Hill v. Hill

Decision Date03 April 2001
Docket NumberNo. COA00-381.,COA00-381.
Citation142 NC App. 524,545 S.E.2d 442
PartiesKevin E. HILL, Plaintiff, v. Robert L. HILL and Bob Hill Enterprises, Inc., Defendants.
CourtNorth Carolina Court of Appeals

Wheatly, Wheatly, Nobles & Weeks, P.A., by C.R. Wheatly, Jr., and C.R. Wheatly, III, Beaufort, for plaintiff-appellee.

Mason & Mason, P.A., by L. Patten Mason, and Ward and Smith, P.A., by Kenneth R. Wooten, Morehead City, for defendant-appellants.

GREENE, Judge.

Robert L. Hill (Hill) and Bob Hill Enterprises, Inc. (collectively, Defendants) appeal an amended judgment filed 12 November 1999, awarding Kevin E. Hill (Plaintiff) $450,001.00.1

The record shows that on 14 October 1996, Plaintiff filed a complaint against Defendants, alleging claims, in pertinent part, for conversion, malicious prosecution, abuse of process, and punitive damages. Plaintiff presented evidence at trial that Hill is the sole stockholder of Bob Hill Enterprises, Inc. In 1995, Bob Hill Enterprises, Inc. owned several businesses, including Discount City (the store), an appliance and furniture store located in Havelock, North Carolina. Plaintiff, Hill's son, began working at the store when he was fourteen years old, and he became manager of the store upon graduating from high school in 1983. In 1995, he was working as the manager of the store.

In late 1995, Hill contacted Ellis Nelson (Nelson) at the certified public accounting firm of McGladrey & Pullen to inquire about the procedure for transferring ownership of the store to Plaintiff. The accounting firm then prepared documents necessary for Plaintiff to obtain a federal employer identification number in his name, doing business as Discount City Super Store. The accounting firm also prepared an application for Plaintiff to obtain a sales tax number from the State Revenue Department in his name, doing business as Discount City Super Store.

Plaintiff testified at trial that in December 1995, Hill told Plaintiff he wished to transfer ownership of the store to Plaintiff effective 1 January 1996. Hill agreed to gift to Plaintiff the entire store, including its accounts receivable, inventory, bank account, and use of the building owned by Bob Hill Enterprises, Inc. In early December 1995, Nelson sent Plaintiff a letter describing how the transfer would occur. In December 1995, Hill telephoned First Citizens Bank and told bank officials to transfer the store's account to Plaintiff's name, doing business as Discount City Super Store. Plaintiff subsequently went to First Citizens Bank for the purpose of transferring the store's checking account into his name, doing business as Discount City Super Store. Plaintiff ordered new checks and signature cards reflecting his name on the store's account held by First Citizens Bank.

Beginning 1 January 1996, Plaintiff continued to operate the store in the same manner he had operated it prior to that date. Plaintiff paid the store's bills, purchased inventory, and sold inventory. Plaintiff also filed sales tax reports and made sales tax payments in his name, doing business as Discount City Super Store, in January and in March of 1996; however, these sales tax payments were made for sales tax owed from sales made in 1995. Subsequent to 1 January 1996, all supplier accounts remained in the name of Bob Hill Enterprises, Inc. and all inventory was purchased using these accounts. Although Plaintiff set up an account in his name to purchase bedding for the store, the order for bedding was subsequently canceled. Prior to January 1996, the store's employees were paid by payroll checks issued from Bob Hill Enterprises, Inc. After 1 January 1996, Bob Hill Enterprises, Inc. no longer issued payroll checks to the store employees; rather, Plaintiff paid the employees from the store's bank account in Plaintiff's name. Plaintiff testified that during January 1996, Hill occasionally came to the store to give him advice and to discuss details regarding the transfer in ownership of the store. During this time period, Bob Hill Enterprises, Inc. owned the real property upon which the store was located, and Defendants did not enter into a lease with Plaintiff for the premises.

In February 1996, a dispute arose between Hill and Plaintiff regarding a payment received by the store for appliances sold in December 1995. As a result of the dispute, Hill telephoned Plaintiff and "cussed" at him. Hill subsequently arrived at the store and continued to "cuss" at Plaintiff and a physical altercation ensued. During the altercation, Hill told Plaintiff he was "`out of here'" and that Hill would "`cut [Plaintiff] out of [the] inheritance.'" Plaintiff then left the store. The following day, Plaintiff arrived at the store and continued to run the business as usual. Hill came to the store a few days later and informed Plaintiff he was closing the store. Plaintiff responded that Hill could not close the store because the store belonged to Plaintiff. Hill left the store and for several weeks thereafter Plaintiff continued to run the store.

On 12 March 1996, Havelock Chief of Police Michael Campbell (Campbell) went to see Plaintiff at the store. Campbell informed Plaintiff that Hill, by letter, requested that Plaintiff be removed from the store. The letter, which Campbell showed to Plaintiff, advised Plaintiff that as of 31 January 1996, Plaintiff had been removed as director of Bob Hill Enterprises, Inc., that as of 1 February 1996, Plaintiff had been removed as secretary of Bob Hill Enterprises, Inc., that "effective immediately" Plaintiff's employment with Bob Hill Enterprises, Inc. was terminated, and that Plaintiff was requested to "vacate" the store. The letter further stated that Plaintiff's continued presence at the store "will be considered trespassing and appropriate legal action will be taken against [Plaintiff]." Plaintiff showed Campbell documents purporting to reveal Plaintiff's ownership of the store, including bank account and sales tax identification numbers. Campbell then left the store and did not force Plaintiff to vacate the premises.

The following day, 13 March 1996, a Havelock police officer came to the store with a warrant charging Plaintiff with trespass. The officer arrested Plaintiff and took him before a magistrate, who placed Plaintiff under a $2,000.00 secured bond. As a condition of the bond, Plaintiff was prohibited from going to the store, from going to any other stores owned by Bob Hill Enterprises, Inc., and from having contact with Hill. At the time Plaintiff was arrested and taken from the store, the store had approximately $190,000.00 in inventory and $100,000.00 in accounts receivable. Upon his release on bond, Plaintiff returned to the store to find that it was locked, with no employees or customers inside. The store locks had been changed, and a "no trespassing" sign was posted on the premises. Plaintiff never returned to the store again. Plaintiff was tried on the trespass charge in Craven County District Court and the case was dismissed for lack of State's evidence. Hill subsequently transferred some of the store's inventory to other stores belonging to Bob Hill Enterprises, Inc. and sold the remainder of the business.

At the close of Plaintiff's evidence, Defendants made a motion to dismiss Plaintiff's claims against them. The trial court denied the motion.

Defendants presented evidence at trial that Hill did not intend to give Plaintiff the store; rather, he intended to sell the store to Plaintiff. Hill testified he did not give the store to Plaintiff on 1 January 1996 and no transfer of the assets was ever made.

At the close of all the evidence, Defendants renewed their motion to dismiss Plaintiff's claims and the trial court denied the motion. The jury subsequently returned verdicts in favor of Plaintiff for $190,000.00 in property damage based on Plaintiff's claim for conversion, $110,000.00 for malicious prosecution, $1.00 for abuse of process, and $6,500,000.00 in punitive damages. By entry of judgment dated 28 September 1999, the trial court reduced the punitive damage award by remittitur to $330,000.00. On 8 October 1999, Defendants filed a motion for judgment notwithstanding the verdict or, in the alternative, a new trial. The trial court denied both motions, but filed an amended judgment on 12 November 1999 further reducing the punitive damage award to $250,000.00, and reducing the malicious prosecution award to $10,000.00.

The issues are whether: (I) the record contains substantial evidence Defendants gifted the assets of the store to Plaintiff and, if not, whether a directed verdict should have been granted in favor of Defendants on Plaintiff's conversion claim; (II) the record contains substantial evidence Defendants instituted a criminal proceeding against Plaintiff for trespass without probable cause and, if not, whether a directed verdict should have been granted in favor of Defendants on Plaintiff's malicious prosecution claim; and (III) the record contains substantial evidence Defendants instituted an action for trespass against Plaintiff in order to obtain a result not properly obtainable and, if not, whether a directed verdict should have been granted in favor of Defendants on Plaintiff's abuse of process claim.

Initially, we note Defendants did not make a motion for directed verdict at trial; rather, Defendants made a motion to dismiss Plaintiff's claims at the close of Plaintiff's evidence and at the close of all the evidence. "Only in an action tried without a jury may the defendant move for an involuntary dismissal [under Rule 41 of the North Carolina Rules of Civil Procedure] on the ground that upon the facts and the law the plaintiff has shown no right to relief." Beam v. Kerlee, 120 N.C.App. 203, 213, 461 S.E.2d 911, 919 (1995), cert. denied, 342 N.C. 651, 467 S.E.2d 703 (1996). In this case, therefore, the proper motion for Defendants to make to challenge the sufficiency of the evidence would have been a motion for...

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3 cases
  • Rodriguez-Carias v. Nelson's Auto Salvage & Towing Service, No. COA07-570 (N.C. App. 3/18/2008)
    • United States
    • North Carolina Court of Appeals
    • March 18, 2008
    ...of Maynard, 64 N.C. App. 211, 307 S.E.2d 416 (1983), Pittman v. Barker, 117 N.C. App. 580, 452 S.E.2d 326 (1995), and Hill v. Hill, 142 N.C. App. 524, 545 S.E.2d 442 (2001), all civil cases, to support his contention that Lorie Bradley's testimony should have been excluded. However, the Com......
  • Fuhs v. Fuhs, COA15–945.
    • United States
    • North Carolina Court of Appeals
    • February 16, 2016
    ...probable cause; (3) with malice; and (4) the prior proceeding terminated in favor of [the] plaintiff.’ " Hill v. Hill, 142 N.C.App. 524, 537, 545 S.E.2d 442, 451 (Tyson, J., dissenting) (citing Moore v. Evans, 124 N.C.App. 35, 42, 476 S.E.2d 415, 421 (1996) ), rev'd for the reasons stated i......
  • Martin v. Parker
    • United States
    • North Carolina Court of Appeals
    • May 7, 2002
    ...Best v. Duke University, 337 N.C. 742, 749, 448 S.E.2d 506, 510 (1994) (citation omitted); see also Hill v. Hill, 142 N.C.App. 524, 537, 545 S.E.2d 442, 451 (dissenting opinion), rev'd. on other grounds, 354 N.C. 348, 553 S.E.2d 679 Presuming that plaintiff is correct that disputed issues o......
1 books & journal articles
  • Chapter 13 CONVERSION
    • United States
    • North Carolina Bar Association Elements of Civil Causes of Action in North Carolina (NCBA)
    • Invalid date
    ...256, 278 S.E.2d 501 (1981); Se. Shelter Corp. v. BTU,Inc., 154 N.C. App. 321, 572 S.E.2d 200 (2002); Hill v. Hill, 142 N.C. App. 524, 545 S.E.2d 442, rev'd on other grounds, 553 S.E.2d 679 (2001); Norman v. Nash Johnson & Sons Farms, Inc., 140 N.C. App. 390, 537 S.E.2d 248 (2000), review de......

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