Koruga

I respectfully dissent.

Prefatory Statement

Under compulsion of the unpublished decision in Estate of Aguirre v. Koruga, 42 Fed.Appx. 73 (9th Cir.2002) (“Aguirre I”), the district court permitted the jury to consider extrinsic evidence, including oral testimony, that prior to his death, Ana Maria Koruga’s father, Tomas B. Aguirre, authorized her to make a gift of $4,185,500 from his bank account. The three-judge panel’s interpretation of Washington law in Aguirre I was clearly erroneous. Thus, we are not bound by the law of the case doctrine in interpreting RCW § 11.94.050.

Under RCW § 11.94.050, an attorney in fact, or an agent, is prohibited from making a gift of a principal’s property unless that authority is expressly provided in a written power of attorney. Because the power of attorney executed by her father did not specifically provide that Mrs. Koruga was authorized to make a gift of money from his bank account, the district court’s judgment must be reversed. The judgment is contrary to the clearly expressed intent of the legislature of the State of Washington in RCW § 11.94.050 to protect a deceased or disabled principal from unauthorized gifts of his or her…

MEMORANDUM *

This protracted litigation arises out of a family dispute over more than four million *653 dollars. When it was before a panel of this court in 2002, we held that, although the power of attorney granted to Defendant-Appellee, Ana Maria Koruga, did not expressly state that she was granted the power to make gifts, under Washington law, the court could consider extrinsic evidence that the grantor intended to convey that power. See Estate of Aguirre ex rel. Aguirre v. Koruga, 42 Fed.Appx. 73 (9th Cir.2002).

Pursuant to that decision, the district court conducted a jury trial. The jury apparently concluded there was a power to make gifts, because it entered a verdict in favor of the Korugas and against the Plaintiff-Appellant, Estate of Aguirre. The jury was instructed to consider the extrinsic evidence pursuant to the parties’ stipulated instruction. This second appeal followed that jury verdict.

The Estate argues essentially that the district court had it right the first time in ruling in favor of the Estate and against the Korugas, relying on the language of the power of attorney. The Estate contends that the Washington power of attorney statute supports its view.…