Buri v. Ramsey, 20040164.

• Decision Date: 23 March 2005
• Docket Number: No. 20040164.,20040164.
• Citation: 693 N.W.2d 619,2005 ND 65
• Parties: Gene A. BURI, Plaintiff and Appellee v. James A. RAMSEY and Rhonda Ramsey, Defendants and Appellants.
• Court: North Dakota Supreme Court

693 N.W.2d 619

2005 ND 65

Gene A. BURI, Plaintiff and Appellee v. James A. RAMSEY and Rhonda Ramsey, Defendants and Appellants.

No. 20040164.

Supreme Court of North Dakota.

March 23, 2005.

Theresa L. Zimmerman, American Legal Services, Bismarck, N.D., for defendants and appellants.

R. James Maxson, Maxson Law Office, Minot, N.D., for plaintiff and appellee. MARING, Justice.

[¶ 1] James and Rhonda Ramsey ("Ramseys") appeal from a trial court judgment against them awarding damages to Gene Buri for conversion. We affirm in part, reverse in part, and remand for further proceedings in accordance with our opinion.

I

[¶ 2] In August 2002, the Ramseys agreed to purchase a parcel of land from Peter and Helen Weninger ("Weningers"). A handwritten condition included in the purchase agreement stated: "Wind Mill & 6 Grain Bins are not included. Seller has right to ingress & egress & have until 1 Apr 03 to Remove Bins & Wind Mill. Buyer will permit Seller To have an Auction in the Quonset in Oct After Closing." The purchase agreement did not otherwise refer to the grain bins.

[¶ 3] In October 2002, the Weningers held an auction and all six of the grain bins were sold to Buri. Buri had been storing grain in the bins at the time of the land sale in August, and this grain remained in the bins at the time of the auction.

[¶ 4] The events following the auction sale were disputed. Buri claimed that on the same day as the auction he spoke to the Ramseys, informing them that he had purchased the bins. Buri testified that in December 2002, he went to the property to clean the grain out of the bins. While he and his sons were in the process of cleaning the bins, the Ramseys came to the site where the bins were located and said, "You cannot have the grain bins; they're not yours." Buri continued to gather the grain and did not respond. Buri testified that he next communicated with the Ramseys near the end of March 2002, when he called Mr. Ramsey and "told him I was going to get the grain bins. And he said I could not have them, I would be trespassing if I did." Buri testified that after being threatened with a trespassing charge, he spoke with the state's attorney and the sheriff regarding the situation but did not again attempt to contact the Ramseys or remove the bins. His next action was to have his attorney write the Ramseys a letter on June 26, 2003, threatening legal action if he was not granted access to the land to remove the bins.

[¶ 5] The Ramseys testified that they have never seen or spoken to Buri, not in October after the auction, not in December when Buri claims to have been on their land removing grain, and not in March when Buri claims to have telephoned them. The Ramseys testified that they were out of town, both in December 2002 and March 2003, when Buri claims to have spoken to them. The Ramseys' daughter, who was home in December 2002, testified that she did see "someone" at the grain bins in December but that she did not know who it was and did not speak to the person. The daughter also testified that her parents were not home at the time, that they traveled off and on during December, and that she could not be sure of the exact dates.

[¶ 6] The Ramseys claim their only knowledge of the grain bin dispute comes from two letters they received after April 1, 2003. The first was a letter their attorney received from the Weningers' attorney, dated March 31, 2003, asking for an extension of the contractual deadline because the Ramseys had denied the Weningers' request to pick up the bins. The second was the aforementioned June 2003 letter from Buri's attorney, threatening legal action.

[¶ 7] After a bench trial, the trial court concluded the Ramseys' conduct, which included wrongfully detaining the grain bins and denying Buri access to their land to retrieve the bins, constituted conversion. The trial court found damages in the amount of $1300 plus 6 percent interest from January 1, 2003, to the date of judgment and ordered the Ramseys to allow Buri access to their property for thirty-days post-judgment to remove the grain bins. The Ramseys appeal, claiming first, this dispute should have been resolved under contract law; second, even if the law of conversion is applicable, their actions did not constitute conversion; and third, if the conversion is affirmed, the damage award is clearly erroneous.

II

[¶ 8] The Ramseys argue that they could not have converted Buri's property because they were unaware of any rights Buri had in the bins, that they did not act wrongfully or dispose of either the Weningers' or Buri's property, and that Buri suffered no damages. Rather, the Ramseys contend this is a simple contract dispute. The Ramseys assert the terms of the land purchase agreement clearly stated that the Weningers had until April 1, 2003, to remove the grain bins. Failure to remove them by that date resulted in a forfeiture of the bins under the terms of the contract. Therefore, the Ramseys argue they did not wrongfully acquire or deprive anyone of access to the grain bins, which is required for a finding of conversion.

[¶ 9] A determination of whether the trial court correctly employed the law of conversion rather than the law of contract is dependent on a determination of the applicable facts. According to Buri, the Ramseys wrongfully denied him access to the grain bins, preventing him from removing them prior to the April 1 deadline. The Ramseys contend they were unaware Buri had purchased the bins and had never seen or spoken to him prior to the day of trial. Therefore, the Ramseys contend the failure of either Buri or the Weningers to retrieve the bins prior to April 1, 2003, resulted in a forfeiture under the terms of the land purchase contract. The adoption of Buri's version of events places this dispute within the law of conversion, whereas the adoption of the Ramseys' version requires the application of contract law.

[¶ 10] "In a bench trial, the trial court is the determiner of credibility issues and we do not second-guess the trial court on its credibility determinations. We do not reweigh evidence or reassess credibility, nor do we reexamine findings of fact made upon conflicting testimony. We give due regard to the trial court's opportunity to assess the credibility of the witnesses, and the court's choice between two permissible views of the evidence is not clearly erroneous." Akerlind v. Buck, 2003 ND 169, ¶ 7, 671 N.W.2d 256 (quotation omitted).

[¶ 11] The trial court found Buri's testimony and his version of events more credible and, consequently, applied the law of conversion. Giving due regard to the trial court's assessment of the credibility of the witnesses, we will not reweigh the evidence. The trial court's factual findings are supported by the record and are not clearly erroneous. Therefore, the trial court's application of the law of conversion to resolve this dispute is correct.

III

[¶ 12] The Ramseys argue that even if the trial court correctly concluded the law of conversion was applicable, it erred when it concluded their actions constituted conversion.

[¶ 13] "We have held the trial court's determination about whether a conversion has been committed is a finding of fact which will not be overturned on appeal unless it is clearly erroneous." Paxton v. Wiebe, 1998 ND 169, ¶ 29, 584 N.W.2d 72. "A finding of fact is clearly erroneous when, although there is some evidence to support it, the reviewing court is left with a definite and firm conviction a mistake has been made." Id.

[¶ 14] Our Court has held that "[c]onversion consists of a tortious detention or destruction of personal property, or a wrongful exercise of dominion or control over the property inconsistent with or in defiance of the rights of the owner." Ritter, Laber and Associates, Inc. v. Koch Oil, Inc., 2004 ND 117, ¶ 11, 680 N.W.2d 634; see also Paxton, 1998 ND 169, ¶ 28,

584 N.W.2d 72. "The gist of a conversion is not in acquiring the complainant's property, but in wrongfully depriving him of it, whether temporarily or permanently, and it is of little relevance that the converter received no benefit from such deprivation." Paxton, at ¶ 28 (quoting Christensen v. Farmers State Bank of Richardton, 157 N.W.2d 352, 357 (N.D.1968)). Conversion does not require bad intent on the part of the converter, but only an intent to control or interfere with an owner's rights to use to an actionable degree. Paxton, at ¶ 28.

[¶ 15] Buri testified that he purchased the grain bins at an auction sale in October 2002 and that the Ramseys told him twice, first in December 2002 and again in March 2003, that he could not remove the bins from their land. Based on this testimony, the trial court found "Gene Buri owned the grain bins as of October 12, 2002" and "the Ramseys wrongfully detained the grain bins by not allowing [Buri] access onto their property ... thus wrongfully deprived him of his right to his property," thereby satisfying the elements of conversion. We are not left with a definite and firm conviction a mistake has been made. Therefore, we conclude the trial court's finding that the Ramseys converted Buri's property is supported by the evidence and is not clearly erroneous.

IV

[¶ 16] The Ramseys argue that granting Buri both the monetary value of the bins and possession of the bins is not authorized under N.D.C.C. § 32-03-23. The issue presented is the proper measure of damages.

[¶ 17] The appropriate standard of review in an appeal challenging a trial court's award of damages in a bench trial is whether the trial court's findings of fact on damages are clearly erroneous. Nord v. Herrman, 2001 ND 11, ¶ 16, 621 N.W.2d 332; N.D.R.Civ.P. 52(a). Under N.D.R.Civ.P. 52(a), a finding of fact is clearly erroneous if there is no evidence to support it, if it is clear to the reviewing court that a mistake has been made, or if the finding is induced by an erroneous view of the law. In re K.M.G., 2000 ND 50, ¶ 4, 607...