author: EDWIN H. SMITH, Chief Judge.

text:
    Cynthia Lee SULLIVAN, Respondent, v. Alan Richard SULLIVAN, Appellant.
    No. WD 63620.
    Missouri Court of Appeals, Western District.
    April 12, 2005.

      Kellie Renee Bertels, Jefferson City, MO, for Respondent.
    Alan Richard Sullivkn, Jefferson City, MO, Pro Se.
    Before EDWIN H. SMITH, C.J., SPINDEN and SMART, JJ.
   EDWIN H. SMITH, Chief Judge.

Alan Sullivan appeals, pro se, the judgment of the Circuit Court of Cole County dissolving his marriage to the respondent, Cynthia Sullivan, with respect to its orders: (1) dividing the parties’ marital property; (2) awarding the respondent attorney’s fees; and (3) declaring that in any subsequent action to enforce or clarify the dissolution judgment, the prevailing party would be entitled to recover attorney’s fees and costs.

The appellant raises nine points on appeal. In Points I-VII, he claims that the trial court erred in dividing the parties’ marital property. In Point VIII, he claims that the trial court erred in awarding the respondent attorney’s fees of $3,733.75. In Point IX, he claims that the trial court erred in ordering that, in any subsequent action to enforce or clarify the judgment, the prevailing party would be entitled to recover attorney’s fees and costs.

We affirm in part, and dismiss in part.

Facts

The parties were married on August 13, 1994, in Montrose, Missouri, and separated on October 10, 2001. No children were born of the marriage.

On July 8, 2002, the respondent filed a petition for dissolution of marriage in the Circuit Court of Cole County. The appellant filed his answer and cross-petition on December 3, 2002.

On July 21, 2003, the respondent’s petition and the appellant’s cross-petition were taken up and heard. Both parties testified on their own behalf, with no other witnesses being called. The appellant sought both maintenance and a disproportionate division of the marital property, alleging that the respondent’s economic circumstances were superior to his, his contribution to the acquisition of the marital property was significantly greater, and the respondent had engaged in marital misconduct.

The respondent testified that for the first seven years of the marriage she was in school, eventually earning a medical degree in May 2001, and that her income was expended on her education or for marital expenses. She further testified that, in obtaining her medical degree, she incurred approximately $130,000 in debt, and that she was currently working as a resident at Capital Region Medical Center, in Jefferson City, Missouri, earning a gross monthly salary of approximately $3,100. In addition, she testified that, during the course of the marriage, she, along with her stepfather and brother, had prevailed in a suit for damages for the wrongful death of her mother, receiving a judgment of approximately $1,400,000, but that this judgment was being appealed. She also admitted that she informed the appellant on May 20, 2002, while he was on active duty in Washington D.C., that the only way she would even consider staying in the marriage was if he returned home before August 13, 2002, and that before the appellant returned home on July 15, 2002, she began having an affair with a co-worker, causing her to file her petition for dissolution of marriage.

The appellant testified that he worked as a trooper for the Missouri Highway Patrol during the marriage, except for October 11, 2001 — July 15, 2002, when he was on active duty in the military, stationed in Washington D.C. He further testified that, although he would have preferred to stay in the military due to the increase in income, he applied for and received a family hardship discharge, as requested by the respondent, but that upon his return, she had already filed a petition for dissolution and was unwilling to even meet with him. In addition, he testified that the majority of the marital expenses were paid from his income, and that he received a $20,000 workers’ compensation settlement during the marriage, which he also contributed to the acquisition of marital property. Finally, he testified that his current gross monthly salary with the Missouri Highway Patrol was approximately $3,400.

On November 3, 2003, the appellant filed a “MOTION TO COMPEL THE PETITIONER TO PRODUCE SETTLEMENT AND/OR JUDGMENT DOCUMENTS,” requesting that the court order the respondent to produce further evidence concerning her wrongful death judgment. At that point, the appellant was acting pro se in that he had fired his trial counsel. The motion was taken up and heard on that same date. On November 12, 2003, the trial court denied the appellant’s motion and entered its judgment dissolving the parties’ marriage.

In the trial court’s judgment, the only property set aside to either party as non-marital was the respondent’s medical degree, along with the debt incurred in obtaining it, and the proceeds from her wrongful death award, should there be any. In dividing the marital property, which consisted of the respondent’s state-sponsored retirement accounts, several IRA’s and numerous stocks, the court found that the appellant was entitled to a disproportionate property division, as he sought. The appellant was awarded his retirement accounts, one IRA and numerous stocks, as well as all of the marital debt, for a net marital property award of $66,971.71. The respondent was awarded two IRA’s and several stocks, for a net marital property award of $37,933.30. In addition, the court denied the appellant’s request for maintenance and awarded the respondent half of her attorney’s fees, $3,733.75.

On November 24, 2003, the appellant filed a “MOTION TO AMEND THE JUDGMENT OR IN THE ALTERNATIVE MOTION FOR A NEW HEARING/TRIAL,” requesting that “a new hearing be held so that the Marital and Non-Marital property may be divided fairly.” On December 15, 2003, the trial court denied the motion.

This appeal followed.

I.

In Point I, the appellant claims that the trial court erred in dividing the parties’ marital property, based on its valuation of his retirement accounts, because the purported evidence relied on by the court in making its valuation was not properly admitted at trial and the record is otherwise insufficient to support the court’s valuation. Specifically, he claims that the trial court’s valuation of his retirement accounts was based solely on documents not properly admitted at trial, such that it was based on incompetent evidence.

A reviewing court must defer to the trial court’s marital property division unless it is improper under the standard of Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976), or is ah abuse of discretion. Conrad v. Conrad, 76 S.W.3d 305, 314 (Mo.App.2002). Appellate courts presume the division of property was correctly decided, and the party challenging the division bears the burden of overcoming that presumption. Id.

Section 452.330, which governs the division of property in a dissolution proceeding, sets forth a two-step process that is to be followed by the trial court: (1) the court must first set aside to each spouse his or her non-marital property; and (2) then divide the marital property and debts in such proportions as the court deems just. Bauer v. Bauer, 38 S.W.3d 449, 458 (Mo.App.2001). The division of marital property need not be equal, but must be fair and equitable given the circumstances of the case. Shepard v. Shepard, 47 S.W.3d 412, 417 (Mo.App.2001). Section 452.330.1 provides, in pertinent part, that in fashioning a fair and equitable division of marital property, the trial court is required to consider all relevant factors, including:

(1) The economic circumstances of each spouse at the time the division of property is to become effective, including the desirability of awarding the family home or the right to live therein for reasonable periods to the spouse having custody of any children;
(2) The contribution of each spouse to the acquisition of the marital property, including the contribution of a spouse as homemaker;
(3) The value of the nonmarital property set apart to each spouse;
(4) The conduct of the parties during the marriage; and
(5) Custodial arrangements for minor children.

The five statutory factors of § 452.330.1 are not exclusive, and there is no formula determining the weight to be given to the factors in dividing the marital property. Taylor v. Taylor, 25 S.W.3d 634, 640 (Mo.App.2000).

Although the trial court is not expressly required to assign values to marital property, “evidence from which the value of the marital property can be determined must appear.” Spauldin v. Spauldin, 945 S.W.2d 665, 669 (Mo.App.1997). Thus, a trial court is “prohibited from entering a valuation of marital property not supported by the evidence at trial, but [it], nevertheless, enjoys broad discretion in valuing marital property.” Farley v. Farley, 51 S.W.3d 159, 164 (Mo.App.2001). The parties bear an equal burden to present evidence as to the value of marital property. Wright v. Wright, 1 S.W.3d 52, 57 (Mo.App.1999).

This case was tried on July 21, 2003. At trial, neither party introduced any evidence concerning the value of the appellant’s retirement accounts, a Missouri Department of Transportation Retirement Account and a PEBSCO Deferred Compensation Account. On November 3, 2003, the appellant filed a “MOTION TO COMPEL THE PETITIONER TO PRODUCE SETTLEMENT AND/OR JUDGMENT DOCUMENTS,” which was taken up and heard on that same date. On November 7, 2003, the respondent filed several documents valuing the appellant’s retirement accounts. On November 12, 2003, the trial court denied the appellant’s motion of November 3, 2003, and entered its dissolution decree, which, inter alia, divided the parties’ marital property. Included among the marital property were the appellant’s retirement accounts, which were valued in accordance with the documents filed by the respondent on November 7, 2003.

The appellant does not challenge the fact that the information contained in the documents filed by the respondent supports the trial court’s valuations of his retirement accounts. Rather, he claims that the trial court could not consider them in valuing the accounts in that they were never in evidence.

For her part, the respondent contends that, although no evidence was presented at trial valuing the appellant’s retirement accounts, the evidence had been left open by the trial court for the introduction of such evidence. While there is nothing in the trial transcript that would confirm this contention, the transcript of the hearing on the appellant’s motion to compel suggests that both parties believed that the evidence had been left open by the trial court for the express purpose of allowing evidence on the value of the appellant’s retirement accounts. In that regard, the transcript of the motion hearing reflects that the appellant stated: ‘Tour Honor, further, the Court required the [appellant] to produce the retirement documents and the Pebsco documents post-hearing.” It further reflects that the respondent’s attorney stated: “But evidence was held open for retirement information. The judge specifically stated that at the trial because Mr. Valentine [the appellant’s former trial counsel] did not have that information from [the appellant].”

Based on the statements of the appellant and the respondent’s counsel at the motion hearing, it is apparent, contrary to what the appellant contends, that the trial court left the evidence open for the introduction of evidence concerning the value of the appellant’s retirement accounts. Absent any other challenge to this evidence, the trial court was free to consider it in determining the values of the appellant’s retirement accounts. Hence, the appellant’s sufficiency of the evidence claim, which is predicated on our excluding this evidence, must fail.

Point denied.

II.

In Point II, the appellant claims:

The Court misapplied the law by ignoring the economic conditions of each spouse at the time the division of marital and non-marital property is to become effective contrary to 452.330.1(1) RSMo, In Re Marriage of Gustin 861 S.W.2d 639, at 643, Endebrock v. Endebrock, 916 S.W.2d 456, Wright v. Wright, 1 S.W.3d 52 in that the Court could not make a just division and follow the requirements of statute without considering the drastic change in economic conditions of the parties and the earnings potential of a medical doctor as required in case law.

Before attempting to address the merits of the appellant’s claim of error, we must first address the obvious deficiencies of the appellant’s Point Relied On. See Finnical v. Finnical, 81 S.W.3d 554, 557-58 (Mo.App.2002) (stating that an appellate court must first address briefing deficiencies to determine, sua sponte, its own jurisdiction).

Rule 84.04(d), governing proper Points Relied On, requires that each point:

(A) identify the trial court ruling or action that the appellant challenges;
(B) state concisely the legal reasons for the appellant’s claim of reversible error; and
(C) explain in summary fashion why, in the context of the case, those legal reasons support the claim of reversible error.
The point shall be in substantially the following form: ‘The trial court erred in [identify the challenged ruling or action], because [state the legal reasons for the claim of reversible error], in that [explain why the legal reasons, in the context of the case, support the claim of reversible error].’

“ ‘Thus, the rule requires that each point relied on: (1) identify the trial court’s ruling or action that the appellant is challenging on appeal; (2) state the legal reasons for the appellant’s claim of reversible error; and (3) explain in summary fashion why, in the context of the case, those legal reasons support the claim of reversible error.’ ” Wilson v. Carnahan, 25 S.W.3d 664, 666 (Mo.App.2000) (quoting Hall v. Mo. Bd. of Prob. & Parole, 10 S.W.3d 540, 543 (Mo.App.1999)). “ ‘The function of this rule is to give notice to the opposing party of the precise matters which must be contended with and to inform the court of the issues presented for review.’ ” Id. The requirements of Rule 84.04(d) apply to a pro se appellant. Landwehr v. Landwehr, 129 S.W.3d 395, 397 (Mo.App.2004).

The appellant’s point relied on is nothing more than a conclusion and abstract statement of the law, which is not sufficient to meet the requirements of Rule 84.04(d) that a point relied on set out the legal bases for reversal and explain in summary fashion why, in the context of the case, reversal is mandated on the legal grounds asserted. Rule 84.04(d)(4); see also Lemay v. Hardin, 108 S.W.3d 705, 709 (Mo.App.2003). The failure of the appellant to satisfy Rule 84.04(d), with respect to a proper point relied on, is a sufficient basis for us to dismiss this point. State ex rel. Greene v. Greene, 51 S.W.3d 537, 541 (Mo.App.2001).

It is not proper for the appellate court to speculate as to the point being raised by the appellant and the supporting legal justification and circumstances. Stickley v. Auto Credit, Inc., 53 S.W.3d 560, 563 (Mo.App.2001). To do so, would cast the court in the role of an advocate for the appellant, which we cannot be. Id. Nonetheless, in keeping with our policy that we would prefer to rule on the merits, if possible, rather than dismiss for briefing deficiencies, Cade v. State, 990 S.W.2d 32, 36 n. 2 (Mo.App.1999), and in an attempt to understand the appellant’s claim, we will view it in light of his argument thereon. See Geiersbach v. Blue Cross/Blue Shield of Kansas City, 58 S.W.3d 636, 639 (Mo.App.2001) (stating that because procedural rules are to be liberally construed to minimize the number of cases disposed of on technical grounds, court would look to appellant’s brief, respondent’s brief, and pleadings in the record to ascertain the issue on appeal).

Reading the appellant’s point in conjunction with his argument thereon is of no assistance in determining what the appellant is attempting to claim as error. Instead, he presents a confusing and discombobulated argument concerning the trial court’s failure to hear further evidence concerning the value of the respondent’s wrongful death judgment. In addition, he accuses the trial court of favoring the respondent because she is a woman. Where briefing deficiencies are so substantial that, in order to conduct any review, we “would be forced to speculate not only as to the claims being raised, but as to the facts and arguments being relied on in support of the same, we have no choice but to decline review.” Lemay, 108 S.W.3d at 709. Such is the case here.

Point dismissed.

III.

In Point III, the appellant claims that the trial court erred in dividing the parties’ marital property because, in doing so, the court “misapplied the law by not considering the economic contributions of both parties to the acquisition of the marital assets as required by 452.330.1(2) RSMo in that [the court ignored the fact that] 100% of [the respondent’s] income was used to pay for her education, which was determined by the Court to be a non-marital asset[.]”

As noted, supra, Section 452.330.1 provides, in pertinent part, that in fashioning a fair and equitable division of marital property, the trial court is required to consider all relevant factors, including “the contribution of each spouse to the acquisition of the marital property[.]” § 452.330.1(2). However, an award of marital property “cannot be considered deficient for its failure to announce that it was made in accordance with the statutory factors.” Taylor, 25 S.W.3d at 640 (quoting Starrett v. Starrett, 703 S.W.2d 544, 548 (Mo.App.1985)). On appeal, we presume that the trial court considered all the factors of § 452.330 in making its property division and that its award is correct. Lance v. Lance, 979 S.W.2d 245, 249 (Mo.App.1998).

Here, the record clearly reveals that, in dividing the parties’ marital property, the trial court considered all the relevant factors under § 452.330.1, including the fact that the respondent’s income during the marriage was expended primarily on her education. In its judgment, the court expressly stated that it considered:

[the appellant’s] forgone income, [the respondent’s] attorney’s fees, the economic circumstances of each spouse at the time the division of property is to become effective, the contribution of each spouse to the acquisition of marital property, the value of non-marital property set apart to each spouse, the conduct of the parties during the marriage, and the other statutory factors set forth in Section 452.330 RSMo 2000.

(Emphasis added.) Hence, the appellant’s claim that the trial court failed to consider the contribution of each spouse to the acquisition of the marital property is without merit. See Jezewak v. Jezewak, 3 S.W.3d 860, 865 (Mo.App.1999) (holding that the appellant had not overcome the presumption that the trial court considered all of the factors of § 452.330 inasmuch as the trial court expressly stated in its judgment that it had).

Point denied.

IV.

In Point IV, the appellant claims that the trial court erred “by not dividing, or at the very minimum making an equitable adjustment of the Respondent’s medical license and degree[,]” because, by failing to classify the respondent’s medical degree as marital property, the court misapplied the law, as found in § 452.330.2. We disagree.

Section 452.330, in pertinent part, provides:

2. For purposes of sections 452.300 to 452.415 only, “marital property” means all property acquired by either spouse subsequent to the marriage except:
(1)Property acquired by gift, bequest, devise, or descent;
(2) Property acquired in exchange for property acquired prior to the marriage or in exchange for property acquired by gift, bequest, devise, or descent;
(3) Property acquired by a spouse after a decree of legal separation;
(4) Property excluded by valid written agreement of the parties; and
(5) The increase in value of property acquired prior to the marriage or pursuant to subdivisions (1) to (4) of this subsection, unless marital assets including labor, have contributed to such increases and then only to the extent of such contributions.
3. All property acquired by either spouse subsequent to the marriage and prior to a decree of legal separation or dissolution of marriage is presumed to be marital property regardless of whether title is held individually or by the spouses in some form of co-ownership such as joint tenancy, tenancy in common, tenancy by the entirety, and community property. The presumption of marital property is overcome by a showing that the property was acquired by a method listed in subsection 2 of this section.

Hence, under § 452.330, all property acquired by either spouse subsequent to the marriage is presumed to be marital property, but this presumption can be overcome by showing, inter alia, that the property was acquired by gift, bequest, devise, or descent. Bauer, 38 S.W.3d at 459.

It is undisputed that the respondent earned a medical degree during the course of the marriage, and that the appellant supported her, both emotionally and financially, in her efforts. At trial, the appellant requested that the degree be classified as marital property. The trial court, however, refused, finding in the decree that “the medical degree and future earn-mg capacity of [the respondent] is [the respondent’s] non-marital and separate property, which this court has duly considered in making its decision on all relevant issues herein.”

In support of his claim in this point, the appellant argues that “a medical degree [is] marital property when one spouse forfeits his or her education to work and enable the other spouse to obtain an education.” However, in Hanson v. Hanson, 738 S.W.2d 429, 433-435 (Mo. banc 1987), the Supreme Court held that, while professional goodwill in an existing business developed during the course of the marriage does constitute marital property, future earning capacity, in and of itself, does not. In so holding, the Court explained:

Professional goodwill may not be confused with future earning capacity. We have not declared future earning capacity to be marital property. We do not now do so. Instead, we leave to the trial court broad discretion in striking an appropriate balance between husband and wife in the division of property and any award of maintenance.

Id. at 435.

It is well settled that a professional degree of a spouse is not marital property in that to treat it as such would subject the spouse’s future earning capacity to division, which, as we discuss, supra, is prohibited. In re Marriage of Thomas, 21 S.W.3d 168, 174-75 (Mo.App.2000); Rapp v. Rapp, 789 S.W.2d 148, 152 (Mo.App.1990). Rather, a spouse’s contribution to the other spouse’s obtaining a professional degree, as was the case here, may be considered by the trial court in making a fair and equitable division of the parties’ marital property, and, if warranted, the contributing spouse may be awarded a higher percentage of the property that is properly classified as marital. In re Marriage of Studyvin, 779 S.W.2d 338, 339 (Mo.App.1989).

Based on the foregoing principles, the trial court did not err in failing to include the respondent’s medical degree as marital property of the parties, as the appellant contends.

Point denied.

V.

In Point V, the appellant claims that the trial court erred in dividing the parties’ marital property because, in doing so, the court misapplied the law, as found in § 452.330.2, by failing to classify the respondent’s wrongful death award as marital property. We disagree.

As we discussed, supra, all property acquired by either spouse subsequent to the marriage and prior to the dissolution decree is presumed to be marital property. § 452.330.3; Bauer, 38 S.W.3d at 459. This presumption can be overcome by showing that the property was acquired by a method listed in § 452.330.2. § 452.330.3; Bauer, 38 S.W.3d at 459. However, the methods listed in § 452.330.2 are not exclusive. Silcox v. Silcox, 6 S.W.3d 899, 903 (Mo. banc 1999). As a result, the Supreme Court has recognized that other statutory provisions, providing that certain property is not to be considered marital property, do not conflict with § 452.330.2, such that both provisions have effect. See Id. (holding that § 165.572.2, providing that teacher’s retirement benefits are not to be considered martial property, does not conflict with § 452.330.2, such that “both statutes remain in full force”).

Here, it is undisputed that, during the course of the marriage, the respondent was a prevailing party in a suit for damages for the wrongful death of her mother. At trial, the appellant requested that the proceeds from the respondent’s claim be classified as marital property. The trial court, however, found that “the wrongful death suit of [the respondent’s] mother is [the respondent’s] non-marital and separate property, which this court has duly considered in making its decision on all relevant issues herein.”

Missouri follows the “analytic approach” in classifying personal injury awards as marital or non-marital property, under which “the purpose for which the recovery is received controls its classification.” Heslop v. Heslop, 967 S.W.2d 249, 253-54 (Mo.App.1998); Mistler v. Mistler, 816 S.W.2d 241, 249 (Mo.App.1991). However, the Eastern District of this court recently held, in Tambone v. Tambone, 162 S.W.3d 1, 2004 WL 2590497 (E.D.Mo.App. Nov. 16, 2004), that the proceeds from wrongful death claims obtained during the marriage, as opposed to the proceeds from general personal injury claims, are non-marital property, regardless of the purpose for which the recovery was received. In doing so, the court explained that wrongful death claims are purely statutory, and that under the governing wrongful death statute, § 537.080, only a limited group of persons are entitled to bring a claim for wrongful death. Id. at 5. The court further explained that § 537.095 specifically states that: “Any settlement or recovery by suit [brought pursuant to § 537.080] shall be for the use and benefit of those who sue or join, or who are entitled to sue or join, and of whom the court has actual written notice.” Id. at 5. Hence, the court held that, because a spouse is not entitled to sue under § 537.080, and § 537.095 specifically prohibits anyone who is not entitled to sue from sharing the proceeds of such a claim, such proceeds cannot be classified as marital property and divided by the trial court because, to do so would violate § 537.095. Id. Hence, essentially the court held that § 537.095 prohibited spouses from sharing in a recovery in a wrongful death action obtained during the marriage, and, based on the holding of Silcox, that statute did not conflict with § 452.330, such that it must be given full effect.

We find the logic of Tambone persuasive. Consequently, we hold that the trial court did not err in classifying the proceeds from the respondent’s wrongful death recovery as non-marital property. The appellant was not entitled to bring a suit for the wrongful death of the respondent’s mother under § 537.080, and, therefore, was prohibited from sharing in the proceeds from any such suit under § 537.095.

Point denied.

VI.

In Point VI, the appellant claims that the trial court erred in dividing the parties’ marital property because, in doing so, the court misapplied the law by failing to consider, as required, all the factors of § 452.330.1. Specifically, he claims that the trial court failed to consider the conduct of the parties during the marriage, as required under § 452.330.1(4), in that the court failed to consider the “misconduct perpetrated by [the respondent during the marriage].”

Here, although the record contains evidence that the respondent engaged in marital misconduct during the marriage, the record also clearly demonstrates, as we discussed in Point III, supra, that the trial court considered all of the relevant factors under § 452.330 in dividing the marital property. In that regard, the trial court expressly stated that it considered:

[the appellant’s] forgone income, [the respondent’s] attorney’s fees, the economic circumstances of each spouse at the time the division of property is to become effective, the contribution of each spouse to the acquisition of marital property, the value of non-marital property set apart to each spouse, the conduct of the parties during the marriage, and the other statutory factors set forth in Section 452.330 RSMo 2000.

(Emphasis added.) Hence, the appellant’s claim that the trial court failed to consider the conduct of the parties during the marriage is without merit. See Jezewak, 3 S.W.3d at 865 (holding that the appellant had not overcome the presumption that the trial court considered all of the factors of § 452.330 inasmuch as the trial court expressly stated in its judgment that it had).

Point denied.

VII.

In Point VII, the appellant claims that the trial court erred in dividing the marital property because, in doing so, the court “misapplied the law by dividing the $20,000 [workers’ compensation] settlement which [he] received ... in that these funds [were] for future lost wages ... and [were] to be set aside as non-marital[.]” Even assuming, arguendo, that the trial court erred as claimed, the appellant’s point must fail in that he waived any objection to the court’s property division on that ground.

In his “Statement of Marital and Non-Marital Property and Liabilities,” the appellant listed his workers’ compensation settlement as marital property. During his testimony, he stated that he was seeking a fair and equitable division of the parties’ marital property and did not request that the court set off any separate property to him. Hence, he waived any claim that the trial court erred in failing to set off to him, as separate property, the proceeds of his workers’ compensation settlement. See Roth v. Roth, 760 S.W.2d 616, 618 (Mo.App.1988) (holding that the appellant waived his claim that the trial court erred in failing to classify the family home as 50% marital property and 50% non-marital property in that he “listed the house as marital property”). In other words, “[i]nvited error at trial cannot serve an appellant on appeal.” Id.

Point denied.

VIII.

In Point VIII, the appellant claims that the trial court erred in awarding the respondent attorney’s fees of $3,733.75 because it “misapplied the law and abused [its] discretion by awarding [the respondent] one-half of her attorney fees and not awarding [him] his as set forth in 452.355.1[.]” Specifically, he claims that “[t]he court must look at what is just from the view of a reasonable person after considering the financial resources of the parties along with [the] other factors on the date of dissolution and abused [its] discretion in not doing so.” Hence, essentially the appellant is claiming that the trial court erred in awarding the respondent attorney’s fees in that it misapplied § 452.355.1 by failing to consider all relevant factors.

Missouri courts typically follow the “American rule” with regard to awards of attorney’s fees and costs under which each litigant should bear his or her own litigation expenses. Laubinger v. Laubinger, 5 S.W.3d 166, 181 (Mo.App.1999). “However, a trial court may order one party to pay the other’s attorney’s fees and costs where such is authorized by statute.” Id. (citation omitted). In that regard, § 452.355.1 provides:

Unless otherwise indicated, the court from time to time after considering all relevant factors including the financial resources of both parties, the merits of the case and the actions of the parties during the pendency of the action, may order a party to pay a reasonable amount for the cost to the other party of maintaining or defending any proceeding pursuant to sections 452.300 to 452.415 and for attorney’s fees, including sums for legal services rendered and costs incurred prior to the commencement of the proceeding and after entry of a final judgment.

While § 452.355.1 allows a trial court to award attorney’s fees in a dissolution proceeding, it does not require it. In re Marriage of Baker, 986 S.W.2d 950, 958 (Mo.App.1999) (citation omitted). “‘The trial court is, of course, an expert on the issue of attorney’s fees and may independently determine and award such fees as it deems appropriate.’ ” Bauer, 38 S.W.3d at 457 (quoting Taylor, 25 S.W.3d at 649). This court will not reverse a trial court’s decision as to an award or denial of attorney’s fees pursuant to § 452.355, unless we find that the court abused its discretion. Id. (citation omitted). The trial court’s decision as to a request for an award of attorney’s fees is presumptively correct. Adams v. Adams, 51 S.W.3d 541, 549 (Mo.App.2001). And, we presume that the trial court considered all of the factors under § 452.355.1, and the complaining party bears the burden of overcoming that presumption. See Clark v. Clark, 101 S.W.3d 323, 331-32 (Mo.App.2003) (holding that, even though the trial court did not expressly indicate that it considered all of the factors under § 452.355, the appellant failed to overcome the presumption that it did).

The trial court, in awarding attorney’s fees to the respondent, did not articulate the reasoning behind its decision to do so, nor did it expressly state that it considered all of the relevant factors under § 452.355.1. The appellant claims that the trial court could not have considered all of the relevant factors under § 452.355.1 because, if it had, it would not have awarded attorney’s fees to the respondent. In support of his claim, he primarily argues that the trial court failed to consider the parties’ financial resources, as required under § 452.355.1, as the respondent’s financial resources were superior to his due to the fact that she was a doctor and the prevailing party in the wrongful death action, such that the parties’ financial resources would actually justify an award of attorney’s fees to him.

As to the parties’ financial resources, it is undisputed that the respondent is a medical doctor and the appellant is an Officer with the Missouri Highway Patrol. However, as found by the trial court, the respondent’s gross monthly salary was $3,102.00, while the appellant’s was $3,402.00. In addition, the record reveals that the respondent incurred $131,531.00 in debt in order to obtain her medical degree, which the court set aside to her as non-marital debt, and that the appellant had no significant debt other than his portion of the marital debt. And, while there is no question that the trial court set aside the respondent’s wrongful death judgment to her as non-marital property, at the time of trial this judgment was being appealed, such that its value was unknown.

The appellant, based on the fact that the respondent is a doctor, would have this court infer that the trial court did not consider the parties’ financial resources in reaching its conclusion that an award of attorney’s fees to the respondent was justified. This we cannot do. In fact, in direct opposition to the appellant’s claim, the parties’ financial resources, taking into account the respondent’s significant non-marital debt and the fact that the appellant’s monthly salary was $300 higher than the respondent’s justifies an award of attorney’s fees to the respondent.

Point denied.

IX.

In Point IX, the appellant claims that the trial court erred in ordering that, in any subsequent action to enforce or clarify the judgment, the prevailing party would be entitled to recover attorney’s fees and costs, because it violated § 452.355.1. We agree.

In its judgment, the trial court ordered: In the event that either party brings an action for failure to perform any of the obligations imposed by this order on him or her, or for enforcement or clarification of the order, the prevailing party in such action shall have the right to recover his or her attorney’s fees and litigation costs reasonably expended in prosecuting or defending the action. However, no attorney’s fees shall be so recovered by a party filing an action unless that party seeking to recover said attorney’s fees and costs shall have mailed to the breaching party written notice of the alleged failure to perform, and said alleged failure was not cured within ten (10) days after the date of mailing said notice by certified mail to the alleged breaching party’s business or residence address.

As noted, supra, § 452.355.1 provides, in pertinent part, that the trial court may, from time to time, enter an award of attorney’s fees and costs “after considering all relevant factors including the financial resources of both parties, the merits of the case and the actions of the parties during the pendency of the aetion[.]”

In Keller v. Keller, 18 S.W.3d 589, 600-01 (Mo.App.2000), we considered the propriety of the same provision for attorney’s fees in the trial court’s judgment that the appellant challenges here. In holding that such a provision is contrary to § 452.335.1, we explained: “By this provision, the trial court was not only attempting to limit the relevant factors it would consider in awarding attorneys fees in future proceedings, but was attempting to limit recovery to a prevailing party only.” Id. at 601. Because of this, we held the provision was “null and void.” Id.; see also Roberts v. Roberts, 800 S.W.2d 91, 93 (Mo.App.1990). Hence, the provision in the trial court’s judgment declaring that in any subsequent action to enforce or clarify the dissolution judgment, the prevailing party would be entitled to recover attorney’s fees and costs, is null and void. As a result, we dismiss this point, as “there is nothing for an appeals court to review in a null and void order.” Davis v. Oaks, 942 S.W.2d 464, 467 (Mo.App.1997).

Point dismissed.

Conclusion

The circuit court’s judgment of dissolution is affirmed, except with respect to its order declaring that in any subsequent action to enforce or clarify the dissolution judgment, the prevailing party would be entitled to recover attorney’s fees and costs, which we dismiss as being null and void.

SPINDEN and SMART, JJ, concur.

      . All statutory references are to RSMo 2000, unless otherwise indicated.

      . All rule references are to the Missouri Rules of Civil Procedure (2004), unless otherwise indicated.

      . The appellant cites Riaz v. Riaz, 789 S.W.2d 224, 227 (Mo.App.1990), for the proposition that, under certain circumstances, professional degrees can be classified as marital property. While we agree that Riaz could reasonably be read to support such a proposition, inasmuch as the court stated that "the factors which justify classifying the present value of the educated spouse’s earning capacity as, a marital asset are not present here," thereby implying that, under different circumstances such factors could be present, such a reading is clearly contrary to the Supreme Court’s holding in Hanson, which, of course, is controlling. Mo. Const, art. V, § 2.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Richard Lee WARD, Appellant, v. Carol Sue WARD, Respondent.
    No. WD 64033.
    Missouri Court of Appeals, Western District.
    April 12, 2005.
    J.C. Hambrick, Jr., Branson, MO, for appellant.
    Robert E. Sundell, Maryville, MO, for respondent.
    Before ROBERT G. ULRICH, Presiding Judge, JAMES M. SMART, Jr., Judge and JOSEPH M. ELLIS, Judge.
   ORDER

PER CURIAM.

Richard Lee Ward (Husband) appeals the judgment of the Circuit Court of Holt County dissolving his marriage to Carol Sue Ward (Wife). Specifically, Husband challenges the trial court’s decision to strike Husband’s pleadings and to preclude Husband from, presenting evidence at trial and the court’s subsequent distribution of the marital assets. After a thorough review of the record, we conclude that the judgment is supported by substantial evidence, is not against the weight of the evidence, and that no error of law appears. No jurisprudential purpose would be served by a formal written opinion; however, a memorandum explaining the reasons for our decision has been provided to the parties.

Judgment affirmed. Rule 84.16(b).


author: ALAN E. HIGHERS, J.,

text:
    Judith Mae HARBER as Trustee of Trust B for the Estate of Edwin Erwin v. LEADER FEDERAL BANK FOR SAVINGS.
    Court of Appeals of Tennessee, Western Section, at Jackson.
    Jan. 22, 2004 Session.
    June 16, 2004.
    Application for Permission to Appeal Denied by Supreme Court Jan. 24, 2005.

      Everett B. Gibson, Lawrence Harris, Memphis, TN, for Appellant.
    Robert E. Craddock, Jr., John S. Wilson, III, Jeffrey Fleishmann, Memphis, TN, for Appellee.
   OPINION

ALAN E. HIGHERS, J.,

delivered the opinion of the court,

in which W. FRANK CRAWFORD, P.J., W.S., and DAVID R. FARMER, J., joined.

This case involves the wrongful payment of funds by Defendant over Plaintiffs forged signature. The lower court found that the majority of Plaintiffs claims are barred by former TenmCode Ann. § 47-4-406, which places a one-year limit on certain claims by bank customers seeking to recover losses occasioned by unauthorized signatures. For the following reasons, we affirm in part, reverse in part, and remand for further proceedings.

Facts and Procedural History

Edwin Erwin (“Mr.Erwin”) died on February 29, 1988, leaving a will that provided for the creation of two testamentary trusts, Trust A and Trust B, to be used for the benefit of his wife, Alma Erwin (“Ms.Erwin”), for the remainder of her life. Upon Ms. Erwin’s death, the remaining assets of the two trusts were to be disbursed to the Erwins’ four children. Under the will, the Erwins’ daughter, Judith Harber (“Plaintiff’), acted as the trustee for both trusts. On July 12, 1988, acting in her capacity as trustee, Plaintiff used $100,000 from the Trust B account to purchase a Large Denomination Certificate (“LDC”) from Leader Federal Bank for Savings (“Defendant”). Plaintiff provided Defendant with a copy of the will at this time. Defendant, in turn, issued Plaintiff a passbook and assigned account number 946583-2 to the LDC. The LDC, characterized by Defendant as a time deposit, was to earn interest for six months, at which time it would reach maturity. Upon reaching maturity, the LDC would not automatically renew or convert into an interest-bearing account. Instead, it would simply remain inert, earning no interest, until Plaintiff closed the account or otherwise provided for its disposition.

On January 9, 1989, the date of maturity, Plaintiffs husband (“Husband”), whom she has since divorced, gave Defendant unauthorized instructions to convert the LDC into an Instant Access account. The redesignation of the account was noted in Plaintiffs passbook, which Husband had in his possession at the time. The Instant Access account retained the same account number and was still held in Plaintiffs name. It had several different characteristics, however, than the LDC: monthly account statements sent to the account holder; no time limit on accrual of interest; no minimum balance of $100,000; instant accessibility of funds by check or ■withdrawal; and the ability to withdraw only a portion of the account’s funds without incurring a penalty. After Husband converted the LDC to the Instant Access account, Plaintiff began to receive monthly account statements at her home, as well as monthly interest checks. Plaintiff admits that she did not read any of the account statements sent to her during this period, nor did she take note of the fact that she had not received account statements under the terms of the LDC. She also admits that she indorsed at least six interest checks from April to December of 1989 sent under the terms of the Instant Access account.

Approximately four years after he effected the conversion of the LDC to the Instant Access account, Husband made a total of eight unauthorized withdrawals from the Instant Access account that depleted the entire balance of the account. He completed the withdrawals by forging Plaintiffs name on withdrawal orders. Pursuant to the terms of the Instant Access account, Defendant attached the paid withdrawal orders to the monthly account statements sent to Plaintiff, who failed to inspect the statements. Plaintiff did not discover the unauthorized conversion and withdrawals until April 1995, when she sought to settle Ms. Erwin’s estate and distribute the residue of Trust A and Trust B. By this time, Husband had already fled the jurisdiction.

On May 25, 1995, Plaintiff filed suit against Defendant for breach of contract for allowing Husband to convert the LDC to the Instant Access account and subsequently withdraw the funds. She also sought to recover from Defendant certain interest checks issued under the Instant Access account that were paid to Husband over Plaintiffs forged signature. Defendant countered by arguing that Plaintiffs claim is barred by Tenn.Code Ann. § 47-4^106, which places a one year limit on claims against banks arising from unauthorized signatures. Defendant further argued that Plaintiff had ratified the conversion of her LDC to an Instant Access account by indorsing interest checks, thereby accepting the benefit of the conversion. Plaintiff and Defendant each moved for summary judgment, and, following a hearing on April 20, 2001, the trial court issued its order. In the May 20 order, the trial court granted Defendant partial summary judgment, ruling that the one-year limit set forth in TenmCode Ann. § 47-4-406 precludes Plaintiff from challenging the conversion of the LDC and the first six withdrawal orders forged by Husband. The trial court then granted Plaintiff partial summary judgment as to the final two withdrawals, based on its determination that Defendant had paid the withdrawals in bad faith. The lower court also found that certain interest checks from the Instant Access account were recoverable by Plaintiff. In total, Plaintiff was awarded $9,884.64 for the unauthorized withdrawals and $46.01 in interest check amounts, plus prejudgment interest on both amounts. Plaintiff then timely filed this appeal, raising the following issues, as we perceive them, for our consideration:

I. Whether the trial court erred in finding that Tenn.Code Ann. § 47-4-406 bars Plaintiffs claim regarding the conversion transaction;
II. Whether the trial court erred in funding that Tenn.Code Ann. § 47-4-406 bars, in part, Plaintiffs claim regarding the unauthorized withdrawals from the Instant Access account; and
III. Whether the trial court erred in finding that Tenn.Code Ann. § 47-4-406 bars, in part, Plaintiffs claim regarding interest checks from the Instant Access account.

Defendant raises two additional issues:

IV. Whether the trial court erred in finding that Defendant lacked good faith in paying the forged withdrawal orders presented by Husband; and
V. Whether the trial court erred in awarding prejudgment interest.

Standard of Review

In Staples v. CBL & Assocs., Inc., 15 S.W.3d 83 (Tenn.2000), the Tennessee Supreme Court set forth the standards governing appellate review of a trial court’s grant of summary judgment:

Since our inquiry involves purely a question of law, no presumption of correctness attaches to the lower court’s judgment, and our task is confined to reviewing the record to determine whether the requirements of Tenn. R. Civ. P. 56 have been met. See Hunter v. Brown, 955 S.W.2d 49, 50-51 (Tenn.1997); Cowden v. Sovran Bank/Cent. So., 816 S.W.2d 741, 744 (Tenn.1991). Tennessee Rule of Civil Procedure 56.04 provides that summary judgment is appropriate where: (1) there is no genuine issue with regard to the material facts relevant to the claim or defense contained in the motion; see Byrd v. Hall, 847 S.W.2d 208, 210 (Tenn.1993); and (2) the moving party is entitled to a judgment as a matter of law on the undisputed facts. See Anderson v. Standard Register Co., 857 S.W.2d 555, 559 (Tenn.1993).

Staples, 15 S.W.3d at 88.

Applicable Law

As an initial matter, we must identify the version of TenmCode Ann. § 47-4-406 that applies to the present dispute. See Kuykendall v. Wheeler, 890 S.W.2d 785, 787 (Tenn.1994); Ingram v. Earthman, 993 S.W.2d 611, 623 (Tenn.Ct.App.1998). The conversion of the LDC to an Instant Access account occurred on January 9, 1989, and the unauthorized withdrawals took place between January of 1993 and November of 1994. In 1995, the General Assembly adopted a revised version of the Uniform Commercial Code that changed, among other things, the language of TenmCode Ann. § 47-4-406. See Ingram, 993 S.W.2d at 623. The relevant portion of the pre-1995 statute, found at TenmCode Ann. § 47-4-406(3) (1994), states:

A customer who does not within one (1) year from the time the statement and items are made available to the customer (subsection (1)) discover and report his unauthorized signature or any alteration on the face or back of the item or does not within three (3) years from that time discover and report any unauthorized indorsement is precluded from asserting against the bank such unauthorized signature or indorsement or such alteration.

Tenn.Code Ann. § 47-4-406 (1994) (emphasis added). The analogous provision of the current statute, initially enacted in 1995, is contained in TenmCode Ann. § 47-4-406(f) (2001), which states:

A customer who does not within one (1) year after the statement or items are made available to the customer (subsection (a)) discover and report an occurrence referred in subsection (c) is pre-eluded from asserting against the bank any claim with respect thereto. If there is a preclusion under this subsection, the payor bank may not recover for breach of warranty under § 47-4-208 with respect to the unauthorized signature or alteration to which the preclusion applies.

Tenn.Code Ann. § 47-4-406 (2001) (emphasis added).

In determining whether to apply the current version of the statute, or the pre-1995 version in effect during the events at issue, we bear in mind the holding of the Tennessee Supreme Court in Kuykendall:

Whether a statute applies retroactively depends on whether its character is “substantive” or “procedural.” If “substantive,” it is not applied retroactively because to do so would “disturb a vested right or contractual obligation.” Saylors v. Riggsbee, 544 S.W.2d 609, 610 (Tenn.1976). On the other hand, “[ríe-media! or procedural statutes apply retrospectively not only to causes of action arising before such acts become law, but also to all suits pending when the legislation takes effect, unless the legislature indicates that a contrary intention or immediate application would produce an unjust result.” Id. (citations omitted). A statute is procedural if it defines “[t]he mode or proceeding by which a legal right is enforced, as distinguished from the law which gives or defines the right....” Id.

Kuykendall, 890 S.W.2d at 787. On its face, the time restriction set forth in Tenn. Code Ann. § 47-4-406 would seem to be a statute of limitations that is, arguably, procedural in nature. However, the majority of jurisdictions that have considered this provision of the Uniform Commercial Code have held that it is, in fact, a substantive rale of law. See Euro Motors, Inc. v. Southwest Fin. Bank and Trust Co., 297 Ill.App.3d 246, 231 Ill.Dec. 415, 696 N.E.2d 711, 714 (1998); Jensen v. Essexbank, 396 Mass. 65, 483 N.E.2d 821, 822 (1985); Space Distrib., Inc. v. Flagship Bank of Melbourne, 402 So.2d 586, 589 (Fla.Dist.Ct.App.1981); Ind. Nat’l Corp. v. FACO, Inc., 400 N.E.2d 202, 205 (Ind.Ct.App.1980). The one-year period of limitation acts as a “statutory prerequisite of notice, not as a statute of limitations within which a suit must be filed.” Euro Motors, Inc., 231 Ill.Dec. 415, 696 N.E.2d at 714. Accordingly, we will not apply the current version of TenmCode Ann. § 47-4-406 (2001) retroactively, but will instead use the pre-1995 version in effect during the events at issue.

The Conversion Transaction

On January 9, 1989, the date that Plaintiffs LDC matured, Defendant converted the LDC into an Instant Access account based on Husband’s unauthorized instructions. In its order granting Defendant partial summary judgment, the trial court held that Plaintiffs claim on this wrongful transaction is barred by the one-year limitation set forth in Tenn.Code Ann. § 47-4-406(3) (1994). This ruling was premised on the lower court’s finding that the LDC constituted an “account,” as defined in TenmCode Ann. § 47-4-104(1) (1994). The trial court apparently reasoned that Tenn.Code Ann. § 47-4-406 applies to any transaction involving an “account.” This broad approach ignores critical limiting language contained in the statute.

The pre-1995 version of Tenn.Code Ann. § 47-4-406(3) places a one-year limitation on claims by customers who receive an account statement and item that reveal an unauthorized signature or alteration on the item. After reviewing the record, we find that the conversion transaction does not satisfy the elements necessary to trigger the one-year limitation contained in the statute. The conversion transaction occurred when Husband provided oral instructions, in person, for the conversion of the LDC to the Instant Access account. The conversion itself was a “record change” that was effected by “three or four key strokes on the terminal” according to a former bank manager for Defendant. The only written record of the transaction was a notation, with no signature, entered in the Plaintiffs passbook, which was in Husband’s possession at the time. Otherwise, the entire transaction was completed electronically, with no paper trail.

The conversion transaction, as described, fails to meet two of the criteria necessary to trigger the one-year limit set forth in former Tenn.Code Ann. § 47-4-406(3). First, the electronic conversion of the LDC is not an “item” within the meaning of Article 4. Although Tennessee courts have not specifically addressed this issue, other jurisdictions dealing with this question have found that “item” does not include transactions effected entirely by electronic means. See Sinclair Oil Corp. v. Sylvan State Bank, 254 Kan. 836, 869 P.2d 675, 680 (1994) (citing Bradford Trust Co. v. Tex.-Am. Bank Houston, 790 F.2d 407, 409 (5th Cir.1986); Evra Corp. v. Swiss Bank Corp., 673 F.2d 951, 955 (7th Cir.1982); Delbrueck & Co. v. Mfrs. Hanover Trust Co., 609 F.2d 1047, 1051 (2d Cir.1979); Walker v. Tex. Commerce Bank, N.A., 635 F.Supp. 678, 681 (S.D.Tex.1986); Weeks Office Prods., Inc. v. Chem. Bank, 180 A.D.2d 419, 579 N.Y.S.2d 86 (1992)). Although Sinclair Oil Corp. dealt with an electronic transfer of funds between accounts with different owners, unlike the present case, the basis for the holding is still persuasive. In that case, the Kansas Supreme Court stated, in relevant part:

The substantive rationales that courts have expressed for excluding [electronic fund transfers] from UCC coverage include: (1) electronic debits are not “items” within the meaning of Article 4, Gatoil, Inc. v. Forest Hill State Bank, 1986 WL 213428, 1 UCC Rep. Serv.2d 171, 182 (D.Md.1986); (2) the UCC “does not specifically address the problems of electronic fund transfers,” Delbrueck & Co., 609 F.2d at 1051; and (3) the UCC drafters never contemplated electronic transactions when developing the Code, Evra Corp., 673 F.2d 951, 955 ... The ideas in Articles 3 and 4 of the UCC, as pointed out by White and Summers, depend upon bankers looking at particular words and numerals on the face of a particular instrument. In the case of [electronic fund transfers], the medium of communication is the computer and the computer message. 1 White & Summers, Uniform Commercial Code, p. 811.

Sinclair Oil Corp., 869 P.2d at 680-81. As this language demonstrates, Article 4 and, by extension, former TenmCode Ann. § 47-4-406(3), were simply not created to govern transactions that are wholly electronic, as opposed to more traditional transactions effected by written instruments. This is one reason that the conversion transaction in the instant case does not fall within the purview of former Tenn. Code Ann. § 47-4-406(3). In addition to the absence of an “item” in the transaction, the conversion also lacks any “unauthorized signature.” The record clearly demonstrates that no signature whatsoever was used to effectuate the conversion of the LDC to the Instant Access account. Courts that have considered this issue have held that the lack of an unauthorized signature prevents a transaction from triggering the one-year limit in § 4406(3). See, e.g., La Sara Grain Co. v. First Nat’l Bank of Mercedes, 673 S.W.2d 558, 564 (Tex.1984). Based on both of the foregoing reasons, we reverse the ruling of the trial court and hold that Plaintiffs claim on the conversion transaction is not barred by the one-year limitation enumerated in former Tenn.Code Ann. § 47-4-406(3).

Defendant raises an alternative argument, originally made at the trial level, that Plaintiff is still barred from challenging the conversion based on either es-toppel or ratification. It is a well accepted principle that a deposit creates a contractual relationship between depositor and bank. Hamilton Nat. Bank of Chattanooga v. Swafford, 213 Tenn. 545, 376 S.W.2d 470, 477 (1964); Foutch v. Alexandria Bank & Trust Co., 177 Tenn. 348, 149 S.W.2d 76, 80 (1941). It is, likewise, elemental that modification of an existing contract cannot be accomplished by the unilateral action of one party. Galbreath v. Harris, 811 S.W.2d 88, 92 (Tenn.Ct.App.1990); Batson v. Pleasant View Util. Dist., 592 S.W.2d 578, 582 (Tenn.Ct.App.1979); Balderacchi v. Ruth, 36 Tenn.App. 421, 256 S.W.2d 390, 391 (1952). Instead, there must be “the same mutuality of assent and meeting of the minds as required to make a contract.” Balderacchi, 256 S.W.2d at 391. It is undisputed in the present case that there was no mutuality of assent between Plaintiff and Defendant at the time the LDC was converted to the Instant Access account. The record also reveals that the terms of the LDC were such that it was not to be automatically renewed or converted upon maturity. Instead, it was to remain static, without earning interest, until Plaintiff provided for its disposition. In light of these terms, it is clear that, in the absence of estoppel or ratification, the conversion of the LDC constituted a breach of contract by Defendant rather than an effective modification of the previous deposit contract.

It is fundamental that a principal who ratifies an unauthorized contract is bound by its terms as if he or she had executed it originally. Webber v. State Farm Mut. Auto. Ins. Co., 49 S.W.3d 265, 270 (Tenn.2001) (citing 12 Williston on Contracts § 35.22 (4th ed.1999)). Ratification of an unauthorized transaction occurs when “one approves, adopts, or confirms a contract previously executed ‘by another[,] in his stead and for his benefit, but without his authority.’ ” Id. at 270 (citation omitted). It is usually a question of the principal’s intent, an issue that is generally regarded as a question of fact to be determined from the surrounding circumstances. Id. Ratification may, however, be implied from silence or from conduct justifiable only if there is a ratification. Id.; Valley Fid. Bank and Trust Co. v. Cain P’ship, Ltd., 738 S.W.2d 638, 640 (Tenn.Ct.App.1987). In fact, as the Tennessee Supreme Court noted in Webber, “some actions so clearly evidence a principal’s intent to ratify the transaction that ratification may be said to happen as a matter of law.” Webber, 49 S.W.3d at 270. The Court then addressed a particular course of action that often gives rise to a finding of ratification:

One action that clearly evidences a principal’s intention to ratify an otherwise unauthorized contract is the bringing of a lawsuit to enforce the terms of that contract. The law has long been settled that “[b]y bringing an action on the contract, a principal will be held to have ratified it, whether the action be against the third person, or against the agent, for the proceeds of the contract.” Memphis St. Ry. Co., 118 Tenn. at 621, 102 S.W. at 348. In fact, one court has characterized the bringing of a suit based upon the actions of another as “one of the most unequivocal methods of showing a ratification of an agent’s authority. ...” Mattila v. Olsvick, 228 Or. 606, 365 P.2d 1072, 1074 (1961).... Importantly, though, once a principal commences an action on a contract, he or she may not ratify only the beneficial parts of the contract and disclaim the remainder of the obligations as unauthorized. James Cable Partners, L.P. v. City of Jamestown, 818 S.W.2d 338, 344 (Tenn.Ct.App.1991).

Webber, 49 S.W.3d at 270-71.

In this case, Plaintiff seeks damages primarily arising from the loss of her $100,000 deposit. This portion of her suit certainly does not support a finding of ratification, as she can demand these funds under the terms of the original LDC contract, while still contesting the validity of the conversion transaction. More problematic, however, is Plaintiffs attempt to recover the amount of certain interest checks that were paid to Husband over Plaintiffs forged signature. The interest checks in question were issued under the terms of the Instant Access account, which would bear interest indefinitely. The LDC, by contrast, had matured as of January 9, 1989, the date of the unauthorized conversion, and Plaintiff would not have received any interest checks after this date but for the conversion. Consequently, Plaintiff seeks to enforce a provision of the Instant Access account, while also denying that she agreed to its terms. In light of the holding in Webber, we must conclude that, in seeking to enforce a provision of the Instant Access account, Plaintiff has ratified the conversion of her LDC to an Instant Access account. Accordingly, she is bound by the terms of the Instant Access account and cannot now disclaim those provisions that are not beneficial. Webber, 49 S.W.3d at 270-71. We, therefore, affirm the trial court’s grant of summary judgment to Defendant on this issue. We must now determine whether the trial court properly dismissed Plaintiffs claim as to six of Husband’s eight unauthorized withdrawals from the Instant Access account.

The Unauthorized Withdrawals

Husband effected eight separate withdrawals from the Instant Access account by forging Plaintiffs signature on withdrawal orders. These transactions took place over a period of nearly two years, from January of 1993 to November of 1994. In its order, the trial court granted Defendant summary judgment as to the first six withdrawals, because they occurred more than a year before Plaintiff reported the transactions to Defendant on April 26, 1995. The lower court found that the one-year limitation in former Tenn.Code Ann. § 47-4-406(3) precluded Plaintiff from asserting a claim as to these transactions. Having reviewed the relevant authority in light of the facts of this case, we agree with the ruling of the trial court.

As discussed above, Plaintiff ratified the conversion of the LDC to the Instant Access account. Under the terms of the Instant Access account, account statements were made available to Plaintiff. These statements disclosed activity on the account, including Husband’s unauthorized withdrawals. Unlike the conversion transaction, these withdrawals do involve both unauthorized signatures, which Husband forged on the withdrawal orders, and “items,” in the form of the written withdrawal orders themselves. Defendant sent Plaintiff monthly account statements, accompanied by copies of the fraudulent withdrawal orders, that revealed the unauthorized activity on the Instant Access account. For six of the withdrawals, Plaintiff then failed to discover and report their unauthorized nature within a one-year period. As such, former Tenn.Code Ann. § 47-4-406(3) precludes Plaintiff from asserting a claim against Defendant on these withdrawals. We, therefore, affirm the trial court’s grant of summary judgment on this issue.

The Interest Checks

In her final issue on appeal, Plaintiff challenges the lower court’s finding that former Tenn.Code Ann. § 47-4-406(3) bars her claim for those interest checks, issued under the terms of the Instant Access account, that were wrongfully paid to Husband prior to April 26, 1994. She argues that the one-year limit does not apply because the interest checks do not constitute “items paid in support of debit entries” as required by former Tenn.Code Ann. § 47-4-406(1). We agree.

As we discussed earlier, subsection (3) of former Tenn.Code Ann. § 47-4-406 applies when an account statement and an item are made available to a customer, who then fails to report within one year unauthorized activity revealed by the statement and item. In setting forth the “statement” and “item” requirement, subsection (3) specifically references subsection (1), which provides a more thorough explanation of the terms. Subsection (1) provides, in relevant part, that a customer’s duty to discover and report an unauthorized signature is triggered when a bank sends the customer a statement of account accompanied by items “paid ... in support of the debit entries.” According to the plain language of the statute, then, the item at issue must have been paid in support of a debit entry on the customer’s account before any statutory duty will arise. Here, the interest checks were not paid in support of debit entries. Instead, it is undisputed that Defendant paid any interest due Plaintiff by means of cashier’s check. In Stringfellow v. First Am. Nat’l Bank, 878 S.W.2d 940 (Tenn.1994), the Tennessee Supreme Court noted:

In Tennessee, as elsewhere, there are essentially two types of checks in general use: ordinary checks, which are drawn upon a bank by someone other than the bank; and bank checks, which is a general term that is used to refer to a variety of instruments, including cashier’s checks. A cashier’s check is a check drawn by a bank upon itself.

Id. at 942-43. It is clear, then, that Defendant issued interest checks by drawing upon its own funds rather than by debiting Plaintiffs account. As such, the lower court erred in finding that interest checks wrongfully paid to Husband are barred by former Tenn.Code Ann. § 47-4-406. We, therefore, reverse the trial court’s ruling on this issue and remand for a determination of Plaintiffs damages.

Bad Faith Payment of Withdrawal Orders

In its first issue on appeal, Defendant argues that the trial court erred in finding that Defendant failed to act in good faith when paying the withdrawal orders of May 27, 1994 and November 16, 1994, the only two withdrawals not barred by the one-year limit in former Tenn.Code Ann. § 47-4-406(3). We note, as an initial matter, that a grant of summary judgment on the issue of bad faith is proper only if reasonable minds could not differ. S. Fire & Cas. Co. v. Norris, 35 Tenn.App. 657, 250 S.W.2d 785, 791 (1952).. Here, the lower court based its ruling on the analysis of “good faith” provided in Glazer v. First Am. Nat’l Bank, 930 S.W.2d 546 (Tenn.1996). In that case, the Tennessee Supreme Court held that “bad faith” on the part of a bank may include a “knowing or reckless disregard of the customer’s rights.” Id. at 550. Based on this definition, the lower court found that reasonable minds could not disagree that Defendant had acted in bad faith in paying the two withdrawal orders at issue:

It is stipulated among the parties that the authority of Plaintiff, trustee, was created in the will of Edwin Erwin. It is also stipulated that a copy of the will was filed with [Defendant] at the creation of the various trust accounts therefrom. In addition, based on the account and the terms thereof, [Defendant] had knowledge that the Plaintiff was the account holder and therefore the only person authorized to conduct transactions on behalf of the beneficiaries of the trust ... [this constitutes] a showing that the bank failed to act in good faith when paying the items....

We agree. Here, Defendant had several forms of notice that Plaintiff was the only person authorized to conduct transactions on the account, yet consistently allowed a third party to make unauthorized transactions over a period of years. This constitutes the type of reckless disregard of Plaintiffs rights as a customer that warrants a finding of “bad faith” at the summary judgment level. Accordingly, we affirm the ruling of the trial court on this issue.

Prejudgment Interest

Finally, Defendant challenges the lower court’s award of prejudgment interest running from the date Plaintiff made her demand on Defendant in April of 1995. The Tennessee Supreme Court stated in Myint v. Allstate Ins. Co., 970 S.W.2d 920 (Tenn.1998):

An award of prejudgment interest is within the sound discretion of the trial court and the decision will not be disturbed by an appellate court unless the record reveals a manifest and palpable abuse of discretion ... Several principles guide trial courts in exercising their discretion to award or deny prejudgment interest. Foremost are the principles of equity. Tenn.Code Ann. § 47-14-123. Simply stated, the court must decide whether the award of prejudgment interest is fair, given the particular circumstances of the case. In reaching an equitable decision, a court must keep in mind that the purpose of awarding the interest is to fully compensate a plaintiff for the loss of the use of funds to which he or she was legally entitled, not to penalize a defendant for wrongdoing. Mitchell v. Mitchell, 876 S.W.2d 830, 832 (Tenn.1994); Otis, 850 S.W.2d at 446. In addition to the principles of equity, two other criteria have emerged from Tennessee common law. The first criterion provides that prejudgment interest is allowed when the amount of the obligation is certain, or can be ascertained by a proper accounting, and the amount is not disputed on reasonable grounds. Mitchell, 876 S.W.2d at 832. The second provides that interest is allowed when the existence of the obligation itself is not disputed on reasonable grounds. Id. (citing Textile Workers Union v. Brookside Mills, Inc., 205 Tenn. 394, 326 S.W.2d 671, 675 (1959)). We note that these criteria, if strictly construed, could prohibit the recovery of prejudgment interest in the vast majority of cases ... Not surprisingly, an analysis of relevant case law reveals that these criteria have not been used to deny prejudgment interest in every case where the defendant reasonably disputed the existence or amount of an obligation. More typically, courts either use the certainty of a claim as support for an award of prejudgment interest, or they do not discuss the certainty of the claim at all ... [Thus] [t]he uncertainty of either the existence or amount of an obligation does not mandate a denial of prejudgment interest, and a trial court’s grant of such interest is not automatically an abuse of discretion, provided the decision was otherwise equitable. The certainty of the plaintiffs claim is but one of many nondispositive facts to consider when deciding whether prejudgment interest is, as a matter of law, equitable under the circumstances.

Id. at 927-28. Here, Plaintiffs right of recovery may have been a subject of dispute, but the actual amounts represented by each withdrawal were not. Each withdrawal was documented precisely, so the amount of damages to be awarded can be easily ascertained. Further, the record indicates that Plaintiff was without the use of these proceeds, which would have been earning interest had they not been wrongfully disbursed, from the date of the loss. Thus, Plaintiff cannot be fully compensated without an award of interest. As such, we find that there is evidence to support the trial court’s award of prejudgment interest. Consequently, we affirm the lower court’s decision, which was not an abuse of discretion.

Conclusion

For the foregoing reasons, we affirm in part, reverse in part, and remand for further proceedings consistent with this opinion. Costs of this appeal are taxed equally to the Appellant, Judith Mae Harber and her surety, and the Appellee, Leader Federal Bank for Savings, for which execution may issue if necessary.

      . The unauthorized withdrawals occurred on January 25, 1993, March 25, 1993, November 9, 1993, January 27, 1994, March 2, 1994, April 8, 1994, May 27, 1994, and November 16, 1994.

      . The trial court ruled, in relevant part, as follows: "[Biased on the terms of the LDC and the definition of 'account' presented in § 47-4-104(1), the LDC at Leader bank and the transactions therefrom qualify as 'accounts.’ " The lower court then reasoned that "[b]ecause Article 4 applies, former § 47-4-406(3) requires the conversion ... to be excluded because [it] occurred beyond the one year period.”

      . The pre-1995 version of Tenn.Code Ann. § 47-4-104(g) defines an item as "any instrument for the payment of money even though it is not negotiable but does not include money.”

      . Much like the Court in Webber, we do not find that our holding in Absar v. Jones, 833 S.W.2d 86 (Tenn.Ct.App.1992) demonstrates that a genuine issue of material fact exists in this case. In Absar, the plaintiffs filed a personal injury lawsuit in which their attorney settled the matter without the knowledge or permission of the plaintiffs and then absconded with the settlement proceeds. Id. at 87-88. Once they discovered the fraud, the plaintiffs filed suit against their attorney to recover the proceeds. Id. Thereafter, the plaintiffs filed another suit, in which they sought to set aside the court approval of the unauthorized settlement. Id. The defendant in the original action then argued that the plaintiffs had ratified the settlement agreement by filing suit to recover the settlement proceeds from their attorney. Id. We found that the plaintiffs had not ratified the settlement because the suit against their former attorney could be explained without involving any intention to secure benefits from the unauthorized settlement. Id. at 90. Instead, the plaintiffs were only trying to minimize the damages suffered by them as a result of the unauthorized act. Id. Here, Plaintiffs claim to recover on the interest checks cannot be said to constitute an attempt to minimize her damages. Plaintiff would not have received any of the interest checks in question had the LDC not been converted, and, therefore, she suffered no damages under the terms of the LDC when those checks were paid to Husband. Her claim must be viewed, then, as an attempt to secure a benefit from the unauthorized conversion, and, as such, it falls within the analysis in Webber.

      . The first six withdrawals took place on the following dates: January 26, 1993; March 25, 1993; November 9, 1993; January 27, 1994; March 2, 1994; and April 8, 1994.