Pamar Enterprises, Inc. v. Huntington Banks

580 N.W.2d 11 (1998) 228 Mich. App. 727

PAMAR ENTERPRISES, INC., and East Jordan Iron Works, Inc., Plaintiffs-Appellants,
v.
HUNTINGTON BANKS OF MICHIGAN, Defendant-Cross-Defendant-Third-Party Plaintiff-Appellee,
v.
FIRST STATE BANK OF EAST DETROIT, Defendant-Cross-Plaintiff-Appellee, and
J. Brothers Excavating, Inc., J. Brothers Trucking, Inc., and Patrick C. Jones, Third-Party Defendants.

Docket No. 196202.

Court of Appeals of Michigan.

Submitted September 3, 1997, at Lansing. Decided March 20, 1998, at 9:25 a.m. Released for Publication June 29, 1998.

Butzel Long (by Edward M. Kalinka), Birmingham, for Pamar Enterprises, Inc. and East Jordan Iron Works, Inc.

Bloomberg, Anderson, Moore & Bahorski, P.C. (by Jeffrey A. Bahorski), Mt. Clemens, for Huntington Banks of Michigan.

Bodman, Longley & Dahling LLP (by Kay E. Malaney), Troy, for First State Bank of East Detroit.

Before HOLBROOK, P.J., and REILLY and JANSEN, JJ.

REILLY, Judge.

Plaintiffs appeal as of right from a final judgment dismissing (1) plaintiffs' complaint against First State Bank of East Detroit (First State) pursuant to First State's motion for summary disposition, (2) First State's cross-complaint against Huntington Banks of Michigan (Huntington), and (3) Huntington's third-party complaint against J. Brothers Excavating, Inc., (JBE) and J. Brothers Trucking, Inc., (JBT). Plaintiffs also contest the trial court's earlier order dismissing plaintiffs' complaint against Huntington pursuant to Huntington's motion for summary disposition. We affirm in part and reverse in part.

I. Facts

Pamar Enterprises, Inc., (Pamar) was a general contractor on a public road construction project and JBE was one of the subcontractors on the project. East Jordan Iron Works, Inc., (East Jordan) delivered some construction materials to JBE for use on the project. In order to pay for those materials, Pamar prepared a check for $50,000 payable to JBE "and" East Jordan and presented it to JBE, intending that all of the proceeds would eventually be paid to East Jordan.

The check was drawn on Pamar's account at First State, the drawee bank. Without the endorsement of East Jordan, JBE deposited the check (endorsed "for deposit only") into an account held by its "sister corporation," JBT, at Huntington, the depositary bank. When Huntington presented the check to First State through banking channels, First State paid the check from Pamar's account without the endorsement of East Jordan. JBE never paid East Jordan for the supplies, as had been intended by Pamar.

Subsequently, a dispute arose between JBE and Pamar regarding the construction project. On January 20, 1995, JBE filed a lawsuit against Pamar to collect payment for work it had allegedly performed under the contract (hereinafter the construction case). In response, Pamar filed a counterclaim against JBE, alleging a breach of the construction contract and a third-party complaint against JBT and Patrick Jones, an officer and shareholder of JBE and JBT, alleging that JBE, JBT, and Patrick Jones were liable for conversion with regard to the $50,000 that was supposed to have been paid to East Jordan. On June 22, 1995, the trial court dismissed Pamar's conversion claim on the ground that the issuer of a check cannot maintain a conversion claim for its proceeds. On September 25, 1995, the trial court entered an order, pursuant to a stipulation by the parties, providing, in part, (1) that Pamar would make a payment of $50,000 to East Jordan and (2) that Pamar was entitled to a "credit/back charge" against JBE for $117,982.07, attributable to construction materials provided by East Jordan.^[1] On the same day, Pamar paid $50,000 to East Jordan, by way of a second check. In return, East Jordan agreed to waive its construction lien rights against Pamar. Because the stipulated order did not completely resolve the issues in the construction case, JBE and Pamar proceeded to trial.^[2]

On June 7, 1995, before Pamar agreed to pay the second $50,000 check to East Jordan, Pamar and East Jordan filed the instant suit against First State and Huntington, alleging that the banks were negligent and that they had violated various statutory duties in their handling of the first $50,000 check (hereinafter the bank case). Pamar and East Jordan alleged that East Jordan had been damaged in the amount of the $50,000 it never received as payment for the construction materials and that Pamar's damages consisted of the risk of injury it faced in the form of a possible claim by East Jordan against Pamar's construction bond.^[3] On July 20, 1995, Huntington filed a third-party complaint in the bank case against JBE, JBT, and Patrick Jones, alleging breach of transfer warranties, misrepresentation, and fraud. On August 14, 1995, First State filed a cross-claim in the bank case against Huntington, alleging negligence, breach of transfer warranties, and breach of presentment warranties.

On August 31, 1995, JBE moved to consolidate the construction case and the bank case. This motion was granted on December 6, 1995. On October 23, 1995, after Pamar paid East Jordan the second $50,000 check for the construction materials, Huntington moved for summary disposition pursuant to MCR 2.116(C)(7), (C)(8), and (C)(10). On October 26, 1995, East Jordan assigned all of its rights to its claim in the bank case to Pamar, ostensibly in return for the $50,000 payment.^[4] On November 6, 1995, First State joined in Huntington's motion for summary disposition and, on the same day, Pamar moved for summary disposition pursuant to MCR 2.116(C)(10). On February 5, 1996, the trial court entered an opinion and order denying Pamar's motion for summary disposition and granting Huntington's motion for summary disposition pursuant to MCR 2.116(C)(7). The trial court reasoned that summary disposition was appropriate because East Jordan had been paid for the construction materials and Pamar was not damaged because it received a credit for the payment pursuant to the September 25, 1995, stipulated order entered in the construction case. Finally, on April 30, 1996, the trial court granted First State's motion for summary disposition pursuant to MCR 2.116(C)(10), reasoning that neither Pamar nor East Jordan suffered damages as a result of First State's actions. On the same day, the trial court also denied First State's motion for summary disposition against Huntington on its cross-claim. The final judgment in the bank case, dismissing all the remaining claims, was issued on June 6, 1996.

II. Claims and Defenses

On appeal, plaintiffs argue that summary disposition was improperly granted to both defendant banks. Specifically, plaintiffs contend (1) that both defendants are liable to plaintiffs for "wrongfully honoring the check" under M.C.L. § 440.3110(4); M.S.A. § 19.3110(4), (2) that both defendants are liable to East Jordan for conversion under M.C.L. § 440.3420; M.S.A. § 19.3420, and (3) that First State is liable to Pamar for conversion. Plaintiffs also argue that the defendant banks are liable to plaintiffs for interest on the damages for the period of the alleged conversion. We will address plaintiffs' arguments together.

A. The Check

Pursuant to M.C.L. § 440.3110(4); M.S.A. § 19.3110(4), an instrument made payable to two or more persons not alternatively, is payable to all of them and may be negotiated, discharged, or enforced only by all of them. When the word "and" separates the names of two payees on an instrument, the instrument is payable jointly and not alternatively. See M.C.L. § 440.3110; M.S.A. § 19.3110, Comment 4. In this case, because the check at issue was made payable to JBE "and" East Jordan, the endorsement of JBE alone was not sufficient to allow negotiation of the check. M.C.L. § 440.3110(4); M.S.A. § 19.3110(4); see also M.C.L.§ 440.3420;M.S.A. § 19.3420, Comment 1. Although M.C.L. § 440.3110; M.S.A. § 19.3110 establishes to whom an instrument is properly payable, it does not address the circumstances under, or the extent to, which a bank may be held liable for improperly paying a check. Accordingly, defendants are not liable under M.C.L. § 440.3110(4); M.S.A. § 19.3110(4), though they may be liable under other sections of the Uniform Commercial Code, as adopted in Michigan.

B. Conversion

A conversion is any distinct act of dominion wrongfully exerted over another person's personal property. Trail Clinic, PC v. Bloch, 114 Mich.App. 700, 705, 319 N.W.2d 638 (1982). Conversion does not necessarily imply a complete and absolute deprivation of personal property. There may be a deprivation that is only temporary, as where the plaintiff's personal property is restored to him. Even-Heat Co. v. Wade Electric Products Co., 336 Mich. 564, 572, 58 N.W.2d 923 (1953). A check is considered the personal property of the designated payee. Trail Clinic, supra at 705, 319 N.W.2d 638. Under M.C.L. § 440.3420(1); M.S.A. § 19.3420(1), an instrument is converted if a bank "makes or obtains payment with respect to the instrument for a person not entitled to enforce the instrument or receive payment." Thus, a bank may be liable for conversion if it makes or obtains payment on a check that is payable to two payees, not alternatively, but endorsed by only one of the payees. See M.C.L. § 440.3420(1), Comment 1. Payment of a check with a missing endorsement is the legal equivalent of payment over a forged endorsement. Kelly v. Central Bank & Trust Co. of Denver, 794 P.2d 1037, 1042 (Colo.App., 1989); Mandelbaum v. P & D Printing Corp., 279 N.J.Super. 427, 432, 652 A.2d 1266 (1995). A conversion action may be brought by the intended payee against either the depositary bank or the drawee bank.^[5] M.C.L. § 440.3420(1); M.S.A. § 19.3420(1); 2 White & Summers, Uniform Commercial Code, Practitioner Treatise Series (4th ed.), § 18-4, pp. 222-225. However, the drawer of the check may not maintain an action for conversion, because the check represents an obligation of the drawer rather than property of the drawer. See M.C.L. § 440.3420(1), Comment 1; see also Qatar v. First American Bank of Virginia, 880 F. Supp. 463, 467-468 (E.D.Va., 1995); Stone & Webster Engineering Corp. v. First Nat'l Bank & Trust Co. of Greenfield, 345 Mass. 1, 7, 184 N.E.2d 358 (1962); Maldonado v. Aetna Casualty & Surety Co., 184 A.D.2d 553, 554-555, 584 N.Y.S.2d 864 (1992). Therefore, while East Jordan (the intended payee) may be able to maintain a conversion action against both Huntington and First State, Pamar (the drawer) may not maintain a conversion action against either defendant.

C. Action to Recredit the Drawer's Account

Although the drawer of a check may not maintain an action in conversion, the drawer may have a remedy against the drawee for the unauthorized payment of a check. Under M.C.L. § 440.4401(3);M.S.A. § 19.4401(3), a bank may charge against the account of its customer a check or item that is "properly payable." Implicit in this rule is the notion that a bank may not charge against the account of its customer a check or item that isnot "properly payable." See Nat'l Credit Union Administration v. Michigan Nat'l Bank of Detroit, 771 F.2d 154,156-157 (C.A.6, 1985); Trans-American Steel Corp. v. Federal Ins. Co., 535 F. Supp. 1185, 1189 (N.D.Ga., 1982); Ambassador Financial Services, Inc. v. Indiana Nat'l Bank, 605 N.E.2d 746, 751 (Ind., 1992). Accordingly, the drawer of a check has a remedy against the drawee bank for recredit of the drawer's account for the unauthorized payment of the check in the amount of the improper payment. See Perini Corp. v. First Nat'l Bank of Habersham Co., 553 F.2d 398, 403-404 (C.A.5, 1977); Ambassador, supra at 751; Stone & Webster Engineering, supra at 9, 184 N.E.2d 358; Maldonado, supra at 555, 584 N.Y.S.2d 864; see also M.C.L. § 440.3420(1), Comment 1. Therefore, subject to any defenses raised, Pamar may maintain an action against First State under M.C.L. § 440.4401(3); M.S.A. § 19.4401(3) for recredit of its account.^[6]

D. Defenses

As noted, summary disposition was granted to both banks on the basis that neither East Jordan nor Pamar suffered injury as a result of the banks' actions. Although not articulated by the trial court, two closely related doctrines, the "mitigation of damages defense" and "intended-payee defense," are suggested by the trial court's decision. The mitigation of damages defense provides that the liability of a drawee or depositary bank in a conversion action brought by an intended payee is reduced to the extent the intended payee receives the proceeds of the check applied to the specific obligation the check was intended to discharge. See Sherrill White Constr., Inc. v. South Carolina Nat'l Bank, 713 F.2d 1047, 1050-1051 (C.A.4, 1983); Lund v. Chemical Bank, 797 F. Supp. 259, 272-273 (S.D.N.Y., 1992); First Independent Bank v. Stottlemyer & Shoemaker Lumber Co., 384 So. 2d 952, 954 (Fla.App., 1980); Ambassador, supra at 752. The defense is intended to prevent the unjust enrichment of the intended payee. E.g., Ambassador, supra at 752. It is also consistent with the Uniform Commercial Code's general rule regarding remedies, which provides that an aggrieved party should be put in as good a position as if the other party had fully performed and, by implication, suggests that the aggrieved party should not be put in a better position. See M.C.L. § 440.1106; M.S.A. § 19.1106; White Co. Bank v. Noland Co., 214 Ga.App. 780, 783,449 S.E.2d 325 (1994).

Similarly, the intended-payee defense provides that a drawee bank is not liable to the drawer of a check for an improper payment if (1) the proceeds of the check reach the person the drawer intended to receive them and (2) the drawer suffers no loss proximately caused by the drawee's improper payment. Ambassador, supra at 752-754; Kosic v. Marine Midland Bank, 76 A.D.2d 89, 92, 430 N.Y.S.2d 175 (1980), aff'd. 55 N.Y.2d 621, 446 N.Y.S.2d 264, 430 N.E.2d 1317 (1981); see also Trans-American Steel, supra at 1189-1190. This defense is intended to prevent the unjust enrichment of the drawer. Ambassador, supra at 752; Kosic, supra at 92, 430 N.Y.S.2d 175. Although neither the mitigation of damages defense nor the intended-payee defense has been applied by a Michigan appellate court in the factual context presented here, this Court has accepted the rationale underlying their application. See Comerica Bank v. Michigan Nat'l Bank, 211 Mich.App. 534, 538, 536 N.W.2d 298 (1995) (holding that "the intended-payee defense is available to a bank in defending an action for breach of its presentment warranties").

III. Application of Law to Facts

This Court reviews decisions on motions for summary disposition de novo to determine if the moving party was entitled to judgment as a matter of law. Guerra v. Garratt, 222 Mich.App. 285, 288, 564 N.W.2d 121 (1997). When reviewing a motion granted pursuant to MCR 2.116(C)(7), we consider all affidavits, pleadings, and other documentary evidence submitted by the parties and, where appropriate, construe the pleadings in favor of the plaintiff. Smith v. YMCA of Benton Harbor/St. Joseph, 216 Mich.App. 552, 554, 550 N.W.2d 262 (1996). A motion under MCR 2.116(C)(7) should be granted only if no factual development could provide a basis for recovery. Id. Similarly, when reviewing a motion for summary disposition brought pursuant to MCR 2.116(C)(10), this Court must consider the pleadings, affidavits, admissions, depositions, and any other documentary evidence available to it in a light most favorable to the nonmoving party. Tranker v. Figgie Int'l, Inc., 221 Mich.App. 7, 11, 561 N.W.2d 397 (1997). We must then determine whether there exists a genuine issue of material fact on which reasonable minds could differ or whether the moving party is entitled to judgment as a matter of law. Id.

In this case, although East Jordan never received the "proceeds" of the converted check, it is undisputed that (1) East Jordan received full payment of the amount of that check in the form of a second check from Pamar and (2) the second check was applied to the specific obligation the first check was intended to discharge. Therefore, East Jordan would be unjustly enriched if it again received the full amount of the check from Huntington and First State in this conversion action. Accordingly, Huntington's and First State's conversion liability to East Jordan should be reduced by $50,000 pursuant to the mitigation of damages defense. This does not mean, however, that a conversion did not occur, or that East Jordan was not damaged by the conversion. Damages in a conversion action include interest from the date of conversion. Ehman v. Libralter Plastics, Inc., 207 Mich.App. 43, 45, 523 N.W.2d 639 (1994); see also Hillsley v. State Bank of Albany, 24 A.D.2d 28, 31, 263 N.Y.S.2d 578 (1965) (holding that damages on a converted check include interest from date of conversion). If East Jordan is able to establish at trial that Huntington and First State converted the first check from Pamar, Huntington and First State would be liable to East Jordan for interest during the period of deprivation between the conversion and East Jordan's receipt of the second check. Because Huntington and First State may be liable to East Jordan for such interest, we hold that the trial court erred in granting Huntington's and First State's motions for summary disposition with respect to East Jordan's claim of conversion. Guerra, supra at 288, 564 N.W.2d 121.

Regarding Pamar's claim against First State for "wrongfully honoring the check" (which would have been more properly labeled an action to recredit its account), the essential question on appeal is whether the trial court erred in concluding as a matter of law that Pamar suffered no damages as a result of First State's improper payment of the check. Because East Jordan ultimately received the equivalent of the proceeds of the original check, First State would be entitled to rely on the intended-payee defense as long as Pamar suffered no loss proximately caused by First State's improper payment. See Ambassador, supra at 752-754. However, when viewed in a light most favorable to Pamar, the record is such that reasonable minds could differ with regard to the question whether Pamar suffered any such loss.

It is undisputed that (1) if the first $50,000 check had reached East Jordan as intended, Pamar would not have been required to write a second check for the same amount, and (2) pursuant to a pretrial stipulation in the construction case, Pamar agreed to write a second check to East Jordan and JBE agreed to grant a "credit/back charge" to Pamar. Solely on the basis of the existence of this stipulation, the trial court reasoned that Pamar suffered no damages as a result of First State's improper payment of the first check. Two underlying conditions must be established to draw this conclusion. First, because the stipulation itself was only an agreement between Pamar and JBE, for it to have had any value to Pamar, its existence would have had to eliminate or reduce some liability owing from Pamar to JBE. Second, assuming the stipulation had such value, the only way the credit/back charge within the stipulation could be deemed to have extinguished the loss incurred by Pamar as a result of the improper payment of the first check is if Pamar had elected to accept the credit/back charge as reimbursement for the loss incurred as a result of the fact that it had to write a second check to East Jordan. If Pamar accepted the credit/back charge as settlement of some other debt owed by JBE, it could not be said to have cured Pamar's damages sustained as a specific result of the improper payment of the first check.

The existence of either of these two conditions is not apparent from the face of the stipulation. For instance, if the credit/back charge did not reduce or eliminate some liability owing from Pamar to JBE, but instead merely represented an acknowledgment by JBE that it was liable to Pamar for the amount of the second check (or for some other amount), then it was only a promise to pay that, in itself, could not have made Pamar whole. Another possibility suggested by the face of the stipulation is that the credit/back charge merely represented an acknowledgment by JBE that it was liable for all of the construction materials actually supplied by East Jordan. If this were so, Pamar would not have been made whole, because Pamar paid for $50,000 worth of the construction materials twice. Finally, if the credit/back charge had the effect of reimbursing Pamar for $117,982.07 worth of construction materials supplied by East Jordan, it is not clear whether $50,000 of that amount was intended to account for the fact of the second check, because it is not clear from the record whether JBE was ultimately responsible to pay for all or only part of the construction materials supplied by East Jordan. For all of these reasons, the effect of the credit/back charge was unclear on the record before the trial court. Therefore, we hold that the record does not support the intended-payee defense, questions of fact remain, and First State was not entitled to summary disposition with regard to Pamar. Guerra, supra at 288, 564 N.W.2d 121.

We reverse the trial court's grant of summary disposition to First State with respect to both plaintiffs and to Huntington with respect to East Jordan, because the defenses asserted were insufficient to merit judgment as a matter of law. We affirm the trial court's grant of summary disposition to Huntington with respect to Pamar, because there is no basis for any liability from Huntington to Pamar.

NOTES

[1] In addition to the construction materials Pamar had attempted to pay for with the $50,000 check payable to JBE and East Jordan, Pamar had already paid East Jordan $67,982.07 for other construction materials.

[2] The trial in the construction case occurred after the trial court issued the final judgment in the instant action.

[3] Pamar posted the construction bond pursuant to M.C.L. § 129.201; M.S.A. § 5.2321(1).

[4] As noted earlier, on September 25, 1995, East Jordan waived its construction lien rights against Pamar in return for the same $50,000.

[5] The depositary bank may be ultimately liable to the drawee bank by virtue of presentment warranties contained in M.C.L. § 440.3417; M.S.A. § 19.3417 and M.C.L. § 440.4208; M.S.A. § 19.4208. See also Comerica Bank v. Michigan Nat'l Bank, 211 Mich.App. 534, 537-538, 536 N.W.2d 298 (1995);Stone & Webster Engineering Corp. v. First Nat'l Bank & Trust Co. of Greenfield, 345 Mass. 1, 8-9, 184 N.E.2d 358 (1962).

[6] In Comerica Bank, supran. 5, at 539, 536 N.W.2d 298, this Court explained in dicta that "[a] drawee bank is strictly liable to the drawer for the amount of the improper payment where it pays a check over a forged or improper endorsement of a payee." In support of this proposition, the Comerica Bank panel relied on the presentment warranty contained in M.C.L. § 440.3417(1)(a); M.S.A. § 19.3417(1)(a). Our reliance now on UCC 4-401 (M.C.L. § 440.4401; M.S.A. § 19.4401) rather than M.C.L. § 440.3417(1)(a); M.S.A. § 19.3417(1)(a) for the same proposition is in accordance with the weight of authority on the issue. See 2 White & Summers, Uniform Commercial Code, Practitioner Treatise Series (4th ed.), § 21-3, pp. 362-365, and cases cited earlier in this opinion.