No. 53 January 29, 2025 545
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
Laurie CUMMING,
Plaintiff-Appellant,
v.
Laurie NIPPING
and Kent Nipping,
Defendants-Respondents.
Lane County Circuit Court
161224954; A179012
Jay A. McAlpin, Judge.
Argued and submitted September 7, 2023.
Matthew J. Kalmanson argued the cause for appellant.
Also on the brief were Ruth A. Casby and Hart Wagner LLP.
No appearance by respondents.
Before Ortega, Presiding Judge, Powers, Judge, and
Hellman, Judge.
POWERS, J.
Reversed and remanded.
546 Cumming v. Nipping
POWERS, J.
Plaintiff challenges the trial court’s denial of prejudgment interest on her money award for the wrongful
transfer of $300,000 in trust assets to defendants. In a single assignment of error, plaintiff asserts that the trial court
erred by failing to award prejudgment interest under ORS
82.010(1)(a). As explained below, ORS 82.010(1)(a) requires
prejudgment interest when the amount and due date are
ascertainable. Here, plaintiff pleaded and proved the
amount due from defendants and the date on which that
amount was due. Accordingly, we reverse and remand.
We review the trial court’s decision on whether
to award prejudgment interest for errors of law. JH Kelly,
LLC v. Quality Plus Services, Inc., 305 Or App 565, 588,
472
P3d 280 (2020). This case is on appeal for the third time,
and we briefly recapitulate the pertinent facts, which are
described in more detail in our prior decisions. See Cumming
v. Nipping,
285 Or App 233, 234-35,
395 P3d 298 (2017)
(Cumming I); Cumming v. Nipping,
310 Or App 780, 781-85,
rev den,
368 Or 787 (2021) (Cumming II). During their marriage, plaintiff’s father and stepmother, Whiteneck, created
a trust. Plaintiff’s father died in 1999, and the trust split
into two trusts, Trust A, a revocable trust known as the
survivor’s trust, and Trust B, an irrevocable trust known
as the tax credit trust. Whiteneck had unlimited access to
the income and principal from Trust A. Access to Trust B
was more limited such that Whiteneck could use only “as
much of the net income” from Trust B “as the trustee, in the
trustee’s discretion, shall deem necessary for [Whiteneck’s]
proper health, maintenance, support and education,” taking into consideration her other income and resources as
the trustee deems advisable. At all relevant times, the only
asset in Trust B was a condominium in California known as
“Seagate.” Whiteneck had discretion to encumber Seagate
with a mortgage “for any valid trust purpose.” Under the
terms of the trust, upon Whiteneck’s death, the assets in
Trust B were to go to plaintiff and plaintiff’s children, subject to any valid encumbrances.
In 2008, Whiteneck moved to Oregon to be closer
to her granddaughter and granddaughter’s husband, Laurie
Cite as 337 Or App 545 (2025) 547
and Kent Nipping, defendants in this appeal. Wanting
Whiteneck to live with them, defendants found a farmhouse—the Kropf property—that they wanted to buy and fix
up because it was big enough for all of them to live together.
The property did not qualify for conventional financing due
to its deteriorated condition, and thus it had to be bought
with cash. Defendants suggested that Whiteneck borrow $300,000 against Seagate to purchase it. Whiteneck
agreed. On October 7, 2010, Whiteneck took Seagate out of
the trust, and transferred the title from the trust to herself personally. She then obtained a mortgage on Seagate
in her own name and put Seagate—now encumbered by a
$300,000 mortgage—back into the trust via another change
of title. Whiteneck then used the $300,000 from the mortgage to buy the Kropf property, deeding a one-half interest
to herself and a one-half interest to defendants.
After Whiteneck’s death, defendants inherited her
personal one-half interest under the terms of her will, and
plaintiff obtained title to Seagate. Sometime later, plaintiff
discovered the $300,000 mortgage on Seagate, after it had
gone unpaid for nearly a year, such that Seagate was about
to go into foreclosure. Plaintiff filed this action, asserting as
pertinent here, that defendants had been unjustly enriched
by Whiteneck’s violation of the terms of the trust. Plaintiff’s
lawsuit sought, among other relief, that defendants be
required to pay off the promissory note and reimburse any
note payments made by plaintiff plus prejudgment interest,
or, alternatively, the Kropf property be recognized as subject
to a constructive trust.
The trial court denied plaintiff’s claim for unjust
enrichment, concluding that it was not inequitable and it
would not shock the conscience if defendant retained the
Kropf property. Cumming I, 285 Or App at 235-37. On
appeal, we concluded that the trial court did not apply the
correct standard to evaluate an unjust enrichment claim,
and we vacated the judgment and remanded the case back
to the trial court to analyze plaintiff’s claim under the legal
standard described in Tupper v. Roan,
349 Or 211,
243 P3d
50 (2010) (explaining that to establish an unjust enrichment
claim, the plaintiff must show (1) the property interest that
548 Cumming v. Nipping
rightfully belongs to the plaintiff was taken or obtained by
someone else under circumstances that were in some sense
wrongful or inequitable, (2) the person who now possesses
the property is not a bona fide purchaser for value and without notice, and (3) by clear and convincing evidence that the
property in the hands of that person is the very property
that rightfully belongs to the plaintiff or is a product of or
substitute for that property). Cumming I,
285 Or App at
241-42. On remand, the trial court made findings of fact
based on the original trial record, applied the Tupper standard, and again denied plaintiff’s unjust enrichment claim.
Cumming II,
310 Or App at 784-85. Plaintiff appealed for a
second time.
We again reversed and remanded the case, concluding that plaintiff satisfied the Tupper standard and thus
established her unjust enrichment claim. Id. at 781, 789-93.
On remand for the second time, plaintiff moved
for entry of judgment, electing as her remedy the pleaded
request for the recovery of money including prejudgment
interest. Plaintiff argued that prejudgment interest was
mandatory because there was no dispute about how much
was taken and that the money that was wrongfully taken
on October 7, 2010, was due back that same day, thereby
satisfying the only requirements to prejudgment interest
under ORS 82.010(1)(a). Defendants objected, arguing that
(1) ORS 82.010(1) did not apply because unjust enrichment
is not a “transaction” within the meaning of the statute;
(2) ORS 82.010(1) did not apply because plaintiff’s money
award arose from a claim in equity; and (3) the trial court
had discretion in whether or not to award prejudgment interest and that the court should deny the request because there
was no malice by defendants and the length of time that it
took to resolve the case.1 Plaintiff replied that a showing
of malice was not needed to prove entitlement to prejudgment interest and that the “transaction” was the wrongful
1
Defendants made the second argument despite the guidance provided in Jones
v. Dorsey, 193 Or App 688, 692,
91 P3d 762 (2004) (explaining that the prejudgment
interest rule described in Public Market Co. v. Portland,
171 Or 522, 625,
138 P2d
916 (1943), applies to both legal and equitable claims), and Smith v. Williams,
98 Or
App 258, 263,
779 P2d 1057 (1998) (explaining that “[t]he character of the damages,
not the claim, is the determinative factor in awarding prejudgment interest”).
Cite as
337 Or App 545 (2025) 549
burdening of Seagate with a mortgage and taking of equity
in the property. Plaintiff reiterated that, because the date
and sum of the mortgage—or the “transaction”—were certain, there was sufficient proof of entitlement to prejudgment interest.
The trial court awarded plaintiff a money judgment but denied prejudgment interest, concluding that ORS
82.010(1)(a) did not apply. The court reasoned that there was
not a transaction within the meaning of the statute, and
that the statute did not cover circumstances in which the
transaction and the due date are contemporaneous. Plaintiff
timely appeals.
On appeal, plaintiff argues that the trial court
erred because an award of prejudgment interest is mandatory when, as here, the exact amount and the due date are
certain, and there is a transaction within the meaning of
ORS 82.010(1). Defendants did not file an answering brief
and thereby waived appearance on appeal.2 See ORAP 5.60
(providing that, “[i]f the respondent files no brief, the cause
will be submitted on the appellant’s opening brief”). As
explained below, we conclude that there was a transaction
within the meaning of ORS 82.010(1) under these circumstances, and because the amount and due date are certain,
the trial court was required to award prejudgment interest.
ORS 82.010 provides, in part:
“(1) The rate of interest for the following transactions,
if the parties have not otherwise agreed to a rate of interest, is nine percent per annum and is payable on:
“(a) All moneys after they become due[.]”
Prejudgment interest is payable when the exact amount
is either ascertained or ascertainable by simple computation, and the time from which interest must run—the time
when the “moneys … become due”—can be ascertained.
Public Market Co. v. Portland, 171 Or 522, 625,
138 P2d 916
(1943). The character of the damages, not the claim, is the
2
Defendants, who were no longer represented by counsel, did file a one-page
letter with the court that was made part of the appellate record.
550 Cumming v. Nipping
determinative factor in awarding prejudgment interest,
and the action need not be on a contract. Smith v. Williams,
98 Or App 258, 263,
779 P2d 1057 (1998); see also Mayer
v. Bassett,
263 Or 334, 349,
501 P2d 782 (1972) (concluding
that when the parties are in equity, ORS 82.010(1)(a) provides a right to prejudgment interest). Moreover, the allowance of prejudgment interest is not a matter of judicial discretion and is required by ORS 82.010(1)(a) on “all moneys
after they become due.” Highway Comm. v. DeLong Corp.,
275 Or 351, 357 n 2,
551 P2d 102 (1976) (internal quotation
marks omitted).
Here, there is no dispute that the amount taken was
$300,000, which was used to invest in the Kropf property.
Furthermore, there is no dispute that the date it was taken
was October 7, 2010, which is when the debt was incurred
and the duty to pay back the trust arose. Thus, plaintiff
proved the exact amount due and the time it became due.
Accordingly, ORS 82.010(1)(a) requires that prejudgment
interest be awarded to plaintiff.
To the extent that the trial court concluded that the
transaction was not covered by ORS 82.010(1), that conclusion is not supported by the statute or our caselaw. Although
the term “transaction[ ]” is not defined by statute for purposes of ORS 82.010(1), plaintiff asserts that wrongfully
taking the property out of the trust to encumber it with a
mortgage and placing it back into the trust was a transaction that falls within ORS 82.010(1). We need not analyze the full scope of what is a transaction for purposes of
ORS 82.010(1). For purposes of this case, we conclude that
it is clear that wrongfully burdening Seagate with a mortgage qualifies as a transaction. See Smith, 98 Or App at
263 (explaining that it is the character of the damages, not
the claim, that is the determinative factor in awarding prejudgment interest, and the action need not be on a contract).
Accordingly, that action was a transaction within the scope
of the statute.
Furthermore, to the extent that the trial court concluded that the statute does not contemplate scenarios when
the transaction and the due date are contemporaneous, we
reject that determination. Application of ORS 82.010(1)(a)
Cite as 337 Or App 545 (2025) 551
turns on whether the due date and exact amount are ascertainable; it does not specify that the date of the transaction and the due date cannot be the same date. Indeed, the
Oregon Supreme Court recognized nearly 50 years ago that
ORS 82.010(1)(a) does not allow for judicial discretion and
requires prejudgment interest on all moneys after they
become due. See DeLong Corp.,
275 Or at 357 n 2.
Ultimately, because ORS 82.010(1)(a) requires prejudgment interest when the amount and due date are ascertainable, and because plaintiff pleaded and proved the
amount due from defendants and the date from which it was
due, the trial court erred in denying prejudgment interest.
Reversed and remanded.
