The use of Powers of Attorney (“POAs”) has become commonplace in all
manner of transactions. In its most basic form, a POA authorizes someone
to act on your behalf. Sometimes, POAs are used for convenience or
expediency. For example, a party to a real estate contract might grant a
POA to an agent to execute the necessary paperwork. Other times, POAs
are used when the principal lacks the capacity or ability to make
certain decisions for himself. In such situations, POAs can be used to
manage or sell property, authorize appropriate medical care, and provide
for dependents. What happens, however, when a POA is granted to someone
that does not have the principal’s best interests at heart? What
remedies are available to the principal and/or his family when it
appears that the person entrusted with the POA is self-dealing?
In response to the deepening flood of litigation involving Powers of
Attorney (“POAs”), the Virginia General Assembly recently promulgated
Uniform Power of Attorney Act (“UPAA”)(Va. Code Ann. §§ 26-72, et. seq.)
Prior to the enactment of UPAA, there was no comprehensive statutory
regulation of POAs. Instead, the courts were largely guided by common
law. UPAA provides specific enumeration of an agent’s duties under a POA
and instruction on how others may challenge the actions of an agent.
The agent must:
1. Act in accordance with the principal's reasonable expectations to the
extent actually known by the agent and, otherwise, in the principal's
best interest;
2. Act in good faith; and
3. Act only within the scope of authority granted in the power of attorney.
With certain exceptions, the agent must also:
1. Act loyally for the principal's benefit;
2. Act so as not to create a conflict of interest that impairs the
agent's ability to act impartially in the principal's best interest;
3. Act with the care, competence, and diligence ordinarily exercised by agents in similar circumstances;
4. Keep a record of all receipts, disbursements, and transactions made on behalf of the principal;
5. Cooperate with a person that has authority to make health care
decisions for the principal to carry out the principal's reasonable
expectations to the extent actually known by the agent and otherwise act
in the principal's best interest; and
6. Attempt to preserve the principal's estate plan, to the extent
actually known by the agent, if preserving the plan is consistent with
the principal's best interest based on all relevant factors, including:
a. The value and nature of the principal's property;
b. The principal's foreseeable obligations and need for maintenance;
c. Minimization of taxes, including income, estate, inheritance, generation-skipping transfer, and gift taxes; and
d. Eligibility for a benefit, a program, or assistance under a statute or regulation.
Upon suspicion that an agent has violated any of the duties enumerated
above, anyone of the following persons may petition the circuit court to
review the actions of an agent:
1. The principal or the agent;
2. A guardian, conservator, personal representative of the estate of a
deceased principal, or other fiduciary acting for the principal;
3. A person authorized to make health care decisions for the principal;
4. The principal's spouse, parent, or descendant;
5. An adult who is a brother, sister, niece, or nephew of the principal;
6. A person named as a beneficiary to receive any property, benefit, or
contractual right on the principal's death or as a beneficiary of a
trust created by or for the principal that has a financial interest in
the principal's estate;
7. The adult protective services unit of the local department of social
services for the county or city where the principal resides or is
located;
8. The principal's caregiver or another person that demonstrates sufficient interest in the principal's welfare; and
9. A person asked to accept the power of attorney.
An agent that violates the UPAA is liable to the principal or the principal's heirs 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. Reimburse the principal or the principal's heirs for the attorney fees and costs paid on the agent's behalf.
This statutory scheme is only beginning to be tested in Virginia courts.
Case law will further hone and define the duties owed by an agent under
a POA and the remedies available to others upon a finding that the
agent has breach his duties to the principal. But the UPAA is the first
step toward a establishing a uniform framework for handling claims
involving POAs.
Tuesday, November 16, 2010
Reach for the Stars, and You Might Get Burned
Usually, when clients come to us about real estate deals gone bad, the
facts revolve around a buyer and a seller having a dispute about whether
the deal has to go forward. Every so often, however, we get an inquiry
about a dispute between a buyer or seller and his or her real estate
agent. One such dispute recently led to a headline-making ruling about
sanctions in the context of frivolous claims in a lawsuit.
In 2007, our clients – Husband and Wife – sought representation in claims that had been made against them by a former (fired) real estate agent (the Agent). The Agent was not only suing for commission, but rather for millions of dollars, plus attorney’s fees, claiming defamation (for filing a complaint about her with the Virginia Real Estate Board), conspiracy and tortious interference with contract. The Agent also sued the buyer’s agent. As you might imagine, our clients were reeling.
All attempts at settlement failed and the case was litigated. We argued that the Agent had been properly terminated in light of the terms of the listing agreement, and therefore was not entitled to any commission. Even if she had been entitled to a commission, it would have been two percent of the sales price of the property, but she wanted five percent of a sale she suggested, but which never came to fruition. Two different attorneys made this claim on the Agent’s behalf prior to filing suit. Once suit was filed, however, the Agent’s demand increased to not only five percent of the full sale, but also six percent of a future sale based on the assumption that the buyer she had found would’ve torn down the house, built a “McMansion” on the site, and sold the place using her as his agent. Additionally, the Agent claimed that the complaint with the VREB entitled her to in excess of a million dollars in defamation damages, and that Husband had conspired with the buyers’ agent to “cut her out” of the deal. No evidence of any such conspiracy existed, nor would it make any sense from the buyers’ agent’s perspective.
Piece by piece, we got various parts of the lawsuit dismissed. The court agreed that the defamation claims for making a complaint to the Real Estate Board should be dismissed under the “absolute privilege” for defamation. The law in Virginia states that parties to litigation have an absolute right to speak without fear of being held liable for libel or slander; and that privilege also applies in “quasi-judicial” contexts such as administrative agencies, as long as certain facts apply (like subpoena power, oath-taking, and so forth – all of which applied to the Real Estate Board).
The case proceeded to trial on the claims of (1) tortious interference with a contract expectancy (that is, improperly interfering with another person’s expected contract, causing the contract not to occur); (2) conspiracy to harm a business (that is, joining with another person to hurt someone else in commerce); and (3) defamation (lying about another person – in this case, Husband allegedly lying to the buyers’ agent about the Agent in order to further the conspiracy to “cut her out of the deal”).
The evidence consisted of the following: (1) Husband supposedly disliked the plaintiff; and (2) Husband and the buyers’ agent had spoken together by phone. Husband admitted to speaking with the buyers’ agent – in fact, part of the reason Wife fired the Agent was the fact that the buyers’ agent said she had been discouraged from making an offer on the property! There was no evidence that Husband acted improperly in advising Wife to fire the Agent. In fact, evidence was introduced that Wife came to Husband for advice, and after presenting the matter to an attorney who advised him to fire the Agent, Husband advised Wife accordingly. In Virginia, the giving requested advice is a defense to a tortious-interference claim, so Husband appeared to be free of liability on that count.
Likewise, no evidence was introduced that Husband had entered into an agreement with the buyers’ agent to get the Agent fired. So, at the close of the Agent’s case, toward the end of day two of trial, we and the attorney for the buyer’s agent moved to strike the evidence – a Virginia procedure that basically accuses the plaintiff of having failed to prove his or her case. As we arrived on day three to continue our arguments on the Motions to Strike, the Agent “nonsuited” her case against the buyers’ agent and her brokerage firm. A nonsuit is a voluntary dismissal “without prejudice,” which basically allows a plaintiff one free “do-over” in most cases, giving the plaintiff a certain amount of time to refile his/her case. So the buyers’ agent was out of the case, though subject to the possibility of a future second lawsuit. Husband remained as a Defendant, and argument on his Motion to Strike continued. As the Judge was prepared to rule, the Agent nonsuited the remaining case against Husband.
All defendants joined in asking the trial court to allow a post-trial motion for sanctions under Virginia Code § 8.01 271.1, which bans frivolous lawsuits. The court agreed to let the defendants present their arguments, and after quite of bit of hard-fought post-trial motions, including multiple pleadings, hearings, and a great deal of evidence, the trial court found that the Agent had filed a frivolous lawsuit in violation of the statute, and as a sanction it awarded reasonable attorneys’ fees to the defendants in the case. Our clients were awarded $158,318.40 in sanctions against the plaintiffs and their attorney; and the other defendants were awarded $113,778.06 in sanctions. A suit borne out of what the Agent saw as a loss of commission totaling – even counting her speculative “future sale” – approximately $168,000, and built upon emotion and speculation, rather than a solid legal position, led to a “landmark” decision on sanctions.
Why was the Agent fired, you ask? Well, among other things, because – in violation of her contract – she never even listed the property for sale.
The funny thing is, if the Agent hadn’t been fired, at best she was entitled to $13,940 (2% of the actual sale that occurred, since the buyers had an agent); yet she was seeking $37,500 (5% of the proposed sale she found, even though that one didn’t occur), plus $130,500 (6% of the “future commission” sale), for a grand total of $168,000 in lost commissions. In seeking millions of dollars, she got “aggressive” (to use her lawyer’s term); in the end, it cost her. A lot.
The case is currently on appeal to the Virginia Supreme Court. No word yet about whether the Court will take the appeal.
In 2007, our clients – Husband and Wife – sought representation in claims that had been made against them by a former (fired) real estate agent (the Agent). The Agent was not only suing for commission, but rather for millions of dollars, plus attorney’s fees, claiming defamation (for filing a complaint about her with the Virginia Real Estate Board), conspiracy and tortious interference with contract. The Agent also sued the buyer’s agent. As you might imagine, our clients were reeling.
All attempts at settlement failed and the case was litigated. We argued that the Agent had been properly terminated in light of the terms of the listing agreement, and therefore was not entitled to any commission. Even if she had been entitled to a commission, it would have been two percent of the sales price of the property, but she wanted five percent of a sale she suggested, but which never came to fruition. Two different attorneys made this claim on the Agent’s behalf prior to filing suit. Once suit was filed, however, the Agent’s demand increased to not only five percent of the full sale, but also six percent of a future sale based on the assumption that the buyer she had found would’ve torn down the house, built a “McMansion” on the site, and sold the place using her as his agent. Additionally, the Agent claimed that the complaint with the VREB entitled her to in excess of a million dollars in defamation damages, and that Husband had conspired with the buyers’ agent to “cut her out” of the deal. No evidence of any such conspiracy existed, nor would it make any sense from the buyers’ agent’s perspective.
Piece by piece, we got various parts of the lawsuit dismissed. The court agreed that the defamation claims for making a complaint to the Real Estate Board should be dismissed under the “absolute privilege” for defamation. The law in Virginia states that parties to litigation have an absolute right to speak without fear of being held liable for libel or slander; and that privilege also applies in “quasi-judicial” contexts such as administrative agencies, as long as certain facts apply (like subpoena power, oath-taking, and so forth – all of which applied to the Real Estate Board).
The case proceeded to trial on the claims of (1) tortious interference with a contract expectancy (that is, improperly interfering with another person’s expected contract, causing the contract not to occur); (2) conspiracy to harm a business (that is, joining with another person to hurt someone else in commerce); and (3) defamation (lying about another person – in this case, Husband allegedly lying to the buyers’ agent about the Agent in order to further the conspiracy to “cut her out of the deal”).
The evidence consisted of the following: (1) Husband supposedly disliked the plaintiff; and (2) Husband and the buyers’ agent had spoken together by phone. Husband admitted to speaking with the buyers’ agent – in fact, part of the reason Wife fired the Agent was the fact that the buyers’ agent said she had been discouraged from making an offer on the property! There was no evidence that Husband acted improperly in advising Wife to fire the Agent. In fact, evidence was introduced that Wife came to Husband for advice, and after presenting the matter to an attorney who advised him to fire the Agent, Husband advised Wife accordingly. In Virginia, the giving requested advice is a defense to a tortious-interference claim, so Husband appeared to be free of liability on that count.
Likewise, no evidence was introduced that Husband had entered into an agreement with the buyers’ agent to get the Agent fired. So, at the close of the Agent’s case, toward the end of day two of trial, we and the attorney for the buyer’s agent moved to strike the evidence – a Virginia procedure that basically accuses the plaintiff of having failed to prove his or her case. As we arrived on day three to continue our arguments on the Motions to Strike, the Agent “nonsuited” her case against the buyers’ agent and her brokerage firm. A nonsuit is a voluntary dismissal “without prejudice,” which basically allows a plaintiff one free “do-over” in most cases, giving the plaintiff a certain amount of time to refile his/her case. So the buyers’ agent was out of the case, though subject to the possibility of a future second lawsuit. Husband remained as a Defendant, and argument on his Motion to Strike continued. As the Judge was prepared to rule, the Agent nonsuited the remaining case against Husband.
All defendants joined in asking the trial court to allow a post-trial motion for sanctions under Virginia Code § 8.01 271.1, which bans frivolous lawsuits. The court agreed to let the defendants present their arguments, and after quite of bit of hard-fought post-trial motions, including multiple pleadings, hearings, and a great deal of evidence, the trial court found that the Agent had filed a frivolous lawsuit in violation of the statute, and as a sanction it awarded reasonable attorneys’ fees to the defendants in the case. Our clients were awarded $158,318.40 in sanctions against the plaintiffs and their attorney; and the other defendants were awarded $113,778.06 in sanctions. A suit borne out of what the Agent saw as a loss of commission totaling – even counting her speculative “future sale” – approximately $168,000, and built upon emotion and speculation, rather than a solid legal position, led to a “landmark” decision on sanctions.
Why was the Agent fired, you ask? Well, among other things, because – in violation of her contract – she never even listed the property for sale.
The funny thing is, if the Agent hadn’t been fired, at best she was entitled to $13,940 (2% of the actual sale that occurred, since the buyers had an agent); yet she was seeking $37,500 (5% of the proposed sale she found, even though that one didn’t occur), plus $130,500 (6% of the “future commission” sale), for a grand total of $168,000 in lost commissions. In seeking millions of dollars, she got “aggressive” (to use her lawyer’s term); in the end, it cost her. A lot.
The case is currently on appeal to the Virginia Supreme Court. No word yet about whether the Court will take the appeal.
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