McGregor v. McGregor ( 2021 )

NOT DESIGNATED FOR PUBLICATION
No. 123,657
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
LORI MCGREGOR,
Appellant,
v.
SCOTT MCGREGOR, SCOTT MCGREGOR,
as Executor of the Estate of JO ANNE EDWARDS,
Appellees.
MEMORANDUM OPINION
Appeal from Woodson District Court; DAVID WILLIAM ROGERS, judge. Opinion filed December
30, 2021. Affirmed.
Lori McGregor, appellant pro se.
Jay Fowler and Amy S. Lemley, of Foulston Siefkin LLP, of Wichita, for appellees.
Before BRUNS, P.J., GREEN and ISHERWOOD, JJ.
PER CURIAM: Lori and Scott McGregor's mother, Jo Ann Edwards, died in July
2020. Five years before her death, in September 2015, Edwards signed a document
appointing Scott as her durable power of attorney. In May 2016, she signed a transfer on
death deed (TODD) that would transfer her property in Yates Center (the Property) to
Scott upon her death. Shortly after Edwards' death, Lori filed several documents asking
the district court to enjoin the May 2016 TODD and invalidate Scott's power of attorney.
Lori argued that the May 2016 TODD was invalid because it failed to include the
language "as grantee beneficiary," the language "as owner," or a habendum clause. She
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also argued Scott's power of attorney over the Property was invalid because the
appointment document did not include the Property's legal description. Scott moved to
dismiss, and the district court granted his motion. Lori appeals and raises the same
arguments presented to the district court. Based on a review of the issues presented, we
find that any irregularities between the statutorily prescribed TODD language and the
May 2016 TODD are minimal at best and Kansas law only requires substantial
compliance with the suggested text. We share the district court's conclusion that Lori's
argument challenging Scott's power of attorney is moot because Scott's power of attorney
authority terminated when Edwards died. The decision of the district court is affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
Jo Anne Edwards owned a property in Yates Center. The Property was located at
"[t]he South Half of the Southeast Quarter of the Southeast Quarter (S2 SE4 SE4) of
Section Twenty-seven (27), Township Twenty-six (26) South, Range Sixteen (16) East of
the Sixth P.M., Woodson County, Kansas."
On October 6, 2011, Edwards executed a TODD that transferred the Property to
both of her adult children, Lori McGregor and Scott McGregor, upon her death. Lori and
Scott were named as grantee beneficiaries. Under the TODD, Lori could live at the
Property so long as it was her primary residence.
Four years later, on September 8, 2015, Edwards signed a document granting Scott
durable power of attorney over her finances. The record includes two versions of this
document. One version has Edwards' initials next to a line suggesting Scott's power of
attorney would commence once she was unable to manage her affairs any longer. A
second version eliminated that effective date and, next to a new set of Edwards' initials,
showed Scott's powers would vest on "3/18/20."
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A day later, Edwards signed a second TODD which named both children as
grantee beneficiaries. This TODD differed from the previous version in that it named
Lori and Scott as joint tenants.
Edwards executed a third TODD in May 2016. This document excluded Lori and
conveyed the Property entirely to Scott upon Edwards' death. The TODD did not include
the language "as grantee beneficiary" next to Scott's name. It was properly filed at the
Woodson County Register of Deeds.
Edwards passed away four years after her third TODD was filed.
Two days after her mother's passing, Lori moved for a temporary and permanent
injunction to prevent Edwards' final TODD from going into effect. That same day, she
also petitioned the district court to invalidate the final TODD on the grounds that it did
not comply with the TODD statute. More specifically, Lori argued that K.S.A. 59-3502
required the document to include the specific language "as grantee beneficiary" and that
the failure to include such language rendered it invalid. Lori asserted that the appropriate
remedy was to reinstate the September 2016 TODD in which Edwards designated Lori
and Scott joint tenants. Lori also requested that the district court reinstate Edwards'
October 2011 TODD if it concluded the September 2016 TODD was also invalid.
Additionally, Lori sought "total damages, in excess of the amount of $75,000 together
with interest, costs of this action, and all other appropriate relief."
Lori also filed a motion to invalidate Scott's power of attorney with respect to
specific real estate. She argued that the power of attorney document was invalid under
K.S.A. 2020 Supp. 58-654(f)(10)(B) because it lacked a legal description of the Property.
She also noted that Edwards did not initial the pages of the document. For those reasons,
she asked the district court to prevent Scott from selling or listing the Property. Finally,
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Lori filed briefs in support of her motions for an injunction and to invalidate the
document granting power of attorney to Scott.
Scott responded by filing a motion to dismiss. He asserted Lori's motion failed to
state a claim and, in the alternative, he sought a judgment on the pleadings. Scott attached
a corresponding memorandum which addressed Lori's claim that Edwards' final TODD
was invalid due to the absence of the "grantee-beneficiary" language. Scott asserted that
Kansas is a "substantial compliance" state as it relates to the language of deeds, and that
the TODD statute reaffirmed that requirement. He highlighted that the language used in
the challenged TODD substantially complied with the statutory requirements and claimed
Lori's argument to the contrary simply relied on a "hodgepodge" of inapplicable cases.
Scott also filed a memorandum in opposition to Lori's motion to invalidate his
power of attorney but suggested the district court could defer ruling on the matter until it
ruled on his motion to dismiss or enter judgment on the pleadings. He argued that Lori
apparently intended to challenge the sale of the Property but pointed out that while the
Property had been listed for sale, Edwards signed the listing prior to her death.
Additionally, Scott explained that with Edwards' passing, he did not need to rely on a
power of attorney to execute the sale of the Property.
Lori responded to Scott's motion to dismiss and reiterated her earlier contentions
about the lack of "grantee-beneficiary" language. She also added that Edwards' October
2011 TODD was the only valid TODD because both the September 2015 and May 2016
TODDs failed to name Edwards as the grantor or owner of the Property. Lori also
asserted that the May 2016 TODD lacked a habendum clause as required to define the
extent of the interest transferred. According to Lori, Edwards' September 2015 TODD,
the version which reflected that Scott and Lori were joint tenants with equal interests,
included the necessary clause.
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Along with her answer to Scott's motion to dismiss, Lori also filed a reply to his
memorandum opposing her motion to invalidate his power of attorney. In that response,
Lori reiterated that the Property's legal description was missing from Edwards' document
conveying power of attorney to Scott.
Scott filed a reply memorandum and addressed the habendum clause issue. He
noted that Lori's argument, like her claim over the "grantee-beneficiary" language,
focused essentially on "technical non-compliance" and pointed out that Kansas courts
look to the intent of the grantor over technical compliance with the statute. Scott also
directed the district court to a Kansas Supreme Court case which revealed that reviewing
courts do not look to the habendum clause when identifying the grantor's intent but focus
on the instrument as a whole.
Following oral arguments from the parties, the court granted Scott's motion to
dismiss or, in the alternative, motion for judgment on the pleadings. It observed that the
relevant facts were known and uncontroverted and explained that K.S.A. 2020 Supp. 60-
212(b)(6) and (c) provided the statutory framework for its decision. According to the
court, the question it needed to resolve was the extent to which Kansas law simply allows
for "substantial compliance" with the TODD creation statutes (K.S.A. 59-3501 et seq.).
The district court found that while K.S.A. 59-3502 outlines the recommended
language for a TODD, it also states that the deed should be "in substantially the following
form." K.S.A. 59-3502. The judge interpreted this to mean substantial compliance with
the statutory language, rather than exact conformity, satisfies the requirement. The court
next reviewed relevant Kansas caselaw and concluded that substantial compliance in
these matters is a decades old, well-established rule of law. Thus, Kansas law simply
demands that the instrument include the essential elements set out in the statute and, to
that end, Edwards' final TODD fulfilled the expectations of K.S.A. 59-3502. It explained:
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"To summarize, the deed 1) includes the grantor/owner's name, 2) includes the legal
description, 3) includes the grantee's name, 4) is dated, 5) is signed, 6) is acknowledged,
7) is filed of record, 8) identifies itself as a TODD and in fact refers to the specific
statutory authority upon which it is executed (which itself includes the usage of the
phrase 'a deed in substantially the following form'), and 9) sets out that it has no effect
until the death of the decedent/grantor."
The court also addressed Lori's argument that Edwards was not named as the
grantor or the Property's owner on the TODD and observed that Lori conceded in one of
her pleadings that Edwards owned the Property. It also rejected Lori's claim that the
instrument must contain a habendum clause and concluded that, according to Kansas
caselaw the intent of the grantor is determined by evaluating the language of the entire
instrument.
The district court also disposed of Lori's challenge to the power of attorney
Edwards granted to Scott. It found that any authority Edwards may have granted to Scott
ceased upon her death, and where Lori sought to enjoin Scott from further action, the
issue was moot.
Lori now brings her claims before us to resolve.
ANALYSIS
IS EDWARDS' MAY 2016 TRANSFER ON DEATH DEED VALID?
On appeal, Lori argues that Edwards' May 2016 TODD is invalid. She agrees with
the district court's conclusion that a factual dispute does not exist. Instead, she asserts
that the issue turns on a question of law and statutory interpretation. Thus, our resolution
of the issue demands an interpretation of the governing statute and a corresponding
analysis of the TODD's validity.
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Preservation
Lori raised this issue before the district court and argued that the deed was invalid
because it did not include the "as grantee beneficiary" language, did not specifically
identify Edwards as the Property's owner, and did not include a habendum clause. The
issue is therefore properly preserved for our review.
Standard of Review
"'Whether a district court erred by granting a motion to dismiss for failure to state
a claim is a question of law subject to unlimited review.'" Williams v. C-U-Out Bail
Bonds, 310 Kan. 775, 784, 450 P.3d 330 (2019) (quoting Cohen v. Battaglia, 296 Kan.
542, Syl. ¶ 1, 293 P.3d 752 [2013]). "When a defendant uses K.S.A. 2015 Supp. 60-
212(b)(6) to challenge the legal sufficiency of a claim, the court must decide the issue
based only on the well-pled facts and allegations, which are generally drawn from the
petition." Steckline Communications Inc. v. Journal Broadcast Group of Kansas, Inc.,
305 Kan. 761, 767-68, 388 P.3d 84 (2017). A reviewing court "must resolve every factual
dispute in the plaintiff's favor when determining whether the petition states any valid
claim for relief. Dismissal is proper only when the allegations in the petition clearly
demonstrate that the plaintiff does not have a claim." 305 Kan. at 768.
When, as here, resolution of the asserted claim demands interpretation of a statute,
we exercise unlimited review. Jarvis v. Dept. of Revenue, 312 Kan. 156, 159, 473 P.3d
869 (2020). "All Kansas courts use the same starting point when interpreting statutes:
The Legislature's intent controls. To divine that intent, courts examine the language of the
provision and apply plain and unambiguous language as written." 312 Kan. at 159. When
doing so, courts must give "common words their ordinary meaning." State v. Ryce, 303
Kan. 899, 906, 368 P.3d 342 (2016). "If the Legislature's intent is not clear from the
language, a court may look to legislative history, background considerations, and canons
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of construction to help determine legislative intent." Jarvis, 312 Kan. at 159. One such
canon is the rule against surplusage. "It is a cardinal rule of statutory construction that a
provision should not be interpreted as to render some language mere surplusage."
Rhodenbaugh v. Kansas Employment Sec. Bd. of Review, 52 Kan. App. 2d 621, 626, 372
P.3d 1252 (2016) (citing Northern Natural Gas Co. v. ONEOK Field Services Co., 296
Kan. 906, 918, 296 P.3d 1106 [2013]).
The Kansas TODD statute, K.S.A. 59-3501, provides:
"(a) An interest in real estate may be titled in transfer-on-death, TOD, form by recording
a deed signed by the record owner of such interest, designating a grantee beneficiary or
beneficiaries of the interest. Such deed shall transfer ownership of such interest upon the
death of the owner. A transfer-on-death deed need not be supported by consideration.
"(b) The signature, consent or agreement of or notice to a grantee beneficiary of a
transfer-on-death deed shall not be required for any purpose during the lifetime of the
record owner."
The Legislature then went a step further and provided a template for a TODD in
K.S.A. 59-3502:
"An interest in real estate is titled in transfer-on-death form by executing, acknowledging
and recording in the office of the register of deeds in the county where the real estate is
located, prior to the death of the owner, a deed in substantially the following form:
(Name of owner) as owner transfers on death to (name of beneficiary), as grantee
beneficiary, the following described interest in real estate: (here insert description of the
interest in real estate). THIS TRANSFER ON DEATH DEED IS REVOCABLE. IT
DOES NOT TRANSFER ANY OWNERSHIP UNTIL THE DEATH OF THE OWNER.
IT REVOKES ALL PRIOR BENEFICIARY DESIGNATIONS BY THIS OWNER FOR
THIS INTEREST IN REAL ESTATE.
Instead of the words 'transfer-on-death' the abbreviation 'TOD' may be used."
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Lori essentially argues that a proper interpretation of K.S.A. 59-3502 requires
strict adherence to the form template. Scott, on the other hand, contends that the statute
requires only that a deed substantially comply with the suggested form.
We conclude Scott is correct, and our reasoning is two-fold. First, as the district
court noted, the Legislature intentionally included the phrase "in substantially the
following form" when drafting the provision. That is, it did not select more restrictive
terms such as "exactly" or "precisely." Looking at the plain and unambiguous language of
the statute and giving those words their ordinary meaning, it is clear the Legislature did
not intend for the text of a TODD to precisely mirror the template language it provided in
K.S.A. 59-3502.
Second, even if we concluded the Legislature's intent is not clear from the
language of the statute, the next step in our analysis is to consider, among other things,
canons of construction. As Scott points out, Lori's interpretation renders the phrase "in
substantially the following form" mere surplusage, which is a method of interpretation
Kansas courts historically reject. Thus, we are not persuaded by Lori's contention that
strict adherence to K.S.A. 59-3502 is required.
Having identified the statutory requirements of Kansas' TODD statute, we now
turn to the language of the challenged deed, Edwards' May 2016 TODD, to determine its
validity. Lori unequivocally stated that her issue is not one grounded in ambiguity.
Rather, she contends that the document is not truly a deed, and its omission of the
phrases, "as grantee-beneficiary" and "as grantor or owner," as well as its lack of a
habendum clause, render the instrument fatally defective.
The legal effect of a deed is a question of law over which this court has unlimited
review. Central Natural Resources v. Davis Operating Co., 288 Kan. 234, 240, 201 P.3d
680 (2009). "The primary consideration, when construing the meaning of a deed, is the
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intention of the grantor as gathered from an examination of the instrument as a whole."
288 Kan. at 244.
The contested TODD reads as follows:
"TRANSFER ON DEATH DEED
"Jo Anne Edwards a/k/a Jo A. Edwards, a single person
"TRANSFERS ON DEATH TO
"Scott D. McGregor
"All the following described real estate situated in Woodson County, Kansas, namely
The South Half of the Southeast Quarter of the Southeast Quarter (S2 SE4 SE4) of
Section Twenty-seven (27), Township Twenty-six (26) South, Range Sixteen (16)
East of the Sixth P.M., Woodson County, Kansas.
"THIS TRANSFER ON DEATH DEED IS REVOCABLE. IT DOES NOT
TRANSFER ANY OWNERSHIP UNTIL THE DEATH OF THE OWNERS. IT
REVOKES ALL PRIOR BENEFICIARY DESIGNATIONS BY THIS OWNER FOR
THIS INTEREST IN REAL ESTATE.
"Dated: May 2th, 2016
"[Signature of Jo A. Edwards]
"Jo A. Edwards
"This Transfer on Death Deed is made pursuant to K.S.A. 59-3501 et seq."
Lori argues the TODD contains three deficiencies which render it void. First, she
contends the deed is lacking because it does not include the specific phrase "as grantee
beneficiary" when referencing Scott. She asserts that "[t]he essential fact of a grantee-
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beneficiary being designated as the grantee-beneficiary is not met." Additionally, she
contends that the TODD is deficient because it neglects to specifically identify Edwards
as the owner. Yet in her reply brief, Lori concedes that Edwards was the Property's
owner.
Scott counters Lori's arguments with the observation that "[f]or a century and a
half, Kansas has been a 'substantial compliance' state when examining the sufficiency of
deeds," and cites three tax deed cases from the late 1800s and early 1900s to support this
claim. In Bowman v. Cockrill, 6 Kan. 311 (1870), the Kansas Supreme Court upheld the
validity of a tax deed even though it did not perfectly align with the statutorily required
language. 6 Kan. at 325. The case has many factual parallels to the instant dispute. As
Bowman explained:
"[The deed] is regular in form in every respect, except that there are three slight
discrepancies between its language and that of the statute. By reason of these slight
discrepancies in form, the plaintiff below claims that the tax deed is void upon its face.
We think not. The statute nowhere requires that the tax deed shall be in the exact
language of the statute. All that is required is that it shall be in substantial conformity to
the form given in the statute; (Comp. Laws 1862, § 10, p. 878;) and the statute further
provides that 'no mere irregularities of any kind shall invalidate the title conveyed by the
tax deed.'" 6 Kan. at 324-25.
The plaintiff in Bowman identified multiple minor discrepancies between the deed
and the relevant statute and, just like the statute at issue here, the provision in Bowman
stated that precise conformity was not required. But in an attempt to distinguish Bowman,
Lori correctly observes that the tax deed under review in that case actually used language
superior to that employed in the statute. That occurrence prompted the Bowman court to
explain that "[a] tax deed in the exact language of the statute would undoubtedly be good;
but one in a better form, where the change is only slight, and the words mean the same
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thing, is equally good." 6 Kan. at 325. Scott does not contend that the deed here is drafted
in a form that is superior to the legislative template.
Scott also directs us to Gibson v. Branstool, 82 Kan. 59, 107 P. 770 (1910), where
the Kansas Supreme Court reviewed a district court's ruling that a tax deed was void.
There were multiple challenges to the deed's validity, but the Gibson court noted that the
challenges were unsubstantial and reversed the district court's conclusion because the
deed substantially complied with the law. 82 Kan. at 64. Finally, Scott cites Haynes v.
Heller, 12 Kan. 381 (1874), in which the court considered whether the omission of the
words "time and" rendered a tax deed invalid. 12 Kan. at 389-90. It noted that the statute
required the language "[a]nd whereas, at the time and place aforesaid" and that the deed's
language only read "[a]nd whereas, at the place aforesaid." 12 Kan. at 391. The Haynes
court found that this omission was not fatal because "[a]n exact compliance with the form
of the statute is not indispensable. Substantial compliance is all that the statute calls for."
12 Kan. at 391; see Martin v. Garrett, 49 Kan. 131, 140, 30 P. 168 (1892) ("A slight or
unimportant departure from the statutory form of a tax deed will not invalidate the tax
deed, or render it void upon its face.").
Collectively, these cases reveal that Kansas is a "substantial compliance" state and
that our courts decline to void deeds when there are minor discrepancies between a
statutorily outlined template and the deed's language. That said, it is important to identify
the interpretation Kansas courts have assigned to the phrase "substantial compliance."
In Havel v. Decatur County Abstract Co., 76 Kan. 336, 91 P. 790 (1907), which
the district court cited in its memorandum decision, the Kansas Supreme Court
considered whether a tax deed was void because it did "not literally follow the form
prescribed by the statute." 76 Kan. at 339. Havel explained that the deed was not void for
failure to follow the "exact statutory form, but to sustain it [the court] must find therein
all the essential statutory requirements." 76 Kan. at 339.
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The "all essential statutory requirement" test continued into the 21st century. In
State ex rel. Schmidt v. City of Wichita, 303 Kan. 650, 367 P.3d 282 (2016), the Kansas
Supreme Court reviewed a challenge to a Wichita city ordinance. The city did not file a
copy of the proposed ordinance with the city clerk in violation of a Kansas statute but
argued that it nevertheless substantially complied with the ordinance. The court explained
that "[s]ubstantial compliance is compliance in respect to the essential matters necessary
to assure every reasonable objective of the statute." 303 Kan. at 661-62; see State v. Stoll,
312 Kan. 726, 729, 480 P.3d 158 (2021) ("Put another way, 'substantial compliance may
be found where one 'complies with the spirit and intent of the law but not with its
absolute letter.'"). Though not related to deeds or other similar instruments, this case
reaffirms Havel's holding that, when evaluating compliance with a statutory requirement,
strict adherence is not required, so long as the essential elements of the statute are
satisfied.
With that in mind, the final question is whether Edwards' final TODD
substantially complied with K.S.A. 59-3502 through inclusion of its essential elements.
The district court's analysis of this question is persuasive:
"In looking at the deed, it contains (1) the name of the undisputed landowner, (2) the
legal description of the real estate in question, (3) the date of execution, (4) the name of
the grantee or recipient of the land, (5) the declaration that the transfer is revocable and
does not take effect until the death of the owners and (6) the date of filing. In reviewing
K.S.A. 59-3502, a TODD may potentially transfer ownership of real estate by 'executing,
acknowledging and recording in the office of the register of deeds'. The 'form' suggested
by that statute, which again the statute says may be in 'substantially' the form set out
therein, requires the name of (1) the 'owner', (2) the name of the grantee beneficiary, (3)
the legal description of the real estate and (4) the declaration that the transfer on death
deed is revocable and does not transfer any interest in the real estate until the death of the
owner. Every bit of this information is included in the deed in question. It may not use
the exact terms, but the intent is clear."
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So even though Edwards' TODD does not include the terms "as grantee
beneficiary" or "owner," it substantially complies with K.S.A. 59-3502 and is not void.
Lori's final claim regarding a deficiency in the deed arises out of its lack of a
habendum clause. Black's Law Dictionary defines "habendum clause" as "[t]he part of an
instrument, such as a deed or will, that defines the extent of the interest being granted and
any conditions affecting the grant." Black's Law Dictionary 854 (11th ed. 2019). That
resource also states that "[t]he introductory words to the clause are ordinarily to have and
to hold." Black's Law Dictionary 854 (11th ed. 2019).
Scott counters Lori's contention by citing to Heyen v. Hartnett, 235 Kan. 117, 679
P.2d 1152 (1984). In that case, the Kansas Supreme Court explained that "[t]he ancient
rule to the effect that the habendum clause of a deed controls the granting clause has lost
much of its former force. Today courts construe a deed by considering all of its language
contained anywhere in the instrument with a view to ascertaining the intent of the
grantor." 235 Kan. at 123.
As Heyen notes, the intent of the grantor, rather than the existence of a habendum
clause, controls the interpretation of deeds. Here, Edwards' intent to transfer the Property
to Scott upon her death is made clear by the phrase "[a]ll the following described real
estate." Thus, Lori's habendum clause argument remains unpersuasive. As the district
court found, this argument is in a similar vein to Lori's "owner" and "grantee beneficiary"
language arguments in that it is derived from a purported technical flaw. As discussed
above, Edwards' May 2016 deed substantially complies with K.S.A. 59-3502. Thus, any
habendum clause deficiency is not fatal. Even if the statute required such a clause, the
deed contains all the same information traditionally included in a habendum clause. That
is, it explicitly notes the extent of the interest Edwards intended to grant to Scott.
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When describing the interest conveyed to Scott, the deed reads as follows: "All
the following described real estate situated in Woodson County, Kansas, namely," and
then provides the legal description of the Property, reflecting fee simple. It is clear from
the language of the deed that the interest Edwards intended to grant to Scott is the entire
interest in the Property.
A proper interpretation of K.S.A. 59-3502 reflects that Lori cannot prevail on her
strict compliance argument. But even if there were no statutory language providing that
Edwards' TODD could simply substantially follow the form of the template, our caselaw
allows the slight irregularities Lori highlights in Edwards' May 2016 TODD to exist
without voiding the deed. We have no qualms in affirming the district court's decision
that the deed is valid.
IS THE POWER OF ATTORNEY ISSUE MOOT AS A RESULT OF EDWARDS' PASSING?
Lori argues that the document Edwards signed to convey durable power of
attorney to Scott is invalid with respect to the Property because it does not include a legal
description of that Property. She notes the merits of this issue were raised before the
district court but not ruled on because the district court dismissed it as moot.
Standard of Review
"A power of attorney is an instrument in writing by which one person, as
principal, appoints another as agent and confers upon such agent the authority to act in
the place of the principal for the purposes set forth in the instrument." Muller v. Bank of
America, 28 Kan. App. 2d 136, 139, 12 P.3d 899 (2000). A durable power of attorney
remains in effect even if the grantor is incompetent. Geren v. Geren, 29 Kan. App. 2d
565, 569, 29 P.3d 448 (2001); see K.S.A. 58-651(d) (defining "durable power of
attorney" in the Kansas Power of Attorney Act). "The legal effect of a written instrument
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is a question of law; this court has unlimited review of its resolution by the district court."
29 Kan. App. 2d at 569. A power of attorney must be strictly construed, though not so
strictly construed as to defeat the grantor's intent. Muller, 28 Kan. App. 2d at 139.
ANALYSIS
On appeal, Lori accurately states that neither version of Edwards' power of
attorney documents included a legal description of the Property or any other real estate.
Still, both include a provision granting the agent, in this case Scott, the ability "[t]o
purchase, sell, lease, repair, improve, mortgage, and make mortgage and utility payments
upon real property. A legal description is attached."
Lori argues that the omission of the Property's legal description invalidates Scott's
power of attorney in that regard. Lori's singular request for relief is for this court to
invalidate the Power of Attorney "used by Scott McGregor to negotiate and remodel
without the legal ability to do so." She does not ask that we address any prior actions
taken by Scott.
Scott asserts that any issue related to the validity of Edwards' power of attorney
document is moot because "the authority granted to Scott by power of attorney ended"
upon Edwards' death. Scott is correct.
"An issue is moot if there is no longer a justiciable controversy between the
parties. In order to have a justiciable controversy, the issue should involve an identifiable
dispute between the parties with pending adverse legal interests that are immediate, real,
and for which a court can provide conclusive relief." In re W.L., 56 Kan. App. 2d 958,
981, 441 P.3d 495 (2019), rev'd on other grounds 312 Kan. 367, 475 P.3d 338 (2020). A
power of attorney terminates upon the death of the principal. K.S.A. 2020 Supp. 58-
657(b)(1). Thus, when Edwards, the principal, passed away in July 2020, Scott's power of
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attorney terminated, thereby eliminating his authorization to sell, lease, or remodel the
Property as an agent under the power of attorney instrument. Accordingly, even if the
omitted legal description of the Property would invalidate Scott's agent authority, there is
no real or immediate dispute for this court to resolve. Scott does, however, possess the
authority to sell, lease or remodel the Property given his acquisition of the Property in fee
simple pursuant to the May 2016 TODD.
We find that the district court properly concluded that the power of attorney issue
is moot.
Affirmed.
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