Opinion
No. 22942
Handdown Date: July 19, 2000
APPEAL FROM CIRCUIT COURT OF MCDONALD COUNTY, HON. TIMOTHY W. PERIGO.
AFFIRMED IN PART; REVERSED IN PART AND REMANDED.
Counsel for Appellant: Robert W. Evenson.
Counsel for Respondent: Sims, Johnson Wood.
Prewitt, J., Concurs in Part and Dissents in Part in Separate Opinion. Crow, P.J., concurs. Parrish, J., concurs. Montgomery, P.J., concurs in J. Prewitt's Separate Opinion. Garrison, C.J., concurs. Barney, J., concurs.
Appellant Edward G. Burkholder appeals from a judgment entered following non-jury trial, divesting him of any interest in property formerly owned by his deceased father.
Robert J. Burkholder (R.J.), died testate on December 9, 1997, at age ninety-three. From the fall of 1987 through September 1997, his son, Appellant Edward G. Burkholder (Ed), handled his father's financial affairs. Prior to 1987, William Lawrence Burkholder (Larry), who is also a son of the deceased, had assisted his father with his financial affairs.
In October of 1997, R.J. filed a petition to terminate joint tenancy on several assets held jointly with Appellant. The petition stated that R.J. and Appellant were listed as joint tenants with the right of survivorship on several assets, including a certificate of deposit through Farm Home Savings Association (now Roosevelt Bank), a church savings bond through St. Andrew's United Methodist Church, and a 1991 Buick Regal automobile. The petition also stated that R.J. had contributed all the funds to each of these assets, and Appellant admitted that was true. R.J. died while the case was pending. Larry was substituted as plaintiff in his capacity as personal representative of his father's estate.
On October 2, 1998, Appellant filed a two-count petition contesting the will and alleging conversion of personal property. The two cases were consolidated and tried to the court on November 23, 1998. On the petition originally filed by R.J. seeking termination of joint tenancies, the court granted the terminations, and concluded that the personal representative was entitled to "all interest" in the contested assets. On the two-count petition filed by Appellant, the trial court found that Appellant had "failed to sustain his petition on Count I," and also denied relief for Appellant on Count II claiming conversion. Appellant appeals, contesting the portions of the judgment that terminated the joint tenancies and denied his Count II.
Review of this action is set forth in Rule 84.13(d). In reviewing the judgment of a court-tried case, this court views the evidence and permissible inferences drawn therefrom in a light most favorable to the judgment. The judgment will be affirmed unless it is against the weight of the evidence, there is insufficient evidence to support it, or it erroneously declares or applies the law. In re Marriage of Lafferty, 788 S.W.2d 359, 361 (Mo.App. 1990).
Effective January 1, 2000, Rule 73.01(c) does not contain a standard of review for appellate courts, but has been replaced with Rule 84.13(d).
For his first point on appeal, Appellant asserts that the trial court misapplied the law "in adjudging that the joint tenancy between R.J. Burkholder and Edward Burkholder in a 1991 Buick automobile, a church savings bond, and a certificate of deposit, was terminated and belonged to the estate," because there was no actual termination of the joint tenancy in this property prior to R.J.'s death.
Before discussing the law applicable to the ownership of the certificate of deposit, further facts need to be presented. Prior to the filing of the petition for termination, R.J. met with his attorneys on September 8, 1997, and revoked a power of attorney in Appellant. He then signed a new power of attorney, naming his son, Larry, as his attorney in fact. On September 12, 1997, R.J. signed a new will appointing Larry as personal representative and eliminating any bequests or devises to Ed. Also on that date, R.J. visited the bank that held his certificate of deposit, and requested removal of Ed's name from the certificate. He was informed that he would be required to present the actual certificate to effectuate such a change. R.J. could not present the certificate, as Ed had possession of it. The bank personnel advised R.J. that he could sign a revocation of authority, which would give the bank the power to freeze the account, thus preventing Ed from withdrawing any funds. R.J. signed the revocation. R.J. then requested his attorney write Ed demanding the return of the certificate, the church bond, and the title to the Buick. Ed received the attorney's letter, but refused to return any of the documents.
The deceased's competency to do any of the acts relevant to this appeal is not challenged here.
Because R. J. was the sole contributor of the funds represented by the certificate of deposit, he had the right to divest the other joint tenant (Appellant) of any ownership interest. Bowers v. Jones, 841 S.W.2d 744, 748 (Mo.App. 1992); Rubin v. Boatmen's Nat'l Bank, 811 S.W.2d 494, 496 (Mo.App. 1991). However, the issue here is not R.J.'s right to terminate; the issue is whether the trial court erroneously declared or applied the law when it implicitly found R.J. had terminated the joint tenancy in the certificate of deposit before he died via his efforts to retrieve and cancel the certificate, including the filing of this lawsuit.
Neither section 369.174 (which deals with joint deposits in savings associations) nor section 362.470 (which pertains to joint deposits in banks) prescribes a procedure by which the sole contributor can terminate a statutory joint tenancy created by compliance with the respective statutes. Even so, guidance is given by a series of Missouri appellate court opinions concerning termination of statutory joint tenancy in bank and savings association accounts and from the language of sections 369.174.1 and 362.470.1, RSMo 1994.
The polestar of these cases is In re Estate of LaGarce, 487 S.W.2d 493 (Mo.banc 1972). The LaGarce court declared that "actual termination" by the sole contributor is required; an "intent to terminate" is not sufficient.
"Plaintiff has suggested in her brief that any transfer of the certificate was revoked by August [LaGarce] prior to his death. We do not agree. At most, the evidence shows an intent by the Mouldons, for a short period of time, to return the certificate, and an intent to terminate or sever the joint tenancy and not an actual severance thereof. Even if the certificate had been delivered to August [LaGarce] and he had possession thereof, there could not be an actual termination of the joint tenancy unless and until August had actually cashed in the certificate. An intent to terminate the joint tenancy agreement cannot be equated with actual termination."
487 S.W.2d at 501 (emphasis supplied).
Any doubt about LaGarce and its requirement that there be an "actual termination" of a statutory joint tenancy account is removed by later supreme court cases. Thus, in Pollock v. Brown, 569 S.W.2d 724 (Mo.banc 1978), the court said:
"We reaffirm the holding in LaGarce. There was created a present statutory joint tenancy in the $5,000 account. . . . However, plaintiff had a right to retain possession of the certificate of deposit which evidenced said account, thereby retaining control over the account by reason of the fact that surrender of the certificate was required for withdrawal of funds from the account. This is consistent with the holding in LaGarce which discussed possession and utilization of the certificate and the necessity that the certificate be surrendered if the account is to be terminated.
Id. at 731 (emphasis supplied).
Whether the certificate of deposit that R. J. tried to terminate was a section 369.174 or a section 362.470 account is of no consequence. "The LaGarce court's discussion of joint accounts at savings associations is equally applicable to joint bank accounts created pursuant to section 362.470. . . . LaGarce, 487 S.W.2d at 499; Pollack v. Brown, 569 S.W.2d at 731[7]." Bowers, 841 S.W.2d at 747-48 n. 6.
In McGee v. St. Francois County Sav. and Loan Ass'n, 559 S.W.2d 184, 187 (Mo.banc 1977), the court offered additional guidance by giving examples of what constituted actual termination.
"[The owner] could have surrendered the certificates to S L and received cash or a check therefor. He also could have surrendered the old certificates and asked that they be cancelled and new replacement certificates issued in his individual name or in his name and the name of some other person or persons as joint tenants."
In McGee the Supreme Court reiterated that it deemed termination to be "a completed act" as opposed to "a contemplated act." Id. at 188.
In Bowers, we reviewed examples of "completed acts" that sole contributors must perform to terminate a statutory joint tenancy deposit. 841 S.W.2d at 748-49. From that review — which we need not repeat here — we concluded that "[a]n expression of an intention to terminate a statutory joint tenancy, no matter how eloquently or forcefully stated, cannot overcome the presumption that arises from compliance with section 369.174.1" or with section 362.470.1. Id. at 749. Based on LaGarce and its progeny, we found that a sole contributor to a joint tenancy bank or savings association account can only terminate the account by (1) presenting the depositor's documents to the institution and withdrawing the money or procuring physical changes in the documents and the institution's records, or (2) procuring a final judgment ordering termination before the depositor's death. Bowers, 841 S.W.2d at 748.
We find no Missouri Supreme Court case decided after LaGarce that authorizes departure from the principles of LaGarce or compels the conclusion we should no longer follow Bowers. In so stating, we do not ignore Estate of Munier v. Jacquemin, 899 S.W.2d 114 (Mo.App. 1995) or Irondale Bank v. Crocker, 913 S.W.2d 360 (Mo.App. 1996), cases decided by the eastern district that are inconsistent with Bowers. In Crocker, the eastern district rejected Bowers as precedent by saying, " Estate of Munier augurs a new direction in this area." 913 S.W.2d at 362. In our view, however, LaGarce and its progeny, together with the constitutional requirement that we follow the last controlling decisions of the Missouri Supreme Court, preclude us from "augur[ing] a new direction in this area." MO. CONST. art. V, section 2 (1945). To declare a statutorily created joint deposit terminated upon a showing of the depositor's intent without an actual termination thereof, as the trial court did here, runs counter to the whole fabric of LaGarce. See Matter of Estate of Hysinger, 785 S.W.2d 619, 625 (Mo.App. 1990).
Because R.J. never actually terminated the certificate of deposit before his death, the statutory presumption that he intended title to the bank deposit vest in Appellant remained intact. Bowers, 841 S.W.2d at 749. Despite abundant evidence that R.J. intended to terminate the joint tenancy in the certificate of deposit, LaGarce compels us to hold, as a matter of law, that his intent to terminate cannot be equated with actual termination. 487 S.W.2d at 501. Appellant's point I has merit to the extent it charges the trial court erred by finding termination of the joint tenancy in the certificate of deposit before R.J.'s death.
We now turn to the assets represented by the church bond and the 1991 Buick automobile. Appellant states in his brief that "[d]ifferent principles control the disposition of the church bond and the Buick automobile than apply to the disposition of the certificate of deposit." Appellant further states that "[s]ince the church bond and the Buick automobile were owned jointly with Edward Burkholder, as joint tenants with right of survivorship, at the time of the father's death, the Court had no choice but to find for Edward Burkholder on the Petition to Terminate." No authority is cited for this assertion. Appellant continues with the assertion that the trial court erred when it "mistakenly applied the same rules to the automobile, and the bond, as were created for joint deposits by the Legislature, instead of making it's [sic] decision based on the characteristics of the ownership interest in the property involved." Appellant concludes that he "should be declared the owner of these properties as a matter of law." Again, no authority is cited for these positions. Failure to cite relevant authority, or an explanation of the failure to do so, preserves nothing for appellate review. Kent v. Charlie Chicken, II, Inc., 972 S.W.2d 513, 516 (Mo.App. 1998).
The only case cited in the portion of the argument relating to the church bond and the Buick is Heintz v. Hudkins, 824 S.W.2d 139 (Mo.App. 1992). That case, as noted by Appellant, was filed seeking partition of jointly held real estate. The instant case was not in partition, but sought complete severance of the joint tenancy to personal property. Heintz, therefore, is not relevant to this appeal.
Error was not established regarding the finding in the judgment severing the joint tenancy in the church bond and the 1991 Buick automobile. As to those two items of personalty, point I is denied.
For Appellant's second point, he contends that the trial court erred in finding against him on Count II of his petition alleging conversion of personal property. The point states that "the evidence was that Edward Burkholder was the owner of that personal property as a result of a bill of sale given to him by R.J. Burkholder on November 11, 1992, and that William Lawrence Burkholder took possession of the property without Edward Burkholder's consent and claimed the property as his own."
The single case cited in the argument is Maples v. United Sav. Loan Assoc., 686 S.W.2d 525 (Mo.App. 1985). Apparently this case is cited for the definition of "conversion" but this is not clear. The citation follows the sentence: "Therefore he has converted this property to his own use." We must again conclude that Appellant's argument does not cite relevant authority that would support his position that the facts he asserts, coupled with applicable law, resulted in an unlawful conversion. See Kent, 972 S.W.2d at 516.
Appellant does cite to MAI 23.12(1). We have not overlooked this authority, but find it not helpful to Appellant as this was a case tried to the court, not to a jury.
There is a second reason Point II should be denied. Because the trial court's judgment is presumed valid, it is Appellant's burden to demonstrate the incorrectness of the judgment. Humphrey v. Sisk, 890 S.W.2d 18, 20 (Mo.App. 1994). Appellant has failed to carry this burden.
The judgment is reversed with respect to the Roosevelt Bank certificate of deposit, and the case is remanded with directions that judgment be entered declaring Appellant as owner thereof. In all other respects, the judgment is affirmed.
As to the certificate of deposit, I respectfully dissent. I can certainly understand the majority's reliance upon In re Estate of LaGarce , 487 S.W.2d 493 (Mo.banc 1972), and its progeny, including Bowers v. Jones , 841 S.W.2d 744 (Mo.App. 1992).
In Estate of Munier v. Jacquemin , 899 S.W.2d 114 (Mo.App. 1995), the Eastern District addressed essentially the same question presented here and with similar facts. In Munier , the deceased named her sister and her sister's husband as joint tenants with right of survivorship on several certificates of deposit. The certificates were held by the sister's husband, who later refused to return the certificates when requested to do so. Plaintiff attempted to withdraw the funds from the financial institutions but was refused. Id. at 116. An employee of the savings association and another employee of the bank told her she could not withdraw the funds without presenting the certificates. Plaintiff then signed forms that prohibited anyone from cashing in the certificates without an agreement of all parties. Id. Plaintiff later filed suit against her sister's husband and her sister to force them to return the certificates. Id. at 117. Plaintiff died while the suit was pending. Id. at 115.
The Eastern District cited previous cases for the rule that when one contributes all the funds deposited in a joint account, so long as that person lives, that person has the power to divest the interests of non-contributing joint tenants by transferring the funds to a new account. Id. at 117, citing Carroll v. Hahn , 498 S.W.2d 602, 607 (Mo.App. 1973); Auffert v. Auffert , 829 S.W.2d 95, 98 (Mo.App. 1992). The court concluded that if they were to allow defendants to be awarded the certificates, the "defendants would be rewarded for their wrongful withholding of the certificates. . . . Further, by affirming, we would be sending a message to others like defendants that they should refuse, stall, and delay in the hope that the real owner's death will reward them financially." Id. I agree with this reasoning, and believe that its application is appropriate for the instant appeal.
In this case, Appellant refused to deliver the certificates in his possession when his father requested he do so. Appellant wrote a letter addressed to the Roosevelt Bank, which stated in part:
This letter is intended to notify you that I have this CD in my possession, and intend to keep it so, in order that my Father's assets will be preserved, and his income continue uninterrupted. I have no intention of changing any feature of this CD.
This language clearly indicates Appellant's position that he was not willing to honor his father's request to surrender the certificate. R.J. was therefore left with the option of filing this suit to force Appellant to surrender the certificate.
In Irondale Bank v. Crocker , 913 S.W.2d 360 (Mo.App. 1996), the Eastern District relied upon its holding in Munier . The court noted that requiring a party to present to the bank the certificate when attempting to sever a joint tenancy can lead to "unsatisfying results in a situation where the joint tenant who has deposited all of the funds in the account is thwarted in [his] efforts to terminate the joint tenancy merely because [he] does not have possession of the certificates." Id. at 361. The court wrote:
Appellant takes the position that a depositing joint tenant's intention to dissolve a joint tenancy is of no consequence unless that intention is accompanied by acts sufficient to accomplish dissolution. This formulation of the problem seems to beg the question. In all of the cases that involve a depositing joint tenant's efforts to dissolve a joint tenancy, the intent to dissolve is only apparent because of some act or acts expressing that intention. Thus, the real inquiry is, "Are the acts sufficiently probative of an intent to dissolve for the court to find dissolution?" Id.
Applying that inquiry to the case before us, I believe that R.J.'s acts were sufficiently probative of an intent to dissolve the joint tenancy to support the trial court's ruling. R.J. went to the bank for the purpose of removing Appellant's name from the certificate. He was unable to accomplish that because of bank policy. R.J. did all that he could do at the bank; he signed a form "freezing" the account. R.J. then instructed his attorney to write a letter to Appellant requesting he deliver the certificate to R.J. Appellant acknowledged that he received the letter, and refused to relinquish possession of the certificate. R.J. then filed suit, asking the court to order Appellant to deliver the certificate. These facts are sufficient to prove intent to dissolve joint tenancy. R.J. appears to have done all that he legally could to gain possession of the certificate and dissolve the joint tenancy before his death.
The majority opinion and Appellant primarily rely upon Bowers v. Jones , 841 S.W.2d 744 (Mo.App. 1992) and In re Estate of LaGarce , 487 S.W.2d 493 (Mo.banc 1972), for the proposition that an intent to terminate is not sufficient to terminate a joint tenancy, but that there must have been actual termination of the joint tenancy. In Bowers , there was no discussion in the opinion regarding the plaintiff's attempts to sever the joint tenancy prior to filing a lawsuit to terminate the joint tenancies. Plaintiff died prior to judgment. Id. at 746. The trial court had concluded that the filing of the lawsuit was sufficient to terminate the joint tenancy. Id. This district reversed the trial court's ruling, and determined that filing the lawsuit was not sufficient to terminate the joint tenancy. Id. Munier distinguished Bowers because Bowers did not reflect evidence of intent and attempts to terminate the joint tenancy before initiating the lawsuit. Munier , 899 S.W.2d at 117-118. Munier distinguished LaGarce by the deceased's actions in an attempt to obtain the certificate and sever the joint tenancies. See Munier , 899 S.W.2d at 118. "And the facts before us, LaGarce does not require us to reward defendants for their refusal to turn over the certificates to plaintiff." Id. Although I believe this attempt to distinguish LaGarce is questionable, I am content to do so in order to reach what I view as the correct result.
In Irondale, the court also declined to follow Bowers because they determined that Munier "augers a new direction" regarding inquires of the decedent's testamentary intent. Irondale, 913 S.W.2d at 362.
However, as to Bowers , I believe any attempt to distinguish it here would be fruitless. Undoubtedly there were attempts there to terminate the joint tenancies before filing suit. Such facts, if they existed, may not have been relevant in Bowers because of the basis of the decision. It would be unrealistic to assume that the suit was filed without some attempts unless previous conduct had made it clear that such attempts would be futile. Therefore, I believe that Bowers is inconsistent with the result I would reach here, and that its holdings that there must be actual termination of a joint tenancy before death, that filing a lawsuit does not terminate the tenancy until judgment, and that when death occurs before judgment the surviving joint tenant succeeds to all interest, should no longer be followed.
I concur as to the disposition of the issues on the church bond and automobile.