SSI Medical Services, Inc. v. Cox

• Decision Date: 18 June 1990
• Docket Number: No. 23229,23229
• Court: South Carolina Supreme Court
• Parties: SSI MEDICAL SERVICES, INC., Respondent, v. Donald L. COX; Heritage Trust Federal Credit Union; North Charleston National Bank of South Carolina; Port City Leasing, Inc., A South Carolina Corporation; and Southland Trucking Company, A South Carolina Corporation, Defendants, of whom Donald L. Cox is Appellant.

Page 789

392 S.E.2d 789

301 S.C. 493

SSI MEDICAL SERVICES, INC., Respondent, v. Donald L. COX; Heritage Trust Federal Credit Union; North Charleston National Bank of South Carolina; Port City Leasing, Inc., A South Carolina Corporation; and Southland Trucking Company, A South Carolina Corporation, Defendants of whom Donald L. Cox is Appellant.

No. 23229.

Supreme Court of South Carolina.

Submitted March 20, 1990.

Decided June 18, 1990.

Don C. Gibson, North Charleston, for appellant.

Stephen P. Groves, of Young Clement, Rivers & Tisdale, Charleston, for respondent.

HARWELL, Justice:

This case involves the issue of whether the trial judge properly entered summary judgment in favor of respondent.

I. FACTS

Respondent SSI Medical Services, Inc. (SSI) is a corporation headquartered in Charleston engaged in the manufacture and distribution of medical equipment. Its principle product is hospital beds. At one time, SSI provided automobiles and trucks for the business use of some of its employees. These vehicles were leased and the total fleet was comprised of approximately 850 vehicles. During appellant Donald L. Cox's (Cox) tenure with SSI, he was employed as the manager of the automobile and truck fleet. This action stems primarily from Cox's handling of the automobile fleet.

The normal lease term for automobiles was the first of either two years or 50,000 miles. When an automobile lease expired, the automobile was returned to the leasing company for disposal. SSI and the individual leasing company would then agree on the residual value of the automobile. If the leasing company was able to sell the automobile at either the residual value or more, SSI would pay nothing extra or receive the excess. If the leasing company received less than the residual value of the automobile, SSI would pay the leasing company the difference.

This situation provided no incentive to the leasing companies to obtain a sale of the automobiles at a price at or above the residual values as SSI more often had to pay the leasing company an additional amount. Cox believed that he could save SSI money by disposing of the automobiles himself thereby eliminating the leasing companies' participation. SSI agreed and Cox began selling the leased automobiles through wholesalers and occasionally made retail sales. When Cox sold an automobile, he would obtain the purchaser's personal check in the amount of the purchase price which was payable to either him or cash. More often than not, he would obtain a purchase price in excess of the residual value. Cox would then deposit the check into his personal checking account at North Carolina National Bank. Once the check cleared, Cox would obtain a cashier's check payable to the leasing company for the residual value or an amount slightly higher.

Cox was able to process a substantial number of automobiles through his personal disposal system. It is undisputed that Cox kept funds placed in his personal NCNB account for his personal use which constituted the difference between the residual value or slightly higher and the actual price he received from the sales. SSI was not aware that Cox was retaining funds from the automobile sales. Cox did not report or provide a reconciliation statement to SSI detailing the automobile sales, funds obtained, or funds he retained.

After SSI discovered what Cox was doing, Cox resigned from SSI. SSI initiated this action against Cox and other defendants including institutions where Cox maintained banking accounts and two companies owned by Cox. Although a complete procedural history is not necessary SSI's complaint alleged causes of action for conversion, constructive trust, and claim and delivery against all defendants. SSI also sought an order of attachment on Cox's bank accounts and actual and punitive damages from Cox. SSI also sought a court order requiring that Cox hold funds in a constructive trust for the benefit of SSI, that Cox account to SSI, that Cox's bank accounts be frozen, and that the bank accounts of Cox's two companies be frozen. An order of attachment was issued. Cox's companies denied liability as did Cox. Cox however, counterclaimed for abuse of process and conversion.

SSI filed motions for summary judgment as to Cox's counterclaims and as to liability on SSI's claims against Cox. The trial judge issued an order granting SSI's motion for summary judgment as to the liability of Cox for the causes of action for conversion and constructive trust. SSI received summary judgment in its favor as to Cox's counterclaim for abuse of process, but the trial judge permitted Cox's conversion action against SSI to continue. Cox appeals from this order.

II. DISCUSSION

Summary judgment is appropriate when it is clear that there is no genuine issue of material fact and the conclusions and inferences to be drawn from the facts are undisputed. U.S. Leasing Corp. v. Janicare, Inc., 294 S.C. 312, 364 S.E.2d 202 (Ct.App.1988); South Carolina National Bank v. Joyner, 289 S.C. 382, 346 S.E.2d 329 (Ct.App.1986). In ruling on a motion for summary judgment, the evidence and the inferences which can be drawn therefrom should be viewed in the light most favorable to the nonmoving party. Davis v. Piedmont Engineers, Architects & Planners, P.A., 284 S.C. 20, 324 S.E.2d 325 (Ct.App.1984).

Further, Rule 56(e), SCRCP requires that when a motion for summary judgment is made and supported as provided by the rule, an adverse party may not rest upon the mere allegations or denials of his pleadings. The adverse party's response, including affidavits or as otherwise provided by the rule, must set forth specific facts showing there is a genuine issue for trial.

After reviewing the record and the evidence including all reasonable inferences from that evidence in the light most favorable to Cox, we find that there are no genuine issues of material fact and the trial judge did not err in granting SSI summary judgment as to Cox's liability on SSI's conversion and constructive trust claims for the reasons discussed below.

A. WHETHER THE TRIAL JUDGE ERRED IN GRANTING SSI SUMMARY JUDGMENT AS TO COX'S LIABILITY ON SSI'S CONVERSION CLAIM

Cox argues that the trial judge erred in granting summary judgment to SSI regarding Cox's liability on its conversion cause of action because a claim for money cannot be the subject of a conversion action. Cox also argues that: (1) there has been no demand by SSI for the return of the claimed property and refusal by Cox, and (2) SSI gave Cox permission to deal with the property at issue and therefore acquiesced in his scheme.

Conversion is a wrongful act and has been defined as the unauthorized assumption in the exercise of the right of ownership over goods or personal chattels belonging to another to the exclusion of the owner's rights. Owens v. Andrews Bank & Trust Co., 265 S.C. 490, 220 S.E.2d 116 (1975). Conversion may arise by some illegal use or misuse, or by illegal detention of another's chattel. Id. Money may be the subject of conversion when it is capable of being identified and there may be conversion of determinate sums even though the specific coins and bills are not identified. Id; 89 C.J.S. Trover and Conversion § 23 (1955).

Therefore, Cox is incorrect in his statement that money may not be the subject of a conversion action. Cox alleges that SSI failed to set forth a conversion claim because the money is not determinate or identifiable. We find that SSI has sufficiently established a determinate amount of money that was converted. SSI's complaint and an accompanying affidavit state that Cox has wrongfully retained not less than $121,489.64 due to his handling of the sale of 35 vehicles. SSI can also identify into which account these sums were deposited. Further, any problems SSI has encountered in determining the specific amounts Cox mishandled is due to Cox's fault as he kept no records, made no reports to SSI, and made no report of this income for tax purposes. Additionally, summary judgment was granted to SSI as to Cox's liability only. SSI will still have to specifically prove each element of its damages.

Cox also alleges that the trial judge erred in granting summary judgment to SSI as to Cox's liability on the conversion claim because there was no demand by SSI that the funds be returned or refusal by Cox. Although this issue was raised in Cox's answer to SSI's complaint, it was never ruled on by the trial judge or raised in an appropriate post-trial motion. Therefore, this issue is not properly before this Court. Talley v. South Carolina Higher Educ. Tuition Grants Committee, 289 S.C. 483, 347 S.E.2d 99 (1986) (an issue raised but not ruled on by the trial judge is not preserved for appeal).

Even if such argument was properly before this Court, we find it to be without merit. Demand and refusal are unnecessary where as here, the conversion resulted from Cox's securing possession of the property, or in this case, the money, illegally, tortiously, by fraud, or other wrongful conduct. 18 Am.Jur.2d, Conversion § 84 (1985); McPherson v. Neuffer & Hendrix, 45 S.C.L. (11 Rich.)...