Hildenbrand v. Capital Rv Ctr. Inc.

• Decision Date: 11 February 2011
• Docket Number: No. 20100118.,20100118.
• Citation: 2011 ND 37,794 N.W.2d 733
• Parties: Roger HILDENBRAND, Plaintiff and Appellantv.CAPITAL RV CENTER, INC., Defendant and Appellee.
• Court: North Dakota Supreme Court

794 N.W.2d 733

2011 ND 37

Roger HILDENBRAND, Plaintiff and Appellant

v.CAPITAL RV CENTER, INC., Defendant and Appellee.

No. 20100118.

Supreme Court of North Dakota.

Feb. 11, 2011.

Rudra Tamm, Bismarck, N.D., for plaintiff and appellant.David Justin Smith, Bismarck, N.D., for defendant and appellee.CROTHERS, Justice.

[¶ 1] Roger Hildenbrand appeals from a judgment dismissing his claims against Capital RV Center, Inc., and awarding Capital possession of and title to his 2007 Paradise Point fifth wheel camper after a jury decided Capital did not breach a contract with Hildenbrand. Hildenbrand also appeals from an order denying his post-trial motion. Limiting our review to the issues as they are presented to us, we affirm.

I

[¶ 2] In October 2008, Hildenbrand visited Capital's Bismarck business location and inquired about trading in his 2007 Paradise Point fifth wheel camper for a larger recreational vehicle. Gordy Bentz, a Capital salesman, showed Hildenbrand several recreational vehicles. Hildenbrand purchased a 2000 Monaco Dynasty Regent 40, a “diesel pusher” motor home. A tire had blown out on the front driver side of the Monaco, and that part of the vehicle showed some damage. On October 7, 2008, Hildenbrand and Bentz signed a “Retail Order.” Under the retail order, Hildenbrand agreed to purchase the Monaco for $90,000 cash, plus his fifth wheel camper valued at $35,211. The retail order also included notations for “Pre delivery inspection,” “5–TIRES,” and “PAINTWORK.” According to Capital, the “PAINTWORK” notation required Capital to repair the damage caused when the tire had blown out. Capital “buffed out” the damaged area but did not repaint it.

[¶ 3] About one week later, Hildenbrand returned to Capital with his camper to trade it in. Hildenbrand transferred his personal items from the camper into the Monaco. Hildenbrand was unable to take possession of the Monaco at that time because a tailpipe needed to be replaced, and Capital informed him it would take two to three weeks for that part to arrive. Hildenbrand then indicated to Capital that he wanted some improvements made to the Monaco, including painting the bottom two to three feet of the vehicle. Capital provided Hildenbrand with an estimate for that work. Hildenbrand believed he should not be charged extra for painting the vehicle because it was covered under “PAINTWORK” referenced in the retail order.

[¶ 4] On November 25, 2008, Hildenbrand discovered “the paintwork wasn't done” and Capital had merely “appeared to buff it out or something, some of the scratches.” Bentz denied the original agreement required Capital to paint the bottom three feet of the Monaco if buffing the area fixed the damage. Hildenbrand asked for the return of his camper but Capital refused because “[w]e had a deal and we lived up to our end of it, so he should live up to his end.” Hildenbrand contacted an attorney, who on the following day sent Capital a letter “rescind[ing]” the retail order agreement for Capital's failure to abide by its terms. The letter noted that “nothing has been paid” and “[n]o titles have been transferred,” and proposed that “[a]fter possession of the Fifth Wheel has been transferred to Mr. Hildenbrand, the parties will have no further obligations to each other.”

[¶ 5] Capital refused to return the camper to Hildenbrand, resulting in Hildenbrand bringing this action in December 2008. The only count in the complaint relevant to this appeal is Hildenbrand's claim against Capital for “Conversion.” Hildenbrand requested “[a]n order that [Capital] return possession of the 5th Wheel to [him],” “[m]onetary damages equal to the value of the 5th Wheel when [Capital] converted it,” “[r]ent at a fair market value for [his] 5th Wheel during the time [Capital] had possession,” and “[t]ermination of any agreements between the parties.” Capital answered, alleging the parties had entered into a written contract, Hildenbrand had traded in his vehicle as part of the business agreement, and Capital “stands ready, willing and able to complete the repairs and stay at the original stated price or to reduce the price by $3,000.00 and leave the vehicle as is.” Capital requested Hildenbrand's complaint be dismissed and “it be awarded monetary damages for the sale of the motor home” and “such other relief as the Court may deem just and proper.”

[¶ 6] In November 2009, after depositions had been completed, Capital moved for summary judgment “on the grounds that a contract between Hildenbrand and Capital RV existed and Hildenbrand's obligation under that contract was never released or extinguished.” Capital requested dismissal of the complaint and that “Hildenbrand be directed to complete the transaction as document[ed] by the Retail Order.” Alternatively, Capital requested that it be awarded “contract damages of $32,336,” representing “the price of the sales contract ($125,211), less the market value of the RV in the hands of Capital RV as of October 7, 2008 ($92,875).” Hildenbrand also moved for summary judgment. Hildenbrand acknowledged the parties had entered into an agreement and argued, “As a matter of law, based on the admissions and documents of Capital RV, summary judgment must enter in favor of Hildenbrand that Capital RV breached the Retail Order by failing to complete the Paintwork.” The district court denied the motions, concluding “there are genuine issues as to material facts.”

[¶ 7] The parties submitted proposed jury instructions. Hildenbrand's proposed instructions included a special verdict form asking the jury to first decide whether Hildenbrand or Capital should be awarded “[p]ossession and ownership” of the fifth wheel camper. The second question asked the jury to decide whether Hildenbrand should be awarded damages for “loss of use” of the camper and the amount of damages. The third question asked the jury to decide whether either party breached the “written agreement to convey the 2000 Monaco.”

[¶ 8] Capital moved to amend its pleadings “to include the counterclaim of contract enforcement.” Capital argued:

“In this matter before the Court, the original pleadings of the plaintiff did not allege breach of contract. They alleged conversion and requested cancellation of a contract. Three days before trial, the jury instructions drafted by the Court have crystallized the issues for trial as breach of contract issues. It appears the Court is also allowing the conversion claim to be tried, with the understanding that a breach of contract is necessary for the conversion damages to be established. Additionally, the Court is issuing jury instructions that allow the jury to determine the existence of the contract (See instructions on CONTRACT–MUTUAL ASSENT and REJECTION OF CONTRACT). In essence, the Court has amended the pleadings of the Plaintiff to include a breach of contract claim.

“It is the position of Capital RV that it did properly request the enforcement of the contract or contract damages. This request was included in the prayer for relief located on page 3 of the Answer and in the prayer for relief of the Defendant's Brief in Support of Motion for Summary Judg[ ]ment. The plaintiff is well aware of the position of Capital RV having defended against it in plaintiff's brief opposing summary judgment.

“Capital RV contends that it offends the notion of justice to amend the pleadings of the Plaintiff and not allow the same opportunity to the Defendant. Further, the plaintiff, by requesting cancellation of the contract, admits in its pleadings the existence of the contract. No request for rescission was properly made or granted. Now, the issue of the existence of the contract is on trial.”

The district court denied the motion, concluding, “It's too close to the time of trial to allow amendment of pleadings.”

[¶ 9] Hildenbrand and Capital employees testified at the jury trial. The first question on the eight-question special verdict form asked the jury: “Did Capital RV breach its contract with Mr. Hildenbrand?” The jury answered the question, “No,” and in accordance with the instructions, did not answer the remaining questions. Judgment was entered dismissing Hildenbrand's complaint and ordering Hildenbrand “to surrender the unencumbered title of the 2007 Paradise Point Fifth Wheel [he] offered as partial payment of [his] contractual obligation.”

[¶ 10] Hildenbrand moved for a new trial “or supplemental judgment” raising numerous issues. Hildenbrand argued that the jury should have been allowed to decide which party was entitled to possession of the fifth wheel camper, that Capital was not entitled to possession and ownership because the parties' agreement did not include a liquidated damages clause and that Capital had not proven damages under the Uniform Commercial Code. The district court denied the motion, reasoning:

“I believe the jury was properly instructed based on the pleadings of the parties and considering the requests for instructions submitted by the parties.

“The plaintiff has the option of following through with the terms on the contract in this matter, and minimizing the financial impact he claims he is suffering.

“It is clear as a matter of law and as a matter of fact that there was a contract between the parties.”

Hildenbrand appealed from the judgment and the order denying his post-trial motion. Capital did not cross-appeal.

II

[¶ 11] In view of the issues that have not been raised by the parties, we begin our analysis with a caveat.

[¶ 12] First, Hildenbrand brought this conversion action against Capital, in part, to recover possession of his fifth wheel camper. A claim and delivery action under N.D.C.C. ch. 32–07 is the proper action to recover possession of personal property. See Dickinson v. First Nat'l Bank, 64 N.D. 273, 285, 252 N.W. 54, 59 (1933). “An action to recover damages for conversion is entirely different from an action to recover possession of property.” More v. Western Grain Co., 31 N.D. 369, 380, 153...