Eley v. Mid/East Acceptance Corp.
Decision Date | 05 July 2005 |
Docket Number | No. COA04-790.,COA04-790. |
Citation | 614 S.E.2d 555 |
Parties | Jackie L. ELEY, Plaintiff, v. MID/EAST ACCEPTANCE CORPORATION OF N.C., INC., Defendant. |
Court | North Carolina Supreme Court |
Janet B. Dudley, Scotland Neck, for plaintiff-appellee.
William F. Hill, P.A., by William F. Hill and Mary C. Higgins, Greenville, for defendant-appellant.
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. Stevens Bldg. 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 melons.
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 sent an 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, 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 then trebled 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, ___ N.C.App. ___, ___, 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) ( ); Kitchen v. Wachovia Bank & Trust Co., N.A., 44 N.C.App. 332, 334, 260 S.E.2d 772, 773 (1979) ( ).
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 key.
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 it.
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 the...
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