The opinion of the court was delivered by: Cedarbaum, J.
Susanna Wilde sues for restitution from her stepson Peter Wilde for his misappropriation of her property by misuse of certain powers of attorney. Susanna Wilde asks the court to impose a constructive trust on property she has traced, order an equitable accounting, and award any additional equitable remedies the court deems just.
By agreement with Judge Pauley, I conducted a bench trial of this action on June 2 and 3, 2008. Susanna Wilde, Peter Wilde, and Tomás Wilde testified as witnesses. A Spanish interpreter was also present, although all witnesses were fluent in English and testified in English. Before trial, the parties had agreed on almost all of the material facts in the case. The dispute centered on the scope of the powers of attorney given to Peter Wilde.
After examining the evidence, observing the witnesses who testified in the courtroom, and considering the credibility and plausibility of their testimony, I make the following findings of fact.
Susanna Wilde, a citizen of Germany and long-term resident of Colombia, married Guido Wilde in Colombia in 1965. Guido Wilde had three children from a previous marriage: Eleanora Wilde, Tomás Wilde, and Peter Wilde. Eleanora Wilde was murdered in Colombia in 1992. Tomás Wilde is a citizen and resident of Colombia. Peter Wilde moved from Colombia to the United States around 1977 and has lived in Virginia Beach, Virginia, since that time. He is self-employed and operates his business, Service Technicians, Inc. ("STI"), from his home in Virginia Beach. On January 10, 2003, Guido Wilde died. No will was offered for probate.
A. The Powers of Attorney
Susanna and Guido Wilde granted specific powers of attorney to Peter Wilde with regard to checking and investment accounts at Citibank in New York City (the "Citibank Accounts"). Susanna and Guido Wilde owned the accounts jointly with rights of survivorship. Susanna and Guido Wilde also granted Peter Wilde a general power of attorney, which he used in connection with a condominium in Juno Beach, Florida (the "Florida Condominium"). Susanna and Guido Wilde had purchased the condominium jointly in 1994 and owned it as tenants by the entirety.
1. Power of attorney with respect to the Citibank Accounts On June 1, 1982, Susanna and Guido Wilde, using a standard Citibank form, granted Peter Wilde and Tomás Wilde powers of attorney over their Citibank Accounts. On May 14, 1990, Susanna and Guido Wilde revoked the 1982 powers of attorney and granted powers of attorney over the Citibank Accounts solely to Tomás Wilde.
On May 21, 1996, Susanna Wilde, Guido Wilde, and Tomás Wilde granted powers of attorney over the Citibank Accounts to Peter Wilde. Susanna Wilde, Guido Wilde, and Tomás Wilde each designated Peter Wilde as attorney-in-fact and made him "my legal representative to deal with or through Citibank ... in my name as fully as I could do it myself. This authority extends to dealings for my individual accounts or any of my joint accounts."
The 1996 power of attorney also stated:
I give my attorney full authority to do anything, orally or in writing, he or she considers necessary and proper to conduct this business even if it is for the attorney's own benefit, all as if I were personally doing it. I approve everything that my attorney ... has done or shall do in carrying out these instructions.
The 1996 power of attorney provided that it was governed by New York law.
In or around 2001, two additional boilerplate Citibank power-of-attorney forms were executed by Susanna and Guido Wilde. The first granted Peter Wilde power of attorney with respect to the Citibank Accounts, and the second granted Tomás Wilde power of attorney with respect to the Citibank Accounts. The wording of these grants was substantially the same as the wording of the 1996 power of attorney.
The 1996 and 2001 powers of attorney stated that "[a]ny power delivered to Citibank, N.A. and not clearly marked as a revocation and/or substitution for a previous one will be treated as an additional power." Therefore Peter Wilde could control the Citibank Accounts pursuant to both the 1996 power of attorney and the 2001 power of attorney.
2. General Powers of Attorney
On October 4, 1983, Susanna Wilde and Guido Wilde executed three general powers of attorney in favor of Peter Wilde: one by Susanna Wilde individually, one by Guido Wilde individually, and one by Susanna and Guido Wilde jointly. The 1983 powers of attorney were prepared and executed in Virginia Beach, Virginia. Under all three of the 1983 powers of attorney, Guido Wilde and Susanna Wilde appointed Peter Wilde as their "true and lawful attorney," with the power, among other things, to sue for and receive money on their behalf, to sign bonds, deeds, and obligations, to endorse promissory notes, to draw upon their bank accounts, "even though such acts or proposed acts include the withdrawal of all funds in said accounts," and to sell any "real or personal estate, or any interest" therein, "in the State of Virginia or elsewhere."
As discussed above, Susanna and Guido Wilde were joint owners with rights of survivorship of a checking account and an investment account, with funds in fixed income securities, at Citibank. Susanna and Guido Wilde placed a "hold mail" on the Citibank Accounts and traveled to New York a few times each year to meet with Citibank representatives to review their account statements.
In or about May of 1996, Guido Wilde broke his hip in an accident. At that time, Susanna Wilde was suffering from severe depression and was receiving treatment at a psychiatric institution. As a result, Susanna and Guido Wilde could no longer visit the United States. They asked Peter Wilde to obtain copies of the Citibank Accounts and bring them to Bogotá about twice a year.
During this time, Susanna and Guido Wilde also transferred their Bogotá apartment to Tomás Wilde and, in exchange, he assumed their living expenses. Susanna and Guido Wilde continued to reside in the apartment, and Susanna Wilde resides there today. Peter and Tomás Wilde had the following arrangement to take care of Guido and Susanna Wilde's expenses: Peter Wilde would transfer funds from the Citibank Accounts to Tomás Wilde's Banco Santander account in Colombia. Tomás Wilde would then convert the funds to Colombian pesos and use the money to cover Susanna and Guido Wilde's expenses.
The Citibank Accounts became the sole property of Susanna Wilde upon the death of her husband. Tomás Wilde continued to take care of Susanna Wilde's expenses after Guido Wilde's death.
In March of 1996, the Citibank Accounts had a value of $1,764,173.19. In May of 1996, Peter Wilde began drawing checks on Susanna and Guido Wilde's Citibank checking account for his own benefit. Peter Wilde has failed to disclose the checks he wrote for his own benefit from May of 1996 through April 11, 1998. From April 12, 1998 through December 16, 2004, Peter Wilde wrote checks on the Citibank checking account totaling $1,642,134.43. Of that amount, $132,000 was wired to Tomás Wilde for the benefit and maintenance of Susanna and/or Guido Wilde. The remainder, $1,510,134.43, was withdrawn for Peter Wilde's own benefit.
In December of 2004, Citibank contacted Tomás Wilde to ask whether he was aware of the significant withdrawals from the Citibank checking account, the liquidation of investments in the Citibank investment account to cover overdrafts in the checking account, and the fact that the balance of the Citibank Accounts had shrunk to $435,000. Neither Tomás nor Susanna Wilde had been aware of any of these facts.
On December 15, 2004, Tomás and Susanna Wilde instructed Citibank to stop all payments on the Citibank Accounts and revoked the powers of attorney granted to Peter Wilde with respect to the Citibank Accounts. Peter Wilde's last successful withdrawal was on December 16, 2004: a $4,000 check paid to his company, STI.
C. The Florida Condominium and the North Carolina Property
In April of 1994, Susanna and Guido Wilde purchased a condominium apartment in Juno Beach, Florida, as tenants by the entirety. As a result of Guido Wilde's broken hip and Susanna Wilde's treatment for depression, Susanna and Guido Wilde were unable to use the Florida Condominium in 1996. Without informing Susanna or Guido Wilde, Peter Wilde arranged for the rental of the condominium to third parties, starting on May 1 of 1996. He continued renting the Florida Condominium through May 31, 2000.
Peter Wilde admits to collecting the rent money and also admits that he never deposited the money into Susanna and Guido Wilde's accounts at Citibank. However, neither side has submitted any evidence regarding how much rental income was generated.
During June of 1996, Peter Wilde transferred the Florida condominium to Pink Jade Investments, a Cayman Islands corporation. In connection with the transfer, he filed the 1983 powers of attorney with the Palm Beach County Clerk. On May 8, 2000, Peter Wilde caused the Florida condominium to be transferred from Pink Jade to Guido Wilde, using the Florida Condominium as Guido Wilde's address. On May 15, 2000, Peter Wilde, in Guido Wilde's name as his attorney-in-fact, sold the condominium to a third party for $172,000. The deed provided a mailing address for Guido Wilde, but it was Peter Wilde's home address in Virginia Beach. At no time did Peter Wilde disclose the existence of any of these transactions to Guido or Susanna Wilde.
Peter Wilde admits that in June of 2000, he used the proceeds of the May 2000 sale of the Florida Condominium, along with additional funds from the Citibank Accounts, to purchase real property in Frisco, North Carolina (the "North Carolina Property"). He purchased this property in the name of Guido Wilde. Peter Wilde then transferred a 5% undivided interest in the North Carolina property to himself by deed of gift dated June 4, 2001, and later transferred a 95% undivided interest to himself by deed of gift dated September 18, 2002. The value of the North Carolina Property as of August 22, 2007, was $365,800.
Peter Wilde rented the North Carolina Property to third parties from May 1, 2000 through March 11, 2008. He received at least $82,433.12 in rental checks from August 9, 2000 through February 1, 2008. He deposited these checks in bank accounts that he controlled.
Susanna Wilde also introduced evidence that Peter Wilde's actual rental income was higher than he admitted. The 2002 portion of the rental income, according to Peter Wilde's admission, is $10,470. However, he paid taxes on $16,210 of rental income on his 2002 income tax return. Therefore, the total amount of ...