Rizo v. U-Lane-O Credit Union

37 P.3d 220, 178 Or. App. 498, 2001 Ore. App. LEXIS 1903
CourtCourt of Appeals of Oregon
DecidedDecember 26, 2001
Docket12-99-03417; A108956
StatusPublished
Cited by3 cases

This text of 37 P.3d 220 (Rizo v. U-Lane-O Credit Union) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Rizo v. U-Lane-O Credit Union, 37 P.3d 220, 178 Or. App. 498, 2001 Ore. App. LEXIS 1903 (Or. Ct. App. 2001).

Opinion

WOLLHEIM, J.

Plaintiff seeks review of a judgment in favor of defendant U-Lane-0 Credit Union on plaintiffs claims for breach of contract and conversion. We review for errors of law, Tifft v. Stevens, 162 Or App 62, 66, 987 P2d 1 (1999), rev den 330 Or 332 (2000); Fogh v. McRill, 153 Or App 159, 167, 956 P2d 236, rev den 327 Or 431 (1998), and affirm.

The case was tried to the court on stipulated facts. Plaintiff had a Visa account at defendant credit union on which his wife, Marion, was an authorized signer. Plaintiff also had a savings account at defendant credit union that was solely in his own name. In May 1998, Marion sent defendant a request for a wire transfer of a $3,000 cash advance from the Visa account, to be sent to her account at another bank. In accordance with that request, defendant transferred $3,000 to Marion’s account. According to defendant’s chief financial officer, because of its auditing procedures, it “does not process wire transfers directly from a VISA account; rather, the cash advance is credited to the savings account associated with the VISA account and then transferred from the savings account to the destinations requested by the authorized signer on the VISA account.” Therefore, in order to transfer the cash advance to Marion’s bank as requested, defendant debited the Visa account $3,010 (the amount requested plus a wire transfer fee), then transferred $3,000 of that amount temporarily into plaintiffs savings account before transferring it into Marion’s account as she requested. Plaintiff and Marion were subsequently divorced, and plaintiff ultimately was obliged to pay the $3,010 Visa debt that resulted from Marion’s wire transfer.

Plaintiff initiated this action for breach of contract and conversion. The gravamen of plaintiffs breach of contract claim was that defendant breached its account agreement with plaintiff by withdrawing the $3,010 from his savings account after having first deposited it there, because the account agreement required plaintiffs authorization for withdrawals from that account. The gravamen of plaintiffs conversion claim was that defendant converted the $3,010 that it had deposited in his savings account by withdrawing it [501]*501and delivering it to Marion. On both claims, plaintiff sought as damages the $3,010 plus interest.

The trial court entered judgment in defendant’s favor on both of plaintiffs claims. On the contract claim, the trial court found first that defendant’s procedure of passing the funds debited from the Visa account through the savings account before transferring them to the destination bank was not a violation of the account agreement. Alternatively, the trial court concluded that plaintiff had failed to prove the damages element of his claim. On the conversion claim, the trial court found that plaintiff’s claim failed because he did not have the right to immediate possession of the $3,010 when defendant transferred it from the savings account to Marion’s account.

On appeal, plaintiff argues that the trial court erred in rejecting each of his claims. We turn first to his arguments concerning the breach of contract claim. The parties do not dispute that proof of damages is an essential element of a breach of contract action. See, e.g., Moini v. Hewes, 93 Or App 598, 602-03, 763 P2d 414, rev den 307 Or 245 (1988). They do dispute, however, whether plaintiff established that he suffered any damages as a result of defendant’s alleged breach of its account agreement with plaintiff. We need not decide here whether plaintiff is correct that defendant breached the account agreement by transferring the Visa account cash advance into the savings account before transferring it on to Marion’s account, because we agree with defendant that, even assuming that defendant breached the agreement, plaintiff suffered no damages as a result of the breach.

Plaintiff argues that defendant’s action in transferring the money through his savings account caused him to suffer damages because he ultimately was required to pay the $3,010 liability on the Visa account. He argues that “[t]his $3,010 liability would not and could not have been incurred but for [defendant’s] unauthorized withdrawal from [plaintiffs] Savings Account.” Plaintiffs own argument defeats that assertion. At another point in his brief, plaintiff notes that nothing prevented defendant from “wir[ing] the funds directly from the Visa Account to their destination.” Plaintiff also does not dispute that Marion was an authorized [502]*502signer on the Visa account, and therefore had every right to request the wire transfer of funds from that account. What plaintiff fails to recognize is the logical conclusion that must be drawn from those facts: Plaintiffs liability for the debit to the Visa account was not caused by defendant placing the funds briefly in his savings account before transferring them to Marion. Put another way, plaintiff would have been liable on the Visa account for Marion’s authorized withdrawal of the funds regardless of whether defendant had transferred those funds directly to Marion or had first passed them through plaintiffs savings account. The trial court correctly rejected plaintiffs claim for breach of contract, because the alleged damages were not caused by the alleged breach.

We turn to the conversion claim. Plaintiff asserts that the trial court erred in rejecting that claim, arguing that, regardless of whether Marion was an authorized signer on the Visa account, “once the funds were transferred into [plaintiffs] Savings Account they became [plaintiffs] property.” Again, we disagree. In Mustola v. Toddy, 253 Or 658, 663-64, 456 P2d 1004 (1969), the court accepted the following formulation of the tort of conversion, taken from the Restatement (Second) of Torts § 222 (1965):

“(1) Conversion is an intentional exercise of dominion or control over a chattel which so seriously interferes with the right of another to control it that the actor may justly be required to pay the other the full value of the chattel.
“(2) In determining the seriousness of the interference and the justice of requiring the actor to pay the full value, the following factors are important:
“(a) the extent and duration of the actor’s exercise of dominion or control;
“(b) the actor’s intent to assert a right in fact inconsistent with the other’s right of control;
“(c) the actor’s good faith;
“(d) the extent and duration of the resulting interference with the other’s right of control;
“(e) the harm done to the chattel;
[503]*503“(f) the inconvenience and expense caused to the other.”

See also Fogh, 153 Or App at 166-67 (applying Restatement test for conversion).

Implicit in plaintiffs argument is an assertion that, the moment defendant transferred the Visa account funds requested by Marion into plaintiffs savings account, plaintiff gained a right to control those funds superior to the rights of all others, and any exercise of dominion or control over those funds either by defendant or by Marion seriously interfered with the right to control that plaintiff had gained by the transfer. Plaintiffs argument fails for several reasons.

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37 P.3d 220, 178 Or. App. 498, 2001 Ore. App. LEXIS 1903, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rizo-v-u-lane-o-credit-union-orctapp-2001.