An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA05-742


Filed: 4 April 2006


v .                                     Haywood County
                                        No. 01 CvD 833

    Appeal by defendant from judgment entered 22 October 2004 by Judge Steven J. Bryant in Haywood County District Court. Heard in the Court of Appeals 7 February 2006.

    Law Office of Mark L. Jenkins, by Mark L. Jenkins, for plaintiff-appellee.

    Hyler & Lopez, P.A., by George B. Hyler, Jr. and Robert J. Lopez, for defendant-appellant.

    HUNTER, Judge.

    Jerry Owen (“defendant”) appeals from judgment of the trial court entered consistent with a jury verdict finding him liable for damages arising from conversion of a dump truck owned by Michael J. Wood (“plaintiff”) and for punitive damages, said damages totaling $13,000.00. Defendant argues the trial court erred by (1) granting plaintiff's motion for directed verdict on the claim of conversion; (2) instructing the jury regarding the issue of damages arising from the conversion; (3) denying defendant's motion for directed verdict on the claim for punitive damages; (4) instructing the jury regarding punitive damages; and (5) admitting evidence of repairbills. For the reasons stated herein, we affirm the judgment of the trial court.
    Plaintiff filed a complaint on 3 July 2001 in Haywood County District Court alleging that defendant had converted for his own use a dump truck owned by plaintiff. Plaintiff alleged he was entitled to damages in excess of $5,000.00 and to punitive damages as well. The case came before a jury on 4 August 2004. Upon presentation of the evidence, the trial court ruled that plaintiff had established conversion as a matter of law and instructed the jury it need not consider the issue. The trial court instructed the jury to answer the first question on the verdict sheet, “[d]id the defendant, Jerry Owen, convert the 1992 Ford dump truck of the plaintiff, Michael Wood?” in the affirmative. The jury found that plaintiff was entitled to $9,000.00 in damages for the conversion of the dump truck, and awarded plaintiff an additional $4,000.00 in punitive damages. The jury found that plaintiff and defendant had not entered into a contract regarding defendant lending plaintiff money and plaintiff agreeing to pay it back. The trial court entered judgment accordingly, awarding plaintiff a total of $13,000.00. Defendant appeals.
    Defendant first argues the trial court erred in granting a directed verdict to plaintiff on the issue of conversion. In related assignments of error, defendant contends the trial court erred in denying his motion for directed verdict on the issue of conversion, and in instructing the jury as to the conversion claim. “'A motion for directed verdict tests the sufficiency of theevidence to take the case to the jury.'” Lake Mary Ltd. Part. v. Johnston, 145 N.C. App. 525, 531, 551 S.E.2d 546, 551 (2001) (quoting Abels v. Renfro Corp., 335 N.C. 209, 214-15, 436 S.E.2d 822, 825 (1993)). In determining whether to grant such motion, the trial court must examine all of the evidence in a light most favorable to the nonmoving party, and the nonmoving party must be given the benefit of all reasonable inferences that may be drawn from the evidence. See id. at 531, 551 S.E.2d at 551-52. “'A directed verdict is properly granted where it appears, as a matter of law, that the nonmoving party cannot recover upon any view of the facts which the evidence reasonably tends to establish.'” Id. (quoting Beam v. Kerlee, 120 N.C. App. 203, 210, 461 S.E.2d 911, 917 (1995)).
    “[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 Construction Co., 80 N.C. App. 692, 695, 343 S.E.2d 281, 283 (1986). “'The essence of conversion is not the acquisition of property by the wrongdoer, but a wrongful deprivation of it to the owner . . . and in consequence it is of no importance what subsequent application was made of the converted property, or that defendant derived no benefit from the act.'” Lake Mary Ltd. Part., 145 N.C. App. at 532, 551 S.E.2d at 552 (quoting 89 C.J.S. Trover and Conversion § 3, pp. 533-34). “'[T]he general rule is that there is no conversion until some act is done which is a denial or violation ofthe plaintiff's dominion over or rights in the property.'” Id. (quoting 18 Am. Jur. 2d, Conversion, § 1, p. 158). Thus, two essential elements are necessary in a complaint for conversion: (1) ownership in the plaintiff, and (2) a wrongful conversion by the defendant. See id.
    In the instant case, plaintiff testified that he was the titled owner of a 1992 Ford tandem dump truck. In late 2000, plaintiff spoke with defendant about his desire to sell the truck. He was behind in payments on the truck and knew he would have a difficult time obtaining enough work during the upcoming winter to pay for the truck. Plaintiff testified that defendant agreed to take the truck, make payments on plaintiff's behalf, and work the truck until he could make enough money to pay plaintiff's requested price for the truck, which was $30,000.00. During his testimony, defendant confirmed that he agreed with plaintiff to “'[w]ork the truck and take the money and make the payments with it, and the insurance payments and stuff like that.'” Defendant took the truck and used it on several jobs. Plaintiff testified defendant worked the truck all of the following February and most of March. Defendant, however, testified he only worked the truck for three days before “a clutch fan went out on it.” At the end of March or the first of April, plaintiff learned that defendant was no longer working the truck. When he confronted defendant, defendant told him that the truck could not be operated without some repairs, and that he was not going to put any more money into the deal. Plaintiff then asked defendant to return his truck. Defendant toldplaintiff he was not going to return the truck because he had put money into the truck making payments on plaintiff's behalf. During cross-examination, defendant admitted that he had refused to return the truck to plaintiff because he “wanted [his] money.” When questioned regarding what legal right he had in the truck, defendant reiterated that plaintiff “owed [him] money[.]”
    The uncontroverted evidence shows that plaintiff owned the truck, that defendant obtained possession of plaintiff's truck, that defendant utilized the truck, and that he refused to return possession of the truck to plaintiff when plaintiff demanded its return. Under these facts, plaintiff established conversion as a matter of law, and the trial court properly directed verdict on this claim.
    Defendant nevertheless argues the evidence of conversion was “somewhat contradictory” and that there was insufficient evidence as to an exact date upon which plaintiff demanded return of the truck. Plaintiff's testimony establishes, however, the existence of the conversion, and defendant's testimony did nothing to refute plaintiff's evidence. Plaintiff's evidence also establishes the date of conversion; namely, the end of March or the beginning of April of 2001. Again, defendant presented no evidence to contradict this date. As such, the trial court properly directed verdict in favor of plaintiff on the claim of conversion. Defendant's assignments of error regarding the claim of conversion are overruled.    Defendant next argues the trial court erred in denying his motion for directed verdict on the issue of punitive damages and entering judgment thereon, on the ground that there was insufficient evidence of aggravated conduct to support an award of punitive damages.
    As noted supra, a motion for a directed verdict should be denied where, when taken in the light most favorable to the non- movant, there is more than a scintilla of evidence to support each element of the claim. Gray v. Hoover, 94 N.C. App. 724, 728, 381 S.E.2d 472, 474 (1989). The imposition of punitive damages is appropriate where “the claimant proves that the defendant is liable for compensatory damages and that one of the following aggravating factors was present and was related to the injury for which compensatory damages were awarded: (1) [f]raud[;] (2) [m]alice[;] (3) [w]illful or wanton conduct.” N.C. Gen. Stat. § 1D-15(a) (2005). “Punitive damages may be awarded where the aggrieved conduct is wilful, wanton, malicious, or demonstrates a reckless and wanton disregard of a person's rights.” Lyon v. May, 119 N.C. App. 704, 707, 459 S.E.2d 833, 836 (1995). The decision to award punitive damages rests in the sole discretion of the jury. Zubaidi v. Earl L. Pickett Enters., Inc., 164 N.C. App. 107, 117, 595 S.E.2d 190, 196, appeal dismissed and disc. review denied, 359 N.C. 76, 605 S.E.2d 151 (2004).
    Here, taken in the light most favorable to plaintiff, there was more than a scintilla of evidence to withstand defendant's motion for directed verdict on the issue of punitive damages. Plaintiff testified to an intentional conversion of his property by defendant. Defendant told plaintiff “'I'm not working the truck because I'm not going to put no [sic] more money into the truck and you're not going to touch the truck because I've got money in the truck.'” Defendant admitted he had no legal right to refuse plaintiff's demand of the truck's return. In addition, plaintiff testified that defendant intentionally damaged the truck as part of a scheme to eventually purchase the repossessed truck from the bank at a bargain price. Plaintiff stated that, once the truck broke down, defendant “sabotaged everything he could get off my truck to put on his trucks.” Plaintiff testified the fair market value of the truck when defendant took possession of it was $30,000.00. When he recovered possession of the vehicle, however, he estimated its fair market value at $10,000.00. According to plaintiff, the truck was “totally different . . . . The engine was missing . . . tires split, tires flat. The truck was trashed.” Plaintiff stated that defendant “wanted to sabotage the truck to make the truck look like the truck wasn't worth but a couple thousand dollars[]” and then he “offered the bank three thousand dollars for the truck, said . . . that's all the truck was worth.” According to plaintiff, defendant “was trying to just take the truck without paying for the truck out from under me.” Defendant's refusal to return the truck “had [plaintiff] backed up against the wall[.]” Plaintiff stated that he “didn't know what to do because I couldn't get the truck, couldn't work the truck, didn't have the money [defendant promised to pay him for the truck]” and “[t]he bank waspressuring [plaintiff] to catch up on the payments[.]” Plaintiff was unable to regain possession of his truck until he obtained a court order forcing defendant to relinquish the truck. We conclude the evidence supports the jury's award of punitive damages, and we overrule defendant's assignments of error related to punitive damages.
    By his final assignment of error, defendant contends the trial court erroneously admitted plaintiff's Exhibits Nos. 11, 12, and 13, which were bills paid by plaintiff to repair his truck after he regained possession of it from defendant. Defendant argues the repair bills were inadmissible hearsay and irrelevant. Plaintiff contends the bills were properly admitted to show damages.
    We first note that defendant did not object to the admission of plaintiff's Exhibits Nos. 12 and 13, and he has therefore failed to preserve their admission for appellate review. In addition, defendant objected to the admission of Exhibit No. 11 on the basis of hearsay only. He has therefore failed to preserve his argument regarding relevancy. See N.C.R. App. P. 10(b)(1).
    Plaintiff's Exhibit No. 11 is a copy of an invoice from “John Story Truck & Equipment, Inc.” The invoice contains three columns with headings of “[q]uantity,” “[d]escription” and “[p]rice.” Under the column “[p]rice,” the sum of $3,788.75 appears. It is neither itemized nor verified. Plaintiff identified Exhibit No. 11 as a receipt for the cost of replacing the engine in his truck.
    We conclude that, even if the repair bill was erroneously admitted, its admission did not prejudice defendant. Plaintifftestified that the fair market value of his truck was reduced by $20,000.00 through defendant's use of the truck. He also stated that he spent $12,000.00 to repair his truck after he regained possession of it from defendant. Further, plaintiff testified he regularly earned $500.00 a day working his truck. The other two repair bills showed expenditures of $2,766.33 and $110.00. The jury ultimately awarded plaintiff $9,000.00 in compensatory damages. Given these facts, the jury had an adequate basis upon which to award damages, and the admission of the repair bill, even if erroneous, did not prejudice defendant.
    In conclusion, we affirm the judgment of the trial court.
    Judges WYNN and JACKSON concur.
    Report per Rule 30(e).

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