786
Chapter 49
Personal Property
and Bailments
Case 49.1
Wash.App. Div. 1,2010.
APL Ltd. v. State, Dept. of Revenue
Not Reported in P.3d, 154 Wash.App. 1020, 2010 WL 264992 (Wash.App. Div. 1)
Court of Appeals of Washington,
Division 1.
APL LIMITED, American President Lines, Ltd., and Eagle Marine Services, Ltd., Appellants,
v.
STATE of Washington, DEPARTMENT OF REVENUE, Respondent.
No. 63851-3-I.
Jan. 25, 2010.
GROSSE, J.
It is the intent of the parties that ultimately determines whether or not a chattel is a fixture or personal property. Here, because the trial court
considered only the degree of annexation and not the intent of the parties in determining that cranes attached to the Port of Seattle’s
Terminal were personalty, summary judgment was inappropriate.
FACTS
On September 26, 1985, the Port of Seattle (Port) entered into a 30-year lease with APL Limited, American President Lines, LTD. and Eagle
Marine Services, LTD. (collectively, APL) for premises at Terminal 5 for loading and unloading shipping container ships. Terminal 5 was
substantially rebuilt and cranes were constructed and installed. The cranes at issue here are built to run on steel crane rails 100 feet apart,
CHAPTER 49: PERSONAL PROPERTY AND BAILMENTS 787
embedded in a concrete apron, and supported by specially designed steel-reinforced concrete and piers engineered specifically to support the
cranes. The cranes themselves are steel structures that are 198 feet tall, 85 feet wide, more than 370 feet long and each weighs over 800 tons.
They are hard wired to a dedicated high voltage electrical system that includes a power substation built specifically for Terminal 5 to power
the cranes. The cranes are attached to the power substation by cables that are more than two inches thick. The cranes have been in use
* * * *
Now, I understand that intent sometimes goes to whether or not something was affixed, and the intent is supposed to be at the time that
the equipment was installed. And we’re talking about 1985 here, and then we’re talking about a term between 1997 and 2003 as far as the
tax issue. Obviously, the plaintiff has paid the tax. They had to pay the tax in order to appeal this.
I recognize that a trial is often necessary if there are material issues of fact that are germane, because all three common law tests have to
be met, and I found that the first test has not been met simply based on uncontested facts, as a matter of law, this equipment was not
affixed to the land.
I’m not going to go beyond that to number three, the objective intent. It would have been interesting had that been necessary to look at
all the various language, but I’ve not gone into a specific detail here today because I never got to that particular decision point.
APL appeals arguing that the summary judgment was decided on an incorrect factual basis because cruise ships do not come into Terminal 5,
and the rails the cranes are connected to are only within the apron of the terminal for unloading ships there and do not connect with other
terminals. The State disagrees that the factual basis employed by the judge was incorrect, but also argues that because this is a summary
judgment review it is subject to de novo review and we can affirm on the alternative analysis that it was never the Port’s intent to
permanently affix the cranes to the terminal.
ANALYSIS
We review summary judgment de novo and engage in the same inquiry as the trial court.FN1 Summary judgment is proper only if “the
pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that the moving party is
entitled to a judgment as a matter of law.” FN2 This court considers all facts submitted and all reasonable inferences from them in the light
most favorable to the nonmoving party.FN3 The classification of property is a mixed question of law and fact.FN4
FN2. CR 56(c).
FN4. State, Dep’t of Revenue v. Boeing Co., 85 Wash.2d 663, 538 P.2d 505 (1975).
Real property, for tax purposes, is defined as “the land itself … and all buildings, structures or improvements or other fixtures of whatsoever
kind thereon….” FN5 Additionally, the Washington Administrative Code (WAC) states that “real property” includes but is not limited to the
following:
FN5. RCW 84.04.090.
(2) All buildings, structures or permanent improvements built upon or attached to privately owned land.
(3) Any fixture permanently affixed to and intended to be annexed to land or permanently affixed to and intended to be a component of
a building, structure, or improvement on land, including machinery and equipment which become fixtures. Intent is to be gathered from all
the surrounding circumstances at the time of annexation or installation of the item, including consideration of the nature of the item
FN6. WAC 458-12–010.
Case law dictates that to determine whether the cranes are personal property or real property, i.e., fixtures, we apply the common law test.FN7
FN7. Boeing Co., 85 Wash.2d at 667, 538 P.2d 505; Western Ag. Land Partners v. Dep’t of Revenue, 43 Wash.App. 167, 171, 716 P.3d
310 (1986). This test is essentially restated in WAC 458.12.010.
FN8. Boeing Co., 85 Wash.2d at 667, 538 P.2d 505 (quoting Lipsett Steel Prods., Inc. v. King County, 67 Wash.2d 650, 652, 409 P.2d
475 (1965)).
All three prongs must be met for a chattel to become a fixture. FN9 Both parties agree that the second prong is met in this instance but dispute
the first and third prongs.
FN9. Boeing Co., 85 Wash.2d at 668, 538 P.2d 505.
Applying a confusing factual scenario, the trial court decided that the first prong, annexation, was not met and therefore it need not consider
any of the other facts presented. This was error because the determinative factor for whether a chattel annexed to real property becomes
FN10. 85 Wash.2d 663, 538 P.2d 505 (1975).
• Boeing owned the freehold and thus the presumption of annexation arises.
FN11. Boeing Co., 85 Wash.2d at 669, 538 P.2d 505.
Applying all of those factors, the Supreme Court determined that the jigs were personalty.
FN12. 25 Wash.2d 692, 698-700, 172 P.2d 216 (1946).
We will not undertake to write a treatise on the law of fixtures. Every lawyer knows that cases can be found in this field that will support
any position that the facts of his particular case require him to take….
“There is a wildness of authority on this question of fixtures … cases … are so conflicting that it would be profitless to undertake to
review or harmonize them.” [FN13]
FN13. Strain, 25 Wash.2d at 695, 172 P.2d 216 (quoting Philadelphia Mortg. & Trust Co. v. Miller, 20 Wash. 607, 56 P. 382 (1899)).
And as noted in Christensen Group, Inc. v. Puget Sound Power & Light, “[w]hat the Strain v. Green and Department of Revenue v. Boeing cases
FN14. 44 Wash.App. 778, 781-83, 723 P.2d 504 (1986).
FN15. Christensen Group, 44 Wn.App. 781-83.
FN16. Western Agric., 43 Wash.App. at 173, 716 P.2d 310 (quoting Liberty Lk. Sewer Dist. 1 v. Liberty Lk. Utils. Co., 37 Wash.App.
809, 813, 683 P.2d 1117 (1984)).
FN17. See for example, the Sixth Amendment to the lease, giving the lessee the option to purchase the container cranes at a fair
Case 49.2
676 S.W.2d 897
Kauffman v. Coble
In re ESTATE OF Gladys PIPER, Deceased.
Clara KAUFFMAN, Claimant-Respondent,
v.
diamond rings, known as the “”Andy Piper” rings and $206.57 in cash. The rings and cash were in Gladys’ purse when she died. Gladys’ niece,
Wanda Brown who lived in Reno, Nevada, took possession of the rings and the cash after the funeral, allegedly to preserve those items for the
estate.
Clara E. Kauffman, a friend of Gladys Piper, filed a claim against the estate in the sum of $4,800, contending that from October of 1974 until
the date of death of Gladys, Clara took Gladys to the doctor, beauty shop and grocery store, wrote her checks to pay her bills and assisted her
custody of them had been necessary to preserve the assets until an administrator was appointed. Her answer included “”(f)or Estate
inventory purposes,” an appraisal of the rings by one Dan H. Maxey of Reno, Nevada, which showed their wholesale value as $875.
After hearing evidence, the trial court entered judgment directing Wanda Brown to deliver the rings and the cash to the administrator of the
estate. The judgment further found that the value of the rings was $2,500, that they were the property of Clara Kauffman, and that Clara was
entitled to possession of them. The judgment concluded by saying that if the rings were not delivered to Clara that she was entitled to a
judgment of $2,500 against the estate. All defendants appealed from the judgment.
(1) We first observe that there is no evidence in this case that gives Wanda Brown the legal right to retain in her possession the “”Andy Piper”
rings, or the $206.57 cash which were in Gladys Piper’s purse when she died. Those items should have been delivered to the administrator as
soon as the estate was opened so that they could be inventoried and preserved as assets of the estate. We find no quarrel with those
portions of the judgment ordering Wanda Brown to turn the rings and cash over to the administrator.
We direct our attention to that portion of the judgment declaring that the rings were the property of Clara Kauffman. Clara’s petition claimed
Case 49.3
N.J.Super.A.D.,2009.
LaPlace v. Briere
404 N.J.Super. 585, 962 A.2d 1139
Superior Court of New Jersey,
FN1. Summary judgment was also granted to Douglas Gultz and Sherry Gultz who were named in the complaint as the
owners of the land where Briere stable is located. Plaintiff does not argue in this appeal that summary judgment was
improvidently granted to these two defendants. Hence, we do not address the claims made against them.
CHAPTER 49: PERSONAL PROPERTY AND BAILMENTS 791
The first question presented by this appeal is whether a person who exercises a horse without permission to do so is liable
whether that evidence is “sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-
moving party.” Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540, 666 A.2d 146 (1995). If the evidence is sufficient to meet
that standard, the motion will be denied. Ibid.
Plaintiff was the owner of a horse named Park Me In First. In 2000, plaintiff entered into a verbal agreement with Briere stable
for the care, maintenance, and training of his horses, which, beginning in 2002, also included Park Me in First. He paid Briere
do to help. She testified that he replied that she could “lunge” the horses, although he denies saying so.
Lunging is a way of exercising a horse by having it walk, trot, or canter in a circle while it is secured to a lunge line handled by a
person standing in the center of the circle. Lunging is generally part of a horse’s daily routine and is not considered dangerous.
*593 Bridgwood had owned horses for thirty-five to forty-five years and had trained, lunged, and cared for horses at her former
husband’s facility for twenty years. Ten to fifteen years earlier, she had lunged plaintiff’s horses dozens of times over a period of
death, saying that he did not want to spend any more money on the horse. Plaintiff, however, does not recall having any
conversation about a necropsy on the day the horse died. While Bridgwood offered to pay for a necropsy, the veterinarian
would not do so without the consent of the owner, and Bridgwood did not ask plaintiff for such permission. Pierre Briere also
asked the veterinarian to conduct an examination to determine the cause of death at his expense, but she would not do so
without the owner’s authorization. Plaintiff testified that when he requested a necropsy a couple of days later, he was told it
FN2. The veterinarian did give a differential diagnosis that included a fungal infection in the guttural pouch that could
eat through a major artery wall and cause a massive bleed, a tumor or abscess in the lungs that could eat through a
major artery and cause a massive bleed, or a fracture in a bone in the head from flipping over backwards.
Plaintiff maintains that the only people authorized to handle his horses at Briere’s stable were Briere’s employees and that he
never gave Bridgwood permission to handle his horses outside of his presence. He acknowledged that he had once allowed her
to ride Park Me In First for a few moments in his presence, which she did without incident.
Plaintiff filed this lawsuit against Briere stable, asserting breach of the bailment agreement, breach of contract, conversion, and
negligence. He also asserted claims in conversion and negligence against Bridgwood. On October 10, 2007, the trial court
granted defendants’ cross-motion for summary judgment and denied plaintiff’s motions for partial summary judgment on
liability. Plaintiff’s motion for reconsideration was denied on November 16, 2007.
II
[1] We will first address plaintiff’s claim that the trial court erred in denying his request for partial summary judgment as to
*595 Bridgwood. According to plaintiff, Bridgwood committed a conversion when she lunged the horse without authorization to
do so, and that as a result, she is liable for the loss of the horse. For purposes of this analysis, we will assume that Bridgwood
was not authorized to exercise the horse since we must give plaintiff all of the favorable inferences that may be drawn from the
evidence. See R. 4:46-2(c).
[2][3][4] Conversion has been defined as “an unauthorized assumption and exercise of the right of ownership over goods or
personal chattels belonging to another, to the alteration of their condition or the exclusion of an owner’s rights.” Barco Auto
Leasing Corp. v. Holt, 228 N.J.Super. 77, 83, 548 A.2d 1161 (App.Div.1988) **1145 (quoting McGlynn v. Schultz, 90 N.J.Super.
505, 526, 218 A.2d 408 (Ch.Div.1966), certif. denied, 50 N.J. 409, 235 A.2d 901 (1967)). Conversion is an intentional tort in that
the defendant must have intended “to exercise a dominion or control over the goods which is in fact inconsistent with the
plaintiff’s rights.” Prosser and Keeton on Torts § 15 at 92 (5th ed. 1984). However, the defendant need not knowingly or
occurred. Prosser and Keeton on Torts § 15 at 101 (5th ed. 1984).
[5] The law has long recognized that “[t]o constitute a conversion of goods, there must be some repudiation by the defendant
of the owner’s right, or some exercise of dominion over them by him inconsistent with such right, or some act done which has
the effect of destroying or changing the quality of the chattel.” Frome v. Dennis, supra, 45 N.J.L. at 516 (quoting Woodside v.
Adams, 40 N.J.L. 417, 431 (Sup.Ct.1878)).
The theory behind conversion is that the actor has exerted such a major and serious interference with the plaintiff’s rights to
CHAPTER 49: PERSONAL PROPERTY AND BAILMENTS 793
(b) the actor’s intent to assert a right in fact inconsistent with the other’s right of control;
(c) the actor’s good faith;
(d) the extent and duration of the resulting interference with the other’s right of control;
(e) the harm done to the chattel;
“[t]he view has also been expressed that to establish a conversion claim, a plaintiff must prove that it had a possessory interest
in the property, that the defendants intentionally interfered with the plaintiff’s possession, and that the defendants’ acts were
the legal cause of the plaintiff’s loss of property”). Here, plaintiff can show no such causal connection between Bridgwood’s
conduct and the death of the horse. Although the horse did die while it was being lunged by Bridgwood, there is no showing
that the lunging, whether done negligently or not, in any way caused the horse’s death.
Because no rational factfinder could determine, based on these proofs, that Bridgwood’s conduct amounted to conversion of
the horse, we affirm the granting of summary judgment in her favor.
*598 III
We now turn to whether Briere stable may be held liable to plaintiff under bailment law. We will first address whether a
bailment relationship existed between plaintiff and Briere stable at the time of the horse’s death. If it did, then we will consider
whether Briere stable is liable under bailment law for the loss of the horse.
794 CASE PRINTOUTS TO ACCOMPANY BUSINESS LAW
horse and transport it to shows at their discretion at any time. It maintains that at most there was joint control of the horse
between Briere stable and plaintiff, and hence no bailment arose.
had been left tied to a post on the side of road outside Briere’s property waiting for plaintiff to pick it up. That of course did not
happen here. At the time this horse died, it was residing at Briere stable solely under the care of Briere stable. Briere stable
provided it with shelter, food, water, training, grooming, and on occasion arranged for its medical care and shoeing. Plaintiff
was not present at the *600 time to exercise any control over the horse. Accordingly, we conclude that when plaintiff delivered
his horse to Briere stable and left it in Briere stable’s care for safekeeping, a bailment arrangement arose.
Certainly, at the times when plaintiff had removed the horse from the stable, Briere stable no longer had physical possession
and control of the animal, and the bailment relationship was suspended or temporarily terminated. However, once plaintiff
returned the horse to the stable and he and his family left, his actual possessory control over the horse reverted to Briere stable
which once again assumed its exclusive actual possession and primary control over the animal, and the bailment resumed.
B.
court has explained:
A bailee who accepts responsibility for goods should have the burden of producing evidence as to the fate of those goods. To
hold otherwise would place an impossible burden on a plaintiff. How is a plaintiff to present sufficient evidence of conversion
when knowledge of the fate of the goods is available only to defendant?
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requiring that the horse be returned in “good condition” where, during the bailment, the horse came down with spinal
meningitis and was thereafter shot by an agent from the Society for the *602 Prevention of Cruelty to Animals over the bailee’s
protest, since an implied condition in the bailment was that the horse would continue to live). Based on this **1149 state of the
evidence, plaintiff cannot sustain his ultimate burden of proving that Briere stable is liable under a theory of conversion.
[19][20][21][22][23] We now turn to whether Briere stable may be held liable under a theory of negligence. In a bailment for
mutual benefit, a bailee has a duty to exercise reasonable care for the safekeeping of the subject of the bailment and will be
liable for any loss caused by its failure to do so. Charles Bloom & Co. v. Echo Jewelers, supra, 279 N.J.Super. at 380, 652 A.2d
1238. When proofs are presented showing that goods were damaged while in the care of a bailee, a presumption of negligence
arises and in those circumstances, a prima facie case is established against the bailee. McGlynn v. Parking Auth. of Newark, 86
N.J. 551, 556, 432 A.2d 99 (1981) (citing Bachman Chocolate Mfg. Co. v. Lehigh Warehouse & Transp. Co., 1 N.J. 239, 242, 62
A.2d 806 (1949) (proof that cocoa beans were damaged when stored in the bailee’s warehouse established a prima facie case of
negligence against the bailee)). The presumption of negligence, however, may be rebutted by the bailee “with evidence