Cisneros v. Graham , 294 Neb. 83 ( 2016 )

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Nebraska Supreme Court A dvance Sheets
294 Nebraska R eports
CISNEROS v. GRAHAM
Cite as 294 Neb. 83
Elaine Cisneros, appellee and cross-appellant,
v. Gregory G. Graham, appellant
and cross-appellee.
___ N.W.2d ___
Filed July 8, 2016. No. S-15-392.
1. Motions for New Trial: Appeal and Error. An appellate court reviews
a denial of a motion for new trial or, in the alternative, to alter or amend
the judgment, for an abuse of discretion.
2. Summary Judgment: Appeal and Error. An appellate court will
affirm a lower court’s grant of summary judgment if the pleadings and
admitted evidence show that there is no genuine issue as to any material
facts or as to the ultimate inferences that may be drawn from those facts
and that the moving party is entitled to judgment as a matter of law.
3. ____: ____. In reviewing a summary judgment, an appellate court views
the evidence in the light most favorable to the party against whom the
judgment was granted and gives that party the benefit of all reasonable
inferences deducible from the evidence.
4. Statutes: Appeal and Error. Statutory interpretation is a question of
law that an appellate court resolves independently of the trial court.
5. Attorney Fees: Appeal and Error. On appeal, a trial court’s deci-
sion awarding or denying attorney fees will be upheld absent an abuse
of discretion.
6. Summary Judgment. On a motion for summary judgment, the question
is not how the factual issue is to be decided but whether any real issue
of material fact exists.
7. ____. Summary judgment is proper if the pleadings and admissible
evidence offered at the hearing show there is no genuine issue as to any
material facts or as to the ultimate inferences that may be drawn from
those facts and that the moving party is entitled to judgment as a matter
of law.
8. Summary Judgment: Proof. A party moving for summary judgment
makes a prima facie case for summary judgment by producing enough
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evidence to demonstrate that the movant is entitled to judgment if the
evidence were uncontroverted at trial.
9. ____: ____. Once the moving party makes a prima facie case, the bur-
den shifts to the party opposing the motion to produce admissible con-
tradictory evidence showing the existence of a material issue of fact that
prevents judgment as a matter of law.
10. Statutes: Appeal and Error. The language of a statute is to be given
its plain and ordinary meaning, and an appellate court will not resort
to interpretation to ascertain the meaning of statutory words which are
plain, direct, and unambiguous.
11. ____: ____. When construing a statute, an appellate court must look
to the statute’s purpose and give to the statute a reasonable construc-
tion which best achieves that purpose, rather than a construction which
would defeat it.
12. Statutes: Legislature: Intent. Components of a series or collection of
statutes pertaining to a certain subject matter are in pari materia and
should be conjunctively considered and construed to determine the
intent of the Legislature, so that different provisions are consistent, har-
monious, and sensible.
13. Ratification. Whether there has been a ratification is ultimately and
ordinarily a question of fact.
14. Ratification: Proof. Because ratification is an affirmative defense, the
burden of proving ratification rests on the party asserting it.
15. Ratification: Agents. Ratification of an agent’s unauthorized acts may
be made by overt action or inferred from silence or inaction.
Appeal from the District Court for Douglas County:
K imberly Miller Pankonin, Judge. Affirmed.
Norman Denenberg for appellant.
Edward W. Hasenjager for appellee.
Heavican, C.J., Wright, Connolly, Miller-Lerman, Cassel,
and K elch, JJ.
Miller-Lerman, J.
NATURE OF CASE
In this case, we must determine the propriety of the actions
of an agent whose power of attorney is subject to the Nebraska
Uniform Power of Attorney Act, Neb. Rev. Stat. § 30-4001
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et seq. (Cum. Supp. 2014) (Nebraska UPOAA). On summary
judgment, the district court for Douglas County found that the
agent, Gregory G. Graham (Graham), whose principal was his
aunt Hilda Graham (Hilda), committed constructive fraud. The
district court entered judgment in favor of Elaine Cisneros in
an amount she would have received as beneficiary under a
certain certificate of deposit and granted other relief. The dis-
trict court later denied Graham’s motion to alter or amend the
judgment. We affirm.
STATEMENT OF FACTS
In June 2013, Hilda was diagnosed with terminal pancreatic
cancer and “was given only a few months to live.” Hilda was
the owner of a certificate of deposit (CD) in the amount of
$59,665.27 which she opened on December 22, 2008. From
the time Hilda opened the CD until it was cashed out, Hilda
changed the payable-on-death beneficiary a number of times.
On July 25, 2013, Hilda changed the beneficiary to Cisneros,
and Cisneros was the named beneficiary when the CD was
subsequently cashed, as explained below.
On July 16, 2013, Hilda appointed Graham as her power
of attorney. Graham was the nephew of Hilda’s deceased hus-
band. The power of attorney provided:
A. POWER OF ATTO[R]NEY FOR HANDLING
PRINCIPAL’S BUSINESS AFFAIRS AND MANAGING
PRINCIPAL’S ASSETS: Without in any way limiting
or restricting the generality of the foregoing, but in fur-
therance thereof, and in partial enumeration only, of the
powers thereby vested in my said Attorney-in-Fact, I
hereby give and grant unto my said Attorney-in-Fact full
power and authority, from time to time, for me and in my
name, place and stead, and for my use, and in my said
Attorney-in-Fact’s sole discretion:
....
4. To deposit or withdraw any money or credits in
any bank or savings and loan company or any depository
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or investment or financial business of any kind, and to
sign, endorse, execute or renew any checks, withdrawals,
deposits, promissory notes, bonds, bills of exchange or
evidences of indebtedness and to waive notice of demand
and protest and to transact and perform any and all other
banking or financial business and affairs of any kind
whatsoever; including the power to change the benefici­
aries of any financial investments.
....
6. To purchase, sell, transfer, assign, hypothecate,
redeem, exchange, waive priority, or deal in any way
with any notes, mortgages, stocks, bonds or securities
or investments of any kind or nature whatsoever, and to
receive and receipt for any and all income or dividends
therefrom and to vote or to execute proxies for voting any
and all stock.
While she was alive, Hilda had a checking account, and
on August 12, 2013, Graham and Hilda signed an account
agreement which designated Graham as the co-owner of that
account with a right of survivorship. On August 19, the check-
ing account had a balance of $20,858.95. On August 22,
Graham used the power of attorney to cash the CD and deposit
the proceeds into the checking account. On August 22, the
checking account had a balance of $80,524.22. Cisneros was
the named beneficiary of the CD when it was cashed. On
September 5, Hilda died at home. When Hilda died, the bal-
ance in the checking account became Graham’s by operation
of law.
On January 15, 2014, Cisneros filed her complaint alleging
that Graham’s actions of cashing the CD and depositing the
proceeds into the checking account “were unlawful” and that
he “converted the proceeds of the CD to his own use and ben-
efit causing damage to [Cisneros] in the amount of $60,000.00
with interest payable under the CD.” Cisneros sought dam-
ages, interest, attorney fees, and costs. On July 8, Cisneros
filed a motion for summary judgment. A hearing was held
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at which evidence was received. The parties proceeded on a
theory of constructive fraud.
Graham testified in his deposition that Hilda had orally
instructed him to cash the CD and deposit the proceeds into
the joint checking account in case more money was needed to
pay for her care outside the home. The evidence showed that
Hilda’s hospice care was paid for by Medicare or supplemental
insurance. A home care business began caring for Hilda at her
home in the latter part of August 2013 for the several last days
of Hilda’s life. The services provided by the home care busi-
ness were not paid for by Medicare, but instead had to be paid
for by Hilda. On September 15, Graham paid $1,464 from the
checking account to the home care business. None of the pro-
ceeds from the CD were needed to pay Hilda’s bills.
In an affidavit that was received into evidence, Graham
stated that on the same day that he deposited the proceeds
of the CD into the joint checking account, Graham went to
Hilda’s house, told her about the transaction, and gave her
the receipt for the transaction. Graham’s affidavit stated that
“[a]fter Hilda . . . knew the transaction was completed, she
was more calm, and less frustrated and agitated.” Graham’s
affidavit further stated that the deposit of the proceeds of the
CD was recorded in Hilda’s check register in Hilda’s handwrit-
ing. Although Graham offered the check register as an exhibit,
it was not received into evidence at the hearing on the motion
for summary judgment.
On January 29, 2015, the district court filed an order in
which it granted Cisneros’ motion for summary judgment. The
court noted that the Nebraska UPOAA became effective on
January 1, 2013, and that because the power of attorney was
executed on July 16, the Nebraska UPOAA applied to this
case. The court determined that relevant pre-2013 case law,
such as Archbold v. Reifenrath, 274 Neb. 894, 744 N.W.2d 701
(2008), and Crosby v. Luehrs, 266 Neb. 827, 669 N.W.2d 635
(2003), was still good law because their principles were con­
sistent with the Nebraska UPOAA.
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CISNEROS v. GRAHAM
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The district court determined that § 30-4024(2) applied.
Section 30-4024(2) provides:
Notwithstanding a grant of authority to do an act described
in subsection (1) of this section, unless the power of attor-
ney otherwise provides, an agent that is not an ancestor,
spouse, or issue of the principal, may not exercise author-
ity under a power of attorney to create in the agent, or in
an individual to whom the agent owes a legal obligation
of support, an interest in the principal’s property, whether
by gift, right of survivorship, beneficiary designation,
disclaimer, or otherwise.
The court stated that because Graham was the nephew or step-
nephew of Hilda, he was not an “‘ancestor, spouse, or issue’”
of Hilda, and that therefore, pursuant to § 30-4024(2), Graham
was required to have express authority under the power of
attorney to give himself an interest in Hilda’s property. The
court determined that the power of attorney did not contain
such express authority. Accordingly, the court determined that
Graham’s actions were fraudulent under a theory of con-
structive fraud, and it granted Cisneros’ motion for summary
judgment. The court awarded Cisneros $59,665.27, prejudg-
ment interest, and costs, but it denied Cisneros’ request for
attorney fees.
On February 2, 2015, Graham filed a “Motion for New
Trial,” which the district court treated as a motion to alter or
amend judgment. Finding no error in its summary judgment
ruling, the court denied Graham’s motion on April 8.
Graham appeals. Cisneros cross-appeals.
ASSIGNMENTS OF ERROR
Graham generally claims, restated, that the district court
erred when it granted summary judgment in favor of Cisneros
and denied his motion to alter or amend the judgment. Graham
specifically claims that the court erred when it (1) failed to
determine that Graham had express authority granted in the
power of attorney to cash the CD and deposit the proceeds
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into the checking account he co-owned with Hilda, (2) failed
to determine that § 30-4014(4) allowed a benefit to himself as
agent, and (3) failed to determine that his actions were ratified
by Hilda, which ratification made the deposit transaction legal
and binding.
On cross-appeal, Cisneros claims that the district court
erred when it did not award attorney fees to her under
§ 30-4017.
STANDARDS OF REVIEW
[1] An appellate court reviews a denial of a motion for new
trial or, in the alternative, to alter or amend the judgment, for
an abuse of discretion. Hike v. State, 288 Neb. 60, 846 N.W.2d
205 (2014).
[2,3] An appellate court will affirm a lower court’s grant
of summary judgment if the pleadings and admitted evidence
show that there is no genuine issue as to any material facts or
as to the ultimate inferences that may be drawn from those
facts and that the moving party is entitled to judgment as a
matter of law. Sulu v. Magana, 293 Neb. 148, 879 N.W.2d 674
(2016). In reviewing a summary judgment, an appellate court
views the evidence in the light most favorable to the party
against whom the judgment was granted and gives that party
the benefit of all reasonable inferences deducible from the
evidence. Id.
[4] Statutory interpretation is a question of law that an
appellate court resolves independently of the trial court. In
re Interest of Isabel P. et al., 293 Neb. 62, 875 N.W.2d
848 (2016).
[5] On appeal, a trial court’s decision awarding or denying
attorney fees will be upheld absent an abuse of discretion.
White v. Kohout, 286 Neb. 700, 839 N.W.2d 252 (2013).
ANALYSIS
Graham appeals from the district court’s ruling denying
his motion to alter or amend the judgment. Because our
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decision ultimately depends on the correctness of the dis-
trict court’s grant of the underlying summary judgment, we
discuss the case based on legal standards applicable to sum-
mary judgment.
Appeal: Graham Lacked Authority to
Deposit the Proceeds From the CD
Into the Checking Account He
Co-Owned With Hilda.
Graham generally contends that the district court erred
when it granted Cisneros’ motion for summary judgment based
upon its determination that Graham committed constructive
fraud when he cashed the CD and deposited the proceeds
into the checking account with right of survivorship that he
co-owned with Hilda. Graham specifically argues that he did
not commit constructive fraud because pursuant the power of
attorney, he had the authority to cash the CD and to deposit
the proceeds into the checking account. We find no merit to
Graham’s contentions.
[6,7] The principles regarding summary judgment are well
established. On a motion for summary judgment, the question
is not how the factual issue is to be decided but whether any
real issue of material fact exists. Phillips v. Liberty Mut. Ins.
Co., 293 Neb. 123, 876 N.W.2d 361 (2016). In reviewing a
summary judgment, an appellate court views the evidence in
the light most favorable to the party against whom the judg-
ment was granted and gives that party the benefit of all reason-
able inferences deducible from the evidence. Sulu v. Magana,
supra. Summary judgment is proper if the pleadings and admis-
sible evidence offered at the hearing show there is no genuine
issue as to any material facts or as to the ultimate inferences
that may be drawn from those facts and that the moving party
is entitled to judgment as a matter of law. Phillips v. Liberty
Mut. Ins. Co., supra.
[8,9] A party moving for summary judgment makes a
prima facie case for summary judgment by producing enough
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evidence to demonstrate that the movant is entitled to judg-
ment if the evidence were uncontroverted at trial. Id. Once the
moving party makes a prima facie case, the burden shifts to
the party opposing the motion to produce admissible contra-
dictory evidence showing the existence of a material issue of
fact that prevents judgment as a matter of law. Id.
With respect to constructive fraud, prior to the enactment of
the Nebraska UPOAA, we stated:
Constructive fraud generally arises from a breach of
duty arising out of a fiduciary or confidential relation-
ship. . . . Constructive fraud is a breach of a legal or
equitable duty which, irrespective of the moral guilt of
the fraud-feasor, the law declares fraudulent because of
its tendency to deceive others, to violate public or private
confidence, or to injure public interests. . . . Constructive
fraud is implied by law from the nature of the transac-
tion itself. . . . The existence or nonexistence of an actual
purpose to defraud does not enter as an essential factor
in determining the question; the law regards the transac-
tion as fraudulent per se. . . . Neither actual dishonesty of
purpose nor intent to deceive is an essential element of
constructive fraud.
Crosby v. Luehrs, 266 Neb. 827, 835-36, 669 N.W.2d 635, 644-
45 (2003) (citations omitted).
With respect to fraud in the context of a power of attorney,
we have held:
“[A] prima facie case of fraud is established if the plain-
tiff shows that the defendant held the principal’s power
of attorney and that the defendant, using the power of
attorney, made a gift to himself or herself. . . . The
burden of going forward under such circumstances falls
upon the defendant to establish by clear and convinc-
ing evidence that the transaction was made pursuant
to power expressly granted in the power of attorney
document and made pursuant to the clear intent of
the donor.”
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Litherland v. Jurgens, 291 Neb. 775, 782-83, 869 N.W.2d 92,
97 (2015), quoting Crosby v. Luehrs, supra.
In this case, the undisputed evidence shows that Graham
was made Hilda’s attorney in fact by a power of attorney dated
July 16, 2013. The evidence also shows that on August 22,
Graham purportedly using the power of attorney cashed the
CD and deposited the proceeds into a checking account with
right of survivorship that he co-owned with Hilda. By deposit-
ing the proceeds in this checking account, Graham created in
himself an interest in Hilda’s property.
In order to determine whether Graham had the authority
as Hilda’s attorney in fact to create in himself an interest in
Hilda’s property, we must look to the applicable law and the
language of the power of attorney. With respect to the law
that governs the current case, the Legislature recently enacted
the Nebraska UPOAA, which was modeled after the Uniform
Power of Attorney Act (2006) (Uniform POAA), § 5B-101
et seq., 8 (part III) U.L.A. 290 (2013). The drafters of the
Uniform POAA stated that the act “‘provides a simple way
for people to deal with their property by providing a power
of attorney in case of future incapacity. While chiefly a set of
default rules, the [Uniform POAA] also contains safeguards
for the protection of an incapacitated principal.’” Ronald R.
Volkmer, Nebraska’s Real Property Transfer on Death Act and
Power of Attorney Act: A New Era Begins, 46 Creighton L.
Rev. 499, 505 (2013).
The Nebraska UPOAA became effective on January 1, 2013,
and § 30-4045(1) of the Nebraska UPOAA states that “[t]he
act applies to a power of attorney created before, on, or after
January 1, 2013.” The power of attorney at issue in this case
is dated July 16, 2013, and therefore, the Nebraska UPOAA
applies to this case. We note Graham contends that any case
law regarding powers of attorney which was decided prior to
the effective date of the Nebraska UPOAA has been rendered
irrelevant by the enactment of the Nebraska UPOAA and that
therefore, such case law does not apply to this case. We do
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not agree with Graham’s complete rejection of prior case law,
and instead we determine that to the extent such case law is
con­sistent with the Nebraska UPOAA, prior case law is still
relevant and may be considered in our analysis.
Pursuant to the Nebraska UPOAA, “power of attorney” is
defined as “a writing or other record that grants authority to
an agent to act in the place of the principal, whether or not
the term power of attorney is used.” § 30-4002(8). “Principal”
is defined as “an individual who grants authority to an agent
in a power of attorney.” § 30-4002(10). “Agent” is defined in
part as “a person granted authority to act for a principal under
a power of attorney, whether denominated an agent, attorney
in fact, or otherwise.” § 30-4002(1). “Property” is defined as
“anything that may be the subject of ownership, whether real
or personal, legal or equitable, or any interest or right therein.”
§ 30-4002(11).
The law recognizes the “manifold opportunities and tempta-
tions for self-dealing that are opened up for persons holding
general powers of attorney.” Estate of Casey v. C.I.R., 948
F.2d 895, 898 (4th Cir. 1991). Thus, with respect to an agent
giving himself or herself an interest in the principal’s property
and to safeguard the principal, § 30-4024(2) of the Nebraska
UPOAA provides in part that
unless the power of attorney otherwise provides, an
agent that is not an ancestor, spouse, or issue of the
principal, may not exercise authority under a power of
attorney to create in the agent, or in an individual to
whom the agent owes a legal obligation of support, an
interest in the principal’s property, whether by gift, right
of survivorship, beneficiary designation, disclaimer,
or otherwise.
See, also, § 30-4041 (providing form reflecting power of attor-
ney statutes).
[10,11] The language of a statute is to be given its plain
and ordinary meaning, and an appellate court will not resort
to interpretation to ascertain the meaning of statutory words
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which are plain, direct, and unambiguous. In re Estate of
Alberts, 293 Neb. 1, 875 N.W.2d 427 (2016). When construing
a statute, an appellate court must look to the statute’s purpose
and give to the statute a reasonable construction which best
achieves that purpose, rather than a construction which would
defeat it. Id.
The plain language of § 30-4024(2) provides that in order
for an agent who is not the “ancestor, spouse, or issue of the
principal” to use the power of attorney to create in himself or
herself an interest in the principal’s property, the agent must
have express authority from the principal in the power of attor-
ney. If an agent who is not the “ancestor, spouse, or issue of
the principal” does not have express authority from the prin-
cipal in the power of attorney, then, pursuant to § 30-4024(2),
such an agent does not have the authority to create in the
agent an interest in the principal’s property. In other words,
§ 30-4024(2)
distinguishes between grants of power to an agent who is
an ancestor, the spouse, or issue of the principal versus
an agent who is not in those categories. Under subsection
(2) [of § 30-4024], the agent who is not in the category
of ancestor, spouse, or issue must be granted explicit
authority to create in the agent, or in a person the agent
is legally obligated to support, an interest in the princi-
pal’s property.
Ronald R. Volkmer, Nebraska’s Real Property Transfer on
Death Act and Power of Attorney Act: A New Era Begins, 46
Creighton L. Rev. 499, 554 (2013).
Section 30-4024(2) of the Nebraska UPOAA is almost iden-
tical to § 5B-201(b) of the Uniform POAA, with the main
difference being that § 5B-201(b) uses the word “descendant”
whereas § 30-4024(2) uses the word “issue.” The comment to
§ 5B-201 of the Uniform POAA reinforces that an agent who
is not an ancestor, spouse, or descendent may not make a gift
to the agent without express authority from the principal in the
power of attorney. The comment provides in part:
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[Section 5B-201(b) (equating to § 30-4024(2))] con-
tains an additional safeguard for the principal. It estab-
lishes as a default rule that an agent who is not an
ancestor, spouse, or descendant of the principal may not
exercise authority to create in the agent or in an individ-
ual the agent is legally obligated to support, an interest in
the principal’s property. For example, a non-relative agent
with gift making authority could not make a gift to the
agent or a dependent of the agent without the principal’s
express authority in the power of attorney.
Uniform POAA § 5B-201, comment, 8 (part III) U.L.A. at
320 (2013).
In this case, we are only considering the actions of an
agent, Graham, who is not the ancestor, spouse, or issue of the
principal, Hilda. With respect to agents who are not the ances-
tor, spouse, or issue of the principal, we believe § 30-4024(2)
is in accord with our case law regarding self-dealing decided
prior to the effective date of the Nebraska UPOAA. In this
regard, in Archbold v. Reifenrath, 274 Neb. 894, 901, 744
N.W.2d 701, 707 (2008), we stated that
no gift may be made by an attorney in fact to himself or
herself unless the power to make such a gift is expressly
granted in the instrument and there is shown a clear intent
on the part of the principal to make such a gift. Thus,
absent an express intention, an agent may not use his or
her position for the agent’s or a third party’s benefit in a
substantially gratuitous transfer.
See, also, Crosby v. Luehrs, 266 Neb. 827, 669 N.W.2d
635 (2003); Fletcher v. Mathew, 233 Neb. 853, 448 N.W.2d
576 (1989) (stating that power of attorney instrument must
explicitly authorize attorney in fact to make gifts to himself
on behalf of principal). See, also, Townsend v. U.S., 889 F.
Supp. 369 (D. Neb. 1995). The statement in Archbold quoted
above to the effect that a gift made by an agent to himself
or herself must be expressly authorized in the instrument is
consistent with § 30-4024(2) with respect to agents who are
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not the ancestor, spouse, or issue of the principal, and we
therefore find this case law to be relevant and applicable to
this case.
In this case, as stated above, when Graham deposited the
proceeds of the CD into the checking account with right
of survivorship that he co-owned with Hilda, he created an
interest in himself in Hilda’s property. It is undisputed that
Graham is not the “ancestor, spouse, or issue” of Hilda. See
§ 30-4024(2). Therefore, pursuant to § 30-4024(2), Graham
needed express authority from Hilda in the power of attorney
to deposit the proceeds of the CD into the checking account.
We find no such express authority.
The potentially relevant portions of the power of attor-
ney provided:
A. POWER OF ATTO[R]NEY FOR HANDLING
PRINCIPAL’S BUSINESS AFFAIRS AND MANAGING
PRINCIPAL’S ASSETS: Without in any way limiting
or restricting the generality of the foregoing, but in fur-
therance thereof, and in partial enumeration only, of the
powers thereby vested in my said Attorney-in-Fact, I
hereby give and grant unto my said Attorney-in-Fact full
power and authority, from time to time, for me and in my
name, place and stead, and for my use, and in my said
Attorney-in-Fact’s sole discretion:
....
4. To deposit or withdraw any money or credits in
any bank or savings and loan company or any depository
or investment or financial business of any kind, and to
sign, endorse, execute or renew any checks, withdrawals,
deposits, promissory notes, bonds, bills of exchange or
evidences of indebtedness and to waive notice of demand
and protest and to transact and perform any and all other
banking or financial business and affairs of any kind
whatsoever; including the power to change the benefici­
aries of any financial investments.
....
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6. To purchase, sell, transfer, assign, hypothecate,
redeem, exchange, waive priority, or deal in any way
with any notes, mortgages, stocks, bonds or securities
or investments of any kind or nature whatsoever, and to
receive and receipt for any and all income or dividends
therefrom and to vote or to execute proxies for voting any
and all stock.
Powers of attorney are strictly construed. See Fletcher v.
Mathew, supra. Nothing in these sections of the power of attor-
ney, or in any other portion of the power of attorney, provides
Graham with the express authority to give himself an interest
in Hilda’s property. We determine that because such authority
is not contained in the power of attorney, and by application
of the plain language of § 30-4024(2), Graham did not have
authority to give himself an interest in Hilda’s property, and
specifically, he did not have the authority to deposit the pro-
ceeds of the CD into the checking account with right of survi-
vorship that he co-owned with Hilda.
Graham directs our attention to another provision of the
Nebraska UPOAA, contending that under § 30-4014(4) of
the Nebraska UPOAA, he cannot be found liable for having
deposited the proceeds of the CD into the checking account,
and that therefore, he was effectively authorized to do so. We
do not agree.
Section 30-4014(4) of the Nebraska UPOAA provides: “An
agent that acts with care, competence, and diligence for the
best interest of the principal is not liable solely because
the agent also benefits from the act or has an individual or
conflicting interest in relation to the property or affairs of
the principal.”
Section 30-4014(4) of the Nebraska UPOAA is identical to
§ 5B-114(d) of the Uniform POAA. This broad provision is
explained in the comments to the Uniform POAA. According
to the comment to § 5B-114 of the Uniform POAA, “[t]his
position is a departure from the traditional common law duty
of loyalty which required an agent to act solely for the benefit
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of the principal.” Uniform POAA § 5B-114, comment, 8 (part
III) U.L.A. at 306 (2013). The comment notes that certain state
statutes have moved away from a “sole interest” test and rec-
ognize that “loyalty to the principal can be compatible with an
incidental benefit to the agent.” Id. Thus, it has been observed
that it is apparent that the drafters “justified [their] decision
to favor a ‘best interest’ test over a ‘sole interest’ test on the
ground that most agents under powers of attorney are family
members ‘who have an inherent conflict of interest with the
principal.’” Ronald R. Volkmer, Nebraska’s Real Property
Transfer on Death Act and Power of Attorney Act: A New Era
Begins, 46 Creighton L. Rev. 499, 547 (2013).
However, it has also been stated that it should be recog-
nized that
not all self-dealing transactions fit into the same cat-
egory. . . . [T]he specter of the agent making gifts to
himself or herself raises special concerns that [are] high-
lighted by other sections of the [Nebraska UPOAA]. [For
example, t]here is a difference in degree when comparing
a situation in which the agent personally benefits in a
contract involving self-dealing with a situation in which
the agent personally benefits by receiving a gift of the
principal’s property. It would seem that subsection (4) [of
§ 30-4014], when considered in the context of other sec-
tions of the [Nebraska UPOAA], although referring to an
agent “benefitting” from a relationship with the principal,
strikes a proper balance between different types of self-
dealing transactions under which the agent “benefits.”
Volkmer, supra at 547.
We agree with the foregoing reading of the Nebraska
UPOAA. Graham’s action of depositing the proceeds of the
CD into a checking account with right of survivorship he
co-owned with Hilda is a situation in which Graham person-
ally benefited by receiving a gift of Hilda’s property and is
the type of self-dealing prohibited by the Nebraska UPOAA
and not permitted under the power of attorney in question.
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See § 30-4024(2). And, the action taken by Graham is not the
type of permitted situation in which an agent would stand to
personally benefit only incidentally from an action taken that
is in the best interests of the principal. See § 30-4014(4).
[12] Components of a series or collection of statutes pertain-
ing to a certain subject matter are in pari materia and should be
conjunctively considered and construed to determine the intent
of the Legislature, so that different provisions are consistent,
harmonious, and sensible. Cargill Meat Solutions v. Colfax
Cty. Bd. of Equal., 290 Neb. 726, 861 N.W.2d 718 (2015). In
reading § 30-4014(4) in conjunction with § 30-4024(2), we
determine that § 30-4014(4) was not intended to create an
exception to the clear language of § 30-4024(2), which pro-
vides that an agent who is not the ancestor, spouse, or issue of
the principal must have express authority from the principal in
the power of attorney in order to create in himself or herself
an interest in the principal’s property. Graham’s argument to
the contrary is unavailing.
Because the power of attorney did not provide Graham with
express authority to deposit the proceeds of the CD into a
checking account with right of survivorship he co-owned with
Hilda, we determine that Cisneros demonstrated that she was
entitled to judgment as a matter of law, and the burden shifted
to Graham to produce evidence preventing judgment.
Appeal: Graham’s Actions Were
Not Ratified by Hilda.
Graham claims that even if he lacked authority under the
power of attorney to deposit the proceeds of the CD into the
checking account, Hilda nevertheless later ratified his action,
and that thus, the district court erred when it granted Cisneros’
motion for summary judgment. Even giving Graham the favor-
able inferences from the evidence, we find no merit to this
assignment of error.
[13,14] Describing the concept of ratification, 1 Restatement
(Third) of Agency § 4.01 at 304 (2006) provides in part:
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(1) Ratification is the affirmance of a prior act done by
another, whereby the act is given effect as if done by an
agent acting with actual authority.
(2) A person ratifies an act by
(a) manifesting assent that the act shall affect the per-
son’s legal relations, or
(b) conduct that justifies a reasonable assumption that
the person so consents.
See, also, Elting v. Elting, 288 Neb. 404, 849 N.W.2d 444
(2014). We have stated that whether there has been a ratifi-
cation is ultimately and ordinarily a question of fact. Brook
Valley Ltd. Part. v. Mutual of Omaha Bank, 285 Neb. 157,
825 N.W.2d 779 (2013). Because ratification is an affirmative
defense, the burden of proving ratification rests on the party
asserting it. See id.
As an initial matter, we must determine whether ratifica-
tion is an available defense after adoption of the Nebraska
UPOAA against a claim that, under the Nebraska UPOAA and
the document at issue, the agent exceeded his or her authority.
Generally, “[t]he policy against permitting subversion of the
limits on the power of attorney counsels against permitting
persons with a power of attorney to invoke other legal princi-
ples to exercise powers that are not available under the power
of attorney.” Estate of Swanson v. U.S., 10 Fed. Appx. 833,
836 (Fed. Cir. 2001). It is for this reason that “‘it is assumed
that [a document conveying a power of attorney] represents the
entire understanding of the parties.’” Id., quoting Restatement
(Second) of Agency § 34, comment h. (1958). Nevertheless,
the case law permits ratification of an act beyond the scope
of the power of attorney, but, as discussed below, the party
asserting ratification must make a strong showing. We see
nothing in the Nebraska UPOAA which is inconsistent with
the continuation of this principle.
[15] Generally, ratification of an agent’s unauthorized acts
may be made by overt action or inferred from silence or
inaction. See Brook Valley Ltd. Part. v. Mutual of Omaha
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Bank, supra. However, the Restatement (Third) of Agency,
supra, § 4.01, comment e. at 308, provides in part that “[i]f
formalities are required for the authorization of an act, the
same formalities are required for ratification. In particular, if
written authorization would be necessary to bind the principal
to a transaction, a writing is necessary to bind the principal
to a ratification.” It has been stated that ratification “must be
by an act of the character required for [the] original author-
ity.” Judd v. Arnold, 31 Minn. 430, 432, 18 N.W. 151, 151
(1884). Further, it has been noted that “[a] subsequent rati-
fication is, of course, equivalent to a prior authority. But the
rule is that the ratification of an unauthorized act must be
of the particular mode or form necessary to confer authority
to perform it in the first place.” Dunbar v. Farnum & Wife,
109 Vt. 313, 319, 196 A. 237, 239 (1937). See, also, Matter
of City & County Bank, 856 S.W.2d 137 (Tenn. App. 1992);
Fulton Co. Fis. Ct. v. Southern Bell T. & T. Co., 289 Ky.
159, 158 S.W.2d 437 (1942); Stammelman v. Interstate Co.,
112 N.J.L. 342, 170 A. 595 (1934). And the ratification must
demonstrate a deliberate choice to be bound. See Dunbar v.
Farnum & Wife, supra.
It has been stated that “if a statute requires written authority
for a particular transaction, oral ratification will not validate
an unauthorized act by the agent.” 12 Samuel Williston, A
Treatise on the Law of Contracts § 35:23 at 412-13 (Richard
A. Lord ed., 4th ed. 2012). The case law recognizes this prin-
ciple, particularly in matters involving real estate where a stat-
ute of frauds requires a writing. See, e.g., Gresser v. Hotzler,
604 N.W.2d 379, 385-86 (Minn. App. 2000) (determining that
because statute of frauds required written authorization for
agent to enter into purchase agreement, plaintiff could not
claim ratification through conduct or oral statements, stating
that “ratification ‘must be by an act of the character required
for the original authority’” and that “[w]hen the original
authorization must be in writing, the ratification must be in
writing as well”); Turnipseed v. Jaje, 267 Ga. 320, 324, 477
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S.E.2d 101, 104 (1996) (stating that “ratification of a real
estate contract which was executed by an unauthorized agent
must be in writing” and that “[a]n oral ratification will not
suffice”). The principle has been applied to the purchase of a
water system appurtenant to real estate. See Dunbar v. Farnum
& Wife, supra. In this case, pursuant to these principles, since
Graham’s authority to cash the CD and deposit the proceeds
was required under a statute, § 30-4024(2), to be expressly
in writing, Hilda’s ratification was also required to be in
a writing.
At the hearing on Cisneros’ motion for summary judg­
ment, Graham offered and the court received Graham’s affi-
davit. In his affidavit, Graham stated that on the day he
cashed the CD and deposited the proceeds into the checking
account, he went to Hilda’s house and gave her the receipt
for the transaction. He further stated that after Hilda “knew
the transaction was completed, she was more calm, and
less frustrated and agitated.” Graham’s affidavit also stated
that the deposit of the proceeds was recorded in the check
register in Hilda’s handwriting, although the check register
was not admitted in evidence. Although there is no sugges-
tion that any other evidence could support a ratification, on
appeal, Graham asserts that the summary judgment evidence
creates a material issue of fact as to whether Hilda ratified
Graham’s actions.
Even viewing the evidence in the light most favorable to
Graham and giving Graham the benefit of all reasonable infer-
ences deducible from the evidence, as we must in reviewing
a summary judgment, see Sulu v. Magana, 293 Neb. 148,
879 N.W.2d 674 (2016), we determine that Hilda’s acts as
described by Graham in his affidavit fall short of a sufficient
ratification in this circumstance. As stated above, because
Graham’s authority was required to be in a writing pursuant
to § 30-4024(2), a ratification by Hilda was required to be
in a writing. Hilda’s reaction, as described by Graham in his
affidavit, does not show Hilda’s express approval of Graham’s
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actions in a writing. We determine as a matter of law that
Graham failed to present evidence of a material issue of fact as
to whether Hilda ratified Graham’s actions, and thus, we deter-
mine that the district court did not err when it granted summary
judgment in favor of Cisneros.
Cross-Appeal: The District Court Did
Not Err When It Denied an Award
of Attorney Fees to Cisneros.
On cross-appeal, Cisneros claims that the district court was
required to grant her attorney fees under § 30-4017 of the
Nebraska UPOAA and erred when it did not do so. We find no
merit to Cisneros’ assignment of error on cross-appeal.
Section 30-4017(2) of the Nebraska UPOAA allows the
court to award attorney fees “as justice may require.” Section
30-4017 states:
An agent that violates the [Nebraska UPOAA] is liable
to the principal or the principal’s successors in interest for
the amount required to:
(1) Restore the value of the principal’s property to
what it would have been had the violation not occurred;
and
(2) In a judicial proceeding involving the admin-
istration of a power of attorney, the court, as justice
may require, may award costs and expenses, including
reasonable attorney’s fees to any party, to be paid by
another party.
Section 30-4017(2) of the Nebraska UPOAA “departs from
the Uniform POAA by adding” that an agent may be held
liable for attorney fees as ordered by the court “‘as justice
may require.’” Ronald R. Volkmer, Nebraska’s Real Property
Transfer on Death Act and Power of Attorney Act: A New Era
Begins, 46 Creighton L. Rev. 499, 550 (2013). We believe
this departure is an indication that the Legislature intended
that the court have discretion in awarding costs and expenses,
including attorney fees under § 30-4017(2).
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Failing a mandatory award of attorney fees under § 30-4017,
Cisneros next looks to Neb. Rev. Stat. § 25-824(4) (Reissue
2008), which provides that “[t]he court shall assess attor-
ney’s fees and costs if, upon the motion of any party or the
court itself, the court finds that an attorney or party brought
or defended an action or any part of an action that was frivo-
lous . . . .”
Cisneros claims attorney fees under § 25-824. With respect
to an award of attorney fees pursuant to § 25-824 and Neb.
Rev. Stat. § 25-824.01 (Reissue 2008), we have stated:
Attorney fees can be awarded when a party brings a
frivolous action that is without rational argument based
on law and evidence. We have previously explained that
the term “frivolous” connotes an improper motive or
legal position so wholly without merit as to be ridiculous.
Attorney fees for a bad faith action under § 25-824 may
also be awarded when the action is filed for purposes of
delay or harassment. We have also said that relitigating
the same issue between the same parties may amount to
bad faith. Finally, any doubt whether a legal position is
frivolous or taken in bad faith should be resolved for the
party whose legal position is in question.
White v. Kohout, 286 Neb. 700, 709-10, 839 N.W.2d 252, 260-
61 (2013). Thus, in White, we recognized that the attorney fee
provision in § 25-824 is discretionary. Cisneros asserts that
Graham’s defense in this case is frivolous and that therefore,
under § 25-824, the district court abused its discretion when it
denied her request for attorney fees.
Because discretion is involved, a trial court’s decision
awarding or denying attorney fees will be upheld absent an
abuse of discretion. See White v. Kohout, supra. This case
presented the district court with the necessity to construe the
new Nebraska UPOAA, and the position of Graham, although
unavailing, was neither unreasonable nor frivolous. The dis-
trict court did not abuse its discretion when it denied Cisneros’
motion for attorney fees.
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CONCLUSION
We determine that the district court did not err when it
determined that Graham lacked authority under the power
of attorney to cash the CD and deposit the proceeds into a
checking account with right of survivorship he co-owned with
Hilda. We further determine that there was no genuine issue
of material fact as to whether Hilda ratified Graham’s actions.
Accordingly, we determine that the district court did not err
when it granted Cisneros’ motion for summary judgment and,
thereafter, denied Graham’s motion to alter or amend the judg-
ment. With respect to Cisneros’ cross-appeal, we determine
that the district court did not abuse its discretion when it
denied an award of attorney fees to Cisneros.
A ffirmed.
Stacy, J., participating on briefs.