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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
JACKIE L. ELEY, Plaintiff, v.MID/EAST ACCEPTANCE CORPORATION OF
N.C., INC. Defendant
Filed: 5 July 2005
1. Conversion--watermelons on repossessed truck--time to unload--evidence and
A finding that plaintiff was not allowed a reasonable time to unload 130 watermelons
from a truck that was being repossessed was supported by competent evidence in the bench trial
for conversion of those watermelons.
2. Conversion--watermelons on repossessed truck--assumption of ownership
The findings in a bench trial for conversion of watermelons left in the sun on a
repossessed truck supported the inference that defendant assumed and exercised the right of
ownership over plaintiff's watermelons without her permission when repossessing her truck, to
the exclusion of plaintiff's rightful ownership interest.
3. Unfair Trade Practices--watermelons on repossessed truck--opportunity to unload
The denial of any meaningful opportunity for plaintiff to remove watermelons from her
repossessed truck supported the conclusion that defendant had committed an unfair and
deceptive trade practice.
4. Damages--oral testimony--value of converted watermelons
Plaintiff's testimony about what she paid for her watermelons was sufficient to support
the court's calculation of her damages in an action for conversion of watermelons.
5. Costs--attorney fees--appeal
Plaintiff was entitled to attorney fees on appeal because she was entitled to attorney fees
under Chapter 75 in winning a judgment at the trial level; however, the award was remanded for
a determination of the hours spent on appeal and entry of a reasonable hourly rate.
Appeal by defendant from order entered 12 November 2003 by
Judge W. Rob Lewis, II, in Hertford County District Court. Heard
in the Court of Appeals 2 February 2005.
Janet B. Dudley for plaintiff-appellee.
William F. Hill, P.A., by William F. Hill and Mary C. Higgins,
Defendant Mid/East Acceptance Corporation of N.C., Inc.
appeals from an order entered in favor of plaintiff Jackie L. Eley
following a bench trial in Hertford County District Court.
Plaintiff's claims for conversion and unfair and deceptive trade
practices were based on defendant's otherwise lawful repossession
of plaintiff's truck, which contained a load of watermelons
belonging to plaintiff. After defendant caused plaintiff's truck
to be repossessed, the melons, which were still in the truck bed,
quickly spoiled in the summer heat, rendering them valueless. On
appeal, defendant argues that it is not liable for conversion
because it did not engage in the unauthorized assumption and
exercise of the right of ownership over plaintiff's watermelons to
the exclusion of plaintiff's rights. It also argues that it did
not commit an unfair and deceptive trade practice under N.C. Gen.
Stat. § 75_1.1 (2003). Because we find that competent evidence
exists to support the trial court's findings of fact and those
findings are sufficient to establish conversion and unfair and
deceptive trade practices, we affirm.
"'It is well settled in this jurisdiction that when the trial
court sits without a jury, the standard of review on appeal is
whether there was competent evidence to support the trial court's
findings of fact and whether its conclusions of law were proper in
light of such facts.'" Keel v. Private Bus., Inc.
, 163 N.C. App.
703, 707, 594 S.E.2d 796, 799 (2004) (quoting Shear v. StevensBldg. Co.
, 107 N.C. App. 154, 160, 418 S.E.2d 841, 845 (1992)).
Upon a finding of such competent evidence, this Court is bound by
the trial court's findings of fact even if there is also other
evidence in the record that would sustain findings to the contrary.
Hensgen v. Hensgen
, 53 N.C. App. 331, 335, 280 S.E.2d 766, 769
(1981). Competent evidence is evidence "that a reasonable mind
might accept as adequate to support the finding." Andrews v.
Fulcher Tire Sales & Serv.
, 120 N.C. App. 602, 605, 463 S.E.2d 425,
427 (1995). The trial court's conclusions of law, by contrast, are
reviewable de novo
. Browning v. Helff
, 136 N.C. App. 420, 423, 524
S.E.2d 95, 98 (2000).
Plaintiff's evidence tended to show the following. Plaintiff
was the owner of a 1995 Ford F150 pick-up truck that she had
purchased through a loan from defendant, using the truck as
collateral. In the summer of 2002, plaintiff missed two
consecutive payments on the loan, and defendant made repossession
arrangements with Carolina Repossessions. At approximately 4:00
a.m. on 29 July 2002, employees of Carolina Repossessions, Roger
Pinkham and his brother, arrived at plaintiff's residence and began
to hitch plaintiff's pick-up truck to their tow truck. Plaintiff
heard them and went outside to investigate. When she requested to
see the paperwork related to the repossession, one of the men
briefly showed it to her. Plaintiff explained to Pinkham that she was not contesting the
repossession of the truck, but that she was concerned about the 130
watermelons in the truck bed. She had purchased and loaded them
into the truck on the previous day and had planned to drive them
to Maryland for re-sale. In addition to the watermelons, the truck
also contained some other personal items belonging to plaintiff,
including a coat, an ice chest, and some children's toys.
Plaintiff asked Pinkham if she could unload her melons and other
personal property before he towed the truck. Pinkham refused,
telling her he was in a hurry because he had to get to his regular
job. Pinkham also refused to allow plaintiff to deliver the truck
herself later that morning after she had had time to unload the
Plaintiff called defendant's office at about 8:00 a.m. the
same morning and spoke to defendant's employee, Joyce White. When
plaintiff asked White if she could retrieve her watermelons out of
the repossessed truck, White replied, "What truck?" Fearing that
the melons would quickly spoil in the summer heat, plaintiff, on
the same day, filed a complaint alleging conversion in the Hertford
County Small Claims Court.
Defendant's evidence tended to show that on Wednesday, 31 July
2002, two days after the repossession, one of defendant's employees
called plaintiff and asked her to bring her truck key to
defendant's office, but plaintiff refused. White testified that it
was not defendant's practice to allow public access to the lot
where repossessed items were kept; rather, defendant usually sentan employee to the lot to gather up personal property left in
repossessed vehicles and bring it to defendant's office for the
owners to collect. White noted that plaintiff's load of
watermelons created an unusual situation, and defendant had asked
plaintiff to furnish her truck keys so that defendant could drive
the truck to its office and allow plaintiff to unload it there.
Defendant then mailed plaintiff a letter, stating, "The
watermelons are rotting and the smell is polluting the storage lot.
If something is not done with them by 12:00 p.m., Friday, August 2,
2002, we will have to hire someone to dispose of them for us and
the fee will be charged to your account." Although the post office
attempted to deliver this letter to plaintiff, she never received
it, and it was later returned to defendant's office.
On Thursday, 1 August 2002, the day after defendant mailed the
letter, defendant called plaintiff again and asked her to come
retrieve her watermelons from the repossessed truck because they
were spoiling and creating a mess. Plaintiff informed defendant
that since the melons were rotten, she no longer wanted them.
The small claims court dismissed plaintiff's conversion claim
in a judgment dated 19 August 2002. Plaintiff filed a timely
appeal to the Hertford County District Court. Following a bench
trial, the district court entered an order on 12 November 2003,
concluding that defendant had converted plaintiff's property and
committed an unfair and deceptive trade practice under N.C. Gen.
Stat. § 75_1.1. The order awarded damages in the amount of
$455.00, the value of the watermelons. These damages were thentrebled in accordance with North Carolina's unfair and deceptive
trade practice statute, N.C. Gen. Stat. § 75_16 (2003), for a total
liability of $1,365.00. The court also awarded plaintiff $1,562.50
in attorneys' fees, under N.C. Gen. Stat. § 75_16.1 (2003).
Defendant has appealed to this Court.
 "'Conversion is defined as: (1) the unauthorized
assumption and exercise of the right of ownership; (2) over the
goods or personal property; (3) of another; (4) to the exclusion of
the rights of the true owner.'" Estate of Graham v. Morrison, 168
N.C. App. 63, 72, 607 S.E.2d 295, 302 (2005) (quoting Di Frega v.
Pugliese, 164 N.C. App. 499, 509, 596 S.E.2d 456, 463 (2004)).
"[C]onversion may occur when a valid repossession of collateral
results in an incidental taking of other property, unless the loan
agreement includes the debtor's consent to the incidental taking."
Clark v. Auto Recovery Bureau Conn., Inc., 889 F. Supp. 543, 548
(D. Conn. 1994); see also Rea v. Universal C. I. T. Credit Corp.,
257 N.C. 639, 642, 127 S.E.2d 225, 228 (1962) (holding that
plaintiff was entitled to a new trial on his conversion claim when
the trial court failed to submit to the jury the question whether,
at the time of repossession, plaintiff's car contained tools
belonging to plaintiff); Kitchen v. Wachovia Bank & Trust Co.,
N.A., 44 N.C. App. 332, 334, 260 S.E.2d 772, 773 (1979) (denying a
lender's motion for summary judgment on the issue of conversion
when the lender repossessed plaintiff's mobile home containing someof her personal property in which the lender did not have a
Defendant in this case contends that there was no unauthorized
assumption and exercise of the right of ownership over the
watermelons to the exclusion of the rights of the true owner. In
support of this contention, defendant asserts (1) that plaintiff
had an opportunity to remove the watermelons before the
repossession and (2) that the loss of the watermelons was due to
plaintiff's subsequent failure to supply defendant with her truck
With regard to the first assertion, defendant argues that
there is no competent evidence to support the trial court's finding
that defendant's agent, Carolina Repossessions, failed to give
plaintiff "a reasonable amount of time to unload her watermelons
during the repossession." We disagree. Plaintiff testified
specifically that she requested an opportunity to remove her melons
from the truck at the time of repossession and that her request was
refused. Also, plaintiff's brother testified as follows:
A. . . . . I got up and went to the
door, and [plaintiff] was talking to two men,
and one of them was starting hooking up the
truck, and I asked her what they were doing.
She said, "They came to get the truck." I
said, "Well, are they gonna let you get the
watermelons off?" and while she was standing
talking to them, I went back to get dressed to
come back, and when I got back out there they
had the truck loaded up going down the lane
throwing the watermelons all in the lane.
That's when I told her to call the police
department and see if they knew anything about
Q. How long would you say it took you
to go back and get dressed and come back out?
A. Two to three minutes. . . .
. . . .
Q. What did _ what did Ms. Eley say
when you came back and _ and asked her about
A. She said they'd got _ they'd gone on
down the lane, and that's when I told her to
call the police. They were supposed to give
you time to get your property out of there.
Even Mr. Pinkham, one of the repossessors, testified that
"when I got the truck turned around to leave, [plaintiff] did say
that she wanted to get her belongings out of the truck, and I told
her that if she wanted to get her belongings she needed to go ahead
and get them because I did have to get back to Washington, and
after about 15 minutes of being there, I figured that had been
enough time for her to get the belongings, so I left. I did have
other things to do, and so I pulled out."
The record thus contains competent evidence allowing the trial
court to find that plaintiff was not allowed a reasonable time to
unload her 130 watermelons. Although it is arguable that the
record might also support a finding that plaintiff did have time to
unload her melons, but failed to do so, the trial court's finding
of fact otherwise is supported by ample evidence and is, therefore,
binding on appeal. Hensgen, 53 N.C. App. at 335, 280 S.E.2d at
769.  With regard to defendant's second assertion regarding
plaintiff's failure to give defendant her truck keys, the trial
court made the following pertinent findings of fact:
9. Ms. Eley contacted Ms. White, of Mid-East
Acceptance, on the morning of July 29,
2003 to inquire as to the location of her
truck so she could retrieve her
watermelons. Ms. White's reply was "What
10. Mid-East Acceptance was the bailee of Ms.
Eley's personal property and had an
obligation to protect this collateral
11. When Mid-East Acceptance contacted Ms.
Eley on Juy [sic] 31st to tell her where
her truck was located the watermelons
were already decomposing.
12. Mid-East Acceptance placed a condition on
the return of Ms. Eley's property by
requiring her to bring them the vehicle
ignition key prior to that return.
Since defendant has not assigned error to these findings of fact,
they are binding on this Court. In re Beasley, 147 N.C. App. 399,
405, 555 S.E.2d 643, 647 (2001). These findings of fact establish
that the loss was not due to plaintiff's failure to deliver the
truck key because the request for the key came too late to preserve
Taken together, all of these facts combine to support the
inference that defendant assumed and exercised the right of
ownership over plaintiff's watermelons without her permission, to
the exclusion of her own rightful ownership interest. More
colloquially, as plaintiff put it, "It was too hot. The melons was
already there a week. The melons were spoiled. They wouldn't dome any good. They were their melons. They took the truck, they
took the melons. They were their melons then." The trial court,
therefore, did not err in entering judgment in favor of plaintiff
on her claim for conversion.
 Defendant next contends that the trial court erred by
concluding that defendant's actions amounted to an unfair and
deceptive trade practice under N.C. Gen. Stat. § 75_1.1. A
practice violates N.C. Gen. Stat. § 75_1.1 if it is "'(1) an unfair
or deceptive act or practice, (2) in or affecting commerce, and (3)
which proximately caused injury to plaintiffs.'" Lake Mary Ltd.
P'ship v. Johnston, 145 N.C. App. 525, 533, 551 S.E.2d 546, 552
(quoting Gray v. N.C. Ins. Underwriting Ass'n, 352 N.C. 61, 68, 529
S.E.2d 676, 681 (2000)), disc. review denied, 354 N.C. 363, 557
S.E.2d 538 (2001). Defendant argues only that plaintiff failed to
prove the first element: the existence of an unfair or deceptive
act or practice.
"A practice is unfair when it offends established public
policy as well as when the practice is immoral, unethical,
oppressive, unscrupulous, or substantially injurious to consumers."
Marshall v. Miller, 302 N.C. 539, 548, 276 S.E.2d 397, 403 (1981).
Also, "'[a] party is guilty of an unfair act or practice when it
engages in conduct [that] amounts to an inequitable assertion of
its power or position.'" Lake Mary Ltd. P'ship, 145 N.C. App. at
533, 551 S.E.2d at 553 (quoting Johnson v. Ins. Co., 300 N.C. 247,
264, 266 S.E.2d 610, 622 (1980), overruled on other grounds byMyers & Chapman, Inc. v. Thomas G. Evans, Inc., 323 N.C. 559, 374
S.E.2d 385 (1988)). Although "whether a practice is unfair or
deceptive is . . . dependent upon the facts of each case," Moretz
v. Miller, 126 N.C. App. 514, 518, 486 S.E.2d 85, 88, disc. review
denied, 347 N.C. 137, 492 S.E.2d 24 (1997), "[t]he determination of
whether an act or practice is an unfair or deceptive practice that
violates N.C.G.S. § 75_1.1 is a question of law for the court."
Gray, 352 N.C. at 68, 529 S.E.2d at 681.
Here, the trial court entered an explicit finding of fact
stating that "[e]mployees of Mid-East Acceptance used their
relative position of power to deprive the Plaintiff of her personal
property." Defendant argues that this finding is unsupported by
competent evidence. We disagree because we find ample support in
the trial court's other, unchallenged findings of fact as well as
in the evidence admitted at trial. See Lake Mary Ltd. P'ship, 145
N.C. App. at 532, 551 S.E.2d at 553.
The trial court found and evidence supports that (1) two men
appeared at the female plaintiff's house at 4:05 a.m. with a tow
truck and hauled away her truck without giving plaintiff a
reasonable time to unload her 130 watermelons; (2) following the
repossession, when plaintiff contacted defendant to inquire as to
the location of her truck so she could retrieve her watermelons,
defendant denied knowledge of the truck; (3) defendant was
unresponsive to plaintiff's inquiries about her watermelons; (4)
defendant only offered to give plaintiff access to the truck _ by
requesting her truck key _ after the watermelons were alreadyrotting and of no value; and (5) defendant has never compensated,
nor offered to compensate, plaintiff for the converted property.
These unchallenged findings of fact, taken together, are such as "a
reasonable mind might accept as adequate" to support the finding
that the defendant deprived plaintiff of her property by means of
inequitably asserting its relative position of power. Andrews, 120
N.C. App. at 605, 463 S.E.2d at 427 . Therefore, we are unpersuaded
by defendant's contention that no competent evidence supports this
Further, this Court has already held that comparable findings
are sufficient to establish an unfair and deceptive trade practice.
See Love v. Pressley, 34 N.C. App. 503, 516-17, 239 S.E.2d 574, 583
(1977) (holding that the evidence supported the existence of an
unfair and deceptive trade practice when (1) a landlord converted
plaintiffs' personal property while cleaning the apartment for re-
leasing, even though the lease had not yet expired; and (2) the
landlord refused to respond to the plaintiffs' inquiries about the
property), disc. review denied, 294 N.C. 441, 241 S.E.2d 843
(1978). Under the circumstances of this case _ involving
perishable goods, defendant's denial of any realistic opportunity
to remove the goods, and defendant's failure to respond to
plaintiff's prompt inquiries _ the trial court properly held
defendant liable under N.C. Gen. Stat. § 75-1.1.
The trial court awarded damages to plaintiff in the amount
of $455.00 on her conversion claim, an amount that reflects thetrial court's finding that plaintiff's truck bed contained
approximately 130 watermelons valued at $3.50 each. Defendant
challenges this award on the ground that there was insufficient
evidence of the value of the watermelons. Specifically, defendant
contends that plaintiff's oral testimony as to the value of the
watermelons is "not even adequate in the most basic business
setting, and is woefully inadequate in a court of law." To the
contrary, it is well-settled in this state that "the opinion of a
property owner is competent evidence
as to the value of such
property." Compton v. Kirby
, 157 N.C. App. 1, 18, 577 S.E.2d 905,
916 (2003) (emphasis added) (finding that competent evidence
supported a finding that plaintiff's allegedly converted
partnership interest was worth over $50,000.00 when plaintiff sent
defendant a letter to that effect).
Here, when asked how much she had paid for the watermelons,
plaintiff opined, "About $3.50 apiece." In accordance with
, this testimony is sufficient to support the trial court's
calculation of plaintiff's damages. Moreover, since we have upheld
the trial court's conclusion that defendant committed an unfair and
deceptive trade practice under Chapter 75, we also affirm the
trebling of the $455.00 to $1,365.00 in accordance with N.C. Gen.
Stat. § 75_16.
(See footnote 1)
Defendant also challenges the trial court's award of
attorneys' fees under N.C. Gen. Stat. § 75_16.1. Defendant offers
no argument as to why the award in this case is improper apart from
its contention that plaintiff was not entitled to recover under
N.C. Gen. Stat. § 75-1.1. We, therefore, affirm the trial court's
attorneys' fee award.
 Plaintiff has filed a motion for attorneys' fees incurred
during this appeal. This Court has previously held that: "Upon a
finding that [appellees] were entitled to attorney's fees in
obtaining their judgment [under N.C. Gen. Stat. § 75-16.1], any
effort by [appellees] to protect that judgment should likewise
entitle them to attorney's fees." City Fin. Co. of Goldsboro, Inc.
, 86 N.C. App. 446, 449, 358 S.E.2d 83, 85 (1987).
Accordingly, because plaintiff was entitled to attorneys' fees for
hours expended at the trial level, we hold plaintiff is entitled to
attorneys' fees on appeal, especially in light of the limited
amount of money at issue in the litigation. Id.
at 450, 358 S.E.2d
at 85 (noting that because the damages amounted to only $500.00,
defense of the judgment would not be "economically feasible" in the
absence of an award of attorneys' fees). We remand to the trialcourt for a determination of the hours spent on appeal and a
reasonable hourly rate and for the entry of an appropriate
attorneys' fee award.
Affirmed and remanded.
Judges MCGEE and TYSON concur.
Plaintiff cross-assigned error to the trial court's award of
damages, arguing that the price of $3.50 per melon was too low and
did not reflect the market value of the watermelons. Plaintiff did
not, however, file an appellant's brief on this issue, but rather
included her discussion in her appellee's brief. Because this
argument is not an alternative basis for upholding the trial
court's order, N.C.R. App. P. 10(d), but rather asks this Court toreverse the order in part, plaintiff was required to file a
separate appellant's brief. Plaintiff's assignment of error is
not, therefore, properly before this Court. See Stanback v.
Westchester Fire Ins. Co.
, 68 N.C. App. 107, 117, 314 S.E.2d 775,
781 (1984) ("Because plaintiff's cross-assignment of error does not
present an alternative basis upon which to support the judgment,
the question argued therein is not properly before this court. The
proper method to have preserved this issue for review would have
been a cross-appeal. Plaintiff's cross-assignment of error is
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