Brooks v. Caswell et al
Filing
137
OPINION and ORDER - Defendants' Motion 95 for Partial Summary Judgment re: Claim of Missing Molds is GRANTED. DATED this 14th day of March, 2016, by United States Magistrate Judge John V. Acosta. (peg)
UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
PORTLAND DIVISION
GRETCHEN BROOKS, an individual,
Case No. 3:14-cv-01232-AC
Plaintiff,
OPINION AND ORDER
v.
HARLON RIP CASWELL, an individual,
RIP CASWELL SCULPTURES, INC., an
Oregon corporation d/b/a CASWELL
GALLERY, an Oregon assumed business
name, and CASWELL PROPERTIES,
LLC, a Washington limited liability
company,
Defendants.
___________________________________
ACOSTA, Magistrate Judge:
Introduction
Plaintiff Gretchen Brooks (“Brooks”) filed this action against Rip Caswell Sculptures, Inc.,
d/b/a/ Caswell Gallery (“RCS”), Caswell Properties, LLC, and Harlon Rip Caswell (“Caswell”)
(collectively “Defendants”) alleging, among other claims, fraud, negligent misrepresentation, breach
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of contract, conversion, and elder financial abuse. (Am. Compl., ECF. No. 80, at 7–10.) Presently
before the court is Defendants’ Motion for Partial Summary Judgment Re: Claim of Missing Molds
(the “Motion”) on these claims. (Defs.’ Mot. for Summ. J., ECF No. 95.) Based on the evidence
before the court, Defendants’ Motion is granted.
Background
From 2006 to 2009, Brooks loaned Defendants funds intended to develop and expand
Caswell’s sculpture business. (Am. Compl. ¶ 9; Seidl Decl., ECF. No. 96, Ex. 1, at 1.) Defendants
failed to repay the loan. (Am. Compl. ¶ 1.) In 2010, Brooks filed a lawsuit against Defendants in
state court, which yielded a jury verdict granting Brooks a net award of $2.88 million. (Id. ¶ 11–13.)
In September 2011, the parties entered into a settlement agreement (the “Settlement
Agreement”), under which RCS executed a promissory note (the “Note”) in the amount of $650,000
payable to Brooks. (Id. ¶¶ 14, 15.) The Note was secured by a lien on fifty-five designated molds
used by Caswell to cast sculptures (the “Molds”). (Id. at ¶ 17; Seidl Decl. Ex. 2.) The Molds were
Brooks’s only source of recourse in the event of a breach. The Settlement Agreement required
Defendants to deliver the Molds to Parks Bronze, a sculpture foundry serving as a third-party
custodian, and to allow Brooks access to view and inspect the Molds. (Seidl Decl. Ex. 2 ¶ 8(d).)
The Settlement Agreement provides, in relevant part:
[B]y Nov. 16, 2011, RCS shall deliver the Molds to Parks Bronze[] for storage, and
that, absent the written agreement of the Parties to transfer the Molds to another
location, the Molds shall remain at Parks Bronze until the Promissory Note is
satisfied in full or Brooks enforces her rights under the Security Agreement
following a payment default . . . . [Defendants] shall authorize and direct Parks
Bronze . . . to . . . provide Brooks (or her designated agent) with access to view and
inspect the Molds at any time during business hours.
(Id.)
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According to Caswell, some of the Molds subject to the Settlement Agreement were already
located at Parks Bronze prior to the execution of the Settlement Agreement. (Second Caswell Decl.
¶ 41.) Some time on or before November 6, 2011, the remaining Molds appear to have been
transported to Parks Bronze. (Seidl Decl. Ex. 3; First Caswell Decl. ¶ 4; First Parks Decl. ¶ 22;
Second Caswell Decl. ¶ 3.) These remaining Molds were located within a shipping container along
with several of Caswell’s other molds, which were not subject to the Settlement Agreement.
(Caswell Dep. 42:12–25, 43:1–7; Second Parks Decl. ¶ 3.) Some of the Molds were unlabeled, and
some Molds were labeled per Caswell’s own operating system, which did not correlate with the
descriptive titles used for the purposes of the Settlement Agreement. (Second Caswell Decl. ¶ 6;
Second Parks Decl. ¶ 6.)
RCS defaulted on the Note on August 6, 2012. (Am. Compl. ¶ 31.) Caswell testified that
once his attorney advised him Defendants would be forced to default on the Note, Caswell
“surrendered” the Molds and believed he no longer had access to them. (Caswell Dep. 34:18–20,
36: 4–7.) Defendants then notified Brooks they intended to default on the Note and Brooks was free
to exercise her rights in the Molds. (Seidl Decl. Ex. 5, at 1.) Later that month, Defendants advised
Brooks all the Molds were located at Parks Bronze and that Caswell intended to “move all of the
1
Caswell has supplied two declarations in support of the Motion. The first, dated
December 10, 2014, was submitted as “Exhibit ‘7’” to the Seidl Declaration, ECF. No. 96, and is
referred to as the “First Caswell Decl.” The second Caswell declaration, dated December 18,
2015, was submitted independently as ECF. No. 128 in support of Defendants’ Reply
Memorandum, and is referred to as the “Second Caswell Decl.”
2
Similarly, the record contains two declarations from Steve Parks, Owner of Parks
Bronze. The first is dated April 7, 2015, is provided as “Exhibit 5” of the Honoré Declaration,
ECF. No. 109, and is referred to as the “First Parks Decl.” The second, dated October 27, 2015,
was independently submitted as ECF. No. 110 and is referred to as the “Second Parks Decl.”
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[other] molds back to this area [presumably, his own foundry in Troutdale] except those in which
[Brooks] has a security interest.” (Honoré Decl., ECF. No. 109, Ex. 2.) Caswell subsequently
began to remove his own molds from the shipping container, where the Molds were also located,
always cross-checking a list of the Molds so as not to inadvertently remove any of them. (Caswell
Dep. 43:14–17.) Steve Parks,,(“Parks”), Owner of Parks Bronze, confirmed in 2015, “Caswell
moved various molds in and out of the shipping container over the past few years.” (Second Parks
Decl. ¶ 4.) In January 2013, Defendants, responding to a request from Brooks to conduct an
inspection of the Molds, explained the Molds were “scattered in several containers and locations.”
(Honoré Decl. Ex. 3, at 1.)
Brooks did not attempt to access the Molds, either on her own or through an agent, until
September 2014, (Brooks Dep. 150: 9–16,) when she hired Todd Pettelle, Owner and Operator of
another bronze casting foundry, (“Pettelle”), to visit Parks Bronze to inventory and visually inspect
the Molds, (Pettelle Decl., ECF. No. 111, ¶¶ 2, 3; Pl.’s Resp. to Defs.’ First Set of Interrogs., at 9.)
On September 9, 2014, Pettelle, working by himself from a list of the Molds’ titles from the
Settlement Agreement and “piece markings on the outside of each unique mother mold,” searched
the shipping container at Parks Bronze. (Pettelle Decl. ¶¶ 5, 6.) There is no evidence Pettelle
searched any other areas at Parks Bronze. Unable to locate all of the Molds, Pettelle concluded five
Molds were missing. (Id. ¶ 8.) While taking inventory, Pettelle did not inspect the Molds’ internal
condition or confirm each Mold’s parts did in fact match the identified sculpture. (Id. ¶ 6.) Still,
Pettelle determined two of the Molds — a life-size mold labeled “Battle,” which Pettelle assumed
“was most likely ‘Fighting Back,’” and “Power of Presence 2011”— were “deteriorated enough that
sculptures could not be adequately cast from them,” and “could not have been repaired.” (Id. ¶¶ 9,
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10.) Further, based on his visual inspection, Pettelle concluded six other Molds displayed varying
degrees of deterioration, which he described as “poor condition,” “broken mother molds,” and
“possible questionable memory loss.” (Id. ¶ 11.) Pettelle also noted he would likely need to conduct
additional testing, beyond mere visual inspection, to determine the actual current quality and
“usability” of the Molds. (Id. ¶ 12.)
Caswell contends it is “not particularly surprising” Pettelle failed to locate all of the Molds,
given “[t]he molds came in pieces[,] and some of the molds were not labeled, or were labeled in a
way that Mr. Pettelle would not easily be able to match the label to the [list of Brooks molds].”
(Second Caswell Decl. ¶ 10.) Additionally, according to Caswell, the two molds Pettelle deemed
unusable are not Molds included in those which are collateral for the Note. (Id. ¶ 20.) He indicates
the first deteriorated Mold identified by Pettelle, labeled as “Battle,” is in fact “Battle” and not, as
Pettelle assumed during his inspection, “Fighting Back.” (Id. ¶ 17.) Caswell also states the second
deteriorated Mold identified by Pettelle, “Power of Presence 2011,” is actually a large, life-size
mold, from which he made a miniature version, entitled “Power of Presence (Mini),” which is a
Mold. (Id. ¶ 18.) Caswell concedes the two molds Pettelle pointed out are indeed in poor condition,
but maintains these molds were not included as collateral for the Note. (Id. ¶¶ 19, 20.) According
to Caswell, “Power of Presence (Mini) . . . is in fine condition.” (Id. ¶ 21.)
Contrary to her own inspector’s testimony, Brooks later contended twenty-eight Molds, “and
possibly others, were not delivered by defendants to Parks Bronze in compliance with the Settlement
Agreement.” (Pl.’s Resp. to Defs.’ Second Set of Interrogs. at 4.) However, when asked what
information caused her to believe the twenty-eight Molds had not been “delivered” to Parks Bronze,
Brooks declined to answer, claiming the information fell under the attorney-client privilege.
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(Brooks Dep. 153:18–25, 154:1–25.)
Caswell stated in December 2014: “[t]o the best of my knowledge, all of the [M]olds that
were listed under the Security Agreement are at Parks Bronze.” (First Caswell Decl. ¶ 5.) Around
May 2015, Defendants asked Parks to conduct an inventory to determine whether all of the Molds,
including the twenty-eight Molds Brooks had asserted were “not delivered,” were in fact present
at Parks Bronze. (Second Parks Decl. ¶ 5.) Though Parks initially had difficulty identifying all the
Molds due to poor or erroneous labeling, after “work[ing] with Mr. Caswell,” Parks located all but
one portion of one of the Molds. (Id. ¶¶ 7, 8.) That Mold, entitled “Fighting Back,” casts a
sculpture depicting a cougar fighting with a ram. (Id. ¶ 8.) Only the Mold for the ram, not that for
cougar, was located at Parks Bronze. (Id.) After this discovery, Caswell located the cougar Mold
in his own foundry and shipped it to Parks Bronze. (Id.; Second Caswell Decl. ¶ 15.) Parks then
re-labeled the Molds with their respective proper titles, (Second Parks Decl. ¶ 9,) and stated: “none
of the [M]olds I looked at were damaged such that a [M]old could not be used to case a bronze
sculpture,” (First Parks Decl. ¶ 6.) In August 2015, Caswell testified he believed the only molds
currently located in the shipping container were the Molds. (Caswell Dep. 44: 3–8.)
Allegations
In her complaint, Brooks alleges Defendants “never fully complied with the Agreement’s
requirement to transfer all the subject [M]olds to Parks Bronze” and “failed to ensure that the
[M]olds are protected from the elements, deterioration, and theft.” (Am. Compl. ¶ 22.) Five of
Brooks’s claims rely, at least in part, on these allegations. Most directly, her Third Claim for Relief,
for breach of contract, alleges Defendant RCS breached its obligations under the Settlement
Agreement and Note by failing both to make payments as specified in the Note and to move “all of
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the collateral,” the Molds, to Parks Bronze. (Id. ¶¶ 46–48.) Similarly, Brooks’s Fifth Claim for
Relief, for conversion, rests upon Defendants’ purported failure to maintain the Molds, which
Brooks contends “deprived [her] of the opportunity to possess the property.”
(Id. ¶ 62.)
Additionally, though more attenuated, her First Claim, for fraud, and her Second Claim, for
negligent misrepresentation, rely (though only in part) on allegations that Defendants falsely
represented or negligently misrepresented RCS’s intent to comply with the Settlement Agreement’s
requirements regarding the Molds. (Id. ¶¶ 37, 42.) Lastly, the Sixth Claim, for elder financial abuse,
rests (again, only in part) upon her allegation Defendants wrongfully took Brooks’s property and
money via the misrepresentation and conversion of the Molds. (Id. ¶ 66.)
On August 21, 2015, Defendants filed their summary judgment motion, moving against the
First, Second, Third, Fifth, and Sixth Claims for Relief to the extent they rely on allegations based
upon missing or damaged Molds.
Legal Standards
Summary judgment is granted where the movant shows “there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a)
(2015). Summary judgment is not proper if material factual issues exist for trial. Warren v. City
of Carlsbad, 58 F.3d 439, 441 (9th Cir. 1995).
The moving party has the burden of establishing the absence of a genuine issue of material
fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party shows the absence of
a genuine issue of material fact, the nonmoving party must go beyond the pleadings and identify
facts that show a genuine issue for trial. Id. at 324. A nonmoving party cannot defeat summary
judgment by relying on the allegations in the complaint or with unsupported conjecture or
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conclusory statements. Hernandez v. Spacelabs Medical, Inc., 343 F.3d 1107, 1112 (9th Cir. 2003).
Thus, summary judgment should be entered against “a party who fails to make a showing sufficient
to establish the existence of an element essential to that party’s case, and on which that party will
bear the burden of proof at trial.” Celotex, 477 U.S. at 322.
The court must view the evidence in the light most favorable to the nonmoving party. Bell
v. Cameron Meadows Land Co., 669 F.2d 1278, 1284 (9th Cir. 1982). Reasonable doubt as to the
existence of a genuine issue of fact should be resolved against the moving party. Hector v. Wiens,
533 F.2d 429, 432 (9th Cir. 1976). Where different ultimate inferences may be drawn, summary
judgment is inappropriate. Sankovich v. Life Ins. Co. of North America, 638 F.2d 136, 140 (9th Cir.
1981).
However, deference to the nonmoving party is not absolute. A party asserting a fact cannot
be true or is genuinely disputed must support that assertion with admissible evidence. FED. R. CIV.
P. 56(c) (2015). The “mere existence of a scintilla of evidence in support of the [party’s] position
[is] insufficient.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). Therefore, where “the
record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there
is no genuine issue for trial.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574,
587 (1986) (internal quotation marks omitted).
Discussion
At essence, the claims attacked by Defendants’ Motion rest on two factual premises. First,
Brooks alleges not all of the Molds were available to her at Parks Bronze, contrary to the Settlement
Agreement’s requirements. Second, Brooks asserts some of the Molds have been damaged. Neither
party disputes that for some period of time, one portion of the Mold “Fighting Back” was located
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not at Parks Bronze but at Caswell’s Troutdale foundry, contrary to the Settlement Agreement, but
that at this time, all Molds are located within the shipping container at Parks Bronze. However,
whether any of the Molds have in fact been damaged remains in contention, in large part due to
purportedly conflicting testimony from Pettelle and Parks. With this background in mind, the court
addresses the claims challenged in the Motion.
I. Third Claim for Relief: Breach of Contract
Though somewhat unclear from the complaint alone, in her response to the Motion, Brooks
appears to allege Defendants breached the Settlement Agreement by failing to initially deliver the
Molds to Parks Bronze by November 2011 or by removing at least some of the Molds from Parks
Bronze after the delivery date. At hearing, Brooks also claimed the Molds were improperly labeled
or were not all located in the same storage unit at the Parks Bronze facility and, therefore, were not
“readily ascertainable” by her. Defendants move for summary judgment on grounds that all the
Molds are currently located at Parks Bronze, as the Settlement Agreement requires. Defendants thus
contend Brooks has not incurred any harm or damage as a result of Defendants’ actions. Defendants
further argue any breach on their part was immaterial, as Brooks was “not deprived of the benefit
she reasonably expected.” In response, Brooks argues it is not her burden to make beneficial use
of Molds and that the extent of damages owed to her due to Defendants’ breach is a question of fact
for trial.
To state a viable claim for breach of contract in Oregon, a plaintiff must show the existence
of a specific contract and its relevant terms, the plaintiff’s full performance of the contract,
defendants’ breach of the contract, and resulting damages to the plaintiff. Fleming v. Kids and Kin
Head Start, 71 Or. App. 718, 721 (1985). “In an action for breach of contract, the law attempts to
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place the party injured by the breach in the position which he would have been in, if the other party
had performed as nearly as that is possible, by means of a judgment for money.” Nelson Equip. Co.
v. Harner, 191 Or. 359, 369 (1951) (citing Smith v. Pallay, 130 Or. 282, 293 (1929)). In the event
of a breach, plaintiff may recover for “losses caused or for profits and other gains prevented by the
breach,” so long as she can produce evidence sufficient to establish the value of these damages “with
reasonable certainty.” Stubblefield v. Montgomery Ward & Co., 163 Or. 432, 447 (1939) (citing
Restatement (First) of Contracts § 331 (1932)).
Under the Settlement Agreement, Defendants were expressly required only to “deliver the
[M]olds to Parks Bronze . . . for storage . . . .” (Settlement Agreement at 12, ¶ 8(d).) Brooks
contends this language implies an obligation not only to transfer the Molds to Parks Bronze, but also
to label or index the Molds and to keep them within the specific storage unit in which they were
transferred.
The court finds no such implication in the Settlement Agreement. The operative
language relied upon by Brooks to support her breach claim is brief, general, and does not impose
upon Defendants a duty to deliver, store, or maintain the Molds by any specific means.
Brooks concedes that all the Molds are currently located at Parks Bronze, in full compliance
of the Settlement Agreement. Therefore, Defendants have not breached the terms of the Settlement
Agreement, with one minor exception: Defendants admit for some period of time, part of the
“Fighting Back” Mold was not located at Parks Bronze. Even so, this exception is immaterial. A
“material” breach is one that is “significant” or “essential,” having “some logical connection with
the consequential facts.” BLACK’S LAW DICTIONARY 1066 (9th ed. 2009). The misplacement of one
part of one Mold out of fifty-five total Molds has no connection or bearing on the consequential facts
of this case, particularly given that Brooks never requested access to that specific, nor any other,
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Mold. As such, this minor discrepancy alone cannot support Brooks’s breach of contract claim.
Moreover, Brooks fails to prove this minor breach caused her to incur any damages. Proving
damages with reasonable certainty requires more than just the market value of the property lost.
Willamette Quarries, Inc. v. Wodtli, 308 Or. 406, 412 (1989). In Willamette Quarries, a plaintiff
quarry and defendant landowner entered into a contract that granted the quarry the exclusive right
to remove rock from the land and provided that no rock would be removed from the land without
the written consent of the quarry. Id. at 408. Plaintiff later discovered rock had been removed and
brought an action for breach of contract against the landowner. Id. at 409. To prove damages,
plaintiff introduced evidence of the amount of rock taken from the subject land and the market price
for such rock. Id. at 411. The trial court granted a directed verdict for defendants, and the court of
appeals affirmed, holding the evidence was “insufficient to prove damages with reasonable
certainty.” Id. at 409, 411. The Oregon Supreme Court also affirmed, noting that although the
landowner had indeed breached the contract, plaintiff had “adduced no evidence that any sales were
hampered or lost because of the . . . breach.” Id. at 412. Though evidence did show the plaintiff had
made several unsuccessful bids for contracts calling for rock, the record also established “there was
plenty of [] rock in the quarry to supply the plaintiff’s possible future needs.” Id. Thus, the
evidence showed only what the defendant quarry “m[ight] have gained by way of the breach,” not
damages incurred by the plaintiff. Id.
Here, Brooks concedes she never attempted to access the Molds, let alone sell or profit by
them in any way, until September 2014, two years after she was legally able to do so. Even after
hiring Pettelle to inspect the Molds, Brooks did not request additional access to them for any reason.
Though Brooks correctly points out she neither has nor had an obligation to make beneficial use of
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the Molds, to recover damages she must prove with reasonable certainty that Defendants’ breach
either caused her losses or prevented gains. Brooks produced evidence of neither. Under Willamette
Quarries, even if five Molds were missing from Parks Bronze for two years and the market value
of the Molds could be accurately stated, Brooks still would have to show sales were hampered or
contracts relying on the Molds were lost as a result of the missing Molds. No such evidence exists.
Lastly, as Nelson Equip. Co. directs, the law’s goal has been achieved here: Brooks, injured by the
breach, finds herself in the position in which she would have been had all the Molds been at Parks
Bronze all along. Because Brooks cannot sufficiently prove she incurred damages as a result of
Defendants’ breach, summary judgment for the breach of contract claim is granted.
II. Fifth Claim for Relief: Conversion
To support her conversion claim, Brooks alleges Defendants failed to “maintain” the Molds,
which, she claims, deprived her of the ability to possess them. Based on Brooks’s arguments at
hearing, it appears this claim is premised upon only the allegations regarding damage to the Molds,
not that any of the Molds were or are missing. Defendants move for summary judgment against the
conversion claim, refuting Brooks’s claim that the Molds are in fact damaged. Defendants next
argue a secured party may recover for conversion only by first making a demand for the collateral
at issue, and they cite for support Davis v. F.W. Fin. Servs., Inc., 260 Or. App. 191, 208 (2013).
Defendants note Brooks elected not to take possession of the Molds and, therefore, “repudiated her
right to the [M]olds.” Brooks counters that she was not required to use the collateral, that
Defendants’ interference with the Molds sufficiently supports her conversion claim, and that the
mere fact Defendants eventually delivered (or returned) the Molds to Parks Bronze does not defeat
the claim.
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A prima facie claim of conversion requires a plaintiff prove 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 full value of the chattel.” Mustola v. Toddy, 253
Or. 658, 663 (1969) (adopting the definition of conversion found in Restatement (Second) of Torts
§222A(1) (1965)). “A secured creditor with the right to possession of the collateral after default
may maintain an action for conversion against one who has exercised unauthorized acts of dominion
over the property to the exclusion of the creditor’s rights.” Oregon Bank v. Fox, 73 Or. App. 612,
615 (1985). However, a plaintiff may recover damages in an action for conversion only if the
plaintiff can demonstrate she actually suffered injury. Madden v. Condon Nat. Bank, 76 Or. 363,
370 (1915).
Interference with another’s property alone is not sufficient to amount to conversion; there
need be intent to assert a right over the property. Fogh v. McRill, 153 Or. App. 159, 167 (1998).
Even in the event of an actual, wrongful exercise of dominion over chattels, no conversion has
occurred if such dominion is not a denial or repudiation of the owner’s right or title. Lee Tung v.
Burkhart, 59 Or. 194, 205 (1911) (where landlord removed tenant’s property to storage; interference
was not sufficient to support conversion).
In Fogh, a plaintiff and defendant lived together in a house where plaintiff kept camera
equipment he bought and sold for income. Fogh, 153 Or. App. at 161–63. When their relationship
turned abusive, defendant obtained a sixty-day temporary restraining order against the plaintiff, which
gave plaintiff seventy-two hours to reclaim his camera inventory. Id. at 163. When he did not do so,
defendant moved his belongings to a storage facility and soon after provided plaintiff the claim check
for the unit. Id. Plaintiff left the equipment in the storage unit for four months before reclaiming it,
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then sued for conversion of the camera equipment. Id. Overturning the lower court’s damage award
for conversion, the Oregon Court of Appeals held although defendant did exercise dominion and
control over the equipment, she did so for only a “short time.” Id. at 167. Moreover, plaintiff “had
the opportunity to recover his equipment during at least part of that time.” Id. Further, defendant “did
not interfere with [plaintiff]’s right of control beyond the short period that she exercised dominion or
control over the equipment and, at most, her actions caused only minor physical harm to it.” Id.
Therefore, because plaintiff “did not intend to assert a right over the equipment inconsistent with
[plaintiff]’s right of control,” she was not liable for conversion. Id. at 167–68.
Under the summary judgment standard, Defendants hold the initial burden of establishing the
absence of genuine issues of material fact, namely here, that the Molds are not in fact damaged. To
do so, Defendants refer to a declaration of Steve Parks, submitted as an exhibit to Brooks’s own
opposition brief. Parks testified that based on his observations of the Molds during an inventory in
April 2015, no Mold was damaged to the extent it could not have cast a sculpture. Brooks does not
challenge the adequacy of Parks’s qualifications to supply such testimony, a prudent course given that
it was Brooks who introduced the declaration. With the Parks declaration, Defendants sufficiently
establish the absence of a genuine issue of material fact regarding damage to the Molds, and the
burden shifts to Brooks to identify facts beyond the pleadings that show a genuine issue for trial.
Brooks’s continued reliance on Pettelle, who conceded a “need to conduct additional testing, beyond
a visual inspection” before he could determine whether any of the Molds were not in usable condition,
does not meet this burden. Rather, the testimony resembles just the type of unsupported conjecture
the summary judgment standard rejects.
Even if the Pettelle declaration did establish a genuine issue as to whether the Molds were
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damaged, the record does not show evidence that Defendants possessed the intent required to support
a conversion claim. Caswell maintains the portion of the “Fighting Back” Mold was located at his
Troutdale foundry studio only accidentally. He testified he intended to surrender the Molds, in
accordance with the terms of the Settlement Agreement, and believed he had lost access to them once
RCS defaulted on the Note. Further, when Caswell learned Brooks believed five Molds were missing,
he worked with Parks to locate the Molds. When he discovered a portion of the “Fighting Back” Mold
was missing, he promptly located the part and sent it back to Parks Bronze.
The mere fact Caswell may have retained access to the Molds at Parks Bronze does not
necessarily suggest Brooks was ever denied access to them, and no evidence of such exists. As in
Fogh, even if Defendants did exercise dominion and control over any of the Molds, nothing in the
record supports a reasonable inference they did so intending to assert a right over the Molds
inconsistent with Brooks’s ownership interest. This type of interference with the Molds does not
constitute conversion. Moreover, as detailed with respect to the breach claim above, Brooks does not
appear to have suffered any actual injury, which, under Madden, precludes recovery for conversion.
Under the summary judgment analysis, though evidence must be viewed in the light most
favorable to the nonmoving party, this deference is of no consequence where no evidence supporting
the nonmoving party’s position exists. Even viewing the record in favor of Brooks, a rational trier of
fact could not find Defendants liable for conversion. Therefore, summary judgment on the Fifth Claim
for Relief is granted.
III. Remaining Claims: Fraud, Negligent Misrepresentation, and Elder Financial Abuse
Three of Brooks’s remaining claims make mention of the allegations regarding missing or
damaged Molds addressed above. The fraud and negligent misrepresentation claims, in relevant parts,
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both allege Defendants falsely represented RCS’s intent to comply with the Settlement Agreement’s
requirements regarding the Molds. To support her elder financial abuse claim, Brooks alleges
Defendants wrongfully took her property and money via conversion of the Molds. Moving for
summary judgment against these portions of the three claims, Defendants do not provide specific
attacks, but merely assert their general arguments refuting that the Molds are missing or damaged.
Similarly, Brooks does not specifically defend these claims, but her general allegations apply here as
well.
To the extent the rulings above apply to Brooks’s fraud, negligent misrepresentation, and elder
financial abuse claims, the court so too grants summary judgment on the portions of these claims that
rely on allegations of missing or damaged Molds.
Conclusion
Defendants’ Motion (ECF No. 95) for Partial Summary Judgment Re: Claim of Missing
Molds is GRANTED.
DATED this 14th day of March, 2016.
JOHN V. ACOSTA
United States Magistrate Judge
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