A.L.L. Roofing & Building Materials Corp. v. Community Bank

Opinion

JOHNSON, J.

A.L.L. Roofing and Building Materials Corp. (A.L.L.) sued Community Bank for conversion and for money had and received. A.L.L. claimed the bank honored a series of checks on which A.L.L.’s indorsement was forged. The trial court granted A.L.L.’s motion for summary judgment and entered a judgment for A.L.L. in the sum of the forged checks plus interest. The bank’s only contention on appeal is the interest was improperly computed.

A.L.L. has moved to dismiss the bank’s appeal as moot. It contends its claim was voluntarily paid in full by the bank prior to entry of judgment, the judgment having been inadvertently entered by the court. For the reasons set forth below, we dismiss the appeal as moot.

From the record on appeal and the uncontroverted declarations of A.L.L.’s attorney and his secretary in support of the motion to dismiss, the following facts appear.

An order granting summary adjudication of issues in favor of A.L.L. was filed in February 1984. This order included a finding the bank “is liable to A.L.L. for interest at the legal rate from the date of conversion . . . (legal rate 7% until July 1, 1982, 10% thereafter.).” The interest rate used by the court is one of the issues in the bank’s appeal. (See

Pacific-Southern Mortgage Trust Co.

v.

Insurance Co. of North America

(1985) 166 Cal.App.3d 703, 716 [212 Cal.Rptr. 754].)

The bank attempted to appeal this order. The appeal was dismissed. After the remittitur issued, A.L.L. filed an almost identical motion for summary

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judgment in March 1985. In that motion A.L.L. claimed interest at 10 percent after December 15, 1983, and set forth the amount of interest accruing daily at that rate. The bank filed no written opposition to the motion and did not appear at the hearing. The court, again, granted the motion and directed A.L.L. to prepare a judgment. On April 15, 1985, a proposed judgment was sent to the court with a copy to the bank’s attorney. The proposed judgment included the interest previously calculated in the February 1984 order (part at 7 percent, part at 10 percent) “plus interest at 10% from December 16, 1983 to April 10, 1985 . . . .”