State v. Harrison

¶1dissenting.

¶2I respectfully dissent. The trial court erroneously found the underlying document “is in fact a retail time contract” as defined in § 408.250(14),* and therefore erred in sustaining defendant’s motion to dismiss.

¶3I.

¶4The underlying document, identified as a “Rental Agreement Only,” is not a “retail time contract.” A “retail time contract” is an agreement in which a buyer engages to pay the “time sale price” of goods. § 408.250(14). "Time sale price” is the “total of the cash sale price of the goods.... ” § 408.250(18). Here, defendant did not agree to pay the cash sale price of the television set. All he obligated himself to do was to pay $10.00 for each week he kept the set, whether one week or 129 weeks.

¶5The term “retail time contract” does include “a contract for the bailment or leasing of goods” where the “lessee contracts to pay ... a sum substantially equivalent to or in excess of [the] cash sale price” and the lessee has the opportunity to become owner of the goods when all payments are made. § 408.250(14). However, for a lease to be a “retail time contract,” the lessee must contract to pay the cash sale price or more. Here, defendant had no such obligation and the trial court erred in finding the underlying document is a “retail time contract.”

¶6Rather than a “retail time contract,” the underlying document is more nearly a “rental-purchase agreement.” A “rental-purchase agreement,” as defined in § 407.661(6), is

an agreement between a merchant and a consumer for the use of merchandise by the consumer for personal, family, or household purposes, for an initial period of four months or less [2] that is automatically renewable with each payment after the initial period, and [3] that permits the consumer to become the owner of the merchandise.

¶7*245The underlying document does not fully comply with § 407.662. This is understandable because the document is dated September 28, 1987, while the statute became effective August 13, 1988. However, the agreement: (1) provides for the use of a television set for an initial period of less than four months, namely one week, (2) automatically renews with each payment, and (3) permits the defendant to become the television set’s owner.

¶8II.

¶9The majority opinion determines that “[b]y adding terms of sale to the agreement Best TV and defendant entered into a contract not within the criminal protection of § 578.150 RSMo 1986.” Page 244. I disagree.

¶10“The legislature is presumed to have intended what the statute says and if the language is clear and unambiguous there is no room for construction.” State v. Evers, 777 S.W.2d 344, 345 (Mo.App.W.D.1989). Here, there is no room for construction.

Section 578.150, RSMo 1986, states a

person commits the crime of failing to return leased or rented property if, with the intent to deprive the owner thereof, he willfully fails to return leased or rented personal property to the place and within the time specified in an agreement in writing providing for the leasing or renting of such personal property, (emphasis added).

¶11The agreement between Best TV Rentals and defendant is a rental agreement of a television set. The fact that defendant could some day become the television set’s owner does not change the agreement from being a rental agreement.

¶12The judgment of the trial court should be reversed, and the cause remanded for further proceedings.