Opinion
No. MMX CV 10 6001618 S
October 4, 2010
MEMORANDUM OF DECISION
On January 27, 2010, the plaintiff, Dennis Tracy, filed this action against the defendants, Leslie Blake and Rural R. Gusler, along with a notice of lis pendens. The plaintiff alleges the following facts. The plaintiff is the executor of the estate of Leonard Blake, appointed by the East Hampton Probate Court by way of ancillary administration on August 31, 2009. Prior to the death of the plaintiff's decedent, Leonard Blake issued a power of attorney to Leslie Blake for the property at 30 Knowles Road, East Hampton, Connecticut. By quit claim deed, dated January 15, 2009, and recorded February 29, 2009, in volume 285 at page 671 of the East Hampton land records, Leslie Blake purportedly conveyed real property of Leonard Blake to Leonard Blake, her husband Gusler and herself as joint tenants or tenants in common. The purported conveyance was invalid.
The defendants filed an answer and special defenses on February 2, 2010. In their answer the defendants allege that Leslie Blake was authorized to convey the real property to Leonard Blake, Gusler and herself. The defendants, separately, allege several special defenses that describe facts counter to the plaintiff's allegations. The defendants allege that Leonard Blake gave instructions, pursuant to the quit claim deed, to convey the property to Leonard Blake, Gusler and herself and to show the conveyed deed to Tracy. They also allege that it was Leonard Blake's intent to give Leslie Blake and her husband, Gusler, the home and for them in return to care for the property and carry out several other promises. Further, the defendants state that conveyance and quitclaim were specifically authorized to Leslie Blake via the durable power of attorney.
On May 17, 2010, the plaintiff filed the present motion for summary judgment. The plaintiff argues that there is no genuine issue of material fact that Leslie Blake did not have the authority under the power of appointment to convey the property in the manner in which she did. The defendants object arguing that it was the intent of Leonard Blake to give Leslie Blake the power to convey the property through the power of attorney and, therefore, there are issues of fact as to whether the conveyance was authorized.
"Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." (Internal quotation marks removed.) Provencher v. Enfield, 284 Conn. 772, 790-91, 936 A.2d 625 (2007). "In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact . . . To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." (Internal quotation marks omitted.) Zielinski v. Kotsoris, 279 Conn. 312, 318-19, 901 A.2d 1207 (2006).
The plaintiff argues that Leslie Blake did not have the authority under the power of appointment to convey the property in the manner in which she did. Specifically, under Florida law, which governs the power of appointment, her transfer constituted a gift, exceeding the scope of the power of appointment. Attached to the plaintiff's motion are certified copies of two quitclaim deeds recorded in East Hampton and a certified copy of a limited durable power of attorney for 30 Knowles Road, East Hampton, Connecticut.
The defendants object arguing that there are issues of fact based on the defendants' affidavits. Primarily, the defendants argue that the conveyance made by Leslie Blake was not a gift because the same individual making the alleged gift remained an owner of the property after the transfer. They also assert that they conferred a benefit upon Leonard Blake, as the defendants cared for the property and under their arrangement were responsible for maintenance and repairs to the property while Leonard Blake was in Florida. The defendants have attached affidavits of Leslie Blake, Betty Lasak, a tenant at the property and Brenda Ollman, a friend of Leslie Blake.
It is undisputed that the durable power of attorney is governed by Florida law. The power of appointment, signed by Leslie Blake, was executed pursuant to Florida Statutes § 709.08. Florida Statutes § CT Page 18814 709.08(7), the state statute for the durable power of attorney, provides in relevant part: "[Under a] durable power of attorney, the attorney in fact has full authority to perform, without prior court approval, every act authorized and specifically enumerated in the durable power of attorney."
"Construction of a power of attorney, like contract law, is a matter of law." James v. James, 843 So.2d 304, 308, rehearing denied, 2003 Fla.App. LEXIS 7854 (Fla.App. 2003). "In general, an agent cannot make gifts of his principal's property to himself or others unless it is expressly authorized in the power . . . And such powers are strictly constructed." Id. "A power of attorney conferring authority to sell, exchange, transfer or convey real property for the benefit of the principal does not authorize a conveyance as a gift or without a substantial consideration . . . and a conveyance without the scope of the power conferred is void." Johnson v. Fraccacreta, 348 So.2d 570, 572 (Fla.App. 1977).
In the present case, the durable power of attorney, under article 2.1, provides "[w]ith regard to real property transactions, my agent may exercise all of the following powers with regard to the real property I own specially described on the attached Schedule "A": (1) sell, exchange, convey with or without covenants, quitclaim release, surrender, mortgage, encumber, partition, consent to partitioning, subdivide, apply for zoning, rezoning, or other governmental permits, plat or consent to platting, develop, grant options concerning, lease or sublet, or otherwise dispose of an estate or interest in real property or a right incident to real property; (2) release, assign, satisfy, and enforce by litigation, action, or otherwise a mortgage, deed of trust, encumbrance, lien, or other claim to real property that exists or is claimed to exist; (3) do any act of management or of conservation with respect to an interest in real property, or a right incident to real property, owned or claimed to be owned by me . . ." Schedule "A" includes only the property of 30 Knowles Road, Middle Haddam, Connecticut.
The plaintiff analogizes this case to Johnson v. Fraccacreta, supra, 348 So.2d 572, where the decedent executed a power of attorney to her daughter. The daughter then executed a deed to the decedent's property to herself and her husband as tenants by the entirety. In determining that the conveyance was inappropriate under the power of attorney, the court stated that "[t]he language of the agreement must be construed in such a manner so as to carry out the intent of the principal. We find no language in the subject power of attorney which expressly or impliedly indicates an intention to authorize a gift of the principal's property. An agent has no power to make a gift of his principal's property unless that power is expressly conferred upon the agent by the instrument or unless such power arises as a necessary implication from the powers which are expressly conferred. Nor are we presented with any competent substantial evidence of those circumstances surrounding the execution of the power of attorney that might be utilized as an aid in the construction of the language contained in the instrument." Id.
The defendant in Kotsch v. Kotsch, 608 So.2d 879, 880 (Fla.App. 1992), review denied, 617 So.2d 319 (Fla.App. 1993), was also provided with a durable power of attorney for the decedent's property. In that case, the plaintiff was provided with the power by his father and subsequently transferred the property in dispute into a trust, making his father the initial beneficiary and himself the trustee. The court held that "[t]he clearly implied and expressed intent of the durable power of attorney is to provide for the father's maintenance and care. It does not authorize the son to create any other beneficial interests in the father's property. It grants only a power of sale which implies the sale will be for the benefit of the principal . . . A power to sell for such amount and on terms that seem proper does not confer a power to make a gift of the property or to transfer or convey it without present consideration inuring to the principal." Id.
Similarly, the language here does not expressly or even impliedly indicate an intention to authorize a gift of Leonard Blake's property. As the court in Kotsch stated, "it is the principal's intent that is controlling, not the agent's." Id. Generally, powers of attorney will be strictly construed to interpret the intent. Johnson v. Fraccacreta, supra, 348 So.2d 572; See also De Bueno v. Castro, 543 So.2d 393 (Fla.App. 1989). As the court noted, that power must be expressly conferred or arising out of a necessary implication from the powers conferred. The defendants' attached affidavits do not change this and ultimately do not create an issue of fact as to the principal's intent. The affidavits are immaterial, as the express language of the power of attorney are controlling.
In this case, the plain language provided Leslie Blake with the power to "sell, exchange, convey with or without covenants, quitclaim release, surrender, mortgage, encumber, partition, consent to partitioning, subdivide, apply for zoning, rezoning, or other governmental permits, plat or consent to platting, develop, grant options concerning, lease or sublet, or otherwise dispose of an estate or interest in real property or a right incident to real property." "In general, an agent cannot make gifts of his principal's property to himself or others unless it is expressly authorized in the power." James v. James, supra, 843 So.2d 307. The power to gift the property to herself and her husband was not expressly authorized. The defendants disagree with the characterization that Leslie Blake "gifted" the property when making the conveyance. This argument is of no avail. Florida courts have consistently held similar conveyances to one's spouse and self, as tenants by the entirety or in common, to be gifts. See Vaughn v. Batchelder, 633 So.2d 526, 528 (Fla.App. 1994) (holding that by creating joint tenancy status with the principal, the fiduciary had provided himself with a gift exceeding the scope of the power of attorney); Kotsch v. Kotsch, supra, 608 So.2d 880; Johnson v. Fraccacreta, supra, 348 So.2d 570. As with these cases, the court here finds that Leslie Blake's conveyance to herself and Gusler constitutes a gift.
Accordingly, the plaintiff's motion for summary judgment is granted.