Estate of Burford v. Edward D. Jones & Co.

• Decision Date: 11 June 2002
• Docket Number: No. WD 60369.,WD 60369.
• Citation: 83 S.W.3d 589
• Parties: ESTATE OF Leila Grace BURFORD by Pam BRUSE, a Personal Representative, Respondent, v. EDWARD D. JONES & CO., L.P., d/b/a Edward Jones, Appellant.
• Court: Missouri Court of Appeals

83 S.W.3d 589

ESTATE OF Leila Grace BURFORD by Pam BRUSE, a Personal Representative, Respondent, v. EDWARD D. JONES & CO., L.P., d/b/a Edward Jones, Appellant.

No. WD 60369.

Missouri Court of Appeals, Western District.

June 11, 2002.

Motion for Rehearing and/or Transfer to Supreme Court Denied July 25, 2002.

Application for Transfer Denied September 24, 2002.

COPYRIGHT MATERIAL OMITTED

Craig T. Kenworthy, Kansas City, for appellant.

Robert E. Murphy, St. Joseph, for respondent.

Before LISA WHITE HARDWICK, Presiding Judge, JOSEPH M. ELLIS, Judge and RONALD R. HOLLIGER, Judge.

JOSEPH M. ELLIS, Judge.

In December 1998, Leila Grace Burford was declared incompetent by the Probate Division of the Circuit Court of Mercer County, Missouri. Jay Hemenway and Irene Crum were appointed to serve as co-conservators of Ms. Burford's estate.

On February 10, 1999, the co-conservators executed a Customer Account Agreement with brokerage firm Edward D. Jones & Co. to establish an account on behalf of the Estate. On February 24, 1999, Ms. Burford died. Thereafter, a decedent's estate was opened on behalf of Ms. Burford, and Pam Bruse was appointed Personal Representative of the Estate of Leila Grace Burford, deceased.

On May 10, 2001, the Estate, by and through the personal representative, filed a petition in the Circuit Court of Jackson County against Edward D. Jones & Co. The petition alleged that Edward D. Jones & Co. was negligent and breached a fiduciary duty by failing to advise the co-conservators that sales of securities from the Estate's account ordered by Hemenway on February 16, 1999, would result in adverse tax consequences for the Estate. The petition further alleged that Edward D. Jones & Co. and its agent improperly invested the proceeds in a mutual fund at the direction of Hemenway on February 25, 1999.

On June 29, 2001, Edward D. Jones & Co. sent a letter to the Estate stating its intent to invoke the arbitration provisions of the account agreement in the resolution of the Estate's claim. On July 2, 2001, the Estate sent Edward D. Jones & Co. a letter claiming that there was no valid or enforceable arbitration agreement.

On July 13, 2001, Edward D. Jones & Co. filed a "Motion to Compel Arbitration and Stay Proceedings," claiming that the matter should be arbitrated in accordance with the provisions of the account agreement. On July 26, 2001, the Estate filed its suggestions in opposition to that motion, arguing that the co-conservators had lacked authority to execute the account agreement because they had not been authorized by the court to do so and that the agreement was therefore void.

On August 6, 2001, the trial court denied Edward D. Jones & Co.'s motion to compel arbitration. The court found that the co-conservators had lacked the statutory authority to enter into the account agreement on behalf of the estate and that the agreement, and the arbitration clause contained therein, were therefore void. Edward D. Jones & Co. (hereinafter "Appellant") brings five points on appeal challenging the trial court's decision not to compel arbitration of Respondent's claims.

In its first point, Appellant claims that the trial court erred as a matter of law in declaring the account agreement invalid because the validity of the account agreement was an issue to be decided by the arbitration tribunal and not the court. Appellant contends that because the Estate challenged the validity of the entire agreement, rather than just the arbitration clause, the issue was one that should have been left to an arbitrator.

Contrary to Appellant's assertions, Missouri courts have held that under either the Missouri Arbitration Act or the Federal Arbitration Act "before a court may grant a party's motion to compel arbitration, it must decide whether the agreement containing the arbitration provision is valid and legally binding." Hitcom Corp. v. Flex Fin. Corp., 4 S.W.3d 618, 620 (Mo.App. E.D.1999); See also Silver Dollar City, Inc. v. Kitsmiller Constr. Co., Inc., 874 S.W.2d 526, 536 (Mo.App. S.D.1994); St. Luke's Hosp. v. Midwest Mech. Contractors, Inc., 681 S.W.2d 482, 487 (Mo.App. W.D.1984). If the court finds that the contract containing an arbitration agreement is binding on the parties, the moving party is entitled to an order compelling arbitration. Silver Dollar City, Inc., 874 S.W.2d at 537. "If the trial court finds the Contract void or, for some other reason, unenforceable, there is obviously no valid arbitration provision." Id. The court is charged with making this initial determination because requiring a plaintiff to arbitrate where they have denied entering into the contract containing the asserted arbitration provision would be "inconsistent with the first principle of arbitration, that parties cannot be required to submit to arbitration disputes that they have not agreed to submit." Hitcom, 4 S.W.3d at 620 (citing Three Valleys Man. Water Dist. v. E.F. Hutton & Co., Inc., 925 F.2d 1136, 1142 (9th Cir.1991)).

Accordingly, the trial court did not err in addressing the validity of the account agreement.¹ Point denied.

In its second point, Appellant contends the trial court erred in denying its motion to compel arbitration because the broad language of the arbitration provision dictated that any controversy related to the agreement be addressed in arbitration. As noted supra, before an individual will be deemed subject to the dictates of an arbitration provision, the trial court must make the initial determination whether the individual ever entered into the contract containing that provision. See Hitcom, 4 S.W.3d at 619. The language of the arbitration provision is wholly irrelevant if the plaintiff never entered into the contract or agreed to submit to the arbitration provisions. Point denied.

In its third point, Appellant argues that the trial court erred as a matter of law in finding that the account agreement was void. Appellant contends that neither § 475.130(5) nor § 475.190 precluded the co-conservators from entering into the account agreement and opening an account for the Estate. Appellant claims that the co-conservators had the authority to enter into the agreement even if they lacked the statutory authority to order the later transactions that occurred within the account.

The trial court found that the co-conservators lacked the authority to enter into the customer account agreement because they did not have the prior approval of the court to do so. The trial court held that, under both § 475.130.5 and § 475.190, the co-conservators were required to obtain the approval of the court before they could enter into the customer account agreement with Appellant.

Appellant argues that neither § 475.130.5 nor § 475.190 should be deemed to invalidate the customer account agreement. It contends that, while these statutory provisions might be implicated with regard to subsequent transactions that occurred within the account, they did not preclude the co-conservators from establishing the account or agreeing to the terms of the customer account agreement, including the arbitration clause. Accordingly, the issue before this court is whether the trial court properly found that the terms of the customer service agreement were such that the co-conservators lacked authority to enter into that contract under the provisions of § 475.130.5 and/or § 475.190.

Our review of the trial court's interpretation of the provisions of customer account agreement is de novo. Helterbrand v. Five Star Mobile Home Sales, Inc., 48 S.W.3d 649, 658 (Mo.App. W.D. 2001). "`In interpreting a contract, we must use the plain, ordinary, and usual meaning of the contract's words and consider the whole document.'" Id. (quoting Missouri Consol. Health Care Plan v. BlueCross BlueShield of Mo., 985 S.W.2d 903, 909 (Mo.App. W.D.1999)). "Where a written contract is unambiguous and complete on its face, parole evidence may not be introduced to vary or contradict the terms of the agreement." Id.

Similarly, statutory interpretation is a question of law, and our review of the trial court's interpretation of the relevant statutes is therefore de novo. Carmack v. Missouri Dep't of Agric., 31 S.W.3d 40, 46 (Mo.App. W.D.2000). "`The primary rule of statutory construction is to ascertain the intent of the legislature from the language used, to give effect to that intent if possible, and to consider the words used in their plain and ordinary meaning.'" Hampton v. Hampton, 17 S.W.3d 599, 602 (Mo.App. W.D.2000) (quoting Wheeler v. Board of Police Comm'rs of Kansas City, 918 S.W.2d 800, 803 (Mo. App. W.D.1996)).

We first address Appellant's claims related to § 475.130.5. That section provides, in relevant part:

A conservator of the estate has power, without authorization or approval of the court, to:

* * *

(3) Sell, or agree to sell, chattels, choses in action and investment securities reasonably worth not more than one thousand dollars for cash or upon terms involving a reasonable extension of credit;

(4) Exchange, or agree to exchange, chattels, choses in action and investment securities for other such property of equivalent value, not in excess of one...