MICHAEL J. WOOD,
Plaintiff
v
.
Haywood County
No. 01 CvD 833
JERRY OWEN,
Defendant
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.
Affirmed.
Judges WYNN and JACKSON concur.
Report per Rule 30(e).
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