NO. COA14-573 NORTH CAROLINA COURT OF APPEALS Filed: 31 December 2014 ANTONIO STEELE, Plaintiff,
Orange County v. No. 12 CVD 1048
TAMMY BOWDEN, ALAMANCE TOWING & RECOVERY, JOHN DOE I, d/b/a ALAMANCE TOWING & RECOVERY, and JOHN DOE II, Defendants.
Appeal by defendant from order entered 29 October 2013 and
judgment entered 12 November 2013 by Judge James T. Bryan in
Orange County District Court. Heard in the Court of Appeals 22
October 2014.
Barry Nakell for Plaintiff.
Perry, Perry & Perry, P.A., by Maria T. Singleton, for Defendant.
ERVIN, Judge.
Defendant Tammy Bowden appeals from an order granting
partial summary judgment in favor of Plaintiff Antonio Steele
with respect to the conversion and trespass to personal property
claims that he asserted against Defendant and from a judgment
awarding Plaintiff a total of $10,570 in compensatory and
punitive damages. On appeal, Defendant argues that the trial -2- court erred by granting partial summary judgment in Plaintiff’s
favor with respect to his conversion and trespass to personal
property claims on various procedural and substantive grounds,
depriving her of the right to give sworn oral testimony at the
summary judgment hearing, refusing to accept the oral statements
that she made in open court in opposition to Plaintiff’s summary
judgment motion as evidence, refusing to submit the issues
raised by her counterclaim to the jury, impermissibly presenting
the jury with an “alternative verdict” form, incorrectly
instructing the jury concerning the law applicable to conversion
and trespass to personal property claims, submitting the issue
of punitive damages to the jury absent evidence that Defendant
had acted maliciously, allowing the jury to award damages to
Plaintiff despite the absence of sufficient evidence of the
value of the vehicle in question, and granting Plaintiff’s
motion in limine seeking the exclusion of documents that should
have been admitted into evidence. After carefully considering
Defendant’s challenges to the trial court’s order and judgment
in light of the record and the applicable law, we conclude that
the trial court’s order and judgment should be affirmed in part,
that the trial court’s judgment should be reversed in part, and
that this case should be remanded to the Orange County District -3- Court for further proceedings not inconsistent with this
opinion.
I. Factual Background
A. Substantive Facts
Plaintiff and Defendant were married in 2004 and divorced
in 2009. In January 2005, the two of them purchased a 2002 Ford
Expedition that was financed using a loan that had been obtained
from Santander Consumer USA. Defendant co-signed the loan with
Plaintiff and the vehicle obtained as a result of the making of
the loan was titled to both parties.
In the course of the process by which they parted company,
the parties’ entered an oral agreement under which Plaintiff
would retain the vehicle, make timely payment as required by the
loan agreement, and have Defendant’s name removed from both the
title to the vehicle and the loan agreement. Pursuant to this
agreement, Plaintiff retained possession of the vehicle and made
all of the remaining loan payments except for the final one.
However, Plaintiff did not obtain the removal of Defendant’s
name from the title and the loan agreement or make all of the
payments under the loan in a timely manner. As a result, an
unpaid balance of $1,989.23 existed at the time that the loan
should have been paid off. -4- Plaintiff continued to make payments against the
outstanding balance under the loan after the date by which the
full amount should have been paid in a total amount of
$1,374.64, effectively leaving an outstanding balance of $694.62
due and owing under the loan agreement. Before Plaintiff
completed the payment process, Defendant made the final payment
by means of a check drawn on 28 March 2011 in the amount of
$699.62. According to Defendant, Santander contacted her when
Plaintiff failed to make timely payment under the loan and she
eventually made the final payment herself in order to protect
her access to credit.
After having made the final loan payment, Defendant
attempted to “repossess” the vehicle from Plaintiff in March
2011 by hiring a towing company to remove the vehicle from
Plaintiff’s property. Plaintiff thwarted this attempted
“repossession” by spotting the approaching tow truck and driving
away at a high rate of speed. However, Plaintiff hit a curb and
damaged the vehicle in the course of thwarting the
“repossession.” Defendant made a second attempt to “repossess”
the vehicle in March or April 2011 and succeeded in obtaining
possession of the vehicle on that occasion. Defendant claimed
that she had made these efforts to “repossess” the vehicle in -5- order to encourage Plaintiff to reimburse her for the amount of
the final loan payment.
After obtaining possession of the vehicle, Defendant had an
auto mechanic repair the damage that had occurred during the
first “repossession” attempt. However, Defendant was unable to
pay the mechanic for the required repairs. As a result, the
vehicle was sold as part of the process of enforcing a
repairman’s lien.
B. Procedural History
On 11 July 2012, Plaintiff filed a complaint against
Defendant, John Doe I doing business as Alamance Towing and
Recovery, and John Doe II in which he asserted claims for
conversion and assault and requested an award of compensatory
and punitive damages. On 20 September 2012, Defendant filed an
answer in which she denied the material allegations of
Plaintiff’s complaint, asserted that she had a legal right to
take possession of the vehicle arising from Plaintiff’s failure
to make required loan payments, and requesting “reimbursement”
for the amount of the loan balance.
On 16 November 2012, Plaintiff filed a motion seeking the
entry of judgment on the pleadings. Judge Lunsford Long entered
an order denying Plaintiff’s motion for judgment on the
pleadings on 9 January 2013. On 25 June 2013, Judge Beverly A. -6- Scarlett entered an order allowing Plaintiff to amend his
complaint to add a claim for trespass to real property. On 5
September 2013, Plaintiff filed a motion seeking the entry of
partial summary judgment in his favor with respect to the issue
of liability. On 29 October 2013, the trial court entered an
order granting Plaintiff’s motion with respect to the conversion
and trespass to personal property claims and ordering that the
amount of damages to which Defendant was entitled on the basis
of his claims for conversion and trespass to personal property
be determined by a jury. On the same date, Plaintiff
voluntarily dismissed his claims against Alamance Towing and
Recovery and John Doe II.1
This case came on for trial before the trial court and a
jury at the 29 October 2013 civil session of the Orange County
District Court. At the beginning of the trial, the trial court
recognized that Plaintiff had withdrawn his assault claim. On
30 October 2013, the jury returned a verdict awarding $10,320 in
compensatory damages for Defendant’s conversion of or trespass
to the vehicle and $250 in punitive damages. The trial court
entered a final judgment based on the jury’s verdict on 12
1 As a result of the fact that Alamance Towing and Recovery was also named as John Doe I, the voluntary dismissal removed all of the defendants named in the complaint and amended complaint from this case except Defendant. -7- November 2013. Defendant noted an appeal to this Court from the
trial court’s order and judgment.
II. Substantive Legal Analysis
A. Summary Judgment Order
In her brief, Defendant contends that the trial court erred
by granting summary judgment in Plaintiff’s favor with respect
to his conversion and trespass to personal property claims.
More specifically, Defendant contends that the granting of
Plaintiff’s summary judgment motion was precluded by Judge
Long’s refusal to enter judgment on the pleadings in Plaintiff’s
favor and that the record discloses the existence of genuine
issues of material fact concerning the extent to which Defendant
was entitled to forcibly take the vehicle from Plaintiff’s
possession sufficient to require a jury trial with respect to
the issue of her liability for conversion and trespass to
personal property. Defendant’s contentions are without merit.
1. Standard of Review
“Our standard of review of an appeal from summary judgment
is de novo; such judgment is appropriate only when the record
shows that ‘there is no genuine issue as to any material fact
and that any party is entitled to judgment as a matter of law.’”
In re Will of Jones, 362 N.C. 569, 573, 669 S.E.2d 572, 576
(2008) (quoting Forbis v. Neal, 361 N.C. 519, 524, 649 S.E.2d -8- 382, 385 (2007)). “A ‘genuine issue’ is one that can be
maintained by substantial evidence. The showing required for
summary judgment may be accomplished by proving an essential
element of the opposing party’s claim does not exist, cannot be
proven at trial, or would be barred by an affirmative defense.”
Dobson v. Harris, 352 N.C. 77, 83, 530 S.E.2d 829, 835 (2000)
(internal citations omitted).
2. Defendant’s Challenges to the Summary Judgment Order
a. Collateral Estoppel and Overruling Prior Order
As an initial matter, Defendant contends that the trial
court lacked the authority to grant summary judgment with
respect to Plaintiff’s claims on the grounds that those claims
had previously been argued and adjudicated before a different
trial judge in violation of the principle of collateral estoppel
and the rule that one judge cannot overrule another judge of
equal authority. In support of this contention, Defendant notes
that Judge Long denied Plaintiff’s motion for judgment on the
pleadings with respect to Plaintiff’s substantive claims by
means of an order entered on 9 January 2013. Defendant’s
contention lacks merit.
“[A] claim cannot be barred by res judicata or collateral
estoppel unless it was litigated to final judgment in a prior
action.” Jonesboro United Methodist Church v. Mullins-Sherman -9- Architects, L.L.P., 359 N.C. 593, 601, 614 S.E.2d 268, 273
(2005). In view of the fact that Judge Long’s order denying
Plaintiff’s motion for judgment on the pleadings was neither
entered in a separate action or constituted a final judgment,
that order does not have collateral estoppel effect.
Defendant’s claim that Judge Bryan improperly overruled
Judge Long is devoid of merit as well. “It is well established
that one [district] court judge may not ordinarily modify,
overrule, or change the judgment or order of another [district]
court judge previously entered in the same case.” In re
Royster, 361 N.C. 560, 563, 648 S.E.2d 837, 840 (2007). In
considering a motion for judgment on the pleadings, the trial
court is required to look to the face of the pleadings to
determine whether the movant is entitled to judgment as a matter
of law, with all of the factual allegations in the nonmovant’s
pleadings being deemed to have been admitted except to the
extent that they are legally impossible or not admissible in
evidence. Governor’s Club, Inc. v. Governors Club Ltd.
Partnership, 152 N.C. App. 240, 247, 567 S.E.2d 781, 786 (2002),
aff’d, 357 N.C. 46, 577 S.E.2d 620 (2003). “By contrast, when
considering a summary judgment motion, the trial court must look
at more than the pleadings; it must also consider additional
matters such as affidavits, depositions and other specified -10- matters outside the pleadings.” Locus v. Fayetteville State
University, 102 N.C. App. 522, 527, 402 S.E.2d 862, 866 (1991).
Thus, “the denial of a motion [for judgment on the pleadings],
which merely challenges the sufficiency of the [pleadings], does
not prevent the court’s allowing a subsequent motion for summary
judgment based on affidavits outside the complaint.” Alltop v.
J.C. Penney Co., 10 N.C. App. 692, 694, 179 S.E.2d 885, 887,
cert. denied, 279 N.C. 348, 182 S.E.2d 580 (1971). As a result,
Judge Bryan’s decision to grant summary judgment in Plaintiff’s
favor did not constitute the overruling of Judge Long’s order
denying Plaintiff’s motion for judgment on the pleadings.
In apparent recognition of this potential defect in her
argument, Defendant contends that the argument that Plaintiff
made in support of his judgment on the pleadings relied on
information that was not contained in the pleadings, thereby
converting Plaintiff’s motion for judgment on the pleadings into
one for summary judgment. See Weaver v. Saint Joseph of the
Pines, Inc., 187 N.C. App. 198, 203, 652 S.E.2d 701, 707 (2007)
(stating that “a motion [lodged pursuant to N.C. Gen. Stat. §
1A-1, Rule 12(b)(6)] is converted to one for summary judgment if
matters outside the pleading are presented to and not excluded
by the court”) (internal quotation marks omitted). “Ordinarily,
if . . . the trial court considers matters outside the -11- pleading[s], the motion shall be treated as one for summary
judgment and disposed of as provided in [N.C. Gen. Stat. § 1A-
1,] Rule 56.” However, in the event that “the matters outside
the pleading[s] considered by the trial court consist only of
briefs and arguments of counsel, the trial court need not
convert the [motion] into one for summary judgment.” Governor’s
Club, 152 N.C. App. at 245-46, 567 S.E.2d at 785 (internal
quotation marks and citations omitted).
At the hearing held for the purpose of considering
Plaintiff’s motion for judgment on the pleadings, both parties
made reference to facts not contained in the pleadings or in
their oral arguments. However, the trial court was not
presented with, and did not review, any evidentiary materials
such as affidavits, deposition transcripts, or documents, in the
course of deciding whether to grant or deny Plaintiff’s motion
for judgment on the pleadings. For that reason, the trial
court’s ruling denying Plaintiff’s motion for judgment on the
pleadings did, in fact, represent a ruling made with respect to
a motion for judgment on the pleadings rather than with respect
to a motion for summary judgment. As a result, the trial court
was not precluded from granting Plaintiff’s summary judgment
motion for either of the reasons stated in Defendant’s brief.
b. Conversion Claim -12- Secondly, Defendant contends that the trial court erred by
granting summary judgment in Plaintiff’s favor with respect to
his conversion claim. More specifically, Defendant argues that
the trial court erred by granting summary judgment in favor of
Plaintiff with respect to his conversion claim on the grounds
that the record disclosed the existence of genuine issues of
material fact concerning the extent to which Defendant had a
lawful right to “repossess” the vehicle. Defendant’s contention
lacks merit.
“[C]onversion is 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.” Myers v.
Catoe Constr. Co., 80 N.C. App. 692, 695, 343 S.E.2d 281, 283
(1986). “[T]wo essential elements are necessary in a claim for
conversion: (1) ownership in the plaintiff, and (2) a wrongful
conversion by the defendant.” Bartlett Milling Co., L.P. v.
Walnut Grove Auction & Realty Co., Inc., 192 N.C. App. 74, 86,
665 S.E.2d 478, 489, disc. review denied, 362 N.C. 679, 669
S.E.2d 741 (2008). In cases involving personal property owned
jointly by multiple individuals as tenants in common, “where the
tenant in possession of personal chattels withholds the common
property from his co-tenant, or wrests it from him and exercises -13- a dominion over it, either in direct denial of or inconsistent
with the rights of the latter, an action will lie for
conversion.” Bullman v. Edney, 232 N.C. 465, 468, 61 S.E.2d
338, 340 (1950).
A careful review of the record convinces us that Defendant
has not forecast any evidence that, if accepted as true, would
support a decision in her favor with respect to Plaintiff’s
conversion claim. Simply put, all of the evidence presented for
the trial court’s consideration at the summary judgment hearing
tends to show that Defendant, who owned the vehicle in question
jointly with Plaintiff as tenants in common, took forcible
possession of that vehicle from Plaintiff without Plaintiff’s
consent. Although “it is difficult to draw or trace the shadowy
line that marks the limit to which a tenant in common may go in
the exercise of control over the common property without
subjecting himself to liability for conversion,” Waller v.
Bowling, 108 N.C. 289, 295, 12 S.E. 990, 992 (1891), Defendant
has not identified the existence of any facts that would have
authorized her to forcibly “repossess” the vehicle, and none are
apparent on the face of the record. Simply put, while Defendant
may have had a legal or equitable interest in the vehicle,
Defendant has not cited any authority indicating that she had
the right to forcibly take that vehicle from Plaintiff given his -14- status as a co-owner. As a result, since the undisputed
evidence contained in the record establishes that Defendant’s
conduct did not involve actions near the “shadowy line”
referenced in Waller, the trial court did not err by granting
summary judgment in Plaintiff’s favor with respect to his
conversion claim.
c. Trespass to Personal Property Claim
Similarly, Defendant contends that the trial court erred by
granting summary judgment in Plaintiff’s favor with respect to
his trespass to personal property claim. Once again, Defendant
contends that the record reflects the existence of genuine
issues of material fact concerning the extent to which she had a
right to “repossess” the vehicle. Defendant’s argument is
unpersuasive.
“A successful action for trespass to chattels requires the
party bringing the action to demonstrate that she had either
actual or constructive possession of the personalty or goods in
question at the time of the trespass, and that there was an
unauthorized, unlawful interference or dispossession of the
property.” Fordham v. Eason, 351 N.C. 151, 155, 521 S.E.2d 701,
704 (1999) (internal citation omitted). “The key to assessing
possession under a trespass to chattel claim is determining if
there is a right to present possession whenever so desired or a -15- right to immediate possession.” Id. Moreover, “[i]n a trespass
action a defendant may assert that the entry was lawful or under
legal right as an affirmative defense.” Singleton v. Haywood
Elec. Membership Corp., 357 N.C. 623, 628, 588 S.E.2d 871, 874
(2003). As a result, given that Plaintiff had actual possession
of the vehicle at the time that it was taken, the ultimate
question raised by Plaintiff’s trespass to personal property
claim is whether “there was an unauthorized, unlawful
interference or dispossession of the property.” Fordham, 351
N.C. at 155, 521 S.E.2d at 704.
In her brief, Defendant argues that, as a co-owner of the
vehicle, she had the authority to take possession of the vehicle
from Plaintiff. As an initial matter we must note that, instead
of pointing to the existence of a disputed factual issue,
Defendant’s argument is nothing more or less than a statement of
what she believes the legal effect of the essentially undisputed
facts to be. In light of that fact, the proper course for us to
take in the event that we were to accept Defendant’s argument as
persuasive would be for us to reverse the trial court’s judgment
and remand this case for the entry of judgment in Defendant’s
favor rather than to order a new trial. Thus, the ultimate
issue raised by Defendant’s argument is one of law rather than
one of fact. -16- As we have already noted, a claim for conversion is
available in the event that “the tenant in possession of
personal chattels withholds the common property from his co-
tenant, or wrests it from him and exercises a dominion over it.”
Bullman, 232 N.C. at 468, 61 S.E.2d at 340. Although the
principle set forth in Bullman was enunciated in the context of
a conversion claim, we are unable to see why a different rule
should be applicable in trespass to personal property cases. As
the Supreme Court has stated in the landlord-tenant context, our
laws, instead of permitting someone “to take the law into [her]
own hands,” require that a “remedy . . . be sought through those
peaceful agencies which a civilized community provides to all
its members.” Spinks v. Taylor, 303 N.C. 256, 262, 278 S.E.2d
501, 505 (1981). In the event that we were to accept
Defendant’s implicit assertion that the principle enunciated in
Bullman did not apply in trespass to personal property cases,
“it must necessarily follow as a logical sequence, that so much
[force] may be used as shall be necessary to overcome
resistance, even to the taking of human life,” Spinks, 303 N.C.
at 263, 278 S.E.2d at 505, in the course of the private
“repossession” of an item of personal property, resulting in an
untenable situation in which the parties would be allowed to
engage in an escalating cycle of violence during which each co- -17- owner would be entitled to forcibly take the jointly owned
property from the other co-owner in turn. As a result, instead
of allowing one co-owner to forcibly seize property from another
co-owner, we believe that a co-owner of jointly owned property
“may not [take possession] against the will of the [other
owner],” with “an objection by the [other owner being
sufficient to] elevate[] the [retaking] to a forceful one,”
leaving “the [co-owner’s] sole legal recourse [to be] to the
courts.” Id. at 263, 278 S.E.2d at 505.
The mere taking of an item of jointly held property,
standing alone, is not sufficient to support the maintenance of
an action for trespass to personal property. Instead, since
“[o]ne tenant in common of a personal chattel has as much right
to the possession of it as the other,” “one tenant in common
cannot maintain [an action for] trespass or trover against his
cotenant without showing that the cotenant has destroyed the
joint property.” Lucas v. Wasson, 14 N.C. 398, 399 (1832); see
also Rice v. Bennington County Sav. Bank, 93 Vt. 493, 503, 108
A. 708, 712 (1920) (stating that “[a] joint tenant of personal
property has such title thereto that he may maintain an action
against a co-tenant who sells or destroys the same.”) (citing
Lucas, 14 N.C. at 398). However, since Defendant allowed the
vehicle to be sold for the purpose of satisfying a lien, “such a -18- disposition of it [was] made as to prevent [Plaintiff] from
recovering it.” Thompson v. Silverthorne, 142 N.C. 12, 14, 54
S.E. 782, 782 (1906) (quoting Grim v. Wicker, 80 N.C. 343, 344
(1879))2. As a result, Plaintiff was entitled to maintain a
claim for trespass to personal property against Defendant
despite Defendant’s status as co-owner of the vehicle.
Although Defendant contends that she was entitled to
“repossess” the vehicle based upon an agreement that she had
reached with Plaintiff, her assertion to that effect does not
justify a decision to overturn the trial court’s award of
summary judgment in Plaintiff’s favor. Assuming, without in any
way deciding, that such an oral agreement between the parties
would be enforceable, Defendant’s assertions relating to this
alleged agreement do not suffice to preclude the entry of
summary judgment in Plaintiff’s favor with respect to the
trespass to personal property claim given the absence of any
evidence tending to show that such an agreement ever existed.
According to well-established North Carolina law, when a
moving party has met his burden of showing that he is entitled
2 Aside from the fact that Defendant, rather than Plaintiff, sent the vehicle for repairs and incurred responsibility for paying the resulting bill, Defendant never argued in her brief that Plaintiff’s ability to redeem the vehicle precluded the maintenance of a claim for trespass to personal property. Viar v. N.C. Dept. of Transp., 359 N.C. 400, 402, 610 S.E.2d 360, 361 (2005). -19- to an award of summary judgment in his favor, the non-moving
party cannot rely on the allegations or denials set forth in her
pleading, Ind-Com Elec. Co. v. First Union Nat. Bank, 58 N.C.
App. 215, 217, 293 S.E.2d 215, 216-17 (1982), and must, instead,
forecast sufficient evidence to show the existence of a genuine
issue of material fact in order to preclude an award of summary
judgment. Dobson, 352 N.C. at 83, 530 S.E.2d at 835; see also
N.C. Gen. Stat. § 1A-1, Rule 56(e) (providing that, “[w]hen a
motion for summary judgment is made and supported as provided in
this rule, an adverse party may not rest upon the mere
allegations or denials of his pleading, but his response, by
affidavits or as otherwise provided in this rule, must set forth
specific facts showing that there is a genuine issue for
trial”). A careful review of the record has persuaded us that
Defendant adduced no facts at the summary judgment hearing
tending to show the existence of an agreement of the sort upon
which she seeks to rely in opposition to Plaintiff’s motion.
Instead, Defendant simply relied on her assertion that Plaintiff
“defaulted on payments on the 2002 Ford Expedition and the
finance company contacted her for the balance of the loan since
Plaintiff . . . had defaulted.” Thus, given the complete
absence of any evidence tending to show the existence of an
agreement like the one upon which Defendant has attempted to -20- rely, the trial court did not err by granting Plaintiff’s
request for an award of summary judgment in his favor with
respect to his trespass to personal property claim. As a
result, Defendant is not entitled to relief from the trial
court’s summary judgment order on the basis of this contention.
B. Defendant’s Other Claims
1. Oral Testimony at Summary Judgment Hearing
by depriving her of the right to give sworn oral testimony at
the summary judgment hearing and by refusing to accept the
statements that she made in open court in opposition to
Plaintiff’s summary judgment motion as evidence. Defendant’s
argument is unpersuasive.
As a general proposition, evidence is presented at a
hearing convened to address the merits of a summary judgment
motion “through depositions, answers to interrogatories,
admissions on file, documentary materials, further affidavits,
or oral testimony in some circumstances.” Strickland v. Doe,
156 N.C. App. 292, 295, 577 S.E.2d 124, 128, disc. review
denied, 357 N.C. 169, 581 S.E.2d 447 (2003). Although “[o]ral
testimony at a hearing on a motion for summary judgment may be
offered,” “the trial court is only to rely on such testimony in
a supplementary capacity, to provide a ‘small link’ of required -21- evidence, but not as the main evidentiary body of the hearing.”
Id. at 296, 577 S.E.2d at 129. In addition, the extent to which
oral testimony is admitted at a summary judgment hearing is a
matter within the trial court’s discretion. Pearce Young Angel
Co. v. Don Becker Enterprises, Inc., 43 N.C. App. 690, 692, 260
S.E.2d 104, 105 (1979). “Generally, the test for abuse of
discretion is whether a decision is manifestly unsupported by
reason, or so arbitrary that it could not have been the result
of a reasoned decision.” Frost v. Mazda Motor of America, Inc.,
353 N.C. 188, 199, 540 S.E.2d 324, 331 (2000) (internal
quotation marks and citation omitted).
As the record clearly reflects, Defendant did not submit
any affidavits, depositions, or other evidentiary materials in
opposition to Plaintiff’s request for the entry of summary
judgment in his favor.3 Had the trial court allowed Defendant to
present oral testimony at the hearing, Defendant’s testimony
would not have constituted “supplementary” evidence for the
purpose of “provid[ing] a ‘small link’ of required evidence.”
Strickland, 156 N.C. App. at 296, 577 S.E.2d at 129. Instead,
Defendant’s testimony would have constituted Defendant’s entire
showing in response to Plaintiff’s summary judgment motion. In
light of this set of circumstances, we are unable to say that 3 Plaintiff did, however, submit Defendant’s deposition for the trial court’s consideration at the summary judgment hearing. -22- the trial court abused its discretion by denying Defendant’s
request that she be allowed to offer oral testimony at the
summary judgment hearing or by failing to consider Defendant’s
unsworn oral statements as evidence and do not believe that
Defendant is entitled to relief from the trial court’s summary
judgment order on the basis of this contention.
2. Counterclaim
Secondly, Defendant contends that the trial court erred by
failing to instruct the jury to address the merits of her
counterclaim, in which she sought reimbursement from Plaintiff
for the payments that she had made on the vehicle-related loan.
Defendant’s contention has merit.4
The trial court is required to submit to the jury those issues raised by the pleadings and supported by the evidence. An issue is supported by the evidence when there is substantial evidence, considered in the light most favorable to the non-movant, in support of that issue. Substantial evidence is such relevant evidence as a reasonable
4 Although Plaintiff contends that the jury heard Defendant’s contention that she was entitled to be reimbursed for the amount of the final loan payment and effectively considered this claim in the course of rendering its verdict for that reason, we are unable to accept this contention as valid given that careful scrutiny of the trial court’s instructions reveals that the jury was never told that it could consider Defendant’s reimbursement claim or adjust the amount of damages to be awarded to Plaintiff to reflect the fact that Defendant made the final payment. As a result, we are not persuaded by Plaintiff’s argument that Defendant’s reimbursement claim is adequately reflected in the jury’s verdict. -23- mind might accept as adequate to support a conclusion.
In re Estate of Ferguson, 135 N.C. App. 102, 105, 518 S.E.2d
796, 798 (1999) (internal quotation marks and citations
omitted). A litigant is entitled to relief on appeal when the
trial court’s refusal to submit an issue for the jury’s
consideration results in the creation of a bar to the litigant’s
recovery. See Brewer v. Harris, 279 N.C. 288, 298, 182 S.E.2d
345, 351 (1971) (holding that the issue of whether the
defendant’s willful and wanton conduct was sufficient to
preclude the rejection of the plaintiff’s personal injury claim
on contributory negligence grounds).
As an initial matter, we must determine whether Defendant
properly pled a counterclaim seeking reimbursement for the
payments that she made in connection with the vehicle-related
loan in her responsive pleading. According to N.C. Gen. Stat. §
1A-1, Rule 8(a), a pleading that attempts to assert a
counterclaim must contain (1) “[a] short and plain statement of
the claim sufficiently particular to give the court and the
parties notice of the transactions, occurrences, or series of
transactions or occurrences, intended to be proved showing that
the pleader is entitled to relief” and (2) “[a] demand for
judgment for the relief to which he deems himself entitled.”
N.C. Gen. Stat. § 1A-1, Rule 8(a). The fact that the defendant -24- may have failed to explicitly indicate that he or she is
asserting a counterclaim is irrelevant, since N.C. Gen. Stat. §
1A-1, Rule 8(c), provides that, “[w]hen a party has mistakenly
designated a defense as a counterclaim or a counterclaim as a
defense, the court, on terms, if justice so requires, shall
treat the pleading as if there had been a proper designation.”
See also Hunt v. Hunt, 117 N.C. App. 280, 283, 450 S.E.2d 558,
561 (1994).
A careful review of the record establishes that Defendant’s
answer asserted a counterclaim that complied with the provisions
of N.C. Gen. Stat. § 1A-1, Rule 8(a), given that it alleged that
“Defendant had to pay the balance of the loan as the co-signer
in the amount of approximately $1,000 in which the Plaintiff now
owes the Defendant” and requested “[r]eimbursement in the amount
in excess of $5,000 for loan balance, harassment, mental
anguish, malicious damages.” Although Defendant did not
specifically designate this set of statements as a counterclaim,
we believe that considerations of simple “justice require[] that
the trial court treat the defendant’s pleadings as a[n attempt
to assert a] counterclaim,” Hunt, 117 N.C. App. at 283, 450
S.E.2d at 561, and that the trial court erred by apparently
reaching a contrary conclusion. -25- In addition to having sufficiently pled the facts upon
which she relied in support of her counterclaim and request for
an award of relief, Defendant’s allegations alleged a valid
basis for the recovery of damages.
Unjust enrichment is based upon the equitable principle that a person should not be permitted to enrich himself unjustly at the expense of another. [A] person who has been unjustly enriched at the expense of another is required to make restitution to the other. A claim of this type is neither in tort nor contract but is described as a claim in quasi contract or a contract implied in law.
Hinson v. United Financial Services, Inc., 123 N.C. App. 469,
473, 473 S.E.2d 382, 385, disc. review denied, 344 N.C. 630, 477
S.E.2d 39 (1996) (internal quotation marks and citations
omitted). The measure of damages for unjust enrichment is the
reasonable value of the goods and services that the claimant
provided to the other party. Booe v. Shadrick, 322 N.C. 567,
570, 369 S.E.2d 554, 556 (1988). In view of the fact that
Defendant has alleged that she paid off the balance of the loan
relating to the vehicle and that Plaintiff had not reimbursed
her for the payments that she had made, Defendant has pled facts
that, if believed, tend to show that Plaintiff had been
“unjustly enriched at [Defendant’s] expense,” Hinson, 123 N.C.
App. at 473, 473 S.E.2d at 385, and that Defendant should be -26- reimbursed for the $699.62 that she paid in connection with the
vehicle-related loan.
Finally, Defendant adduced sufficient evidence at trial to
support the submission of her unjust enrichment claim to the
jury.5 According to Plaintiff’s Exhibit No. 5, Defendant wrote a
check on 28 March 2011 in the amount of $699.62 to “Santander
Consumer USA Inc.,” and indicated on the memo line that this
check “Paid” “Acct #1750283” “in Full.” According to
Plaintiff’s Exhibit No. 6, which was the payment history
associated with Account No. 1750283, a final payment in the
amount of $699.62 was made to Santander by means of a check
bearing the same number as that shown on Plaintiff’s Exhibit No.
5. In view of the fact that these two exhibits, standing alone,
tend to show that Defendant paid off the vehicle-related loan
and the fact that the parties do not appear to dispute that,
under the domestic settlement between the parties, Plaintiff had
primary responsibility for paying off the vehicle-related loan,
the trial court erred by refusing to submit Defendant’s
counterclaim for the jury’s consideration. As a result, the
lower court’s judgment should be vacated to the extent that it
5 Defendant has not asserted in her brief that she presented sufficient evidence to support a claim for “harassment, mental anguish, and malicious damages” and we believe that her assessment of the state of the evidentiary record concerning that set of issues is correct. -27- constitutes a rejection of Defendant’s counterclaim and this
case should be remanded to the Orange County District Court for
a trial on the issues raised by Defendant’s counterclaim.
3. Other Issues
Finally, Defendant has raised a number of other issues in
her brief that merit passing attention. First, Defendant has
challenged the form of the special interrogatories that were
submitted to the jury and the manner in which the trial court
instructed the jury concerning various issues. However,
Defendant failed to object to either the verdict sheet or the
jury instructions before the trial court. N.C. R. App. P.
10(a)(1) (stating that, “[i]n order to preserve an issue for
appellate review, a party must have presented to the trial court
a timely request, objection, or motion, stating the specific
grounds for the ruling the party desired the court to make if
the specific grounds were not apparent from the context”) and
N.C. R. App. P. 10(a)(2) (“[a] party may not make any portion of
the jury charge or omission therefrom the basis of an issue
presented on appeal unless the party objects thereto before the
jury retires to consider its verdict”). In addition, although
Defendant appears to be attempting to challenge the jury’s
compensatory and punitive damages award, she merely makes a
passing reference to this set of issues in her brief without -28- citing any authority in support of her position. N.C. R. App.
P. 28(b)(6) (stating that any issue “in support of which no
reason or argument is stated, will be taken as abandoned”).
Finally, Defendant challenges the trial court’s decision, in
ruling on a motion in limine, to preclude the admission of
documents arising from a bankruptcy petition filed by Plaintiff
on 22 November 2011. However, Plaintiff did not attempt to
introduce the documents at trial after the trial court granted
Plaintiff’s motion in limine. Heatherly v. Industrial Health
Council, 130 N.C. App. 616, 620, 504 S.E.2d 102, 105 (1998)
(stating that “[a] party objecting to an order granting or
denying a motion in limine, in order to preserve the evidentiary
issue for appeal, is required to . . . attempt to introduce the
evidence at the trial”) (quotation marks and citation omitted).
As a result, since none of these arguments have been properly
preserved for purposes of appellate review, they provide no
basis for a decision to overturn the trial court’s order or
judgment.
III. Conclusion
Thus, for the reasons set forth above, we conclude that,
although the trial court erroneously refused to allow the jury
to consider Defendant’s counterclaim, it did not err by holding
Defendant liable for conversion and trespass to personal -29- property and awarding compensatory and punitive damages to
Plaintiff based on those claims. As a result, we affirm the
trial court’s judgment in part, reverse the trial court’s
judgment in part, and remand this case to the Alamance County
District Court for a trial on the issues raised by Defendant’s
counterclaim.
AFFIRMED IN PART; REVERSED AND REMANDED IN PART
Judge BRYANT concurs.
Judge ELMORE dissents in part and concurs in part. NO. COA14-573
NORTH CAROLINA COURT OF APPEALS
Filed: 31 December 2014
ANTONIO STEELE, Plaintiff,
v. Orange County No. 12-CVD-1048 TAMMY BOWDEN, ALAMANCE TOWING & RECOVERY, JOHN DOE 1, d/b/a ALAMANCE TOWING AND RECOVERY, and JOHN DOE II, Defendants.
ELMORE, Judge, dissenting, in part, concurring, in part.
Because I believe the trial court erred in granting partial
summary judgment in plaintiff’s favor on grounds that the record
does not disclose the existence of a genuine issue of material
fact concerning the extent, if any, to which defendant was
authorized to repossess the 2002 Ford Expedition, I respectfully
dissent.
A. Standard of Review
is de novo; such judgment is appropriate only when the record
shows that ‘there is no genuine issue as to any material fact
and that any party is entitled to a judgment as a matter of
law.’” In re Will of Jones, 362 N.C. 569, 573, 669 S.E.2d 572, -31- 576 (2008) (quoting Forbis v. Neal, 361 N.C. 519, 524, 649
S.E.2d 382, 385 (2007)). “The showing required for summary
judgment may be accomplished by proving an essential element of
the opposing party’s claim does not exist, cannot be proven at
trial, or would be barred by an affirmative defense[.]” Dobson
v. Harris, 352 N.C. 77, 83, 530 S.E.2d 829, 835 (2000) (citation
omitted).
B. Defendant’s Challenges to the Summary Judgment Order
I. Conversion Claim
Defendant argues that the trial court erred in entering the
29 October order granting defendant’s motion for partial summary
judgment on the claim of conversion. I agree, because the
evidence suggests that a genuine issue of material fact
concerning the extent to which defendant had a lawful right to
repossess the vehicle is present in the record.
“The tort of conversion is well defined as an unauthorized
assumption and exercise of the right of ownership over goods or
personal chattels belonging to another, to the . . . exclusion
of an owner’s rights.” Vaseleniuck Engine Dev., LLC v.
Sabertooth Motorcycles, LLC, ___ N.C. App. ___, ___, 727 S.E.2d
308, 310 (2012) (quoting Peed v. Burleson’s, Inc., 244 N.C. 437,
439, 94 S.E.2d 351, 353 (1956)). In cases involving tenants in -32- common of chattel “where the tenant in possession of personal
chattels withholds the common property from his co-tenant, or
wrests it from him, and exercises a dominion over it either in
direct denial of or inconsistent with the rights of the latter,
an action will lie for conversion.” Bullman v. Edney, 232 N.C.
465, 468, 61 S.E.2d 338, 340 (1950). However, “it is difficult
to draw or trace the shadowy line that marks the limit to which
a tenant in common may go in the exercise of control over the
common property without subjecting himself to liability for
conversion.” Waller v. Bowling, 108 N.C. 289, 295, 12 S.E. 990,
992 (1891).
The crux of defendant’s argument is that the facts of the
instant case give rise to a genuine issue of material fact as to
whether defendant’s possession of the vehicle was unauthorized.
Again, I agree. Here, the liability for plaintiff’s claim of
conversion hinges on whether defendant’s possession of the
vehicle was authorized or unauthorized under these particular
circumstances.
The record discloses that pursuant to an alleged oral
agreement between the parties, plaintiff was to retain
possession of the vehicle, make timely loan payments, and remove -33- defendant’s name from the vehicle’s title.6 However, plaintiff
did not comply with the terms of the parties’ agreement because
he neither removed plaintiff’s name from the vehicle’s title nor
did he make all loan payments in a timely fashion. Defendant
alleges that she often received calls from creditors regarding
overdue payments on the car loan. Thus, it was plaintiff who
purportedly elected to keep defendant’s name on the vehicle’s
title and plaintiff who allegedly failed to make timely loan
payments. There is evidence in the record to suggest that when
defendant took possession of the vehicle, it was titled in her
name and she had made the final loan payment. Based on this
evidence, there exists in this case a question of whether
defendant came into possession of the automobile rightfully
despite the record evidence that plaintiff did not surrender the
vehicle to defendant voluntarily.
It appears that the trial court determined on its own
accord that defendant had no right to the possession of the
vehicle. However, in ruling on plaintiff’s motion for partial
summary judgment, it was the trial court’s duty to determine
whether a genuine issue of material fact existed, not to
6 I do not hold that an oral agreement exists or that it is likewise enforceable. I merely recognize that defendant has alleged that such an agreement was entered by the parties. -34- determine the facts so that no issue existed. In the instant
case, the trial court interpreted the facts as it saw fit.
Defendant has convinced me that a genuine issue of material
fact existed regarding whether she had valid ownership of the
vehicle such that her possession was authorized. Accordingly, I
am of the opinion that the trial court erred in granting
plaintiff’s motion for summary judgment on the claim of
conversion.
C. Trespass to Personal Property
Defendant argues that the trial court erred by granting
trespass to personal property claim. I agree with defendant
that the record reflects the existence of a genuine issue of
material fact concerning whether there was an unauthorized,
unlawful interference or dispossession of the personal property.
A successful action for trespass to chattel requires the
party bringing the action to demonstrate that “[(1)] he had
either actual or constructive possession of the personalty or
goods in question at the time of the trespass, and [(2)] that
there was an unauthorized, unlawful interference or
dispossession of the property.” Kirschbaum v. McLaurin Parking
Co., 188 N.C. App. 782, 786-87, 656 S.E.2d 683, 686 (2008) -35- (citation and quotation omitted). “The key to assessing
possession under a trespass to chattel claim is determining if
there is a right to present possession whenever so desired . . .
or a right to immediate actual possession.” Fordham v. Eason,
351 N.C. 151, 155, 521 S.E.2d 701, 704 (1999) (citation
The question before the trial court was whether “there was
an unauthorized, unlawful interference or dispossession of the
property.” Id. I recognize that the mere taking of an item of
jointly held property, standing alone, is insufficient to
support an action for trespass to chattel. Instead, there must
be a showing that a co-tenant who was in unlawful possession of
the personal property also destroyed the joint property or
placed it beyond recovery by means of legal process. Doyle v.
Bush, 171 N.C. 10, 86 S.E. 165, 166 (1915) (citations omitted).
On these facts, I do not believe that defendant’s conduct of
allowing the vehicle to be sold for the purposes of satisfying a
mechanic’s lien necessarily was sufficient to show that
defendant destroyed the personal property for purposes of this
claim. This is because, as discussed above, I am not convinced
that defendant did not have an equal right of possession of the
vehicle given her status as co-owner on these facts. -36- In addition, there is evidence in the record that plaintiff
was afforded the opportunity to recover the vehicle from the
auto mechanic after it had been repaired, but he elected not to
do so. This raises a question of whether plaintiff was in fact
dispossessed of the personal property. Moreover, in November
2011, plaintiff filed for bankruptcy and listed the vehicle as
an item of joint personal property that was currently in
defendant’s possession. He claimed that the vehicle was valued
at $3,940 and sought an exemption for half of that value. Given
this, it appears that plaintiff likely did not consider the
vehicle to be destroyed, but instead he considered it to be in
defendant’s lawful possession. I am of the opinion that there
is a genuine issue of material fact as to whether there was an
personal property. Therefore, I conclude that the trial court
erred in granting plaintiff’s motion for summary judgment on
plaintiff’s trespass to personal property claim.
In sum, because I believe the trial court erred in granting
summary judgment in favor of plaintiff with respect to his
conversion and trespass to personal property claims, I
respectfully dissent from the majority’s decision to affirm the
trial court’s judgment in plaintiff’s favor. I would reverse -37- the trial court’s order and remand for further proceedings. I
concur in all other aspects of the majority’s opinion.