
    153 Wash. 2d 152
    , 172, 
    102 P.3d 796
    (2004). Because we reverse the trial court's decision
    Betty Birchall: [Decedent said] [the farm] belongs to my son ... He has
    been doing all this work to improve the property and it belongs to him.
    John Karnas: [Decedent] said that [the farm] should go to [plaintiff]
    because he was the only one that did any work on it.
    From these statements, one mav speculate whether the decedent
    recognized some moral obligation to the plaintiff. The statements, however, fail
    to show he recognized any legal contractual obligation to the plaintiff-
    Expressions of testamentary intent like these do not prove the making of a
    contract, nor do they indicate the terms of a contract-
    
    Thompson, 22 Wash. App. at 378
    -79 n.4 (emphasis added) (alterations in original). This
    case presents a very similarsituation. The Bales failed to prove by clear, cogent, and
    convincing evidence the existence of an oral contract to devise.
    -23-
    67395-5-1/24
    regarding the deed's validity, we remand to the trial court for reconsideration of the fee
    award.
    Both parties request an award of appellate fees and costs under RCW
    11.96A.150 and RAP 18.1. RCW 11.96A.150 "allows a court considering a fee award to
    consider any relevant factor, including whether a case presents novel or unique issues."
    In re Guardianship of Lamb, 173 Wn.2d 173,198, 
    265 P.3d 876
    (2011). Because this
    case involved a unique issue—whether a quitclaim deed gifting property must recite
    consideration—we conclude an award of fees to either party is unwarranted. See In re
    Estate of Burks v. Kidd. 
    124 Wash. App. 327
    , 333, 
    100 P.3d 328
    (2004) (declining to
    award fees under RCW 11.96A.150 because of the unique issues in the case); In re
    Estate of D'Agosto. 
    134 Wash. App. 390
    , 402,139 P.3d 1125 (2006) (declining to award
    fees under RCW 11.96A.150 because case involved novel issues of statutory
    construction).
    CONCLUSION
    We reverse the trial court's ruling regarding the deed's validity and affirm the trial
    court's determination that the Bales failed to prove an oral contract to devise under the
    clear, cogent, and convincing standard. We remand to the trial court for further
    proceedings consistent with this opinion and deny attorney fees and costs on appeal.
    WE CONCUR:
    -24-