Buck v. Gillham

• Decision Date: 29 January 2003
• Docket Number: No. CA 02-310.,CA 02-310.
• Citation: 80 Ark. App. 375,96 S.W.3d 750
• Parties: Wayne BUCK v. C.W. GILLHAM.
• Court: Arkansas Court of Appeals

96 S.W.3d 750

80 Ark. App. 375

Wayne BUCK v. C.W. GILLHAM.

No. CA 02-310.

Court of Appeals of Arkansas, Division II.

January 29, 2003.

Jana Vaughn, Glenwood and Benny M. Tucker, Curtis, for appellant.

Hobbs, Garnett, & Naramore, P.A., by: Ronald G. Naramore, Hot Springs, for appellee.

OLLY NEAL, Judge.

This is the second appeal in this case. The Garland County Circuit Court originally awarded appellee, C.W. Gillham, $1,500 in his suit against appellant, Wayne Buck, for conversion. In an unpublished opinion dated September 19, 2001, Buck v. Gillham, CA 00-1236, 2001 WL 1093020, this court dismissed the appeal for lack of finality as the trial court had not ruled upon a third-party complaint filed by the appellant. The third-party complaint was nonsuited; thus, we now reach the merits of the appeal. Appellant argues that the trial court erred in finding him liable because the elements of conversion were not met in this case. We agree; therefore, we reverse.

The facts are as follows. Appellant owns a used car dealership in Glenwood, Arkansas. One week prior to the events that gave rise to this case, appellant sold a car to Charles Hunsucker. On July 5, 1997, Hunsucker returned to appellant's car lot at around 5:30 p.m. and indicated that he wanted to purchase a 1992 Ford Ranger that day because he was moving. He represented to appellant that he had been approved for a loan by a local bank. They agreed that Hunsucker would buy the vehicle for $7,500 and would receive $1,500 trade-in value for the vehicle he had purchased from appellant one week earlier. Hunsucker would then pay the remaining $6,000.

Because it was a holiday weekend, appellant was in a rush to leave. He did not require Hunsucker to complete all of the paperwork or pay the remaining $6,000. Instead, they agreed that Hunsucker would receive the truck that evening and that appellant would keep the title until Hunsucker paid the balance due. Hunsucker was to go to the bank no later than the following Tuesday and return with the payment.

Appellant completed and signed a warranty form, an invoice, a transfer of title, and an odometer disclosure statement. He completed these forms so that Hunsucker would be liable if he wrecked the vehicle before he paid the balance due on the vehicle. The invoice set forth the terms of the sale and had the words, "paid in full" written on it. When appellant went to retrieve the VIN number from Hunsucker's trade-in vehicle, Hunsucker, without appellant's knowledge, rummaged through appellant's desk and pilfered the title to the truck. Upon his return, appellant gave Hunsucker the completed paperwork and Hunsucker left with the truck.

When Hunsucker failed to return and pay the unpaid balance, appellant reported the vehicle stolen. Shortly thereafter, the vehicle was located when another car dealer informed appellant that appellee, C.W. Gillham, a used car dealer in Hot Springs, had the truck. During his testimony, Gillham indicated that he did not intend to sell the truck and that he had purchased it for his son. He stated that he had purchased the truck from Hunsucker on July 8, 1997, for $1,500 and acknowledged that he was advised that he would have to either use his dealer tags or have either appellant or Hunsucker license the truck.

When appellant went to retrieve his truck, he explained to appellee that the truck had been stolen, but appellee claimed that he had the title and refused to return the truck. Prior to helping appellant retrieve the truck, the Garland County Sheriff's Office consulted with a Garland County prosecuting attorney. The prosecutor informed the sheriff's department that appellee should either return the truck to appellant or face prosecution for receiving stolen property. Appellee subsequently returned the truck, and appellant paid him for the value of work he performed on the vehicle's brakes and tires.

Appellant ultimately sold the truck for $7,000.¹ Appellee brought suit against appellant for the tort of conversion, requesting $1,500. Appellant then filed a third-party complaint that has been nonsuited against Hunsucker for indemnification. The case was tried to the trial court without a jury. The court found appellant liable and rendered judgment against him for $1,500, stating in its letter opinion the following:

After considering the testimony and exhibits filed herein, I find in favor of the Plaintiff and award damages in the sum of $1,500.00. This decision is based on the facts that the defendant is responsible for giving Mr. Hunsucker most of the documentation necessary to demonstrate ownership of the vehicle in an effort to avoid any civil liability after he had delivered possession to Hunsucker, that he was responsible, at least in part, for allowing Hunsucker to steal the remaining documentation and also because he has received a $1,500.00 windfall.

This appeal followed.

When a case is tried by a circuit court sitting without a jury, our inquiry on appeal is not whether there is substantial evidence to support the factual findings of the court, but whether the findings are clearly erroneous, or clearly against the preponderance of the evidence. Springdale Winnelson Co. v. Rakes, 337 Ark. 154, 987 S.W.2d 690 (1999).

The general rule, as regards all personal property except money and negotiable paper, is that in the absence of limitations and estoppel, a purchaser from a thief acquires no title against the true owner. Eureka Springs Sales Co. v. Ward, 226 Ark. 424, 290 S.W.2d 434 (1956); see Midway Auto Sales v. Clarkson, 71 Ark.App. 316, 29 S.W.3d 788 (2000). A person can be held liable to the true owner of stolen personal property for conversion notwithstanding that he or she acted in the utmost good faith and without knowledge of the true owner's title. See Eureka Springs Sales Co. v. Ward, supra.

Conversion is a common-law tort action for the wrongful possession or disposition of another's property. McQuillan v. Mercedes-Benz Credit Corp., 331 Ark. 242, 961 S.W.2d 729 (1998). The tort of conversion is committed when a party wrongfully commits a distinct act of dominion over the property of another which is inconsistent with the owner's rights. Dillard v. Wade, 74 Ark.App. 38, 45 S.W.3d 848 (2001). The property interest may be shown by a possession or a present right to possession when the defendant cannot show a better right, since possession carries with it a presumption of ownership. Big A Warehouse Dist. v. Rye Auto Supply, 19 Ark.App. 286, 719 S.W.2d 716 (1986). The intent required is not conscious wrongdoing but rather an intent to exercise dominion or control over the goods that is in fact inconsistent with the plaintiffs rights. Grayson v. Bank of Little Rock, 334 Ark. 180, 971 S.W.2d 788 (1998); Tackett v. McDonald's Corp., 68 Ark.App. 41, 3 S.W.3d 340 (1999). The conversion need not be a manual taking or for the defendant's use. Big A Warehouse Dist. v. Rye Auto Supply, supra.

Ordinarily, the proper measure of damages for conversion of property is the market...