Krevatas v. Wright, BQ-400

• Decision Date: 12 January 1988
• Docket Number: No. BQ-400,BQ-400
• Citation: 518 So.2d 435,13 Fla. L. Weekly 172
• Parties: 13 Fla. L. Weekly 172 Spero John KREVATAS, Appellant, v. Donald C. WRIGHT, as Personal Representative of the Estate of Elizabeth Lynes Fambrough, deceased, Appellee.
• Court: Florida District Court of Appeals

Page 435

518 So.2d 435

13 Fla. L. Weekly 172

Spero John KREVATAS, Appellant, v. Donald C. WRIGHT, as Personal Representative of the Estate of Elizabeth Lynes Fambrough, deceased, Appellee.

No. BQ-400.

District Court of Appeal of Florida First District.

Jan. 12, 1988.

William H. Maness, Jacksonville, for appellant.

John F. Callender, Jacksonville, for appellee.

JOANOS, Judge.

Spero John Krevatas appeals from a final judgment in the amount of $77,706.56. We affirm in part and reverse in part.

Krevatas was a neighbor and close personal friend to Elizabeth Lynes Fambrough, a childless widow. When Mrs. Fambrough became hospitalized and later entered a convalescent home, Mr. Krevatas cared for her. Mrs. Fambrough had no local relatives. On March 27, 1985, appellant obtained a power of attorney from Mrs. Fambrough's lawyer. Mrs. Fambrough had signed the power of attorney in 1982 when she executed her last will, but did not deliver the power of attorney to Mr. Krevatas at that time. In April 1985, approximately three weeks prior to her death, Mrs. Fambrough, while in the hospital, changed her checking account at the American National Bank to a survivorship account held jointly in the names of herself, one of her nieces, and Mr. Krevatas. Through the years, the balance in this checking account had run between $3,000.00 and $6,000.00, but it had never exceeded $6,000.00.

In Mrs. Fambrough's last will, she devised to Mr. Krevatas, the sum of $20,000.00, her automobile, and the right to buy her home at fair market value. The residuary beneficiaries are her husband's nieces. Mrs. Fambrough remained competent until her death, and made no new will or codicil after October 20, 1982.

The record reveals that Mr. Krevatas used the power of attorney to transfer large sums from Mrs. Fambrough's other accounts that were without survivorship into the checking account in which he and Mrs. Fambrough's niece had the right of survivorship. By April 26, 1985, the date of Mrs. Fambrough's death, the balance in this checking account exceeded $120,000.00. Mr. Krevatas, using the power of attorney, changed Mrs. Fambrough's individual certificates of deposit in the amounts of $10,000.00 and $15,000.00, to joint accounts with survivorship in the names of Mrs. Fambrough, one of her nieces and himself.

During her last five weeks, Mrs. Fambrough signed some documents expressing her wishes and making some gifts. She documented a gift of furniture to Mr. Krevatas, and also directed her personal representative to appoint someone to sell her personal property.

There was no evidence presented to show that Mrs. Fambrough participated in, or directed the large transfers of her funds into the checking account in which Krevatas had a survivorship interest, or that she participated in the creation of survivorship interests in her certificates of deposit. After a non-jury trial, the trial court concluded that the transfers of large sums into the checking account were not for the benefit of Mrs. Fambrough. Strictly construing the power of attorney, the trial court found that the power of attorney did not confer authority on Mr. Krevatas to create survivorship interests. Therefore, it was determined that the creation of survivorship accounts constituted a fraudulent abuse of the power of attorney. Because of this fraudulent abuse of the power of attorney, the trial court concluded that such transfers did not create a valid survivorship interest in Mr. Krevatas. Accordingly, the trial court ordered that appellee, Mr. Donald C. Wright, as personal representative of the estate of Mrs. Fambrough, was entitled to recover from Mr. Krevatas the sum of $72,917.70. plus interest and costs, for a total of $77,706.56.

On appeal, Mr. Krevatas raises the following five points for our review: (1) Whether the trial court erred by finding that Mr. Krevatas violated and abused Mrs Fambrough's trust and confidence and violated the fiduciary duty he owed her when acting under her grant of power of attorney; (2) whether the trial court erred in ruling that, where the personal representative files an action in equity for an accounting, and relies upon the allegations of the pleadings in order to shift the burden of going forward with the evidence, the personal representative thereby did not waive the protection of the Dead Man's Act, § 90.602 Florida Statute; (3) whether the trial court erred in limiting consideration of the operative facts in a suit for an accounting to a period of five weeks before the decedent's death, where it appears from the evidence that the relationship between the decedent and the defendant was one of mutual trust and confidence over a period of ten years; (4) whether the trial court erred in denying the defendant's right to one-half of the balance in the survivorship account on the date of death or, in the alternative, one-half of the amount that customarily would have been there; (5) whether the trial court erred by "strictly" construing the power of attorney so as to nullify language authorizing appellant to, among other things, reinvest decedent's funds, either alone or jointly.

We affirm fully on all points, except point four. As to point four, we reverse only to the extent that appellant is entitled to receive one-half of the $5,586.00 that was originally in the checking account when it was converted into a survivorship account.

The witnesses for appellant did testify that Krevatas and Mrs. Fambrough maintained a warm, mother-son relationship over the years, which might lead one to believe that she would leave the money in question to him. However, there was competent substantial evidence to support the trial court's conclusion that Mrs. Fambrough did not intend for appellant to receive more money than was in the account at the time she changed it to a survivorship account. Especially convincing was the evidence that Mrs. Fambrough documented a gift of furniture to appellant in the last five weeks of her life. In addition, witnesses testified that she was alert until her death, and could easily have documented her wish for appellant to have the money, if she so desired.

The record supports appellee's argument that neither Mrs. Fambrough's will, nor the power of attorney, sets out an intent to give the money to appellant or to provide for a right of survivorship. Appellee argues that a power of attorney must be strictly construed and the instrument will be held to grant only those powers which are specified. 3 Am.Jur.2d Agency § 29 (1962); Bloom v. Weiser, 348 So.2d 651, 653 (Fla.3rd DCA 1977). We found no language in the power of attorney which expressly or impliedly indicates an intention to...