Kountouris v. Varvaris
| Decision Date | 25 September 1985 |
| Docket Number | No. 54967,54967 |
| Citation | 476 So.2d 599 |
| Parties | Mike KOUNTOURIS, Jean V. Kountouris and Anthony A. Tattis v. Steven VARVARIS. |
| Court | Mississippi Supreme Court |
Angelo J. Dorizas, Thomas J. Lowe, Jr., Jackson, for appellant.
L. Arnold Pyle, Kenneth R. Dreher, Pyle, Harris, Dreher & Mills, Jackson, J.P. Coleman, Ackerman, for appellee.
Before ROY NOBLE LEE, P.J., and ROBERTSON and SULLIVAN, JJ.
I.
This unusual action finds a brother contesting his sister's title to real property on a resort island in Greece, each claiming by and from their father. The sister claims title by conveyance under a power of attorney the father gave her husband/his son-in-law. In a related action the son claims under the father's subsequently executed will. Because there likely is more than a piece of Greek island property inside the Trojan horse we have been tendered, we proceed cautiously and generally.
The instant appeal centers upon the power of attorney. For what purposes, if any, is the power of attorney valid and against whom, if anyone, are actions taken by the attorney-in-fact enforceable? The trial judge held the power of attorney invalid and actions taken pursuant thereto unenforceable. To the limited extent that the attorney's acts may have included conveyance of realty in this state, the trial judge was on target. Otherwise, we reverse and remand with instructions.
II.
Emanuel S. Varvaris, an elderly Greek emigrant, was a long time citizen of Hinds County, Mississippi. In 1978 he moved to Crossgates Manor Nursing Home in Rankin County, Mississippi, where he resided until his death on June 30, 1981. Emanuel had two children, Steven and Jean, both of whom reside in the metropolitan Jackson area and are opposing parties in this action. Plaintiff below and Appellee here is Steven On September 11, 1980, Emanuel Varvaris apparently executed an instrument denominated "General Power Of Attorney". On its face this instrument purports to be Emanuel's appointment of his son-in-law, Mike Kountouris, as his lawful attorney-in-fact vested with all power and authority to act on his (Emanuel's) behalf. 1 The power of attorney was prepared by Anthony A. Tattis. Tattis, who is also an accountant, had done accounting work for Emanuel Varvaris continuously at least since 1954. He has known Mike Kountouris since 1942 and has done accounting work for the Mayflower Cafe, a business enterprise operating in Jackson, Mississippi, in which Mike Kountouris has been a one-third partner. On September 11, 1980, Tattis, Jean Kountouris and Callie Kountouris (a grandaughter) took the instrument to the nursing home in Rankin County where, we are told, Emanuel Varvaris signed it. Subscribing witnesses were Mrs. Lillian Carnathan and Mrs. Shelia Lowery, both employees of the nursing home at that time.
Varvaris, son of Emanuel Varvaris. Defendants below and Appellants here are Emanuel Varvaris' daughter, Jean V. Kountouris, Jean's husband, Mike Kountouris, and Anthony A. Tattis, an attorney having his office in Jackson and a notary public of Hinds County, Mississippi.
A little less than a month later, Mike Kountouris, acting under this power of attorney, conveyed to his wife, Jean, a piece of Emanuel Varvaris' seaside property, located on the resort island of Patmos, Greece. The deed was formally executed on October 8, 1980. The approximate fair market value of the real property in issue is said to be $195,000.00; Jean Kountouris paid $6,000.00 for it. Whether this transfer was made with Emanuel's knowledge is in doubt, as he appears to have devised this property to his son, Steven Varvaris, in a last will and testament executed on February 20, 1981. 2
On June 25, 1982, Steven Varvaris commenced this civil action by the filing of his complaint in the Chancery Court of Hinds County, Mississippi. The complaint was In substance, Varvaris sought to proceed in the trial court on two theories: (1) that, because of its failure to conform to certain formal requisites to validity, the power of attorney was legally insufficient to confer upon Mike Kountouris power to convey the island property in Greece, and (2) that Jean and Mike Kountouris together with Tattis had conspired each with the others to commit forgery, fraud and/or undue influence upon Emanuel Varvaris and that the power of attorney came into being as the direct product of such forgery, fraud or undue influence.
subsequently amended so that ultimately three parties were named as Defendants: Mike Kountouris, Jean V. Kountouris and Anthony A. Tattis. Varvaris asked the trial court to "declar[e] any and all acts performed pursuant to said General Power of Attorney null and void and of no force or effect", thus invoking the procedure authorized by Rule 57, Miss.R.Civ.P. According to the pleadings, the only action said to have been taken by Kountouris under the power of attorney was the conveyance of the real property in Greece.
The matter came on to be heard before the trial court on June 14, 1983, on Varvaris' motion for judgment on the pleadings or, in the alternative, for summary judgment. 3 See Rules 12(c) and 56, Miss.R.Civ.P. Without specifying which prong of the motion and which rule of the Miss.R.Civ.P. it was acting under, the trial court on June 21, 1983, entered final judgment in favor of Plaintiff Steven Varvaris, declaring that "any and all actions performed [by Mike Kountouris] pursuant to the General Power of Attorney are null and void". 4 This judgment, inescapably, holds void the conveyance of real property situated wholly within the territorial jurisdiction of the Republic of Greece. The judgment makes no reference to Varvaris' charge of fraud and undue influence nor does it make any reference to the law of the situs of the property in issue, the Republic of Greece, about which more will be said later. Rather, the judgment recites as its basis the notion that the power of attorney did not confer upon Mike Kountouris authority in law to convey the Patmos island property because it was acknowledged by a notary outside his jurisdiction, because it fails to recite delivery, and because it has never been placed on record. From this ruling all
three Defendants have perfected their appeal to this Court.
III.
We approach the horse cautiously as though it were filled with more than we have been told. Generally speaking, our law regards as valid and enforceable as a power of attorney any written instrument signed by the principal and "express[ing] plainly the authority conferred". Miss.Code Ann. Sec. 87-3-7 (1972). An exception to this general rule is found in the case of conveyances of interests in real property in this state. Before one empowered as an attorney in fact may execute and deliver a valid instrument of conveyance of an interest in land in this state prior in right to the interests of (a) subsequent purchasers for value and without notice or (b) subsequent judgment lien creditors, the written power of attorney must be acknowledged and recorded in conformity with the requirements generally applicable to instruments of conveyance of interests in land. Miss.Code Ann. Sec. 87-3-1 and -3 (1972); see also Miss.Code Ann. Sec. 89-3-1 (1972).
In this state of our law, a power of attorney may be perfectly valid and enforceable where the attorney in fact is dealing with the personal property of his principal but at the same time wholly ineffective to confer upon a transferee of the principal's land priority over subsequent bona fide purchasers or judgment lien creditors. See Lucas v. New Hebron Bank, 181 Miss. 762, 774, 180 So. 611, 612-13 (1938).
In the above context we consider Mike and Jean Kountouris' sole assignment of error: that the trial judge erred when he entered judgment summarily in favor of Plaintiff Varvaris and against the Kountourises and their co-defendant, Tattis. That judgment declares the rights of the parties as contemplated by Rule 57, Miss.R.Civ.P., and, specifically and generally, declares null and void "any and all acts" performed by Mike Kountouris under the purported authority of the power of attorney. Since the specific "act" identified in the record and primarily attacked by Varvaris is Kountouris' use of the power of attorney to convey the Patmos Island property, the effect of the judgment, among other things, is to declare void a conveyance of real property situated in Greece.
The trial judge proceeded on the assumption that the question presented is "Is this power of attorney valid and enforceable?". We believe the question presented should be stated more carefully: "For what purposes, if any, is this power of attorney valid and against whom, if anyone, are actions taken pursuant to the power of attorney enforceable?" Our answer likewise will be presented with care.
We regard that the power of attorney conferred upon Mike Kountouris no power to effect a valid conveyance of an interest in Mississippi land prior in right over the interests of subsequent purchasers for value and without notice or subsequent judgment lien creditors. To have so empowered Kountouris, the instrument would have had to be acknowledged and recorded as instruments of conveyance of realty in this state generally must be, Miss.Code Ann. Secs. 87-3-1, -3 and 89-3-1 (1972), in which event, of course, subsequent purchasers would be charged with constructive notice thereof.
Without dispute, the acknowledgment of Emanuel Varvaris' signature was taken in Rankin County by a Hinds County notary. Because the notary was outside his jurisdiction he had no authority in the premises and the acknowledgment was wholly ineffective. 5 Beyond that, the power of attorney That the power of attorney was not properly acknowledged and recorded benefits only subsequent purchasers of Emanuel Varvaris' Mississippi realty (if any) who have recorded their deeds or subsequent judgment lien creditors who have properly enrolled their judgments. Miss.Code...
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