HACKNEY, MARCH CARROLL v. SMILDE, 20688-2-III (Wash.App. 10-22-2002)

No. 20688-2-III.The Court of Appeals of Washington, Division Three. Panel Nine.
Filed: October 22, 2002. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.

Appeal from Superior Court of Spokane County, No. 97-2-06956-9, Hon. Salvatore F. Cozza, November 2, 2001, Judgment or order under review.

Counsel for Appellant(s), Russell K. Jones, Attorney At Law, 1123 E. 19th Ave., Spokane, WA 99203.

Counsel for Respondent(s), Michael A. Roozekrans, 1600 Wa Trust Finan Ctr, 717 West Sprague, Spokane, WA 99204-0466.

FRANK L. KURTZ, J.

Russell Jones agreed to pay Peter Smilde $11,000 in settlement of a lawsuit. In order to effectuate the settlement, Mr. Jones delivered a cashier’s check in that amount, drawn on Seafirst Bank and payable to Peter Smilde and his attorney. The check was never cashed because a dispute arose between the attorney and his client regarding the amount of attorney fees. When Mr. Jones learned that the cashier’s check had not been timely cashed, he demanded that Seafirst refund him the $11,000 plus interest. When Seafirst refused, Mr. Jones filed a lawsuit against Seafirst, alleging breach of contract, conversion, and violation of the Consumer Protection Act. In response, Seafirst interpleaded the $11,000 into the registry of the court. The superior court granted Seafirst’s motion for summary judgment, dismissing all of Mr. Jones’s claims against it. Mr. Jones appeals. We affirm the judgment of the superior court and award attorney fees on appeal to Seafirst.

FACTS
Russell K. Jones settled his lawsuit with Peter Smilde by agreeing to pay Mr. Smilde $11,000. Mr. Jones, an attorney, had represented Mr. Smilde and the lawsuit arose out of that representation. In order to pay the settlement, Mr. Jones’s attorney, Sheryl Phillabaum, purchased a cashier’s check from Seafirst Bank in the amount of $11,000. The check was made payable to Mr. Smilde and his attorney, Greg Lockwood. On the check, the words `VOID AFTER 90 DAYS’ were written. Clerk’s Papers (CP) at 4. Ms. Phillabaum delivered the check to Mr. Lockwood. Thereafter, Mr. Smilde released his claim and his lawsuit was dismissed with prejudice. After he received the check, Mr. Lockwood endorsed it and forwarded it to Mr. Smilde for his signature. Mr. Smilde disputed the fees Mr. Lockwood charged him, and refused to return the cashier’s check. Because he refused to return the check or pay the fees, Mr. Lockwood’s law firm, Hackney, March Carroll, filed an action in superior court against Mr. Smilde, seeking payment of their fees. Mr. Smilde requested an arbitration before the Washington State Bar Association. The arbitrator found that the law firm was entitled to $5,506.53 in fees. Mr. Smilde continued to refuse to pay the fees or return the cashier’s check.

When Mr. Jones learned that the cashier’s check had not been cashed due to the dispute between Mr. Smilde and the Hackney law firm, he demanded that Seafirst Bank refund his money. When the bank refused, Mr. Jones filed a lawsuit for breach of contract and conversion against Seafirst Bank. In that lawsuit, Mr. Jones referenced the language on the check that it was void after 90 days and stated that more than 90 days had elapsed. He also noted the following language on the receipt attached to the cashier’s check:

Notice to Client: If your check is lost, stolen or destroyed, you may be required to sign an indemnity agreement before drawee will provide a refund or replacement. You will not be entitled to a refund or replacement until after 90 days from the issue date, and you will receive a refund or replacement only if the check has not been paid and the drawee is not otherwise required to pay the item or hold the funds.

CP at 4. Mr. Jones requested judgment of $11,000, along with prejudgment interest and costs.

After Seafirst Bank had been sued by Mr. Jones, it learned that the Hackney law firm had filed a motion in superior court, requesting that the trial court order Seafirst to issue a replacement cashier’s check. Fearing it would be subject to paying on the cashier’s check twice, once to the Hackney firm and once to Mr. Jones, Seafirst moved to remove and consolidate Mr. Jones’s case with the Hackney firm’s case. At the same time, Seafirst asked the court for authority to interplead the funds. The court granted Seafirst’s motion, removed the district court case, and consolidated it with the case in superior court. The court also ordered Mr. Smilde to return the cashier’s check to Seafirst. Seafirst was ordered to pay $11,000 into the court registry. Seafirst deposited the $11,000, and the check was never returned.

In April 1999, the court ordered payment to Hackney, March Carroll in the amount of $5,646.19 of the $11,000 in the court registry. After this court remanded the case, Mr. Jones noted the case for mandatory arbitration. The arbitrator awarded Mr. Jones the $5,500 plus all the accrued interest that remained in the court registry. He was also awarded statutory fees and costs. Mr. Jones requested a trial de novo. Subsequently, Mr. Jones moved for summary judgment. He argued that he was entitled to judgment on his claims for breach of contract, conversion, and violation of the Consumer Protection Act (CPA) against Seafirst. Seafirst filed a cross-motion for summary judgment.

The court denied Mr. Jones’s motion, and granted Seafirst’s motion. The court dismissed Mr. Jones’s breach of contract, conversion, and CPA claims. Seafirst was granted attorney fees under MAR 7.3 in the amount of $5,250.00.

Mr. Jones appeals.

ANALYSIS
Did the trial court err by granting Seafirst’s summary judgment motion?

Mr. Jones contends that the trial court erred by denying his summary judgment motion and granting Seafirst’s summary judgment motion. `When reviewing an order for summary judgment, we engage in the same inquiry as the trial court, and will affirm summary judgment if there is no genuine issue of any material fact and the moving party is entitled to judgment as a matter of law.’ Wilson Court Ltd. P’ship v. Tony Maroni’s, Inc., 134 Wn.2d 692, 698, 952 P.2d 590 (1998). All facts and reasonable inferences must be considered in a light most favorable to the nonmoving party, and all questions of law are reviewed de novo. Id.

The parties do not dispute the material facts. Mr. Jones contends that by purchasing the cashier’s check, he entered into a contract with Seafirst. He argues that the language on the receipt for the check indicates that he is entitled to a refund of the $11,000 because the check has never been presented and thus the bank has not been required to pay on it.

The pertinent language on the receipt states that the client `will receive a refund or replacement only if the check has not been paid and the drawee is not otherwise required to pay the item or hold the funds.’ CP at 4. According to the terms of the cashier’s check, Mr. Jones is not entitled to a refund. He acknowledges that Seafirst paid the $11,000 into the court registry. However, he attaches significance to the fact that the bank interpleaded the funds on its own motion, and therefore was not required to pay the funds. This is a distinction without a difference.

The fact remains that Seafirst paid the $11,000 representing its obligation on the check. Mr. Jones is not entitled to a refund or an additional $11,000 from Seafirst. His contract claim against Seafirst fails.

Mr. Jones also sought judgment on his conversion claim. Conversion is “the act of willfully interfering with any chattel, without lawful justification, whereby any person entitled thereto is deprived of the possession of it.” Consulting Overseas Mgmt., Ltd. v. Schtikel, 105 Wn. App. 80, 83, 18 P.3d 1144 (quoting Wash. State Bank v. Medalia Healthcare, 96 Wn. App. 547, 554, 984 P.2d 1041 (1999)), review denied, 145 Wn.2d 1003 (2001). `Money may become the subject of conversion, but only if the party charged with conversion wrongfully received the money, or if that party had an obligation to return the money to the party claiming it.’ Consulting Overseas Mgmt., 105 Wn. App. at 83.

As in his contract claim, Mr. Jones contended that Seafirst had an obligation to return the $11,000 he paid for the cashier’s check to him. However, he has failed to provide authority for this theory. Seafirst did not breach its contract or wrongfully retain Mr. Jones’s funds. Seafirst issued the cashier’s check at Mr. Jones’s direction. Subsequently, Seafirst paid the disputed $11,000 into the court registry, and thus its obligations have been fulfilled. Mr. Jones’s claim for conversion was properly dismissed on summary judgment.

Finally, Mr. Jones argues that Seafirst violated the CPA. On summary judgment, the court dismissed this claim, finding that `as a matter of law, the act of Sea-First [sic] in not paying him back on the check was not a wrongful act.’ Report of Proceedings (Oct. 12, 2001) at 27. Mr. Jones asserts that the court improperly dismissed his CPA claim because genuine issues of material fact exist.

To establish a claim under the CPA, a party must establish five elements:

(1) an unfair or deceptive act or practice;
(2) occurring in trade or commerce;
(3) with a public interest impact;

(4) an injury to plaintiff in his or her business or property; and

(5) causation.

Hangman Ridge Training Stables, Inc. v. Safeco Title Ins. Co., 105 Wn.2d 778, 780, 719 P.2d 531 (1986). This court reviews the question of whether particular actions gave rise to a violation of the CPA as a question of law. Svendsen v. Stock, 143 Wn.2d 546, 553, 23 P.3d 455
(2001) (citing Keyes v. Bollinger, 31 Wn. App. 286, 289, 640 P.2d 1077
(1982)).

A plaintiff must establish all five elements necessary to a CPA claim in order to prevail. Hangman Ridge, 105 Wn.2d at 784. To establish the unfair or deceptive act or practice element, a plaintiff must show that the alleged act had the capacity to deceive a substantial portion of the public. Id. at 785.

Mr. Jones failed to cite to any authority to support his argument that Seafirst committed an unfair or deceptive act by refusing to refund him the $11,000 he paid for the cashier’s check. Seafirst interpleaded the funds into the court registry, so any claims to the funds could be litigated before the court. As such, Seafirst’s refusal to pay the $11,000 a second time to Mr. Jones was not a wrongful or deceptive act.

Failure to satisfy even one of the elements is fatal to a CPA claim. Hangman Ridge, 105 Wn.2d at 793. Mr. Jones’s failure to establish that Seafirst committed an unfair or deceptive act precludes his claim. Further, Mr. Jones has failed to point out any genuine issues of material fact related to this element, and thus the superior court properly dismissed this claim.

Mr. Jones failed to present any genuine issues of material fact related to any of his claims for breach of contract, conversion, and violation of the CPA. The trial court did not err in granting Seafirst’s motion for summary judgment.

Finally, Seafirst Bank requests its attorney fees on appeal under Arment v. Kmart Corp., 79 Wn. App. 694, 700, 902 P.2d 1254 (1995) and Wilkerson v. United Inv., Inc., 62 Wn. App. 712, 717, 815 P.2d 293
(1991).

In Arment, the trial court affirmed the court’s order granting summary judgment and its award of fees to Kmart. The basis for the fee award was MAR 7.3, which authorizes the assessment of costs and fees against a party who appeals an arbitration award and fails to improve his or her position. `A party entitled to attorney fees under MAR 7.3 at the trial court level is also entitled to attorney fees on appeal if the appealing party again fails to improve her position.’ Arment, 79 Wn. App. at 700. Because Seafirst was granted fees on summary judgment under MAR 7.3, it should also be awarded fees on appeal.

We affirm the judgment of the superior court and award fees on appeal to Seafirst in an amount to be set by the commissioner. RAP 18.1(f).

The majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.

WE CONCUR: KATO, A.C.J., SWEENEY, J.