author: EDWIN H. SMITH, Chief Judge.

text:
    In the ESTATE OF Dollie Marie HERBERT, Deceased Crystal Denise Herbert and Lacey Diann Mayer, Appellants, v. Estel Don HERBERT, Respondent.
    No. WD 63031.
    Missouri Court of Appeals, Western District.
    Oct. 12, 2004.
    Motion for Transfer to Supreme Court Denied Nov. 23, 2004.
    Application for Transfer Denied Jan. 25, 2005.

      Creath S. Thorne, St. Joseph, MO, for appellant.
    Lee C. Tieman, St. Joseph, MO, for respondent.
    Before LOWENSTEIN, P.J., and EDWIN H. SMITH and HOWARD, JJ.
   EDWIN H. SMITH, Chief Judge.

Sisters Crystal Denise Herbert and Lacey Diann Mayer appeal from a judgment of the Probate Division of the Circuit Court of Buchanan County denying their petition for the discovery of assets, filed pursuant to § 473.340, in the decedent’s estate (the estate) of their grandmother, Dollie Marie Herbert (the decedent). In their petition, they alleged that the respondent, their uncle, Estel Don Herbert, was wrongfully withholding from the estate of the decedent, his mother, approximately $135,110.02 in proceeds from the sale of her farm and certain personalty (sale proceeds). In that regard, they claimed in their petition that the respondent, acting under a durable power of attorney executed by the decedent (the POA), in violation of the Durable Power of Attorney Act (POA Act), §§ 404.700-.735, made a gift to himself of the sale proceeds by depositing them in a joint account he owned with the decedent (the joint account), which, pursuant to the right of survivorship provision of the account, became his sole property upon the decedent’s death.

In their sole point on appeal, the appellants claim that the probate court erred in denying their petition for discovery of assets as to the sale proceeds deposited by the respondent in the joint account, because in doing so, the court misapplied §§ 404.712 and 404.714 of the POA Act and the provisions of the POA, which prohibited the respondent from commingling the decedent’s accounts with his and making gifts of her assets to himself.

We reverse and remand.

Facts

The decedent had two children, the respondent and the appellants’ father, Gerald Dwayne Herbert, who died on April 9, 1998. On July 13, 1998, the decedent executed a “General Power of Attorney,” designating the respondent as her attorney-in-fact. The POA included a provision, which authorized, inter alia, the respondent:

To make gifts of any of my property or assets to members of my family; and to make gifts to such other persons or religious, educational, scientific, charitable or other nonprofit organizations to whom or to which I have an established pattern of giving; provided, however, that my Attorney-in-Fact may not make gifts of my property to himself.

On August 14, 1998, the decedent executed a second codicil to her will, which she executed on September 4, 1981. That codicil provided, in pertinent part:

I do further state that it is my intention to reinstate the provisions of my Last Will and Testament of September 4, 1981 which provides that upon my death, all of my property shall be divided equally between my son, Estel Don Herbert, or to his lawful heirs should he predecease me, and my two beloved granddaughters, Crystal Denise Herbert and Lacey Diann Herbert, or to their lawful heirs should they predecease me; meaning that one-half of my said estate is bequeathed to my son, Estel Don Herbert, or to his lawful heirs, and the other half of my estate is bequeathed to my granddaughters, Crystal Denise Herbert and Lacey Diann Herbert.

During the week of Thanksgiving 1998, the decedent suffered a stroke while she was visiting the respondent and his family in St. Joseph, Missouri. At the time, she was residing by herself in Bloomfield, Iowa, on the farm that she had owned with her deceased husband. She was hospitalized after the stroke and then moved to a nursing home in St. Joseph, Missouri.

On November 9, 1999, the joint bank account, with right of survivorship, was opened at the Mercantile Bank in St. Joseph, Missouri, in the names of the decedent and the respondent. The decedent died on September 26, 2001.

Sometime in late 1999 or early 2000, the decedent made the decision to sell the farm. Accordingly, a farm auction was conducted on September 9, 2000, at which the household goods, equipment, tools, etc. were sold. On September 12, 2000, a check in the amount of $16,265.88, representing the sale proceeds from the farm auction, was deposited in the account. The check, dated September 11, 2000, was made out to “Dollie Herbert,” and the endorsement on the back read “Estel D. Herbert POA.” On October 12, 2000, a check, in the amount of $118,844.14, representing the proceeds from the sale of the decedent’s farm was deposited in the joint account. The check, dated October 9, 2000, was made out to “Dollie Herbert, Estel Herbert, POA,” and the endorsements on the back read “Dollie Herbert” and “Estel Herbert POA.”

On November 16, 2001, the decedent’s last will and testament and an application for probate were filed in the Probate Division of the Circuit Court of Buchanan County. On May 23, 2002, the appellants filed a petition for discovery of assets, alleging that the respondent had improperly deposited the sale proceeds in the joint account. The probate court appointed Steve Tyrell as the personal representative ad litem of the decedent’s estate to represent its interests in the proceeding. In that capacity, Tyrell conducted an investigation of the assets of the estate and prepared a written inventory of those assets.

The case was tried to the court on May 9, 2003. The respondent testified at trial that, in late 1999 or early 2000, the decedent decided to sell her farm and all that went with it, so she could use the proceeds to pay the continuing costs of residing in the nursing home. The respondent testified that pursuant to the decedent’s request, he auctioned off the property as directed. As to what was to be done with the $16,265.88 in proceeds from the sale of the farm personal property, he was asked at trial by his trial counsel: “Was there any discussion about where the sale of that proceeds check should go?” He answered, ‘Yeah. She told me to put it in the joint account. ‘Our account’ is what she told me.” The respondent was also asked whether he and the decedent discussed what to do with the $118,844.14 in proceeds from the sale of the farm, and the following exchange occurred:

Q. Did you have a discussion about what should be done with the land sale check?
A. I asked her, I said, Mom, where do you want it?
Q. And what did she tell you?
A. She said, put it in our account.
Q. Did you ever have any discussions, either before the joint account was opened or afterwards, about what would happen if one of you died?
A. Yeah.
Q. What was that — what was the substance of that conversation?
A. Well, she said that we were the only two left of the immediate family. And she wasn’t going to be around forever. And she wanted me to have it.

The respondent further testified that he withdrew funds from the joint account to pay the decedent’s nursing home and medical expenses, but he never withdrew any funds for his personal use.

The personal representative ad litem testified at the trial that he had conducted an investigation of the assets of the estate. A written inventory of those assets, prepared by him, was admitted into evidence. He also testified that “all of the money that was spent out of the joint account was used for [the decedent’s] use and benefit.” The written inventory, which was dated April 28, 2003, stated that, as of April 25, 2003, a balance of $122,238.41 remained in the account.

On May 30, 2003, the probate court entered a judgment finding that only $2,199.45 had been improperly withheld by the respondent from the decedent’s estate, an amount which apparently represented some utilities stock that the decedent had owned and was not mentioned in the appellants’ discovery of assets petition. The judgment assessed the costs of the action, including Tyrell’s personal representative fees of $6,862.28, against the appellants. On June 25, 2003, the court’s judgment was amended to assess $1,502.50 in attorney’s fees incurred by Tyrell against the appellants. In addition, the amended judgment ordered that “[a]ll other claims of [the appellants] are denied.”

This appeal followed.

Standard of Review

The standard of review in a discovery of assets proceeding is governed by Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). In re Estate of Boatright, 88 S.W.3d 500, 504 (Mo.App.2002). Consequently, the decree or judgment of the probate court will be sustained by the appellate court unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law. Id. In this case, there was no request for findings of fact and conclusions of law, and so the probate court is presumed to have made its findings in accordance with the decree entered and its judgment will be affirmed under any reasonable theory supported by the evidence. Rule 73.01(c); In re Estate of Newman, 58 S.W.3d 640, 645 (Mo.App.2001).

I.

In their sole point on appeal, the appellants claim that the probate court erred in denying their petition for discovery of assets as to the sale proceeds deposited by the respondent in the joint account because in doing so, the court misapplied §§ 404.712 and 404.714 of the POA Act and the provisions of the POA, which prohibited the respondent from commingling the decedent’s accounts with his and making gifts of her assets to himself. Specifically, they claim that the sale proceeds belonged solely to the decedent at the time of her death in that their deposit in the joint account by the respondent, acting as the decedent’s attorney-in-fact, constituted an unauthorized gift to himself of the decedent’s assets, voiding the deposit, such that title of the sale proceeds never passed from the decedent to the joint account in the first instance.

A discovery of assets proceeding is authorized by § 473.340, which provides, in pertinent part:

Any personal representative, administrator, creditor, beneficiary or other person who claims an interest in property which is claimed to be an asset of an estate or which is claimed should be an asset of an estate may file a verified petition in the probate division of the circuit court in which said estate is pending seeking determination of the title, or right of possession thereto, or both.

§ 473.340.1. As the name implies, a discovery of assets action is a search for assets belonging to the decedent at his death. Boatright, 88 S.W.3d at 509. The court’s role in a discovery of assets action “is to determine whether specific property has been adversely withheld [from the estate] or claimed.” Id. at 505. Upon the trial of the discovery of assets action, the “court shall determine the persons who have an interest in said property together with the nature and extent of any such interest.” § 473.340.3. If the probate court determines that the property belongs to the estate, it shall order the transfer of the title or possession, or both, to the estate. Id. And, if the property in question has been disposed of, the court shall render a “money judgment for the value thereof with interest thereon from the date the property, or any interest therein, was adversely withheld.” Id.

Inasmuch as the purpose of a discovery of assets proceeding is to determine whether the assets in question were owned by the decedent at the time of his death and are being wrongfully withheld from his estate, traditionally, the ultimate issue in such a proceeding is “whether title to the assets in question had passed from the decedent to another person prior to the former’s death.” Boatright, 88 S.W.3d at 509. Here, the respondent contends that the sale proceeds did not belong to the decedent at the time of her death in that, pursuant to § 362.470.1, governing “joint deposits” in banks, title to the proceeds passed to the joint account at the time of their deposit, then passed to him as the sole surviving party to the account.

Where, as here, a party, in defense of a discovery of assets action, claims a transfer of title to the property sought to be discovered prior to the decedent’s death such that the property did not belong to the decedent’s estate at the time of death, implicit in the action is a claim that the transfer was ineffective. Boatright, 88 S.W.3d at 509. Here, the appellants claim that the attempted transfer of title of the sale proceeds from the decedent to the joint account was ineffective. In that regard, they contend that there was never a transfer of title because the deposit of the sale proceeds by the respondent in the joint account, acting as the decedent’s attorney-in-fact, violated §§ 404.712 and § 404.714 of the POA Act, and the provisions of the POA, prohibiting him from commingling the decedent’s accounts with his and making gifts from decedent to himself. In other words, they are contending that the deposit was an unauthorized conversion of the decedent’s property and was, thus, void ab initio such that the title to the proceeds never passed to the joint account so as to subject them to the presumption of joint tenancy with a right of survivorship of § 362.470.1. Essentially, what the appellants are contending is that the respondent wrongfully converted the decedent’s property from her sole property to a joint tenancy with the respondent. “A proceeding under section 473.340 is similar to common law actions of trover or conversion.” Boatright, 88 S.W.3d at 506 (citations omitted).

In claiming that the deposit of the sale proceeds in the joint account by the respondent was unauthorized and ineffective in transferring title to the joint account so as to invoke the presumption of § 362.470.1, the appellants contend that it violated § 404.712.1 as to keeping the principal’s property and accounts separate from other property and accounts, requiring that:

[a]n attorney in fact acting for the principal under a power of attorney shall clearly indicate his capacity and shall keep the principal’s property and accounts separate and distinct from all other property and accounts in a manner to identify the property and accounts clearly as belonging to the principal.

As to § 404.714, they contend that the deposit of the sale proceeds violated three provisions thereof, which violations they denominate in their brief as: (1) “Conflicts of interest must be avoided;” (2) “An attorney-in-fact has a fiduciary obligation;” and (3) “An attorney-in-fact must respect the principal’s estate plan.” As to (1), they cite the requirement of § 404.714.1, that:

[a]n attorney in fact who elects to act under a power of attorney is under a duty to act in the interest of the principal and to avoid conflicts of interest that impair the ability of the attorney in fact so to act. A person who is appointed an attorney in fact under a power of attorney ... has a fiduciary obligation ... to avoid self dealing and conflicts of interest.

As to (2), they cite the provision of § 404.714.1 requiring that: “[a] person who is appointed an attorney in fact under a power of attorney, either durable or not durable, who undertakes to exercise the authority conferred in the power of attorney, has a fiduciary obligation to exercise the powers conferred in the best interests of the principal.” And, as to (3), they cite the requirement of § 404.714.1 that: “in the absence of explicit authorization, the attorney in fact shall exercise a high degree of care in maintaining, without modification, any estate plan which the principal may have in place.”

As to the appellants’ claim that the deposit of the sale proceeds in the joint account violated the POA, they cite to the provision that authorized the respondent:

[t]o make gifts of any of my property or assets to members of my family; and to make gifts to such other persons or religious, educational, scientific, charitable or other nonprofit organizations to whom or to which I have an established pattern of giving; provided, however, that my Attomey-inr-Fact may not make gifts of my property to himself or herself.

(Emphasis added.) In that regard, § 404.710.6(3) provides, in pertinent part:

Any power of attorney may grant power of authority to an attorney in fact to carry out any of the following actions if the actions are expressly authorized in the power of attorney:
(3) To make or revoke a gift of the principal’s property in trust or otherwise.

(Emphasis added). Thus, although a principal may authorize the attorney in fact to make a gift of the principal’s property, here, the decedent not only did not authorize such gifts, but expressly provided in the POA that the respondent could not make such a gift to himself.

In claiming as they do in this appeal, it is important to note that the appellants are not challenging the creation of the joint account nor are they making any argument with respect to the rebuttal of the presumption of joint tenancy with a right of survivorship of § 362.470.1, as applied to any deposits that were lawfully made to the account. Rather, they are claiming that the respondent had no legal authority to transfer the decedent’s assets, the sale proceeds, to the joint account of which he was an owner, having been expressly prohibited from doing so, such that the presumption of § 362.470.1 never attached. It is also important to note that in opposing the appellants’ claim, the respondent does not quibble with the appellants’ assertions as to what was required of him under the POA Act and the POA concerning his duties and obligations, and the limitations of his powers, as the decedent’s attorney in fact, with respect to the commingling of the decedent’s accounts with his and making gifts to himself. Rather, he first argues that once the sale proceeds were deposited by him in the joint account, regardless of whether he had authority under the POA to make that deposit, that the provisions of § 362.470.1, governing joint bank accounts, operated to presumptively demonstrate that the sale proceeds, at the time of the decedent’s death, became his sole property as the surviving party to the account and that the only way the appellants could defeat the presumption was to show fraud, undue influence, mental incapacity or mistake, with respect to the creation of the joint account or the making of the deposits, which they did not do. See Braden v. von Stuck, 950 S.W.2d 489, 492-93 (Mo.App.1997) (holding that if § 362.470.1 applies, then the presumption of joint tenancy with right of survivorship is conclusive, and can only be defeated by establishing fraud, undue influence, mental incapacity or mistake). If he is correct in this argument, such that the presumption of joint ownership with a right of survivor-ship of § 362.470.1 would apply, then the appellants must lose on this point in that they do not make any argument with respect to their having rebutting that presumption. Hence, in determining this point, we must first determine the applicability of the presumption of § 362.470.1 with respect to the deposit of the sale proceeds in the joint account.

In interpreting statutes, we are to ascertain the intent of the legislature. Pavlica v. Dir. of Revenue, 71 S.W.3d 186, 189 (Mo.App.2002). In ascertaining the legislative intent, we are to give the language used its plain and ordinary meaning. Id. Where the legislative intent is made evident by giving the language employed in the statute its plain and ordinary meaning, we are without authority to read into the statute an intent, which is contrary thereto. Id. If the legislative intent cannot be ascertained from the language of the statute, by giving it its plain and ordinary meaning, the statute is considered ambiguous and only then can the rules of statutory construction be applied. Id.

Section 362.470.1 provides, in pertinent part:

When a deposit is made by any person in the name of the depositor and any one or more other persons, whether minor or adult, as joint tenants or in form to be paid to any one or more of them, or the survivor or survivors of them and whether or not the names are stated in the conjunctive or the disjunctive or otherwise, the deposit thereupon and any additions thereto made by any of these persons, upon the making thereof, shall become the property of these persons as joint tenants, and the same, together with all interest thereon, shall be held for the exclusive use of the persons so named, and may be paid to any one of such persons during his lifetime, or to any one of the survivors of them after the death of any one or more of them. The making of a deposit in such form, and the making of additions thereto, in the absence of fraud or undue influence, shall be conclusive evidence in any action or proceeding to which either the bank or trust company or any survivor is a party of the intention of all the parties to the account to vest title to the account and the additions thereto and all interest thereon in the survivor.

This section has been interpreted to mean that, if the language of the account documents complies with § 362.470.1 through one of the methods outlined, the presumption of joint tenancy with right of survivor-ship is conclusive. Braden, 950 S.W.2d at 492. However, we find no cases that would interpret it as argued for by' the respondent — that any deposit, even an unauthorized deposit by an agent of a principal’s property. Moreover, giving the language used its plain and ordinary meaning, we are not led to such an interpretation.

Section 362.470.1 provides the means by which a joint tenancy, with right of survivorship, can be created with respect to a deposit in a bank account. Maudlin v. Lang, 867 S.W.2d 514, 516 (Mo. bane 1993). However, implicit in this statute is the fact that it has no application unless the depositor has the authority, in the first instance, to change the manner in which the funds are titled prior to deposit. This is so in that as a matter of general property law, one who does not hold title to property or is not acting within his scope as an agent for the owner, cannot pass or transfer title to that property. City of St. Louis v. Hill, 116 Mo. 527, 22 S.W. 861, 862 (1893); Mullin v. Trolinger, 237 Mo.App. 939, 179 S.W.2d 484, 490 (Mo.App.1944) (holding that the right to dispose of property is exclusive to ownership). Hence, without the implied requirement that the depositor have the authority to pass title to the funds constituting the deposit, § 362.470.1 could be read such that a deposit in a joint account of stolen money, in the form statutorily provided, would presumptively belong to the surviv- or of the account, unless fraud or undue influence was shown in the making of the deposit. That, obviously, was not the intent of the legislature.

The respondent cites three cases, which he contends support his interpretation of § 362.470.1, that the deposit to a joint bank account, whether it is authorized or not, transfers title of the deposit to the joint account making it subject to the presumption of joint tenancy with a right of survivorship: Dickinson v. Dickinson, 87 S.W.3d 438 (Mo.App.2002); Braden, 950 S.W.2d 489; and Estate of Evelyn S. Linck, Deceased, 645 S.W.2d 70 (Mo.App.1982). In making this argument and relying on the cases cited, the respondent fails to distinguish between two distinct fact situations: (1) the owner of the funds, the principal, deposits them in a joint account belonging to the owner/principal and the attorney-in-fact; and (2) the attorney in fact, acting in that capacity, deposits the principal’s funds in a joint bank account belonging to the attorney in fact and the principal. In the first fact situation, assuming that the principal is competent, there is no question as to his or her authority to pass title of his or her own funds to the joint account, thereby subjecting them to the provisions of § 362.470.1. However, in the second fact situation, the one presented in our case, the question logically arises initially as to the authority of the attorney in fact to transfer the principal’s assets into the joint account so as to subject them to the provisions of § 362.470.1. Inasmuch as neither Braden nor Dickinson deal with the second fact situation, neither are persuasive on the issue of whether an unauthorized deposit in a joint account of a principal’s assets by an attorney in fact is subject to the presumption of joint tenancy with a right of survivorship of § 362.470.1.

In Braden, the issue was whether the decedent had converted her sole checking account into a joint account with her son, with right of survivorship, by signing a replacement signature card some ten years after the creation of the account, such that it was subject to the presumption of § 362.470.1. Braden, 950 S.W.2d at 492. That issue, in turn, turned on whether the replacement signature card sufficiently complied with one of the three routes identified by the Missouri Supreme Court in Maudlin, 867 S.W.2d at 516, for creating a joint account with right of survivorship, in accordance with § 362.470.1. Braden, 950 S.W.2d at 492. Ultimately, the court concluded that the signature card, signed by the decedent, complied with route two of § 362.470.1 for creating a joint account such that the presumption of joint ownership with a right of survivorship of that section was invoked. There is nothing in Braden that can be cited for the proposition that the presumption of § 362.470.1 applies to a deposit to an existing joint account where the deposit or transfer of the owner’s funds to the account was not authorized by the owner in the first instance.

In Dickinson, the same day as she executed a durable POA in favor of her nephew, the principal/aunt placed the nephew’s name on her checking account and six certificates of deposit as a joint tenant with a right of survivorship. 87 S.W.3d at 441. After the aunt and nephew had both died, the nephew’s brother brought suit to establish a constructive trust with respect to the checking account and certificates of deposit, claiming that his brother had used undue influence in inducing his aunt to add his brother’s name as a joint tenant on her checking account and certificates of deposit. Id. Finding no undue influence, the court held that the presumption of joint ownership with right of survivorship had not been rebutted, such that evidence of a testamentary intent of the aunt to the contrary was irrelevant. Id. at 444.

In Dickinson, as in Braden, the lynchpin issue was whether the owner of the accounts had been unduly influenced in converting her own assets to a joint tenancy, which is not our case. As noted, supra, our case involves the attorney in fact converting the principal’s assets to a joint tenancy, pursuant to a POA, raising the initial and added question of whether the conversion was authorized by the principal, the owner of the assets. There is nothing in Dickinson or Braden that supports the proposition that the presumption of § 362.470.1 applies to any deposit to an existing joint account, whether or not the deposit or transfer of the owner’s funds by a third party to the joint account was authorized by the owner in the first instance.

In Linck, the third case relied upon by the respondent, the administrator of the decedent’s estate filed a petition against the decedent’s niece and the niece’s husband to determine the title to and right of possession of certain certificates of deposit, bank accounts and checking accounts claimed by the niece and her husband as survivors of the various accounts, which they claim were jointly held with the deceased at her death. 645 S.W.2d at 73. Unlike the situation in Braden and Dickinson, most of the joint accounts in question were, in fact, created by the niece, acting as the decedent’s attorney in fact. The administrator alleged in support of his petition, generally, that the joint accounts had not been created in accordance with § 362.470.1, governing joint deposits in banks and trust companies, and § 369.150, governing joint tenants’ accounts in savings and loan associations, and that even if the accounts had been established in accordance with the applicable statutes, they were created through fraud and undue influence. Id. at 74-75. The administrator further alleged that the accounts in question were not jointly held because they were created by the niece pursuant to the POA, which was obtained by undue influence and fraud. Id. The court, in holding that the various accounts were jointly held by the niece and her husband, found that the POA was not obtained by fraud or undue influence and that the accounts had been validly created, such that the presumption of § 362.470.1 and the identical presumption of § 369.150 applied, and that they had not been rebutted, rendering evidence of a contrary testamentary intent of the decedent, as to the disposition of the accounts and certificates, irrelevant. Id. at 76.

In holding as it did, the Linck court observed that neither § 362.470.1 nor § 369.150 made any distinction between a joint account created by the principal himself or by the attorney in fact, which we discuss, supra, as being significant. With that in mind, the court seemed to suggest that regardless of who made the deposit of what funds, the presumption applied, relying on In re Estate of LaGarce, 487 S.W.2d 493 (Mo. banc 1972). However, LaGarce, unlike Linck, did not involve a deposit in a joint account by an attorney in fact. Rather, LaGarce involved the decedent’s converting his sole accounts into a joint account with his friends. Thus, LaGarce does not support the proposition that the presumption of § 362.470.1 applies even if the deposit of funds to the joint account by the attorney in fact was not authorized in the first instance. This same argument was made by the attorney in fact in Boat-right and rejected. 88 S.W.3d at 508.

While reading only a portion of the opinion in Linck, one might conclude that the court was holding that the presumption of § 362.470.1 would apply regardless of whether the attorney in fact had the requisite authority to deposit the principal’s funds in the joint account, a full reading demonstrates otherwise. In Linck, in addition to the other issues raised by the administrator on appeal, he also claimed that the attorney in fact, in transferring the principal’s assets to the joint accounts, had violated his duty as an “agent” of the principal. 645 S.W.2d at 76. He claimed that the attorney in fact, in creating the joint accounts with the principal’s assets, was not authorized to do so such that title to the assets never passed to the joint account so as to make them subject to the presumption of § 362.470.1. The Linck court rejected this argument, not on the basis that the presumption of § 362.470.1 applied regardless of whether the attorney in fact had the authority to create the joint tenancies, but on the basis that there was evidence that the principal had expressly directed the attorney in fact to make the deposits. Id. From this analysis, it would appear that the Linck court was recognizing that before a deposit is subject to the presumption of § 362.470.1, there must be a showing that the depositor had the requisite legal authority to convert the principal’s funds into a joint tenancy. Thus, despite some confusion in the opinion as to the reach of the presumption of § 362.470.1, as interpreted in LaGarce, the Linck court, without articulating the issue presented in this case, ultimately recognized that the presumption does not control with respect to the issue of whether the attorney in fact was authorized to convert the principal’s property into a joint tenancy.

Having rejected the respondent’s initial argument that the mere act of depositing the sale proceeds in the joint account was sufficient to invoke the presumption of joint tenancy with right of survivorship of § S62.470.1, we now turn to the issue of whether, in fact, he was authorized to deposit the sale proceeds in the joint account so as to invoke § 362.470.1. In that regard, there is no dispute that on November 9, 1999, the joint account in question was opened at the Mercantile Bank in St. Joseph, Missouri. The “Consumer Signature Card” for the account, which was signed by the decedent and the respondent, indicated that the “ACCOUNT OWNERSHIP” was “Joint — With Survivorship and not as tenants in common.” Thus, pursuant to § 362.470.1, governing “joint deposits” in a bank or trust company, the account became the property of the decedent and the respondent, as joint tenants. The appellants do not challenge the creation of this account.

There is also no dispute that on September 12, 2000, the respondent deposited in the joint account a check, dated September 11, 2000, made out to “Dollie Herbert,” and endorsed by the respondent as “Estel Herbert POA,” for $16,265.88, representing the sale proceeds from the auction of the decedent’s personal farm property. Likewise, there is no dispute that the respondent deposited in the joint account a check, dated October 9, 2000, made out to “Dollie Herbert, Estel Herbert, POA,” and endorsed by the respondent as “Dollie Herbert, Estel Herbert, POA,” for $118,844.14, representing the sale proceeds of the decedent’s farm. Hence, given the fact that there is no dispute that the respective sale proceeds, prior to deposit by the respondent, belonged to the decedent as her sole property, for the presumption of § 362.470.1 to apply, there would have to be a showing that the respondent was authorized by the decedent to make the deposits of the sale proceeds to the joint account, so as to pass title of the proceeds to the account, invoking the presumption of § 362.470.1.

With respect to the respondent’s authority to convert the decedent’s sole property, the sale proceeds, to a joint tenancy, by depositing them in the joint account, the appellants pointed out to the trial court below that not only does the POA lack a provision authorizing the respondent to make gifts to himself from the principal’s assets, but that it expressly prohibits him from making such gifts. Thus, the appellants made a prima facie case of conversion against the respondent as to the sale proceeds, shifting the burden to him “to refute the proposition that the funds belonged to [the decedent] at the time of [her] death,” Boatright, 88 S.W.3d at 509, by operation of the right of survivorship provision of § 362.470.1. The respondent does not dispute the prohibition in the POA, prohibiting him from making gifts of the decedent’s property to himself. However, he contends that this express prohibition of the POA was countermanded by the decedent’s oral direction to him to make the deposit of the sale proceeds in the joint account. The appellants contend, however, that this oral authorization, as a matter of law, was not sufficient to defeat the express written prohibition in the POA, prohibiting the respondent from making a gift of the sale proceeds to himself, citing Boatright, 88 S.W.3d at 509; Williams v. Walls, 964 S.W.2d 839, 847-48 (Mo.App.1998); Arambula v. Atwell, 948 S.W.2d 173,177 (Mo.App.1997).

In Arambula, the trial court ordered that a deed, executed by the attorney in fact under a POA, conveying real property of the principal (the attorney in fact’s father) to the attorney in fact and his sisters, be set aside. 948 S.W.2d at 176. The attorney in fact appealed to the Southern District of this court. The Southern District upheld the judgment of the trial court, finding that the conveyance by the attorney in fact constituted a gift to himself, which was not authorized by the POA, as required by § 404.710.6(3), such that the attorney in fact had breached his fiduciary relationship with the principal as his agent under the POA. Id. at 177-78. The attorney in fact argued that despite there not being an express written authorization of the gift in the POA, as envisioned by § 404.710.6(3), he had been orally authorized to make the conveyance such that there was no breach. Id. at 176. The court rejected this argument as being contrary to the requirement of § 404.710.6(3), that the authority of an attorney in fact to make gifts to himself has to be in writing. Id. at 177. In so holding, the court cited Fender v. Fender, 285 S.C. 260, 329 S.E.2d 430 (1985). Id. In Fender, the trial court ruled that the attorney in fact was without authority, under the POA, to make the transfer of real and personal property to himself. 329 S.E.2d at 431. The Supreme Court of South Carolina upheld the trial court and in the process rejected the attorney in fact’s argument that an oral authorization of the principal to convey the property was sufficient to uphold the gift, stating:

Notwithstanding such a claim we hold today that any purported oral authorization was ineffective. The power to make any gift must be expressly granted in the instrument itself.
It is for the common security of mankind ... that gifts procured by agents ... from their principals, should be scrutinized with a close and vigilant suspicion.

Id. (Citations omitted.) Thus, we read Arambula as requiring, in accordance with § 404.710.6, written authorization from the principal in order for the attorney in fact to make a gift to himself of the principal’s property.

Although in the context of a constructive trust action, rather than an action to set aside a deed as in Arambula, in Williams, the appellate court was faced with the same issue of whether the attorney in fact had violated her fiduciary obligations and duties to the principal, imposed by § 404.710.6, by making a gift of the principal’s property to herself without written authorization. 964 S.W.2d at 848. In reversing the trial court’s judgment, denying the personal representative’s suit for the imposition of a constructive trust as to the gifted property, the appellate court found that the attorney in fact had violated the fiduciary obligations imposed on her by § 404.710.6 by making a gift to herself of the principal’s property without being expressly authorized in the POA to do so. Id.

In Boatright, the attorney in fact, the principal’s brother, deposited the proceeds, approximately $66,288.50, from the sale of the principal’s interest in real estate he owned with his ex-wife, into a joint account owned by the principal and the attorney in fact. 88 S.W.3d at 503-04. Due to an ongoing illness of the principal, he and his new wife had executed a POA, authorizing the attorney in fact to “ ‘do all acts and things in connection with the acquisition, management, sale and/or encumbrance’ of the real property in question.” Id. at 503. Just prior to the principal’s death, the attorney in fact, transferred $65,000 from the joint account to his sole account. Id. at 504. After the principal’s death, his new wife, as personal representative of his estate, filed a discovery of assets action seeking to recover the sale proceeds from the attorney in fact, claiming that he had wrongfully converted them to his own use. Although there was nothing in writing that would have authorized the attorney in fact to deposit the sale proceeds in his joint account, he testified that he had received oral authorization from the principal to do just that. The appellate court, in upholding the probate court’s judgment for the personal representative, discussed the fact that the court was free to disbelieve the attorney in fact’s testimony as to his being orally authorized to deposit the sale proceeds in the joint account. Id. at 510. However, the court made it clear, citing § 404.710.6(8) and Arambula, that without express written authority from the principal, the attorney in fact could not make a gift of the sale proceeds to himself by depositing them in the joint account. Id. at 509-10. Thus, according to the Boat-right court, whether the attorney in fact had oral authorization from the principal to make the deposit of the sale proceeds was ultimately irrelevant.

In summary, we read all three cases cited by the appellants as standing for the proposition that, pursuant to § 404.710.6(8) of the POA Act, an attorney in fact is prohibited from making a gift of the principal’s property to himself, unless he is expressly authorized to do so in the POA. The “if’ in the second sentence of § 404.710.6, “Any power of attorney may grant power of authority to an attorney in fact to carry out any of the following actions [including authority to make or revoke a gift of the principal’s property] if the actions are expressly authorized in the power of attorney,” reflects an intent of the legislature to make the authority of the attorney in fact to gift to himself the principal’s property conditional on there being express authority in the POA to do so. See State v. Murphy, 347 Mo. 484, 148 S.W.2d 527, 532 (Mo. banc 1941)(indicating that the term “if’ introduces a condition). Strong public policy exists for doing so. As the court said in Fender: “It is for the common security of mankind ... that gifts procured by agents ... from their principals, should be scrutinized with a close and vigilant suspicion.” 329 S.E.2d at 431. Without a limitation on an attorney in fact’s power to make gifts to himself of the principal’s property, the potential for abuse would be great. Without the limitation of § 404.710.6(3), an attorney in fact, if so inclined, would be allowed to make an unauthorized gift, based upon claimed oral authorization of the principal, and the only person who could refute the claim would be dead. Rather than have each case, under such circumstances, come down simply to a credibility call with respect to the attorney in fact’s representation as to his authority, the legislature in its wisdom has seen fit to include the requirement of § 404.710.6 to protect a class of people, the principals, who by the very circumstances that spawned the granting of the POAs, are least likely to be able to protect themselves from self dealing by unscrupulous fiduciaries.

In ruling as we do, that § 404.710.6(3) requires written authorization from the principal for the attorney in fact to make a gift to himself of the principal’s property, we are mindful of this court’s decision in Linck, which we discuss, supra. There, the court, inter alia, found that the attorney in fact had not acted outside her scope of authority as an attorney in fact, in creating the joint tenancies in question from the principal’s property, in that there was evidence that she had been orally authorized by the principal to do so. Linck, 645 S.W.2d at 76. Linck, however, was decided in 1982, some seven years prior to the enactment of § 404.710.6. And, prior to its enactment, there was no comparable provision requiring written authorization from the principal to allow an attorney in fact to make gifts to himself from the principal’s property. Thus, to the extent that Linck holds that an oral authorization from the principal is sufficient for an attorney in fact to make a gift of the principal’s property to himself, it has, in effect, been overruled by the enactment of § 404.710.6 and the cases interpreting it.

Inasmuch as the claimed oral directive from the decedent to the respondent to deposit the sale proceeds in the joint account was ineffective, as a matter of law, the title of the sale proceeds never passed to the joint account so as to make them subject to the presumption of joint tenancy with a right of survivorship of § 362.470.1. Hence, the sale proceeds belonged to the decedent at the time of her death such that the probate court erred in entering judgment for the respondent on the appellants’ petition for discovery of assets, requiring us to reverse and remand for the probate court to enter judgment for the appellants.

Section 473.340 provides, in pertinent part, that if the probate court determines that the property belongs to the estate, it shall order the transfer of the title or possession, or both, to the estate. Here, although there is no question that the entire amount of the sale proceeds was wrongfully converted by the respondent, the question arises as to whether the whole amount is transferable to the estate inasmuch as the respondent claimed at trial that a portion of the proceeds was spent on the decedent prior to her death. Inasmuch as § 473.340.1 expressly provides that the judgment should be for the value of the property that was being “adversely withheld” from the estate, the respondent could not be charged for the sale proceeds that were properly expended in accordance with the POA. See Boatright, 88 S.W.3d at 509 (giving credit to the attorney in fact for $10,000 he paid over to the surviving spouse of the principal to pay the principal’s debts). Thus, because the record was not fully developed in that regard, on remand, the probate court will be required to conduct a further hearing to determine what credits, if any, to give the respondent for the sale proceeds expended on the decedent, in entering its judgment against him. And, if the amount found by the trial court as being wrongfully withheld from the estate by the respondent, after giving him credit, if any, for monies spent on the decedent, is less than the balance remaining in the joint account, the judgment will order the transfer of the funds equal to the amount found as being wrongfully withheld. On the other hand, if the amount found by the trial court to be due the estate is greater than the remaining balance in the joint account, the appellants would be entitled to a judgment requiring the remaining assets of the joint account be transferred to the estate and a money judgment for the deficiency, with interest from the date the sale proceeds were deemed to have been wrongfully withheld.

Conclusion

The judgment of the Probate Division of the Circuit Court of Buchanan County for the respondent on the appellants’ petition for discovery of assets is reversed and the case is remanded for further proceedings consistent with this opinion.

LOWENSTEIN, P.J., and HOWARD, J., concur.

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


source: Caselaw Access Project

author: PAUL M. SPINDEN, Judge.

license: Public Domain

text:
    Jacob BAILEY, Respondent, v. FEDERATED MUTUAL INSURANCE COMPANY, Appellant.
    No. WD 63419.
    Missouri Court of Appeals, Western District.
    Oct. 12, 2004.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Nov. 23, 2004.
    Application for Transfer Denied Jan. 25, 2005.

      Gary Willnauer, Michael Moulder, Kansas City, for Appellant.
    Christian Faiella, Moberly, for Respondent.
   PAUL M. SPINDEN, Judge.

The primary issue in this case is whether or not 16-year-old Terry Ehler was a customer of Forrest Chevrolet-Oldsmobile, Inc., in Columbia when in 1999 he crashed the dealership’s pickup into another automobile. If Ehler was Forrest Chevrolet-Oldsmobile’s customer, the dealership’s insurer, Federated Mutual Insurance Company, was not liable as insurer of the loss because its policy excluded coverage of customers. The circuit court concluded that Ehler was not a customer because he was not the pickup’s purchaser — his grandmother was. The circuit court erred in ruling that Ehler was not a customer. We, therefore, reverse its judgment.

The undisputed facts established that, a few days before the crash, Ehler visited Forrest Chevrolet-Oldsmobile with his grandfather and drove the pickup for a test before buying it. Ehler returned with his parents the next day and negotiated its purchase. Neither Ehler nor his parents could afford the purchase, but, because Ehler’s grandmother, Darlene Kilburn, had told Ehler that she would lend him money to buy a vehicle, Forrest Chevrolet-Oldsmobile’s business manager called her to discuss financing the purchase. After this conversation, Ehler wrote a personal check for $2000 towards the pickup’s purchase price with the understanding that Kilburn was to finance the remainder. Forrest Chevrolet-Oldsmobile’s personnel accepted Ehler’s check but indicated on the receipt that the payment was from Ehler and Kilburn jointly. The dealership’s personnel also included Kilburn’s name as purchaser along with Ehler on several documents, including purchase and security agreements. Kilburn testified that she did not agree to have her name placed on sales documents, and she never considered herself to be purchasing the truck — she merely was providing financing for the purchase.

With financing arranged through Kil-burn, Forrest Chevrolet-Oldsmobile personnel authorized Ehler to drive the pickup to Kilburn’s house, accompanied by his father, to get Kilburn’s check. Ehler crashed the pickup into another car while driving to Kilburn’s house. Ehler’s father died in the crash, and occupants of the other car, Diane and Jacob Bailey, were seriously injured.

The Baileys sued Ehler, and the parties entered into a consent judgment of $1 million against Ehler. The Baileys agreed to pursue only insurance proceeds in enforcing the judgment. The Baileys recovered $100,000 from an insurance policy issued to Ehler’s father, and they sought to recover the remainder from Federated Mutual, which insured Forrest Chevrolet-Oldsmobile under a general garage policy. Federated Mutual refused to pay on the grounds that Ehler was Forrest Chevrolet-Oldsmobile’s customer and was, therefore, expressly excluded from coverage by the policy. The Baileys filed an equitable garnishment action against Federated Mutual. The circuit court found that Ehler was not a customer of Forrest Chevrolet Oldsmobile and thus was covered under the garage policy. Federated Mutual appeals.

Because this was a court-tried case, the standard set forth in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976), governs our review. Under that standard, we must affirm the judgment unless it is not supported by substantial evidence, is against the weight of evidence, erroneously declares the law, or erroneously applies the law. Because the circuit court did not make findings of fact, we deem it to have resolved factual disputes in accord with its judgment. Weaks v. Rupp, 966 S.W.2d 387, 392 (Mo.App.1998). We view the evidence in the light most favorable to the prevailing party, but we “ ‘do not ... give the [party] the benefit of unreasonable, speculative or forced inferences.’ ” Gray v. White, 26 S.W.3d 806, 820 n. 10 (Mo.App.1999) (quoting Steward v. Goetz, 945 S.W.2d 520, 528 (Mo.App.1997)).

We conclude that the circuit court erred in concluding that Ehler was not Forrest Chevrolet-Oldsmobile’s customer. Viewing the evidence in the light most favorable to the Baileys — even assuming, as the circuit court seemed to do, that Kilburn was the pickup’s primary purchaser — the only reasonable inference to be drawn from Ehler’s negotiating the pickup’s purchase and his paying part of the purchase price as a co-purchaser was that he was a customer.

The cardinal rule for the courts in interpreting a contract, including an insurance policy, is to effectuate the parties’ intent at the time of contracting. Butler v. Mitchell-Hugeback, Inc., 895 S.W.2d 15, 21 (Mo. banc 1995). When a contract’s language is clear, we discern the parties’ intent from the document alone. J.E. Hathman, Inc. v. Sigma Alpha Epsilon Club, 491 S.W.2d 261, 264 (Mo. banc 1973). In considering the contract’s language, we understand it according to the plain and ordinary meaning of the words used, or the meaning that a person of average intelligence, knowledge, and experience would deem reasonable. Farmland Industries, Inc. v. Republic Insurance Company, 941 S.W.2d 505, 508 (Mo. banc 1997). The dictionary is a good source for finding the plain and ordinary meaning of contract language. Shahan v. Shahan, 988 S.W.2d 529, 535 (Mo. banc 1999). But we must be careful to consider the contract’s context in applying the appropriate dictionary definition. Wilshire Construction Company v. Union Electric Company, 463 S.W.2d 903, 906 (Mo.1971).

We do not apply rules of construction unless a contract’s language is ambiguous. Shahan, 988 S.W.2d at 535. If a contract’s language is not ambiguous, we enforce it as written. Williams v. National Casualty Company, 132 S.W.3d 244, 246 (Mo. banc 2004). Whether language is ambiguous is a question of law. Gulf Insurance Company v. Noble Broadcast, 936 S.W.2d 810, 813-14 (Mo. banc 1997). In determining whether or not a word is ambiguous, we examine the entire contract and apply meanings a person of average intelligence and education would understand. Shahan, 988 S.W.2d at 535; American Family Mutual Insurance Company v. Wemhoff, 972 S.W.2d 402, 405 (Mo.App.1998). Words are not ambiguous merely because their meaning and application confound the parties. See Omaha Property and Casualty v. Peterson, 865 S.W.2d 789, 790 (Mo.App.1993). Rather, “an ambiguity exists when there is duplicity, indistinctness, or uncertainty in the meaning of the language in the policy. Language is ambiguous if it is reasonably open to different constructions.” Gulf Insurance Company, 936 S.W.2d at 814.

“Customer” is unambiguous in this policy. See Johnson v. Heritage Mutual Insurance Company, 188 Wis.2d 261, 524 N.W.2d 900, 902 (1994). Thus, we construe it according to its plain and ordinary meaning. Its dictionary definitions pertinent to this case include “one that purchases some commodity or service ...: one that patronizes or uses the services!)]” WebsteR’s Third New INTERNATIONAL Dictionary of the English Language Unabridged 559 (1971). In Empire Gas Corporation v. Graham, 654 S.W.2d 329, 330 (Mo.App.1983), this court also consulted Blaox’s Law Dictionary for the plain and ordinary meaning of “customer” which defined it as “one who regularly or repeatedly makes purchases of, or has business dealings with, a tradesman or business.” BlaCK’s Law Dictionary 386 (6th ed.1991); see also Couch on Insuranoe § 120:50 (3d ed.1997) (defining “customer” as “a person who, without making a purchase, has business dealings with the insured”). Hence, we reject the Baileys’ contention that one must be a purchaser to be deemed a customer.

Even viewing the evidence in a light most favorable to the circuit court’s judgment and deeming Kilburn to be the pickup’s primary purchaser, the only reasonable inference to draw from the facts presented to the circuit court was that, as a matter of law, Ehler was a customer. Ehler visited Forrest Chevrolet-Oldsmobile several times with the intent to buy a vehicle. The dealership’s sales personnel treated him as a customer and helped him look for, and select, a vehicle. Although his grandfather accompanied him, Ehler was the person selecting the vehicle. The dealership’s personnel negotiated with Ehler and allowed him to test drive the vehicle. The dealership accepted his personal check for $2000 as partial payment of the pickup’s purchase price. The only reasonable inference was that Ehler had business dealings with Forrest Chevrolet-Oldsmobile and, as a co-purchaser of the pickup, was its customer.

The Baileys argue that Ehler was not a customer because Forrest Chevrolet-Oldsmobile had a policy of not selling to minors. Not only did the dealership’s general manager, Brad Forrest, contradict this by affirming that his dealership would sell to a minor if an adult co-purchaser were involved, but the dealership also took Ehler’s check and recorded him in its documents as a co-purchaser. Even accepting the Bailey’s most restrictive definition of customer — that a customer must be a purchaser — Ehler, as a co-purchaser, was still a purchaser.

We conclude that the circuit court erred in ruling that Ehler was not a customer. We, therefore, reverse the circuit court’s judgment.

EDWIN H. SMITH, Chief Judge, and ROBERT G. ULRICH, Judge, concur.


author: RONALD R. HOLLIGER, Presiding Judge.

text:
    Lance R. IRVIN, Appellant, v. Gary KEMPKER, MDOC, and, Denis Agniel, Chairman, MBPP, Respondents.
    No. WD 62836.
    Missouri Court of Appeals, Western District.
    Oct. 26, 2004.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 21, 2004.
    Application for Transfer Denied Jan. 25, 2005.

      Daniel Hunt, Jefferson City, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Andrew W. Hassell, Office of Attorney General, Jefferson City, for Respondent.
   RONALD R. HOLLIGER, Presiding Judge.

Lance Irvin appeals the trial court’s judgment denying his writ of mandamus seeking an order that the Department of Corrections and the Board of Probation and Parole not consider his 120-day shock incarceration as a “prior commitment” for the purpose of calculating his “minimum prison term” under Section 558.019, RSMo. We find that the passage of Section 559.115.7 (Laws 2003) requires that the Department not count Irvin’s pri- or 120-day incarceration as a “previous prison commitment” for the purposes of Section 558.019. The judgment is reversed and remanded for further proceedings.

Facts and Procedural Background

In November 1999, Irvin pleaded guilty to the offense of driving while intoxicated and was sentenced to four years’ imprisonment. Execution of that sentence was suspended, however, and he was placed on probation. Irvin’s probation was revoked in February 2000, and he was placed in Missouri Department of Corrections custody under the “120-day callback” provisions of Section 559.115, RSMo 1998. The trial court subsequently released Irvin back on probation.

Irvin pled guilty to a second driving while intoxicated offense in November 2002. He was sentenced to four years’ imprisonment on that charge, to be served concurrently with his prior charge. His probation on the first offense was also revoked at that time, and Irvin’s prior sentence was ordered executed.

The Department of Corrections made the determination that Irvin would need to serve forty percent of his sentences before he would become eligible for parole. In making that determination, the Department considered his February 2000 placement in the Department’s custody as a “commitment” for calculation of parole eligibility under Section 558.019, RSMo 2000.

Irvin sought a writ of mandamus in the trial court requesting that the court order the Department of Corrections and the Board of Probation and Parole to not consider his shock incarceration in 2000 as a “commitment” in calculating his parole eligibility.

The matter proceeded to trial on stipulated facts. The trial court denied Irvin’s request for mandamus relief, and the present appeal follows.

Discussion

In his sole point on appeal Irvin contends that the trial court erroneously interpreted the law in reaching its judgment that Irvin’s prior commitment to the Missouri Department of Corrections and subsequent release on probation pursuant to Section 559.115, RSMo, constitutes a “pri- or commitment” for the purpose of calculating the minimum amount of time he would need to serve upon his sentence before becoming eligible for parole. Respondents Kempker and Agniel (hereinafter referred to as “the State”), in reply, argue that the trial court correctly construed the statute in concluding that Irvin’s prior 120-day commitment could be utilized in calculating his parole eligibility under Section 558.019, RSMo.

Our standard of review is essentially that of Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). We may reverse only if the trial court’s judgment is not supported by substantial evidence, is against the weight of the evidence, or incorrectly declares or applies the law. Wheat v. Mo. Bd. of Prob. & Parole, 932 S.W.2d 835, 838 (Mo.App.1996).

The central question in this case is whether the time Irvin spent in the Department of Corrections’ custody for his 120-day callback constitutes a prior “prison commitment” for purposes of calculating parole eligibility under Section 558.019, RSMo. These issues turn upon interpretation of the language of both Section 558.019, RSMo, as well as Section 559.115, RSMo.

In interpreting a statute, we first look to its plain language to ascertain its meaning. See State v. Knapp, 843 S.W.2d 345, 347 (Mo. banc 1992). If we find that the plain language of a criminal statute is ambiguous, we generally construe the statute in the manner most favorable to the defendant. See id. However, that rule of construction does not require us to ignore common sense or the statute’s evident purpose. Id.

Following the entry of the trial court’s judgment, and while this matter was pending on appeal, parts of Section 559.115 were amended and new subsections including subsection 7 were enacted as part of SB 5. Section 559.115 generally addresses the trial court’s authority to place a convicted offender temporarily in the custody of the Department of Corrections pursuant to a “120-day callback” program. Upon successful completion of such a program, the trial court may release the offender from prison and place him or her on probation. See § 559.115.3, RSMo 2003. A new subsection 7 makes an express statement that such temporary placements “shall not be considered a previous prison commitment for the purpose of determining a minimum prison term under the provisions of section 558.019, RSMo.” § 559.115.7, RSMo 2003. If subsection 7 applies to Irvin, the State does not contest that it has miscalculated his “minimum prison term.”

The same 2003 legislation also amended other statutes within Chapters 558 and 559, RSMo, some of which widened the availability of early release for certain nonviolent offenders. As such, the issue soon arose whether those amendments applied to individuals who committed crimes or who were sentenced prior to the date the amendments became effective.

The Missouri Supreme Court addressed this question with regard to amendments to Section 558.016, RSMo, in State ex rel. Nixon v. Russell, 129 S.W.3d 867 (Mo. banc 2004). The amendments to that statute provided that an individual convicted of a nonviolent class C or D felony, with no prior prison commitments, could seek early release on probation, parole, or other alternative sentence by petitioning the sentencing court after serving 120 days of his or her sentence. See § 558.016.8, RSMo 2003. The Supreme Court held that a criminal statute may be applied to a person already convicted or in prison unless the statute: (a) reduces or increases the offender’s sentence, or (b) alters the law creating the offense pursuant to which the offender was convicted. See id. at 870. The Court reasoned that the trial court’s grant of parole pursuant to the amended version of the statute would not reduce the actual sentence imposed, but would merely alter the location where or the circumstances under which that sentence would be served. Id. at 870-71. As such, the amendments to Section 558.016, did not increase or decrease the length of an offender’s sentence and could, therefore, be applied to offenders sentenced prior to the enactment of the 2003 amendments. See id. at 871.

Neither party, in the original briefs filed in this appeal, addressed either the 2003 amendments or whether they applied in this case. In light of Russell, we requested supplemental briefing by the parties regarding the effect, if any, of Russell and the 2003 amendments, with regard to the issues before the court in this matter.

In his supplemental brief, Irvin argues that Russell stands for the proposition that “retroactively” applying amendments to a criminal statute is appropriate where the amendment does not alter the law creating the offense or increase or decrease the inmate’s sentence. Irvin contends that the amendments to Section 559.115.7, RSMo, do nothing to change the law creating any criminal offense and do not increase or decrease an inmate’s sentence. All the amendment does is clarify whether the prior placement of an offender within a 120-day callback program and subsequent release on probation constitutes a “prison commitment” for purposes of calculating an offender’s minimum prison term. As such, Irvin argues that we should follow Russell and hold that subsection 7 of section 559.115, RSMo, should be applied to him. Under that reasoning, his prior time in the Department of Corrections in 2000 would not constitute a “prior commitment,” and, consequently, the minimum prison term provisions of Section 558.019 are not applicable to him.

The State argues that Russell is distinguishable in circumstances where the statute specifically provides that it is only applicable after a certain date. We note, however, that Section 559.115 contains no such provision. Instead, the State relies upon language within Section 558.019.9, RSMo, which states “[t]he provisions of this section shall apply only to offenses occurring on or after August 28, 2003.” The State contends that this language should be read in pari materia with Section 559.115.7, RSMo, in that both provisions were enacted by the same legislation and touched upon the same subject matter. In their view, the exclusion of placements into 120-day callback programs would be excluded from the definition of “prior commitment” only for those offenders whose offenses were committed after August 28, 2003.

The State’s argument, however, requires us to ignore the plain language of Section 558.019.9, RSMo 2003. The exclusion of 120-day callback placements is contained within another statute and is not contained within section 558.019. Section 558.019.9, by its terms, expressly affects only “this section,” (ie., the statute in which it is contained). That subsection, then, does not refer or extend to any other statute. The purpose of Section 558.019.9, RSMo 2003, is merely to determine which version of section 558.019, RSMo, is applicable to a particular offender. It does not control the applicability of Section 559.115.7, RSMo 2003.

Finally, we consider whether application of Section 559.115.7 to Irvin after he has been sentenced violates section 1.160, RSMo, relating to retroactive applications of repeals and amendments of substantive laws governing criminal offenses. The Supreme Court addressed this very issue in Russell saying “Section 558.016.8 is a new statutory provision; it does not repeal or amend any previously existing statute.” 129 S.W.3d at 870 (citing State ex rel. Nixon v. Kelly, 58 S.W.3d 513, 518 (Mo. banc 2001)). Additionally, as in Russell, Section 559.115.7 does not shorten Irvin’s sentence or alter the law creating the offense. In Russell, the Court cited approvingly to State ex rel. Cavallaro v. Groose, 908 S.W.2d 133 (Mo. banc 1995). There, the prisoner argued that he should be subject to the same statutory provisions for probation that existed at the time of his sentence. See id. at 134. This argument was rejected, again, for the reason that it did not increase the length of his sentence. See id. at 136.

Finding the State’s argument unpersuasive, we agree with Irvin that Russell counsels us to apply the amendments to Section 559.115, RSMo 2003, retroactively. Under those amendments, the time Irvin spent in the custody of the Department of Corrections in the spring of 2000 under a 120-day callback program and prior to his release on probation cannot be considered a “prior commitment” to the Department of Corrections for purpose of calculating his minimum prison term before becoming eligible for parole under Section 558.019, RSMo.

Under that reasoning, it is clear that the State improperly determined Irvin’s parole eligibility. The State calculated his parole eligibility upon the incorrect premise that Irvin had one “prior commitment” to the Department of Corrections for purposes of Section 558.019, RSMo, due to his prior placement and successful completion of a 120-day callback program. Under Section 559.115.7, RSMo 2003, this was impermissible. Instead, Irvin’s parole eligibility-should have been determined as if he had no prior prison commitments.

We conclude that the trial court erred in denying Irvin’s request for mandamus relief. We, therefore, reverse the judgment below and remand the matter for further proceedings consistent with this opinion.

ROBERT G. ULRICH, Judge, and JAMES M. SMART, JR., Judge, concur.

      . The denial of the writ of mandamus is an appealable order, given that the trial court entered a preliminary order and the court proceeded to. trial before ultimately denying the writ. See State ex rel. Lohman v. Personnel Advisory Bd., 948 S.W.2d 701, 703 (Mo. App.1997).

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

      . Since Irvin's offense was committed prior to August 28, 2003, his minimum prison term would be calculated under statutory language in effect prior to the 2003 amendments.


author: JOSEPH M. ELLIS, Chief Judge.

text:
    Tracy POWELL, Appellant Pro Se, v. MISSOURI DEPARTMENT OF CORRECTIONS and Missouri Board of Probation and Parole, Respondents.
    No. WD 63982.
    Missouri Court of Appeals, Western District.
    Oct. 26, 2004.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 21, 2004.
    Application for Transfer Denied Jan. 25, 2005.

      Tracy Powell, Jefferson City, pro se.
    Stephen D. Hawke, Assistant Attorney General, Jefferson City, MO, for respondent.
    Before JOSEPH M. ELLIS, Chief Judge, JAMES M. SMART, JR., Judge and THOMAS H. NEWTON, Judge.
   JOSEPH M. ELLIS, Chief Judge.

Tracy Powell appeals from a judgment entered in the Circuit Court of Cole County denying Appellant’s pro se petition for declaratory judgment against the Missouri Department of Corrections and the Missouri Board of Probation and Parole. Appellant sought a declaration that Respondents had improperly applied the provisions of § 558.019.2 to require that he serve fifty percent of his current sentence before being eligible for parole. For the following reasons, we remand to the trial court for further proceedings.

Appellant is presently incarcerated at the Central Missouri Correctional Center serving four different sentences related to various convictions in Crawford and Franklin Counties. At some point following his commitment to the Department of Corrections, Appellant was informed by Respondents that he would be required to serve fifty percent of his sentence before being eligible for parole in accordance with § 558.019.2.

On January 16, 2003, Appellant filed a petition for declaratory judgment in the Circuit Court of Cole County contending that the Respondents had miscalculated the number of prior commitments he had in applying the provisions of § 558.019.2. He contended that Respondents improperly counted two felony convictions for which he served 120-day call back sentences pursuant to § 559.115. In the alternative, Appellant claimed that the provisions of § 558.019 were unconstitutional.

Subsequently, Respondents filed their answer to Appellant’s petition along with a motion for judgment on the pleadings. After Appellant responded to Respondents’ motion, on May 12, 2003, the trial court entered its judgment on the pleadings denying Appellant’s petition for declaratory judgment. Appellant, again acting pro se, appeals from that judgment.

“On appeal from the trial court’s grant of Respondent[s’] motion for judgment on the pleadings, we review the allegations of Appellant[’s] petition to determine whether the facts pleaded therein are insufficient as a matter of law.” State ex rel. Nixon v. American Tobacco Co., 34 S.W.3d 122, 134 (Mo. banc 2000). “The party moving for judgment on the pleadings admits, for purposes of the motion, the truth of all the opposing party’s well pleaded facts, and the motion is properly granted if, from the face of the pleadings, the moving party is entitled to a judgment as a matter of law.” Craig v. Missouri Dep’t of Health, 80 S.W.3d 457, 459 (Mo. banc 2002).

In his sole point on appeal, Appellant contends that the trial court erred in finding that it was permissible under § 558.019 to count a 120-day term served under § 559.115 as a prior commitment for purposes of imposing a minimum mandatory prison term. Appellant claims that a 120-day term served under § 559.115 is merely a “delivery” to the DOC and not a “commitment” for purposes of applying § 558.019.

Section 558.019.2(2) provides that “[i]f the defendant has two previous prison commitments to the department of corrections for felonies unrelated to the present offense, the minimum prison term which the defendant must serve shall be fifty percent of his sentence[.]” The DOC determined that the foregoing provision required Appellant to serve fifty percent of his sentence before being eligible for parole. In reaching that conclusion, the DOC counted as commitments Appellant’s two prior felony convictions for which he served 120-day call back sentences pursuant to § 559.115. Appellant contends that those sentences should not have been counted as “commitments” under the provisions of § 558.019.2.

Section 558.019.2 specifically provides that “[f]or the purposes of this section, ‘prison commitment’ means the receipt by the department of corrections of a defendant after sentencing.” On his two convictions for which he served 120-day call back sentences, Appellant was received by the department of corrections to serve a term of 120 days following his sentencing. Thus, under the plain language of the statute, those sentences were properly counted against him. See Cody v. Missouri Bd. of Prob. & Parole, 111 S.W.3d 547, 551 (Mo.App. W.D.2003). The cases that Appellant attempts to rely upon in arguing to the contrary are not on point and do not support the statements attributed to them.

Thus, the argument advanced by Appellant before the trial court and on appeal lacks merit. The Board and the trial court both correctly determined that Appellant’s prior sentences under § 559.115 counted as prior sentences under the statutory scheme in existence at the time of those determinations.

Subsequent to the trial court’s entry of judgment, however, while this matter was pending on appeal, the legislature substantially altered § 559.115. Included in those alterations was a provision expressly stating that placement in a 120-day program under § 559.115 “shall not be considered a previous prison commitment for the purpose of determining a minimum prison term under the provisions of section 558.019, RSMo.” § 559.115.7, RSMo Cum. Supp.2003. In Irvin v. Kempker, WD 62886 * 7, — S.W.3d —, —, 2004 WL 2381068 (Mo.App. W.D.2004), which is being handed down simultaneously with this opinion, we hold that the amendment to the statute applies retroactively. Therefore, following the enactment of the amendments to § 559.115, the Board should have recalculated Appellant’s parole eligibility date.

Unlike the situation in Irvin v. Kempker, WD 62836 * 7, — S.W.3d —, —, 2004 WL 2381068 (Mo.App. W.D.2004), where the supplemental record on appeal reflected that Irvin’s parole eligibility date had not been recalculated after the enactment of the amended statute, the record before this court provides no indication as to whether Appellant’s parole eligibility date has been recalculated by the Board in accordance with the revised provisions of § 558.115.7, RSMo Cum.Supp.2003.

Accordingly, we remand this cause to the trial court to consider the matter in light of the amended statute. In so doing, the trial court is free to allow for the amendment of the pleadings, submission of additional evidence, a hearing on the matter, and/or any other proceedings it deems appropriate.

All concur.

      . All statutory references are to RSMo 2000 unless otherwise noted.

      . This appeal was initially filed with the Missouri Supreme Court. That court granted Appellant’s motion for leave to file his notice of appeal out of time on June 26, 2003, and granted Appellant until July 28, 2003, to file his notice of appeal. On August 7, 2003, the Supreme Court entered an order extending the period of time in which Appellant could file his appeal until August 15, 2003, and indicated that the Clerk of the Supreme Court would be hand-delivering Appellant's notice of appeal and attachments to the Circuit Clerk of Cole County. On appeal, Respondents assert that the Missouri Supreme Court erred in extending the period in which Appellant could file his notice of appeal until August 15. Respondents contend that Rule 81.07(a) required a second motion and showing before the court had authority to further extend the time and that the record does not reflect that these requirements were met. Respondents contend that the Supreme Court could not properly sua sponte extend the period of time in which Appellant could file his notice of appeal, that his notice of appeal was therefore untimely filed, and that this court lacks jurisdiction over his appeal.
      This court has no way of knowing what prompted the August 7 order of the Supreme Court or whether Appellant made any sort of request for additional time, written or oral. For this reason, among others, we decline to further address Respondents’ contention.

      . Appellant also argues that § 558.019 should be deemed unconstitutional, but fails to explain wherefore or why in his point relied on. The entirety of his argument dealing with this subject is contained in half of one sentence with no citation to supporting authority. "Where a party fails to support a constitutional contention with relevant authority or argument beyond conclusions, the contention is considered abandoned.” Gerecke v. Gerecke, 954 S.W.2d 665, 671 (Mo.App. S.D.1997).

      . Appellant's reliance on Bratton v. Mitchell, 979 S.W.2d 232, 235 (Mo.App. W.D.1998) is misplaced. In Bratton, this Court expressly declined to address whether the defendant’s placement in a drug treatment facility during a 120-day call back period under § 559.115.2 qualified as a "remand” under the version of § 558.019.2 in effect at the time. Id. at 236-37. Similarly, Appellant’s attempted reliance on Amsden v. State, 699 S.W.2d 54, 57 (Mo. App. E.D.1985) for the proposition that "delivery” to the department of corrections is not the same as a "commitment” to the department is unavailing. Contrary to Appellant's assertions, Amsden does not distinguish between a "delivery” to the department of corrections and a "commitment” to the department of corrections. In fact, the language of Amsden actually appears to equate "delivery” with "commitment” for the purposes of § 549.121(2), RSMo 1978. Id. at 56-57.


text:
    Steven MORLAND, Appellant, v. STATE of Missouri, Respondent.
    No. WD 63809.
    Missouri Court of Appeals, Western District.
    Oct. 26, 2004.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 21, 2004.
    Application for Transfer Denied Jan. 25, 2005.
    Irene C. Karnes, Public Defender Office, Columbia, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Deborah Daniels, Andrew Hassell, Office of Attorney General, Jefferson City, for respondent.

      Before EDWIN H. SMITH, Chief Judge, PAUL M. SPINDEN, Judge, and JAMES M. SMART, JR., Judge.
   ORDER

Steven Morland appeals the circuit court’s judgment denying his Rule 29.15 motion for postconviction relief without an evidentiary hearing. We affirm. Rule 84.16(b).


author: PER CURIAM.

text:
    STATE of Missouri, Respondent, v. Troy A. SMOCKS, Appellant.
    No. WD 63446.
    Missouri Court of Appeals, Western District.
    Nov. 2, 2004.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 21, 2004.
    Application for Transfer Denied Jan. 25, 2005.
    Troy A. Smocks, pro se.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Breck K. Burgess, Asst. Attorney General, Jefferson City, Respondent.
    Before JAMES M. SMART, JR., P.J., JOSEPH M. ELLIS, and LISA WHITE HARDWICK, JJ.
   Order

PER CURIAM.

Troy A. Smocks appeals his convictions following a bench trial for one count of stealing and thirteen counts of forgery, for which he was sentenced as a prior and persistent offender to a total of 111 years of imprisonment. Having carefully considered the contentions on appeal, we find no grounds for reversing the decision. Publication of a formal opinion would not serve jurisprudential purposes or add to understanding of existing law. The judgment is affirmed. Rule 30.25(b)


author: JAMES M. SMART, JR., Judge.

text:
    Lance HOBBS, Appellant, v. BOY SCOUTS OF AMERICA, INC. and Jere Ratcliff, Respondents. Heart of America Council, Inc., Respondent Richard Green, Defendant.
    No. WD 63342.
    Missouri Court of Appeals, Western District.
    Nov. 16, 2004.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 21, 2004.
    Application for Transfer Denied Jan. 25,2005.

      David H. Bony, Kansas City, MO, for appellant.
    Jack T. Bangert, Robert Andrew Henderson, Kansas City, MO, for respondent.
    Before PATRICIA BRECKENRIDGE, P.J., JAMES M. SMART, JR., and VICTOR C. HOWARD, JJ.
   JAMES M. SMART, JR., Judge.

Lance Hobbs appeals the summary judgment granted by the trial court in his action against the Boy Scouts, the Heart of America Council, and a national officer of the Boy Scouts. The trial court determined that there was no genuine issue of material fact and that the defendants were entitled to judgment as a matter of law. Because there was no dispute as to the basic underlying facts, and because Hobbs failed to articulate a viable theory of liability against any of the defendants, we affirm the judgment.

Background

Lance Hobbs, a former participant in the Boy Scouts, was sexually molested by Earl Fleer, an assistant scoutmaster, in 1989. Hobbs was eleven years old at the time. Fleer also molested several other boys in separate incidents in 1989 and 1990. In 1990, the molestations were discovered. Fleer pleaded guilty to the molestations of Hobbs and others and was sentenced to prison.

Hobbs later brought an action against the Boy Scouts of America, the Heart of America Council of the Boy Scouts, and Jere Ratcliff, an officer of the Boy Scouts of America. Plaintiff did not sue the local troop officers or the chartering and sponsoring organization of the local troop with which he was associated. Hobbs alleged that Fleer was assistant scoutmaster with Troop 52 in Kansas City. In his pleadings and in pre-trial discovery, Hobbs alleged that Fleer picked him up on October 27, 1989, to take him to a weekend campout. Instead of proceeding to the campout location, Fleer took Hobbs to a restaurant, then to Fleer’s apartment (where the abuse took place), then to the house of a friend of Fleer’s, then to Worlds of Fun, then back to the friend’s house, then again to a restaurant, then finally, approximately 24 hours after first picking him up, to the scouting campout, where Hobbs participated in the remainder of the scouting event.

Count I of Hobbs’ petition alleged that his damages were caused by a failure to warn or educate Hobbs about the risk of molestation by scout leaders. Count II alleged that the “scouting program” was a “product” under the product liability laws and sought recovery under a theory of strict liability for defective product. Count III, also a product liability claim, sought recovery under the theory of strict liability for failure to warn of an unreasonable risk. Following substantial discovery, and after the deadline for disclosure of expert witnesses, Defendants moved for summary judgment on the ground that there was no dispute of material fact, and that Defendants were entitled to judgment as a matter of law. The court granted Defendant’s motion for summary judgment. Plaintiff Hobbs appeals.

At the outset, it should be noted that Plaintiff does not claim that Fleer was an agent of any of the defendants. Plaintiff did not seek recovery on a theory of “re-spondeat superior” liability. Plaintiff does not claim that Defendants had any control over the activities of Fleer. Plaintiff also does not claim that defendants had knowledge that Fleer was a pedophile. Nor does he claim that Defendants were negligent in approving the application of Fleer to become a scout leader. Plaintiffs claim, in essence, is that the Boy Scout program attracts pedophiles; that Earl Fleer was attracted to scouting and to Hobbs because Fleer was a pedophile; and that Defendants were at fault because they knew of the unreasonable risk of children being abused by pedophiles and did not warn Plaintiff Hobbs about pedophiles or educate Plaintiff Hobbs about improper scout leader behavior and what to do about it. Plaintiffs claims include the allegations that Defendants are liable under product liability law for providing a defective or unreasonably dangerous product without proper warning, resulting in injury to Plaintiff.

It is clear that neither the Boy Scouts of America, nor the Heart of America Council, nor Jere Ratcliff has any day-to-day control over the activities of the local chartering organizations. Thus, these defendants had no supervisory authority over the decision to hold a camping trip, any transportation to the trip, or any activity of Earl Fleer. The only organization with any supervisory authority with regard to specific activities was the local chartering organization, which was not joined to the lawsuit.

After consideration of the arguments for and against summary judgment, the trial court rejected the claim of negligent failure to warn and to educate, finding that the record shows that the molestation did not take place during the course and scope of an authorized scouting activity. The court found no material issue of fact was disputed in this regard. The court further found that the Boy Scout program as described in Plaintiffs petition does not fit within “any recognized definition of a product.” Therefore, the court found, Plaintiff has no cognizable negligence or strict liability theory that would provide a basis for recovery. The court granted summary judgment to Defendants.

On appeal, Plaintiff Hobbs concedes that he cannot recover under this theory unless the abuse took place during an authorized scouting activity. However, he contends that the court erred in regard to Count I of Plaintiffs petition in finding as a matter of law that the injury in question was not during an authorized scouting activity. This is so, Plaintiff asserts, because there were genuine issues of material fact that were in dispute in relation to that issue. Second, Plaintiff contends that the trial court erred with regard to Count II of the petition in determining that the scouting program was not a product because there remained disputed issues of material fact about that determination as well. Because we conclude, after consideration of the record and the arguments, that there were no material facts in dispute, and that Defendants were entitled to judgment as a matter of law, we affirm the summary judgment.

Summary Judgment

Rule 74.04 provides that summary judgment may be granted when “there is no genuine issue as to any material fact” and “the moving party is entitled to judgment as a matter of law.” The determining factor in the summary judgment adjudication is the right to judgment as a matter of law based on the undisputed material facts. See ITT Commercial Fin. Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 380 (Mo. banc 1993).

Negligent Failure to Warn

As to Count I of the petition, Defendants point out that Plaintiff concedes that liability cannot be established under Count I for negligent failure to warn and educate unless the molestation took place during a scouting activity. Although Plaintiff does not explicitly make such a concession, we note that Plaintiff implicitly makes such a concession. In each instance where the issue is discussed, Plaintiff insists only that the molestation did occur during an authorized scouting activity. Plaintiff makes no effort to argue that even if it did not occur during a scouting activity, liability could still attach to Defendants. We will, therefore, consider that issue to be conceded. Thus, our focus is strictly on whether the trial court could say as a matter of law that the injury did not occur in the course of an authorized scouting activity.

The basic facts are undisputed. It is only the conclusion to be drawn from the facts that is disputed. Accordingly, the trial court had an issue of law to resolve— the issue of whether, based on these basic facts, the law will regard the activities of Fleer and Hobbs prior to their arrival at the campout as having taken place during an authorized scouting activity.

The undisputed facts are as follows:

• On October 27, 1989, the Boy Scout Troop of which Lance Hobbs was a member was conducting an overnight campout at H. Roe Bartle Campground.
• On October 27, 1989, Earl Fleer was an adult leader of Boy Scout Troop 52.
• On Friday evening, October 27, 1989, Earl Fleer picked up Lance Hobbs at Hobbs’ home.
• After Fleer picked up Hobbs on Friday evening, October 27, 1989, Fleer took Hobbs to a restaurant.
• On Friday evening, October 27, 1989, after going to the restaurant, Fleer took Hobbs to Fleer’s apartment.
• While Plaintiff was at Fleer’s apartment, during the evening of October 27 or early morning of October 28, Fleer molested Hobbs.
• On Saturday morning, October 28, 1989, Fleer took Hobbs to “Bradley’s” house, but Bradley was not at home.
• Fleer and Hobbs then left Bradley’s house, and Fleer took Hobbs to Worlds of Fun, doing so before Noon on Saturday, October 28,1989.
• Fleer and Hobbs left Worlds of Fun, and Fleer then again took Hobbs to “Bradley’s” house, where Fleer and Hobbs stayed for about 20 minutes.
• Fleer and Hobbs left Bradley’s house, and Fleer then took Hobbs to eat at Burger King.
• After going to Burger King, Fleer took Hobbs to the H. Roe Bartle Campground, where they arrived between 4:00-7:00 PM on Saturday, October 28,1989.

As to whether the injury took place during an authorized activity, Plaintiff asserted that the “authorized” activity was the camping trip. Defendants admitted that the camping trip was an authorized scouting activity in their response to Plaintiffs statement of uncontested facts.

Plaintiff also argues that a jury could conclude that traveling to the H. Roe Bar-tie Campground is an indispensable and undeniable part of that authorized activity. Fleer was a scout leader duly authorized to act as such. The camping trip and the transportation of children to the campground were authorized and encouraged by Defendants Heart of America Council and Boy Scouts of America, says Plaintiff. These authorized activities, says Plaintiff, allow pedophiles legitimate contact with children. And “pedophiles are always trying to get children into situations where there are no other adults present.”

Plaintiff focuses on the contention that a jury could easily infer from the facts that because of the authorized camping trip, there was a need to transport scouts to the campsite. Moreover, Plaintiff says, we can assume that the only reason Lance’s mother allowed her son to leave home with Fleer was that Fleer was a BSA scout leader who was taking her son on a BSA camping trip. What was authorized was the camping trip; and Plaintiff adds the conclusion that travel to the campsite was an indispensable and undeniable part of that activity.

There is no assertion that the national scouting organizations and national leaders had anything to do with planning, organizing or conducting the scouting event in question. It is undisputed that the scouting event in question was under the control of the local troop, which is not a party to this action. Hobbs is not able to show that these defendants authorized the camp-out in question or had anything to do with authorizing or encouraging Fleer to pick up Hobbs to take him to the campout.

Defendants had no supervision over the activity in question, and there is no dispute that Fleer acted in defiance and disobedience of the applicable policies and rules of Defendants. The defendants did not authorize, plan, conduct or supervise either the activity in question, or the transportation to the event. Accordingly, we affirm the trial court’s judgment in favor of Defendants as to Count I of the petition.

Scouting Program as a “Product”

As to Counts II and III of the petition, Plaintiff contends that the court erred in finding that the scouting program was not a “product” under product liability jurisprudence. Plaintiff claims there were material facts from which it could be found that a scouting program was not a service but a product and that Defendants knew the product was defective when “sold” to Plaintiff.

Defendants point out that the Restatement of Torts (Third) defines a product as “tangible personal property distributed commercially for use or' consumption.” Restatement (third) of Torts: Products Liability, § 19(a). Product liability theories do not apply to services. Restatement (third) of Torts: Products Liability, § 19(f); see also Hershley v. Brown, 655 S.W.2d 671, 675 (Mo.App.1983) (refusing to apply strict liability to rendition of medical services). Plaintiff presents no authority to the contrary.

Plaintiff presents the fact that one scout leader stated, “I think of scouting as a product....” See Dale v. Boy Scouts of Am., 308 N.J.Super. 516, 706 A.2d 270, 280 (1998), rev’d on other grounds, Boy Scouts of Am. v. Dale, 530 U.S. 640, 120 S.Ct. 2446, 147 L.Ed.2d 554 (2000). Plaintiff also points out that in Young v. Boy Scouts of America, 9 Cal.App.2d 760, 51 P.2d 191, 194 (1935), the court stated, “Strictly speaking, the boy scouts’ organization does not ... carry on a service in the sense in which a hospital ... does.” These statements fall short of a judicial adjudication that scouting is a product within the meaning of the product liability laws.

For all the foregoing reasons, we conclude that there are no material facts in dispute and that Defendants were entitled to judgment as a matter of law.

BRECKENRIDGE and HOWARD, JJ., concur.


text:
    Lande D. SCOTT, Respondent, v. MISSOURI DEPARTMENT OF CORRECTIONS, Appellant.
    No. WD 63858.
    Missouri Court of Appeals, Western District.
    Nov. 16, 2004.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 21, 2004.
    Application for Transfer Denied Jan. 25, 2005.
    Andrew W. Hassell, Jefferson City, MO, for Appellant.
    Shane Lee Farrow Jefferson City, MO, for Respondent.
    Before EDWIN H. SMITH, C.J., ELLIS and HOWARD, JJ.
   ORDER

PER CURIAM.

Appellant Missouri Department of Corrections (“MDOC”) appeals from a declaratory judgment entered in favor of respondent Lande Scott (“Scott”) holding that MDOC could not require respondent Lande Scott (“Scott”) to serve forty percent of his two year failure to appear sentence before-being eligible for parole. In its sole point on appeal, MDOC argues the circuit court erred in ordering MDOC not to require Scott to serve a mandatory minimum of forty percent of his failure to appear sentence prior to parole consideration because the circuit court erroneously applied and declared the law in that mandatory minimum prison terms under Section 558.019 RSMo Cum.Supp.2003 apply only to offenses committed after August 28, 2003, and the amendment to the 120-day shock statute (Section 559.115 RSMo Cum.Supp.2003) makes sense only if it is included and read together with Section 558.019. We have reviewed the parties’ briefs and the record on appeal. No error of law appears. A written opinion would serve no jurisprudential purpose. We have, however, prepared a memorandum for the use of the parties only, setting forth the reasons for our decision.

Scott’s motion for damages for frivolous appeal taken with the case is denied.

We have reviewed the parties’ briefs and the record on appeal. No error of law appears. A written opinion would serve no jurisprudential purpose. We have, however, prepared a memorandum for the use of the parties only, setting forth the reasons for our decision.

We affirm the judgment pursuant to Rule 84.16(b).