Henderson v. For-Shor Co.

• Decision Date: 10 June 1988
• Docket Number: FOR-SHOR,No. 870502-CA,870502-CA
• Citation: 757 P.2d 465
• Parties: Mitchell D. HENDERSON, Eileen Buttars, Laurena B. Henderson, and David Hale, Plaintiffs and Respondents, v.COMPANY, Defendant and Appellant.
• Court: Utah Court of Appeals

Page 465

757 P.2d 465

Mitchell D. HENDERSON, Eileen Buttars, Laurena B. Henderson and David Hale, Plaintiffs and Respondents, v. FOR-SHOR COMPANY, Defendant and Appellant.

No. 870502-CA.

Court of Appeals of Utah.

June 10, 1988.

James C. Jenkins (argued), Logan, for defendant and appellant.

J. Blaine Zollinger (argued), Logan, for plaintiffs and respondents.

Before BENCH, DAVIDSON and JACKSON, JJ.

OPINION

JACKSON, Judge:

In a memorandum decision entered December 17, 1984, the First District Court ruled that appellant For-Shor Company ("For-Shor") wrongfully repossessed cement forms from respondents that had been purchased by Mitchell Henderson ("Mitchell") and sold to his grandmother, Eileen Buttars ("Buttars"). Judgment was entered in favor of Buttars for $7,500 in fair rental value of the forms ($2,500 for each of the three years between the date of the conversion and the judgment) and $5,725.35 for the fair market value of the forms. Respondent Laurena Henderson was awarded a judgment for $100 in damages for appellant's trespass onto her property. Judgment was also entered in favor of David Hale for a $265 rental overcharge by appellant. The trial court dismissed respondents' causes of action for intentional infliction of emotional distress on Mitchell and interference with respondents' business relationships and concluded that respondents were not entitled to punitive damages.

We affirm the judgment of the trial court after reducing the amount of damages awarded for trespass and those awarded for the fair market value of the repossessed property.

FACTS

In September, 1976, Mitchell borrowed $30,000 from First Security Bank to purchase cement forms (hereinafter referred to as "1976 forms") from Interstate Industries, which in turn purchased forms from For-Shor in order to fill Mitchell's order. First Security Bank took a security interest in the 1976 forms that was subsequently released in August, 1978 when Eileen Buttars paid the debt.

Mitchell opened an account with For-Shor in October, 1976 under which all payments were to be applied first to interest, then to past accounts, then to current purchases and rent. Between 1976 and 1978, Mitchell purchased supplies and rented additional forms (hereinafter referred to as "1978 forms") directly from For-Shor. The 1978 forms were identical in appearance to the 1976 forms.

In June, 1978, Mitchell fell behind in his rental payments to For-Shor on this account. On June 30, 1978, For-Shor converted the 1978 form rentals to a purchase agreement, charged Mitchell's account $6,359, and credited him for most of his prior rental payments. Mitchell paid $6,400 on his account on August 2, 1978, and $311.03 on August 16, 1978. Mitchell accumulated additional charges of $5,371.64 prior to June 30, 1978, $456.33 on August 2, 1978, and $406.21 on August 16, 1978.

For-Shor filed suit against Mitchell in July, 1979 for recovery of his unpaid balance of $3,748.43. In response, Mitchell signed a promissory note on September 6, 1979 for this amount. For-Shor's former counsel testified at trial that Mitchell told him that the 1978 forms had been stolen and would not be available as collateral on the promissory note. Mitchell subsequently defaulted on the note, and For-Shor obtained a $3,831.78 default judgment on February 13, 1980. Mitchell filed for bankruptcy on July 16, 1980 and received a discharge on September 18, 1980. For-Shor was named on the creditor matrix, but the company claims it received no notice of the bankruptcy proceeding. The trial court noted in its memorandum decision that a copy of a notice of the first meeting of creditors in Mitchell's bankruptcy case was found in For-Shor's files.

Between April 13, 1981, and July 9, 1981, Mitchell leased out the forms for approximately $2,500 to David Hale ("Hale") and others. During this time, respondent Hale expressed interest in purchasing or renting cement forming equipment from Mitchell. On July 9, 1981, For-Shor repossessed some forms that were being stored at the residence of Mitchell's mother, Laurena Henderson. These were among the equipment Hale had discussed buying or renting from respondents Mitchell and Buttars. This action ensued.

ISSUES PRESENTED

In its brief, appellant For-Shor sought reversal of the judgment below, claiming that its repossession of the forms was proper. During oral argument before this court, however, appellant admitted its liability for the wrongful conversion. We need only address several remaining issues of arguable substance presented in its appeal: (1) Was the evidence sufficient to support the court's determination of the fair market value of the converted forms? (2) Did the trial court err in awarding damages for lost rents in addition to the fair market value of the forms? (3) Was the evidence sufficient to support the trial court's finding of $7,500 in lost rental revenues? (4) Was the evidence sufficient to establish that a trespass occurred, resulting in damages of $100? and (5) Did the trial court err in awarding judgment to Hale for an overcharge by For-Shor that was not pleaded by respondents before trial, without any offset for monies allegedly owed by Hale?

In their brief, respondents attempt to challenge the judgment of the trial court insofar as it dismissed their causes of action other than for wrongful conversion and denied their request for sanctions against For-Shor, pursuant to Utah R.Civ.P. 37(c), for failure to make several requested admissions. However, we need not reach these issues because respondents have not filed a proper and timely cross-appeal. Contrary to Utah R.App.P. 4(d), effective January 1, 1985, respondents failed to preserve their right to attack the judgment by filing a notice of cross-appeal within fourteen days of appellant's April 26, 1985 notice of appeal. ¹ See Kinsman v. Kinsman, 748 P.2d 210, 211 (Utah App.1988). See also Halladay v. Cluff, 739 P.2d 643, 645 n. 4 (Utah App.1987) (respondent who wishes to modify or vary the trial court's judgment must cross-appeal).

FAIR MARKET VALUE OF FORMS

In Finding 5, the trial court stated that the fair market value of the forms converted by appellant was $5,725.35. For-Shor asserts that there was insufficient evidence to support this determination. A trial court's findings of fact will not be set aside unless clearly erroneous. Utah R.Civ.P. 52(a). A finding is clearly erroneous only if it is against the clear weight of the evidence or the reviewing court otherwise reaches a firm and definite conviction that a mistake has been made. State v. Walker, 743 P.2d 191, 193 (Utah 1987). If there is a reasonably certain basis for it in the evidence, a trial court's award of damages will be affirmed on appeal. See Gillmor v. Gillmor, 745 P.2d 461, 462 (Utah App.1987); see also Sawyers v. FMA Leasing Co., 722 P.2d 773, 774 (Utah 1986).

In order to challenge the trial court's findings of fact, an appellant must first "marshal all the evidence in support of the trial court's findings and then demonstrate that even viewing it in the light most favorable to the court below, the evidence is insufficient to support the findings." Scharf v. BMG Corp., 700 P.2d 1068, 1070 (Utah 1985). In the instant matter, For-Shor must bear the burden of demonstrating that there is insufficient evidence to prove "[t]he fact of damages ... with reasonable certainty and the amount by a reasonable though not necessarily precise estimate." Sawyers, 722 P.2d at 774. See also Acculog, Inc. v. Peterson, 692 P.2d 728, 731 (Utah 1984).

A conversion of personal property is an unauthorized assumption and exercise of the right of ownership over goods or personal chattels of another, to the alteration of their condition or the exclusion of the owner's rights. Madsen v. Madsen, 72 Utah 96, 102, 269 P. 132, 134 (1928). "[T]he measure of damages for conversion when property is not returned is the value of the property at the time of the conversion, plus interest." Id. See Columbia Trust Co. v. Farmers' & Merchants' Bank, 82 Utah 117, 125, 22 P.2d 164, 167 (1933); cf. Murdock v. Blake, 26 Utah 2d 22, 484 P.2d 164, 169 (1971). Thus, we need only determine the sufficiency of the evidence presented at trial to support the court's determination of the value of the property in July, 1981, when the forms were wrongfully repossessed. Market value is defined as the price for which the property is bought and sold at retail in the marketplace or, in the case of unique property, the value to the owner. Winters v. Charles Anthony, Inc., 586 P.2d 453, 454 (Utah 1978).

Despite appellant's confused claim that no evidence of the value of the converted items was presented at trial, the record is replete with documentary and testimonial evidence to support the trial court's finding. Exhibit P4 is an invoice from For-Shor to Mitchell with the heading "Form Rental--June 1978," in which he was charged $6,359 for the forms and then credited for 80% of his prior lease payments. Exhibit P3 shows that Mitchell was billed for the balance on June 30, 1978 when For-Shor converted Mitchell's 1978 rental of the equipment to a purchase agreement.

Appellant's general manager at the time, James Snarr, testified that this leased equipment was billed to Mitchell in Exhibits P3 and P4 (using 1978 prices for new equipment discounted by part of his rental payments) because rental payments were not kept up and the equipment had not been returned to For-Shor. Not all the pieces listed in Exhibit P4 were taken from Laurena Henderson's home in July, 1981. Although the forming equipment items eventually repossessed were not the same exact pieces for which Mitchell was charged in 1978, they were identical in type and appearance. Snarr admitted that the 1978 billing reflected the values of those types of equipment at that time. He also testified that the forms, if maintained properly, hold their value well.

More important, however, is appellant's Exhibit D27,...