*1 BESHARA, Robert J. Gordon Coleman Cheney, Appellants,
and Nedra BANK, L.
SOUTHERN NATIONAL John
O’Brien, Culver, Eric & Blevins William
Sordahl, Blevins, Inc., Paul & Gable Ricketts,
Gotwals, Inc., Ronald N.
Appellees. 83950.
No.
Supreme Court Oklahoma.
July
Rehearing Denied Dec.
282 *2 presented, court
under the the trial by failing erred submit the dis- jury; appellant honor claim stated a claim for the alternative theo- viable *3 conversion, ries of faith and breach of fiduciary duty but the claim was breach of 3) dismissed; properly and under the presented, been appellant should have appel- given opportunity respond an to the lees’ motion to dismiss his counterclaim.
FACTS 1980’s, early appellant, In the Robert Betty (appellant/Beshara) J. Beshara met J. (Mitchell), Mitchell an assistant with cashier (South- appellee, National Bank Southern Bank) Tulsa, Oklahoma. ern National/the thereafter, Shortly Beshara and Mitchell be- gan relationship. August a social opened checking account and be- gan banking with Southern National. As a convenience, matter of Beshara had Mitchell virtually conduct all of banking his business deposits having her make with- and checking drawals from his account at the Bank. days opened after he few National,
cheeking at account Southern Mitchell, without Beshara’s authorization knowledge, ac- changed the address on his count to Springs her home address Sand signer and added as an her name authorized Subsequently, began on the account. she embezzling money from the account. When monthly Beshara’s statements were mailed to Eufaula, Boydston, John D. C. Jack Man- residence, Mitchell’s she altered them so er, Norton, Tulsa, Appellants. Mallie M. for they would conform with his actual transac- Ricketts, McKee, Ronald N. Kari S. G. tions in the account she sent him Fox, Tulsa, Appellees. Lawrence for false statements. KAUGER, Justice: Vice Chief money periodically Mitchell embezzled questions presented cheeking for certiorari are: from Beshara’s account until late 1) whether the trial court employee erred when it December of when another National, granted appel- demurrer to conducting Bank’s Southern while a rou- 2) audit, wrongful dishonor; lant’s large evidence of tine internal discovered a trans- whether money the trial court erred when it fer of Beshara’s into dis- account 9, 1989, appellant’s January missed the On alterna- another account. recovery; tive showing theories of the Beshara’s account bal- whether $32,425.37, appel- placed court erred when dismissed the ance of Southern National lant’s allowing ap- counterclaim without a hold on the to conduct an account internal pellant opportunity respond ap- audit to determine the correct account bal- pellees’ motion find ance. insists that to dismiss. We that: The Bank Beshara came report detailed specific included a January looking end near the into the bank oc- explained how Mitchell’s embezzlement Mitchell, him of her that it informed much should have requested and how curred his account tampering with Hartford issued possessed in Beshara’s account. which he copies of all documents later, checks for reim- National three Southern the account.1 Sometime pertaining to a result of of its losses as relationship with Mitchell. bursement ended $50,- embezzlement; one for Mitchell’s attorney Beshara’s March On February 16, 1990, a second 000.00 on Bank, demanding wrote the $145,897.64 29, 1990, and another June the hold released from checking account be 15, 1990, $5,000.00 on check for October re- account balance be proper finally years nearly restored two before .that it had not The Bank insisted stored. *4 funds in Beshara’s account.4 April In of Besh- completed its audit. some the Bank that he needed ara informed August Bank sued the on Beshara income taxes which money his his of damages, Seeking punitive actual 1989.5' to loan Beshara due. The Bank offered were in the Bank acted bad Beshara asserted that taxes, Beshara money pay his faith, wrongfully refused to honor the cheeks refused the offer.2 account, and converted his he wrote on his money. first National Five months after Southern checking ac- on Beshara’s
placed its hold motions, the tri- Upon Southern National’s count, against the two checks Beshara wrote 1) rulings “a separate in that: al court found Beshara, attorney According to his account.3 as not lie in this case ‘conversion’ action will checks to determine advised him to write the a depositor between checking to hold his if the Bank continued 2) creditor;” Besh- that of debtor and bank is and, so, provide if him with writ- account rely theories of ara could not on doing Bank was so. evidence that ten [fjact of still exist on recovery; and “issues to honor National refused Southern (cid:127) recovery on dishonor.” based maker,” cheeks, marked them “refer payees. respective returned them to their 2,1992, National filed a April Southern On against and a third 10, 1989, Beshara National counterclaim August Southern On against payees party petition claim to its insurance mailed a of loss wrote, alleging a civil claim under checks he company requesting reimbursement under Orga- Corrupt Influenced and as a the Racketeer fidelity for the losses suffered bond (RICO), §§ 1961 et Act 18 U.S.C.A. The claim nizations embezzlement. result Mitchell’s (appellant/Coleman), a copies to Gordon Coleman provided Bank with of the able 1. Beshara $4,782.00. Beshara, golfing buddy for phony had sent him as statements which Mitchell 12, 1989, May and it check was written proper balance third was made well as his own estimate Self, acquaintance payable an $104,- to Jane nearly the account should have been lawyer, $375.00. Beshara’s for audit, began the Bank its re- 000.00. After party to this cause. Self was not made Jane copies payroll quested of all of his from Beshara checking deposited he into the checks which July Beshara’s the Bank notified provide with did not account. Beshara attorney account would be credit- that Beshara’s deposition copies was of the checks until $113,724.77, included which ed the amount of taken in 1991. $9,307.47 exchange interest in in accrued Beshara, liability but Beshara release of provided loan that if it 2. The terms of the Bank’s Finally September sign the release. refused proper included account balance determined years after and one half three —over loan, money equivalent to the an amount original placing hold on Beshara’s its keep interest with no could Beshara Bank, insisting that it had not still account—the due on the loan. account, auditing Besh- completed sent its balance with interest. ara a check for his account actually on the wrote three checks 3. Beshara 8, 1989, check, May initially and the first dated Mitchell account. The 5. Beshara also named however, Cheney (appel- Company, he later payable to Nedra Insurance was made Hartford against and Hart- secretary lawyer, Mitchell lant/Cheney), dismissed his claims of Beshara’s parties $5,682.00. they here. pay- are not made ford and The second check was upon alleging granted. and con- could be seq., and claims for fraud relief trial spiracy. The Bank that Beshara The court treated the motion to dismiss asserted summary payees judgment and the embarked scheme to a motion for granted summary judgment Bank to act to its detriment favor of induce the Beshara, dishonoring against appellants. the checks. and the payees responded Cheney appealed Sep- a counterclaim Coleman and and on Bank, 5,1995, against alleging Appeals cross-petition Division tember Court unpublished infliction process opinion, abuse of and intentional affirmed the September Finally, granted emotional court. certiorari distress. We on Febru- 27,1996. years ary three and one half after —over original placing hold on check- its insisting ing account —the still that it I. account, completed auditing had not sent a check for balance his account THE ATTEMPT APPELLANT’S TO with interest. The trial court ordered the RECOVER AGAINST THE DAMAGES wrongful discharge claims and the counter- BANK CENTER AROUND TWO IM- 4,1994, separately. May claims tried On PORTANT FACT SCENARIOS: THE granted trial court mo- Southern National’s THE FACTS SURROUNDING AL- *5 limine, tion in which excluded from the trial DISHONOR; LEGED WRONGFUL evidence, any argument or other reference to 2) AND THE FACTS SURROUNDING fidelity bond, any Hartford or theo- THE BANK’S CONDUCT APART ry liability wrongful other than dishonor. FROM ITS TO PAY THE REFUSAL CHECKS. 14, 1994, 17, 1994,
From June to June wrongful against dishonor claim From the we note that outset Besh- jury. Southern National was At tried to appear dispute ara does not to that the Bank evidence, the close of Beshara’s the Bank initially justified, least was at as a result of demurred to evidence and moved dis- embezzlement, in placing tempo Mitchell’s wrongful miss the dishonor claim. The trial on, rary freezing hold or the funds in his court, stating from the bench that Beshara account, checking investigate Mitchell’s ac damages suffered no from the Bank’s refus- in his tions and other accounts and to deter checks, granted als to the Bank’s honor proper mine the of his balance account. wrongful motion to dishonor dismiss' Rather, gravamen allegation is: judgment claim and in favor of entered 1) placed the Bank a hold on his against Southern National and Beshara. January account and after he The trial court announced that it would en- repeated have made demands to his ac summary tertain concerning oral motions restored, it count dishonored checks he judgment concerning the counterclaims. 2) early May 1989; wrote and even if justified refusing Southern National its counter- dismissed was to hon- checks, point party petition against time, third or the at some appellants prejudice, investigation and it moved to determined from its that his appellants’ ap dismiss the counterclaim account should have had balance of cross-petition proximately $104,00.00,yet process abuse of the Bank would grounds pleadings failed state not restore his account.6 James, (Okla.1991); See, pleading Rules on both at trial at the 818 P.2d appellate levels have been liberalized to allow the 2008(E)(2). Supp.1987 § We O.S. note that it courts to focus attention on the substantive argues appears that the Bank that Beshara dispute procedur merits of the rather than precluded asserting any should be errors Estate, Whinery’s al niceties. Markwell v. Real relating any of his alternative theories other Inc., Under our wrongful allegedly than he dishonor because did code, pleading although liberalized double recov not seek reconsideration of trial court's order ery may permissible, parties be are allowed wrongful limited his cause of action to alternatively to set forth statements of claims or day dishonor and because on the of trial the trial hypothetically rely on inconsistent theories judge informed Beshara that he could dismiss his single legal theory. rather than elect a Howell Title 12A 1981 4-402 the Uni
a. form Commercial relates to Code bank’s by failing sub- The court erred trial liability wrongful to its customer for dishon- wrongful claim the mit dishonor provides: or. Section 4-402 jury. payor “A to its bank is hable customer damages proximately caused that the Bank’s failure to argues wrongful of an item. When dishonor May pay the he wrote was checks through liability dishonor mistake occurs wrongful and that the trial court dishonor proved. damages limited to actual If so Bank’s granted erred demurrer proximately proved damages caused and -wrongful to his and dismissed evidence may damages pros- for an arrest or include dishonor claim. The Bank counters or other ecution the customer conse- not err because: the evi- court did quential damages. Whether conse- justified dence established that was quential proximately damages are caused ac- placing a hold on Beshara’s question dishonor is a count; prove any failed to fact to be in each case.”9 determined damages. evidence of 4-104(l)(h) Supp.1988 Title 12A defines “any payment item as for the instrument plain test of a demurrer negotiable though even it is not requires both the trial court tiffs evidence money.”10 A does not include dishonor is reviewing to accept and the tribunal as true unfair, unjustified, if done in an or plaintiffs all of the evidence its reason justice.11 wrong contrary to manner which is inferences, disregard conflicting able and to any permitted Wrongful dishonor excludes A evidence favorable to the defendant.7 de justified dishonor.12 plaintiffs murrer evidence should *6 Co., Trust Shaw Union Bank & In only sustained when there is an ab 640 entire 953, (Okla.1981), Court, any right recovery.8 this proof sence of to show of P.2d 955-56 However, properly payable, it. we find the if it dishonors an item that is lawsuit and refile argument may Bank's merit. item that is without The record but a bank dishonor an would continually attempted agreed reflects pay that Beshara create an overdraft unless it recovery assert alternative theories of and to his the overdraft. relating present (b) evidence those theories both payor A to its bank is liable customer for trial, prior to of and at the time but the trial damages proximately by wrongful caused the wrongful court cause of action limited his Liability is dishonor of an item. limited to dishonor. may damages proved actual include dam- ages prosecution the for arrest or of customer Co., Gay v. 7. Underwriters Ins. 904 P.2d Hartford damages. any consequential or other Whether 83, Hammons, (Okla.1995); Hampton v. 86-87 consequential damages proximately are caused 1053, (Okla.1987); 743 P.2d 1057 Maule v. In by question wrongful fact dishonor is of 198, 9, (Okla. dep. School Dist. No. 714 P.2d 202 case....” to be determined in each 1985). standard, we need not consid Under any justified er of Bank's evidence that it was 10. The of this section defines an current version placing on Beshara’s account a hold promise or item as: "an instrument or a order to continuing justified that it was to withhold money pay by a bank for collection or handled question precisely his is for the funds. That payment. payment does not include The term jury to after it considers all of the evi answer governed by order Article 4A of this title or a presented by parties. dence both slip.” credit or debit card Hammons, 7, Hampton supra; 8. see note Co., Boyles Natural Gas P.2d v. Oklahoma 619 Roswell, Security 11. Landrum v. Nat. Bank 104 of Stratton, (Okla.1980); Martin v. (1985); Holland, “A N.M. 716 P.2d (Okla.1973). n Resulting Analysis Legal Problems From Dishonors,” (1977). Wrongful 42 Mo.L.Rev. 507 4-402 was in 1981 version of effect of Comments to Section 1 the 1981 Oklahoma pay by the checks the Bank written refused properly "dishonor of a Section 4-402 states that May Beshara in of 1989. this statute payable wrongful item is dishonor.” January was amended in eff. pertinent provides part: version The current "(a) provided 12. Shaw v. Bank & Trust Except arti- Union as otherwise in this cle, wrongfully payor bank dishonors an item addressing ly, maliciously wrongful the nature of a dishonor refused to honor types damages May claim and the which are cheeks he wrote in and that he recoverable, potentially recognized that ordi- damages monetary suffered which included narily relationship loss, between a bank and money, his loss use of embarrass- recovery its customer is that contractual ment, humiliation, and emotional distress. is depositor’s founded a breach trial, showing At presented evidence Nevertheless, contract.13 we found that a 1) that: at the time account was frozen wrongful governed by § dishonor claim 4- 2) $32,425.37; had a balance of he informed 402 of the Uniform Commercial Code and the Bank that balance his actual should have that it is not classified as either an action in 3) $104,000.00; approximately he need- tort or an action in contract. We also held ed in- pay in his account to general rule that 1989; in April come taxes which were due depositor between a bank and a is contractu- 4) coin approxi- he had to sell a collection at apply al in special nature does not mately $8,300.00 below value in order to situation wrongful dishonor. Under 4- taxes; days the income was a commer- damages a bank proximately is liable for cially length reasonable of time in which the caused dishonor of an item— Bank completed should investigation have damages the measure of is not limited to the determine the amount funds which actu- item, face injury value of the account; ally belonged in the he was sustained depositor, including punitive humiliated embarrassed and and he suffered damages if the dishonor action is emotional lengthy distress as result of the Shaw, not based on a mistake. this Court hold on Accepting his account. true all said that: and its evidence reasonable infer- alleges “Appellant petition here ences, disregarding conflicting while evidence appellee in wrongful, bank ‘acted mali- Bank,14 favorable to the say cannot cious, negligent grossly manner in re- there was an absence entire to show fusing to Appellant release funds.’ recovery right of under 12A O.S.1981 given opportunity prove should be § 4-402. Whether withheld Besh- allegations. these commercially ara’s funds for a reasonable Therefore, we hold the trial court erred length time, wilfully whether or inten- sustaining motion defendant’s to strike tionally checks, dishonored or whether consequential puni- *7 any damages proximately by were caused the damages § tive under allowable U.C.C. 4- question dishonor is a of fact jury.15 for the plaintiffs allegations.” 402 in Consequently, the trial court erred refus- Here, Shaw, plaintiff ing like wrongful the Besh- to submit the dishonor alleged ara wrongfully, jury.16 that the Bank wilful- the contractual, Idaho, merely 852, 13. If the action were the Nat. Bank North 101 Idaho 623 464, damages governed (1980); by recoverable would be P.2d Albuquerque 23 472 Loucks v. Nat. 22, 735, recovery (1966). § O.S.1981 limits Bank 76 N.M. P.2d 191 by obligation amount due the terms of the § Title Bank, with interest. 23 O.S.1981 pointing testimony 16.The to Beshara's at provides: deposition, trial and in his insists that Beshara damages suffered no as a result of the Bank's by “The detriment caused the breach of an Considering dishonor of the checks. all of his obligation pay money only is deemed to be whole, testimony appears it as a that Beshara by obligation, the amount due the terms of the damages, testified that he suffer did not which are with interest thereon.” typical wrongful to a dishonor claim such unchanged. The current version remains credit, injury injury reputation, loss of busi- ness, damages resulting prosecution or from a Co., Gay 14. UnderwritersIns. see note Hartford for the checks. dishonored he did Hammons, supra; Hampton v. see note present consequential evidence on dam- supra; Indep. Maule v. School Dist. No. see ages such of use as the loss of his funds and 7, supra. note suffering pain mental caused both the allegedly wrongful dishonor and the hold on his 4-402, page § supra. Title 12A O.S.1981 account. cient, this We find that evidence was suffi- also, circumstances, See Yacht Club Sales & Serv. Inc. v. First under these to overrule the liability Clearly, proof under insur-
b. generally inadmissible. ance is viable appellant has stated claims theories breach for the alternative for other If is offered rele evidence conversion, faith admitted,17 purposes, may be and the vant it fiduciary properly claim was breach of regarding decision of trial court admissi dismissed. bility of not be overturned un evidence will Apart allegations of dis- from the it is the court abused its less shown honor, alleged that the Bank’s con- Beshara Here, Bank discretion.18 when the finished ac- its refusal to restore his regarding unknown, it report is but was filed duct — by August of when the count even after August of three months report of the embezzlement to Bank filed its Accordingly, were cheeks dishonored. punitive company its insurance report agree —warrants trial court that damages. evidence re- primary His is the not to the issue of a would be relevant its insurance claim port the Bank filed with May occurred dishonor which to show that had which tends yet investigation, contin- completed fact its report contends that is Beshara also his account. ued refuse to restore relevant, only not but that it critical to attempted to into admit evi liability theories of because Beshara’s other it report which submitted dence the Bank’s supports claim to Hartford. proof with its of loss the account funds even refused release motion, Upon the trial court ex the Bank’s knowledge though proper of the had evidence, proof cluded of loss claim have amount of funds which should relying pro 2411 which 12 O.S.1981 Although use cheeking in the account.19 vides: report likely probative more of the would liability in- of the existence “Evidence need prejudicial,20 than issue not be not admissible the issue surance is until his claims con- decided Beshara tries negligence wrongful action. This sec- or after the cerning the Bank’s conduct require tion the exclusion of evi- does wrongful dishonor. liability dence insurance where argues that besides liability question insurance possession merely refusing he to honor checks ,an action, or is itself element of wrote, outrageous in its conduct was so purpose, including another offered for concerning withholding control, ownership, agency, bias its continual refusal prejudice account funds and of a witness.” Mut. Auto. Ins. 18. James State Farm Bank's and to submit cause to demurrer (Okla.1991); Nail v. Oklahoma jury of whether Beshara suf- a determination Hosp., 710 P.2d Children's Memorial proximately any damages which were fered (Okla.1985); Corp., Motors v. General Jordan alleged wrongful dishonor. 12A caused *8 (Okla.1979). P.2d 4-402, -, 196 supra; page § v. Shaw O.S.1981 12, supra. Union & Trust note Bank fidelity argues bond is not 19. Beshara that a inapplicable § is 2411 insurance and therefore provides: § 2401 17.Title O.S.1981 12 find that the of loss here. Because we " knowledge, issue of to the limited relevant having evidence’ means evidence 'Relevant argument a we not Beshara's that need address any tendency any make the existence of fact technically fidelity '-'insurance bond is not consequence that to the determination of is of inapplicable. against liability,” making § 2411 probable probable or less than action more the evidence.” it would be without provides: § 12 2403 20. Title O.S.1981 provides: § Title 12 2402 O.S.1981 admissible, except may pro- is as “All relevant evidence excluded if its "Relevant evidence be provided by substantially outweighed by the Constitution of the otherwise bative value is States, danger issues, prejudice, the Constitution of the State of confusion of United unfair Oklahoma, delay, by misleading jury, undue need- statute or Code. Evidence evidence, presentation not less of cumulative not relevant is admissible.” which is surprise.” and of these statutes remains unfair harmful The version current unchanged. The current remains unchanged. version 288 available,
make the funds that it also com- from a contract results commercial between customer, mitted a bad faith tortious of con- a and its breach bank unless there was duty. fiduciary “gross tract and on negligence breach The recHessness or wanton party.”25 of a contends that the court did err behalf when it sustained its motion to dismiss Besh- theory duty implied ara’s of an breach if We found that the factual situ
good dealing faith and fair or breach of fidu- warranted, ation an action for a breach of ciary duty. may give contract also rise to a tort action implied good
for a breach of the
covenant of
relationship
dealing.
a bank
and fair
alleges
between
faith
that
depositor
generally
and its
is
withholding
considered cont
the Bank’s actions in
the fund
intentional, malicious,
ractual.21
Improper
refusal
to make the
his account were
generally
disregard.
funds available would
consid
recHess
wanton
In view
allegations
ered a
breach of
ing
contractual
the Bank’s obli
these
well
all
as
gation
money.22
Beshara his
Under
inferences and conclusions drawn'from the
facts,
each
alleged
common law
contract carries an
we
find
Beshara should
implicit and mutual covenant to
towards
opportunity
proceed
act
have been allowed the
Likewise,
good
each other in
faith.23
under
on his
for tortious breach of the
Code,
good
duty
dealing.
Uniform Commercial
12A 1981
faith
and fair
Accord
1-203,
carry
ingly,
commercial transactions
the trial
refusing
court erred
obligation
good
performance
proceed
faith in their
Beshara to
allow
this alternative
Consequently,
theory
recovery.
enforcement.24
the deter
In First Na
Kissee,
parties’
minative
tional Bank &
issue raised
conten
Trust Co.
v.
of Vinita
(Okla.1993)
whether,
tions
presented,
under the
859 P.2d
510-11
facts
we said:
implied
breach of
good
covenant of
faith
recognizes
“OHahoma
the common law
may
.
dealing
give
and fair
rise to an action
rule
between a bank
tort.
nature,
its
fiduciary
customer is not
cases,
is that
of creditor-debtor.
In all
Generally,
agree
with Beshara’s
the determination of the
existence of
obligation
contentions
banks
have an
fiduciary relationship depends upon the
good
exercise
and fair
dealing
faith
circumstances, including
factual
the rela-
customers.
In First Nat. Bank
Trust v.
&
tionship
involved,
parties
to each
Kissee,
(Okla.1993),
859
509
P.2d
and in
and to
disputed
transaction.”
Rodgers v. Tecumseh
756 P.2d
(Okla.1988),
Here,
recog
'this Court
points
refused
avers
neither
nor
implied
nize an
action for
breach of the
support
the record which would
dealing
theory
covenant of
faith and fair
special
which
that a
relationship existed
Okla.,
Fidelity
21. Allied
Ins. Co. v. Bank
The current version of this statute remains un-
(Okla.1995); Ingram Liberty
P.2d
changed.
City,
Nat. Bank & Trust Co.
Oklahoma
(Okla.1975);
Waitman,
Waitman v.
argues
Appeals
25.Beshara
that the Court of
de
(Okla.1972).
505 P.2d
was
cision
inconsistent with Woods
Petroleum
(Okla.
Pipeline Corp.,
Delhi Gas
289 deposit, except by payment extent a give would the of Bank which him and the between him, the of a written order we find that to or to holder fiduciary duty. Nor do a rise to alleged him, usually a facts. in the form of check.” to exist under the appears one court did not err Consequently, the trial However, Steenbergen v. Fed. First Sav. for breach it dismissed Beshara’s Chickasha, 753 P.2d 1332 & Loan of fiduciary duty. (Okla.1987), relying on Owens v. Andrews that the Bank’s con- also insists 490, 220 S.C. S.E.2d Bank & Trust continually withholding the funds duct (1975), recognized that once an ac- to conversion checking account amounted matures, withholding a of a count bank’s money.26 Bank insists that be- specifically represented identi- check and its relationship between a bank the cause to designated belonging the sums fied a in the nature of debtor-creditor depositor is check in an depositor, and its use of the a account was relationship and Beshara’s manner constitutes conversion. unauthorized account, no claim for conver- general deposit We said: sion exists. wrong- is act of dominion “Conversion Fidelity Ins. Co. In Allied prop- fully personal another’s exerted over (Okla. Oklahoma, 1101, 1103-04 894 P.2d erty in inconsistent with his denial or Court, describing the relation this necessary to rights It con- therein. is depositor, its stat a bank and ship between property a that the come stitute conversion ed: wrongfully. possession into the defendant’s one debtor and relation is [T]he “... necessary is that the con- Nor _ traditionally ‘the bank-cus- creditor to apply property the his own use.” verter considered been tomer omitted.). (Citations creditor, upon founded that debtor (and deposit contract provisions the the Owens, plaintiff brought action In U.C.C.]).’ [of the rules of Article up against a bank which held for conversion no money deposited [in bank] ‘The is ... delivery account in of a check in a closed out depositor, longer property to pressure plaintiffs husband order bank, property of and the becomes money financing arrangement pay on a deposi- becomes the debtor to bank bank. The Court obligated was he ” (Citations omitted.). tor.’ refusal to recognized that bank’s mere plaintiff which she had on Supreme pay Court the funds Quoting the United States Nat. Bank v. Mer- not establish case of general deposit would Leather Manufacturers’ the court found that 128 U.S. S.Ct. chants’ Nat. conversion. (1888) was so onerous we also said: the bank’s conduct L.Ed. simple more much than facts established specific money bank] deposited [in
“The consti- The bank’s action breach contract. deposi- of the not remain the does illegal misuse of the bank, tuted tor, property but becomes misappro- to a plaintiffs funds amounted pleases; as it and used invested bank for its own use priation of them the only depositor obligation to the and benefit. equal amount his demand out an
order; neglect to refusal or argued necessary to The bank Owens order is pay such demand or not be converted be plaintiffs funds could depositor against an action sustain commingled all of the they were discharge its cause The bank cannot the bank. deposit. had on which the bank liability depositor other funds account with the money, exists. This is a chose in action & Trust Co. v. Oklahoma State Bank Brown intangible personal property bring Vinita, (Okla. 1993), action to money_ to 12 O.S.1991 Pursuant such § stated that: Court brought, wrong action has if law rule in Oklahoma is pleadings liberally “The common are allowed. amendments may personal properly only tangible be con- as one in simplicity, we refer to action For *10 (Citations omitted.). right person to conversion.” a has a recover verted. When rejected argument upon grant- a claim which The court because the state relief can be specifically desig- objected, itself insisting bank identified and ed. Beshara that the trial belonging plaintiff nated sums to the process court should not dismiss the abuse of plaintiff’s when it closed the account. The allowing him opportunity claim without an to bank’s refusal to deliver the check which response prepare adequate op- an and brief represented plaintiffs upon funds de- posing process a dismissal of the abuse mand and its use the funds for its own court, treating claim. The trial the Bank’s illegal purpose plaintiffs and to the summary judgment, as a for motion motion detriment constituted the tort of conversion. refused to allow Beshara an oral or either Considering Beshara’s and their response to written the Bank’s motion. inferences, that, reasonable we find like the Rather, it dismissed his counterclaim without Owens, bank in Southern National’s conduct stating findings. for his basis may have been so onerous that much more occurred, than a mere breach conduct We find Beshara should have here, presented that under given respond opportunity been an to to against a viable claim stated summary judgm motion to for dismiss/motion for conversion. Supp.1984 12 O.S. ent.27 Title man court, dates that: when trial considers II. pleadings outside of the a motion matters PRESENTED, THE UNDER FACTS upon to dismiss for failure to claim state a THE APPELLANT SHOULD HAVE granted which relief can the rules for BEEN GIVEN AN OPPORTUNITY TO followed; summary judgment shall be RESPOND TO THE APPELLEES’ MO- parties given all shall be reasonable TION TO DISMISS HIS COUNTER- opportunity present per all material made CLAIM THE TRAIL WHICH COURT tinent to such a motion the rules for TREATED AS A MOTION SUM- FOR summary judgment.28 Rule O.S. MARY JUDGMENT. app., Supp.1994, Ch. 2 Rules for District Courts, in mandatory language clear and court, re dismissing wrong- after quires claim, party opposing that a motion for ful dishonor announced that would summary judgment be at summary motions allowed least 15 judgment entertain as counterclaims, days respond provide to the motion and to previously to the which had evidentiary support which been bifurcated from the dishonor materials would Accordingly, claim. The Bank denial of dismissed its counterclaim the motion.29 the trial prejudice previ- give and moved to court erred failed renew Beshara a opportunity respond ous motion dismiss abuse of reasonable as re claim, process asserting by § quired he had failed to Rule 13.30 also, Washington party parties See our recent decision in "... b. If the adverse wish to Corrections, Department State rel. motion, ex oppose granting they of the shall moving party serve on the file with the days court clerk fifteen within after service of Supp.1984 provides Title O.S. motion concise written statement of the pertinent part: they material facts as which he or contend a "If, asserting on a motion the defense num- genuine deny- issue exists the reasons for bered 6 of this subsection to dismiss for failure ing the motion....” pleading to state Although this rule was amended granted, relief can be pleading matters outside the pertinent part remains unaltered. presented are to and not excluded court, shall be motion treated one summary judgment parties for given all shall be 30.The Bank insists not have should opportunity present a reasonable all by given opportunity respond because he pertinent material made to such a motion had, earlier, years already responded two to its summary judgment...." the rules for argument initial motion to We dismiss. find this unchanged. The current version remains without merit because Beshara has not been respond summary allowed to motion Supp.1994 app., 29. Rule 12 O.S. Ch. Rules Courts, evidentiary judgment present and to material provides pertinent for the District part: support response. of his *11 § 2012 and ings. Supp.1984 12 O.S. Title CONCLUSION 13,12 app., Supp.1984, Ch. Rules Rule O.S. trial, presented evidence Beshara At Courts, that Besh- mandate for District damages for result- allegations his supported given reasonable ara should have been dishonor, we alleged an ing from respond the Bank’s motion opportunity to an absence say there was entire cannot his the trial court dismissed to dismiss before recovery right under any proof to show counterclaim.34 erred in The trial court 1981 4-402. 12A PREVIOUSLY GRANT- CERTIORARI wrongful dishonor refusing to submit ED; APPEALS OPINION OF COURT jury. claim VACATED; TRIAL REVERSED COURT warrants, factual situation When the AND REMANDED. may also for of contract action a breach for a rise to a action breach give tort C.J., HODGES, WILSON, good and fair deali faith implied covenant JJ., WATT, concur. HARGRAVE and allegations, as Considering Beshara’s ng.31 JJ., SUMMERS, concur in OPALA and conclusions all of inferences and well part, part. dissent facts, have alleged he should drawn proceed on opportunity to allowed the SIMMS, JJ., dissent. LAVENDER duty tortious breach of for Justice, SIMMS, dissenting: dealing. faith fair points nor facts my view, appellant’s neither avers Beshara does theory support dishonor, in the record which would rather in the lie i.e., special contract, existed between deposi- nature breach give rise which would him and Bank tory agreement.
fiduciary duty. do find that one Nor we LAV- I am to state that Justice authorized exist, under the facts. appears to expressed in with the views ENDER concurs dissenting opinion. ordinarily an action for
Although, lie a bank with would not conversion alleges depositor,32 funds
holds knowledge of the amount Bank had his account bal represented funds which continually refused to deliver yet ance — MIDDLE TEN- BANK DOMINION OF Considering his upon demand. the funds banking NESSEE, a Tennessee inferences, their reasonable allegations and Appellee, corporation, National’s conduct find that Southern v. onerous that much more may have been so occurred, and mere of conduct than a breach MASTERSON, Appellant. Bonnie here, presented under No. 82146. against the Bank stated a viable claim Court of Oklahoma. Supreme be allowed the conversion.33 He should allegations to prove his opportunity to 17, Sept. 1996. fact. trier Rehearing Dec. Denied allow Beshara trial court refused to response an oral or written either his counter-
Bank’s motion and dismissed his find- stating the basis for
claim without
See,
Kissee,
& Trust
v.
see note 23
Owens Andrews
31. First
Nat. Bank & Trust
(1975).
see note
supra;
supra.
Rodgers
v. Tecumseh