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    "judges": [
      "Judges MARTIN, John C., and JOHN concur."
    ],
    "parties": [
      "DIANE WHITFORD v. DESSIE PITTMAN GASKILL and ALICE PITTMAN LEWIS DURHAM"
    ],
    "opinions": [
      {
        "text": "COZORT, Judge.\nDefendants appeal from order granting plaintiffs motion for summary judgment. Defendants contend the trial court erred in granting summary judgment for plaintiff, alleging there was a genuine issue of fact concerning the scope of the power of attorney. We hold that a power of attorney purportedly granting the authority for making gifts of real property must, to be effective, expressly provide for making gifts of real property, and we affirm the trial court.\nGeorge W. Pittman, Jr., deceased, owned a certain parcel of land in Merrimon Township, Carteret County, North Carolina, which was the family homeplace. In October 1988, Pittman and his wife, Rose Lupton Pittman, became concerned about what would happen to the homeplace should anything happen to him. In November 1988, Pittman and his wife contacted the defendants, Dessie Pittman Gaskill and Alice Pittman Lewis Durham, to discuss how to assure the homeplace would be protected from his daughter, the plaintiff, and his wife\u2019s daughter from a previous marriage. On 18 November 1988, Pittman consulted an attorney, John Harris, in Morehead City. He explained to his attorney that he wanted to be assured that neither his daughter, his wife\u2019s daughter, nor any federal agency could take the property from him. Mr. Harris drew a power of attorney giving Mrs. Pittman authority to act for Mr. Pittman. He added to the standard form: \u201cthe power to transfer the real estate known as the homeplace that I inherited from my mother.\u201d Mr. Pittman signed the power of attorney.\nMr. Pittman\u2019s attorney also prepared a deed conveying this property to defendants. Mrs. Pittman signed Mr. Pittman\u2019s name in the presence of a notary public. The deed was recorded in the Carteret County Register of Deed\u2019s office. Mrs. Pittman delivered the deed to defendants on 23 November 1988. This property was worth $75,000.00. No consideration was paid for the property.\nGeorge Pittman, Jr., died intestate on 22 April 1990 of Alzheimer\u2019s Disease. His wife and daughter, the plaintiff, are the only persons entitled to inherit under intestacy.\nOn 24 October 1990, plaintiff initiated this action alleging that the deed to the defendants by Rose Lupton Pittman as attorney-in-fact for George W. Pittman, Jr., was void. Plaintiff alleged in an amended complaint that the deed is invalid because her father was not mentally competent at the time he signed the power of attorney. After discovery, plaintiff filed a motion for summary judgment on 25 February 1992. Judge Herbert O. Phillips, III, heard this motion and granted partial summary judgment in plaintiff\u2019s favor, finding that the deed signed by plaintiff\u2019s father\u2019s attorney-in-fact is void and of no effect. Defendants appealed. On 28 September 1993, this Court dismissed the appeal as interlocutory because no damages had been determined. On remand, plaintiff filed a voluntary dismissal without prejudice as to her claim for damages. On 19 April 1994, defendants appealed from Judge Phillips\u2019 previous order granting partial summary judgment for plaintiff.\nThe sole issue on appeal is whether a power of attorney must expressly confer the authority to give a gift of real property. This appears to be a case of first impression in North Carolina. We hold that a power of attorney must expressly confer the authority to give a gift of real property. Accordingly, we affirm the trial court.\nSummary judgment is properly granted where the pleadings, depositions, answers to interrogatories, and admissions on file, and through affidavits show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. N.C. Gen. Stat. \u00a7 1A-1, Rule 56(c) (1990). The party moving for summary judgment has the burden of showing that there is no triable issue of material fact. Pembee Mfg. Corp. v. Cape Fear Constr. Co., 313 N.C. 488, 491, 329 S.E.2d 350, 353 (1985). \u201c \u2018The movant may meet this burden by proving that an essential element of the opposing party\u2019s claim is nonexistent, or by showing through discovery that the opposing party cannot produce evidence to support an essential ele-merit of his claim ....\u2019\u201d Roumillat v. Simplistic Enterprises, Inc., 331 N.C. 57, 63, 414 S.E.2d 339, 342 (1992) (quoting Collingwood v. G.E. Real Estate Equities, 324 N.C. 63, 66, 376 S.E.2d 425, 427 (1989)). Once the movant meets his burden, the burden then shifts to the non-moving party to show that a genuine issue exists by forecasting sufficient evidence of all essential elements of their claim. Waddle v. Sparks, 331 N.C. 73, 82, 414 S.E.2d 22, 27 (1992). The court must look at the evidence in the light most favorable to the non-moving party and with the benefit of all reasonable inferences. Isbey v. Cooper Companies, Inc., 103 N.C. App. 774, 775, 407 S.E.2d 254, 256 (1991), disc. review denied, 330 N.C. 613, 412 S.E.2d 87 (1992).\nFinding no North Carolina cases which specifically address this issue, we look for guidance from other jurisdictions. A power of attorney creates an agency relationship between one who gives the power, the principal, and one who exercises authority under the power of attorney, the agent. Kotsch v. Kotsch, 608 So.2d 879 (Fla. App. 1992), review denied, 617 So.2d 319 (Fla. 1993). A power of attorney must be strictly construed and will be held to grant only those enumerated powers. Id.\nIn Johnson v. Fraccacreta, 348 So.2d 570 (Fla. App. 1977), Carmela Fraccacreta executed a power of attorney appointing her daughter, Delores, as her attorney-in-fact. The power of attorney gave Delores the authority to \u201cbargain, sell, release, convey and mortgage lands ... as she shall think fit. . . .\u201d Id. at 571. Pursuant to the power of attorney, Delores conveyed real property owned by her mother to her and her husband. The court held that this transaction constituted a gift. The court cited the general rule as follows:\n\u201cA general power of attorney authorizing an agent to sell and convey property, even though it authorizes him to sell for such price and on such terms as to him shall seem proper, implies a sale for the benefit of the principal, and does not authorize the agent to make a gift of the property, or to convey or transfer it without a present consideration inuring to the principal.\u201d\nId. at 572 (quoting 73 A.L.R. 884) (emphasis added). A power of attorney authorizing a person to sell, exchange, transfer or convey real property does not authorize a conveyance as a gift, and a conveyance outside the scope of the power of attorney is void. Id. An agent has no authority to give a gift of the principal\u2019s property unless it is expressly granted to the agent or is a necessary implication of the powers expressly conferred upon the agent. Id.\nThe power of attorney in Johnson is very similar to that in the case below. N.C. Gen. Stat. \u00a7 32A-2(1) (1993) provides in pertinent part that an attorney-in-fact has the authority to \u201crent, lease, sell, convey ... and in any way or manner deal with all or any part of any interest in real property whatsoever... as said attorney-in-fact shall deem proper.\u201d Defendants argue that this language and the additional language of \u201cincluding the power to transfer\u201d gives the attorney-in-fact the authority to give a gift of real property. We disagree. As stated in Johnson, the power to give a gift of real property must be expressly conferred. Thus, general language of the power to transfer, along with the statutory form, will not suffice. If Mr. Pittman wanted to provide for giving gifts of real property, he could have specifically granted this power.\nMoreover, under recognized canons of statutory construction, a statute is construed as excluding from its operation those things not expressly mentioned. See Evans v. Diaz, 333 N.C. 774, 779-80, 430 S.E.2d 244, 247 (1993); Jolly v. Wright, 300 N.C. 83, 89, 265 S.E.2d 135, 141 (1980), overruled on other grounds, McBride v. McBride, 334 N.C. 124, 431 S.E.2d 14 (1993). Here, the statute provides for the real property transactions which a person may conduct pursuant to a power of attorney. This statute does not include giving gifts of real property. We conclude that the legislature did not intend to include the power to give a gift of real property under this statute.\nFor the foregoing reasons, we adopt as the rule in North Carolina that the authority to give a gift of real property must be expressly conferred in a power of attorney. The trial court is\nAffirmed.\nJudges MARTIN, John C., and JOHN concur.",
        "type": "majority",
        "author": "COZORT, Judge."
      }
    ],
    "attorneys": [
      "Nelson W. Taylor, III, for plaintiff appellee.",
      "Wheatly, Wheatly, Nobles & Weeks, P.A., by C.R. Wheatly, III, for defendant appellants."
    ],
    "corrections": "",
    "head_matter": "DIANE WHITFORD v. DESSIE PITTMAN GASKILL and ALICE PITTMAN LEWIS DURHAM\nNo. 943SC520\n(Filed 15 August 1995)\nPrincipal and Agent \u00a7 25 (NCI4th)\u2014 gift of real property\u2014 authority expressly required in power of attorney\nA power of attorney purportedly granting the authority for making gifts of real property, to be effective, must expressly provide for making gifts of real property. Thus, a power of attorney in which the language \u201cthe power to transfer the real estate known as the homeplace\u201d was added to the statutory form did not authorize the attomey-in-fact to convey the homeplace as a gift. N.C.G.S. \u00a7 32A-2(1).\nAm Jur 2d, Agency \u00a7\u00a7 30 et seq.\nAppeal by defendants from judgment entered 30 July 1992 by Judge Herbert O. Phillips, III, in Carteret County Superior Court. Heard in the Court of Appeals 26 January 1995.\nNelson W. Taylor, III, for plaintiff appellee.\nWheatly, Wheatly, Nobles & Weeks, P.A., by C.R. Wheatly, III, for defendant appellants."
  },
  "file_name": "0790-01",
  "first_page_order": 824,
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