FRANK J NOA V M & M ENTERPRIZES INC
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STATE OF MICHIGAN
COURT OF APPEALS
FRANK J. NOA,
UNPUBLISHED
January 12, 2001
Plaintiff-Appellee,
v
No. 218819
Otsego Circuit Court
LC No. 98-007750-AV
M & M ENTERPRIZES, INC,
Defendant-Appellant.
Before: Talbot, P.J., and Hood and Gage, JJ.
PER CURIAM.
In this summary proceeding to recover the possession of property sold pursuant to a land
contract, defendant appeals by leave granted from a circuit court opinion and order vacating a
district court judgment. We reverse and remand for entry of judgment in favor of defendant.
This appeal involves the conveyance of real property on the Sturgeon River that was
owned solely by Agatha Noa until 1990, when she quitclaimed the parcel to her sons, Frank Noa
and Michael Noa, as joint tenants, retaining a life estate for herself. Pursuant to a later power of
attorney signed by Frank Noa and Michael Noa, Agatha Noa sold the property to defendant M &
M Enterprizes, of which Michael is an officer and fifty-percent shareholder. Plaintiff
subsequently revoked the power of attorney and filed summary proceedings in the district court
for forfeiture of the land contract pursuant to MCL 600.5701 et seq.; MSA 27A.5701 et seq. The
district court’s inquiry was confined to whether payments had been made on the land contract.
The parties did not challenge the validity of the power of attorney or the land contract in the
district court. The district court ruled in favor of plaintiff, and defendant then appealed to the
circuit court. The circuit court determined that the power of attorney was of no legal
consequence because it purported to give Agatha rights which she already enjoyed, and that the
land contract should be set aside because it did not intend to convey Agatha’s life estate in the
property, nor to convey plaintiff’s and Michael’s remainder interests. The circuit court nullified
the power of attorney and the land contract.
The circuit court’s conclusions of law are reviewed de novo. Gumma v D & T
Construction Co, 235 Mich App 210, 221; 597 NW2d 207 (1999). The existence of a default
under a contract is a question of fact. State-William Partnership v Gale, 169 Mich App 170, 176;
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425 NW2d 756 (1988). Factual findings are clearly erroneous if there is no evidence to support
them or there is evidence to support them but this Court is left with a definite and firm conviction
that a mistake has been made. Zine v Chrysler Corp, 236 Mich App 261, 270; 600 NW2d 384
(1999); Featherston v Steinhoff, 226 Mich App 584, 588, 575 NW2d 6 (1997).
Summary proceedings to recover possession of premises are specifically permitted by the
Revised Judicature Act and are under the jurisdiction of Michigan’s district courts. MCL
600.5704; MSA 27A.5704. These proceedings include actions for the return of property sold
pursuant to a land contract, if forfeiture is permitted by the terms of the contract. MCL
600.5726; MSA 27A.5726. The statute provides that summary proceedings for possession of
premises are subject to appeal to the circuit court as provided in the court rules. MCL 600.5753;
MSA 27A.5753. See also MCR 7.101. Here, the circuit court was not asked to address the issue
of the validity of the power of attorney or the land contract. However, the circuit court had the
power to correct a perceived error of law by the district court. See Portell v Feldman, 354 Mich
611, 612-614; 93 NW2d 305 (1958).
Powers of attorney are strictly construed and cannot be enlarged by construction.
Bergman v Dykhouse, 316 Mich 315, 319; 25 NW2d 210 (1946); Crane v Kangas, 53 Mich App
653, 654; 220 NW2d 172 (1974). Further, the authority to sell real estate must be conferred in
clear and direct language and may not be inferred. Id. An agent acting under a power of attorney
may only perform those acts specified within the power of attorney. Id.
Here, the power of attorney provided, in pertinent part, that Frank J. Noa and Michael J.
Noa appointed Agatha Noa as their attorney, “for us and in our name . . . to grant, bargain, sell
and convey the [property],” and “in our name . . . to make, execute, acknowledge and deliver, a
good and sufficient deed of coveyance [sic] for the same,” and it gave Agatha full power and
authority to perform any act necessary “as fully to all intents and purposes, as we ourselves might
or would do if personally present, with full power of substitution and revocation, hereby ratifying
and confirming all that our attorney or her substitute shall lawfully do or cause to be done by
virtue hereof.” The power of attorney further allowed Agatha to “apply the balance of said
proceeds to her own use and account[.]”
Agatha had the power to sell her life estate interest in the property. Case law clearly
holds that a life tenant’s estate is freely alienable. Albro v Allen, 434 Mich 271, 281; 454 NW2d
85 (1990). The language of this power of attorney encompasses more than just Agatha’s interest.
Instead, the power of attorney specifically authorizes Agatha to perform acts in Frank and
Michael Noas’ names, including selling the property, and again in Frank and Michael Noas’
names, to execute deeds conveying the property.1 The power of attorney here is nearly identical
to the one in Skuta v Hribek, 3 Mich App 633, 635; 143 NW2d 157 (1966). There, the Supreme
Court ruled that the power of attorney permitted the plaintiff to dispose of property pursuant to
the decedent’s wishes. Id. at 635. Like the power of attorney in Skuta, the power of attorney
1
While the power of attorney is broad, it cannot itself be deemed a conveyance of the property.
MCL 565.35; MSA 26.552.
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here contains such broad language that it permits Agatha to do what she wished with the property
and the proceeds.
The sheer breadth of this power of attorney permitted Agatha to sell the property and to
use the proceeds for her own benefit. Agatha sold the property to defendant by land contract. In
lieu of cash payments, Agatha credited defendant with amounts owed by Agatha to Michael for
improvements he had made to the property. Agatha testified that defendant was not delinquent
on the land contract in any way. Because the land contract was executed pursuant to the power
of attorney and Agatha was solely entitled to the proceeds of the sale, plaintiff lacks standing to
challenge the payments on the land contract. The district court clearly erred in finding that
payments had not been made on the land contract.
The circuit court erred in both failing to recognize that the power of attorney authorized
Agatha’s actions and in failing to uphold her sale to defendant. The court improperly focused
upon the revocability of the power of attorney. Plaintiff’s revocation of his power of attorney is
irrelevant because Agatha sold the property during the efficacy of the document, prior to any
attempted revocation. The power of attorney clearly permitted Agatha to sell the property, and
plaintiff’s subsequent revocation of the power of attorney does not operate to invalidate the
conveyance. Additionally, plaintiff’s interest was a vested remainder, which would not become
possessory until Agatha’s death. During her lifetime, Agatha has the power to convey her life
estate in the property. The revocability of the power of attorney is not relevant because the
document clearly permitted Agatha’s sale of the property, which occurred months before the
revocation. With regard to this sale, the revocation was a nullity.
Reversed and remanded for entry of judgment in favor of defendant. We do not retain
jurisdiction.
/s/ Michael J. Talbot
/s/ Harold Hood
/s/ Hilda R. Gage
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