Dingle v. Kyreakakis, 5D10–78.

• Decision Date: 21 April 2011
• Docket Number: No. 5D10–78.,5D10–78.
• Citation: 59 So.3d 326
• Parties: Robert DINGLE and Janet Dingle, etc., Appellant,v.Elena PRIKHDINA a/k/a Elena Kyreakakis, Appellee.
• Court: Florida District Court of Appeals

59 So.3d 326

Robert DINGLE and Janet Dingle, etc., Appellant,

v.Elena PRIKHDINA a/k/a Elena Kyreakakis, Appellee.

No. 5D10–78.

District Court of Appeal of Florida, Fifth District.

April 21, 2011.

Craig A. Brand, of The Brand Law Firm, P.A., Orlando, for Appellant.

Brett L. Swigert, of Brett L. Swigert, P.A., Eustis, for Appellee.GRIFFIN, J.

Robert Dingle and Janet Dingle [“the Dingles”] appeal a summary final judgment entered in favor of Elena Prikhdina, a/k/a Elena Kyreakakis [“Kyreakakis”]. The Dingles challenge the trial court's conclusion that the power of attorney of the decedent, John Kyreakakis [“the decedent”], did not give him the power to gift the corporate property of Whiteway Investments, Inc. [“Whiteway”]. We affirm.

The Dingles filed a complaint for ejectment, seeking to recover possession of real property located in Lake County, Florida, [“the subject property”] from Kyreakakis. Attached to the complaint was a quit-claim deed of gift, prepared by Attorney Jacqueline C. Dellinger, conveying the subject property from Whiteway to the Dingles.¹ After Kyreakakis filed her answer and affirmative defenses, she filed a motion for summary judgment and memorandum of law. The motion alleged that Kyreakakis was entitled to judgment as a matter of law because the attorney-in-fact, the decedent, lacked the authority to make a gift of corporate property in favor of the Dingles; therefore, the Dingles' deed was void.

The Dingles filed an affidavit in opposition to Kyreakakis' motion, asserting lawful ownership of the subject property. The affidavit recounted that the Dingles and the decedent were friends and that the Dingles transported the decedent and helped him while he was ill with cancer. The affidavit also described the relationship between the decedent and Kyreakakis.²

After a hearing, the trial court granted the motion for summary judgment, finding that the power-of-attorney instrument employed by the decedent contained no power to make gifts of the corporation's property. The court concluded that since the decedent lacked the authority to make the conveyance by gift, the deed was void.

The English translated version of the power of attorney document from Whiteway to the decedent, prepared in Spanish, provides:

FIRST: That she grants a General Power of Attorney in favor of [the decedent], to act individually, on behalf of [Whiteway] in any place of the world, with power to act on behalf of and for the Corporation in any act, transaction, contract or business, either civil, judicial, mercantile, or of any other nature and before third persons, either natural or judicial, public, private or mixed.[ ... ]

SECOND: Especially, but not limited to the above, the present Power of Attorney is granted in favor of [the decedent], to act individually, in any place of the world and before the above mentioned persons, for the following: One: To sell, exchange or transfer for any valuable consideration, any real estate or personal properties belonging to the principal; Two: To purchase or acquire in any manner, for the principal, real estate or personal properties on the principal's behalf; Three: To lease, give for deposit, any property of the principal or to impose limitations on the ownership thereof; Four: To mortgage, pledge or in any other many encumber any property of the principal....

(Emphasis added). The deposition testimony of the attorney who prepared the deed, and the language of the deed itself, reflect that the deed was made as a gift to the Dingles.

Generally, the rule is that a power of attorney must be strictly construed and the instrument will be held to grant only those powers which are specified. Bloom v. Weiser, 348 So.2d 651, 653 (Fla. 3d DCA 1977). An agent cannot make a gift of his principal's property to himself or others unless it is expressly authorized in the power. James v. James, 843 So.2d 304, 308 (Fla. 5th DCA 2003). A general power does not include the power to make a gift. See Johnson v. Fraccacreta, 348 So.2d 570 (Fla. 4th DCA 1977).³ Here, the power of attorney...