Steele v. Bowden

• Decision Date: 31 December 2014
• Docket Number: No. COA14–573.,COA14–573.
• Citation: 768 S.E.2d 47,238 N.C.App. 566
• Court: North Carolina Court of Appeals
• Parties: Antonio STEELE, Plaintiff, v. Tammy BOWDEN, Alamance Towing & Recovery, John Doe I, d/b/a Alamance Towing & Recovery, and John Doe II, Defendants.

238 N.C.App. 566

768 S.E.2d 47

Antonio STEELE, Plaintiff,

v.Tammy BOWDEN, Alamance Towing & Recovery, John Doe I, d/b/a Alamance Towing & Recovery, and John Doe II, Defendants.

No. COA14–573.

Court of Appeals of North Carolina.

Dec. 31, 2014.

Barry Nakell, for Plaintiff.

Perry, Perry & Perry, P.A., Durham, by Maria T. Singleton, for Defendant.

ERVIN, Judge.

Defendant Tammy Bowden appeals from an order granting partial summary judgment in favor of Plaintiff Antonio Steele with respect to the conversion and trespass to personal property claims that he asserted against Defendant and from a judgment awarding Plaintiff a total of $10,570 in compensatory and punitive damages. On appeal, Defendant argues that the trial court erred by granting partial summary judgment in Plaintiff's favor with respect to his conversion and trespass to personal property claims on various procedural and substantive grounds, depriving her of the right to give sworn oral testimony at the summary judgment hearing, refusing to accept the oral statements that she made in open court in opposition to Plaintiff's summary judgment motion as evidence, refusing to submit the issues raised by her counterclaim to the jury, impermissibly presenting the jury with an "alternative verdict" form, incorrectly instructing the jury concerning the law applicable to conversion and trespass to personal property claims, submitting the issue of punitive damages to the jury absent evidence that Defendant had acted maliciously, allowing the jury to award damages to Plaintiff despite the absence of sufficient evidence of the value of the vehicle in question, and granting Plaintiff's motion in limine seeking the exclusion of documents that should have been admitted into evidence. After carefully considering Defendant's challenges to the trial court's order and judgment in light of the record and the applicable law, we conclude that the trial court's order and judgment should be affirmed in part, that the trial court's judgment should be reversed in part, and that this case should be remanded to the Orange County District Court for further proceedings not inconsistent with this opinion.

I. Factual Background

A. Substantive Facts

Plaintiff and Defendant were married in 2004 and divorced in 2009. In January 2005, the two of them purchased a 2002 Ford Expedition that was financed using a loan that had been obtained from Santander Consumer USA. Defendant co-signed the loan with Plaintiff and the vehicle obtained as a result of the making of the loan was titled to both parties.

In the course of the process by which they parted company, the parties' entered an oral agreement under which Plaintiff would retain the vehicle, make timely payment as required by the loan agreement, and have Defendant's name removed from both the title to the vehicle and the loan agreement. Pursuant to this agreement, Plaintiff retained possession of the vehicle and made all of the remaining loan payments except for the final one. However, Plaintiff did not obtain the removal of Defendant's name from the title and the loan agreement or make all of the payments under the loan in a timely manner. As a result, an unpaid balance of $1,989.23 existed at the time that the loan should have been paid off.

Plaintiff continued to make payments against the outstanding balance under the loan after the date by which the full amount should have been paid in a total amount of $1,374.64, effectively leaving an outstanding balance of $694.62 due and owing under the loan agreement. Before Plaintiff completed the payment process, Defendant made the final payment by means of a check drawn on 28 March 2011 in the amount of $699.62. According to Defendant, Santander contacted her when Plaintiff failed to make timely payment under the loan and she eventually made the final payment herself in order to protect her access to credit.

After having made the final loan payment, Defendant attempted to " repossess" the vehicle from Plaintiff in March 2011 by hiring a towing company to remove the vehicle from Plaintiff's property. Plaintiff thwarted this attempted "repossession" by spotting the approaching tow truck and driving away at a high rate of speed. However, Plaintiff hit a curb and damaged the vehicle in the course of thwarting the "repossession." Defendant made a second attempt to "repossess" the vehicle in March or April 2011 and succeeded in obtaining possession of the vehicle on that occasion. Defendant claimed that she had made these efforts to "repossess" the vehicle in order to encourage Plaintiff to reimburse her for the amount of the final loan payment.

After obtaining possession of the vehicle, Defendant had an auto mechanic repair the damage that had occurred during the first "repossession" attempt. However, Defendant was unable to pay the mechanic for the required repairs. As a result, the vehicle was sold as part of the process of enforcing a repairman's lien.

B. Procedural History

On 11 July 2012, Plaintiff filed a complaint against Defendant, John Doe I doing business as Alamance Towing and Recovery, and John Doe II in which he asserted claims for conversion and assault and requested an award of compensatory and punitive damages. On 20 September 2012, Defendant filed an answer in which she denied the material allegations of Plaintiff's complaint, asserted that she had a legal right to take possession of the vehicle arising from Plaintiff's failure to make required loan payments, and requesting "reimbursement" for the amount of the loan balance.

On 16 November 2012, Plaintiff filed a motion seeking the entry of judgment on the pleadings. Judge Lunsford Long entered an order denying Plaintiff's motion for judgment on the pleadings on 9 January 2013. On 25 June 2013, Judge Beverly A. Scarlett entered an order allowing Plaintiff to amend his complaint to add a claim for trespass to real property. On 5 September 2013, Plaintiff filed a motion seeking the entry of partial summary judgment in his favor with respect to the issue of liability. On 29 October 2013, the trial court entered an order granting Plaintiff's motion with respect to the conversion and trespass to personal property claims and ordering that the amount of damages to which Defendant was entitled on the basis of his claims for conversion and trespass to personal property be determined by a jury. On the same date, Plaintiff voluntarily dismissed his claims against Alamance Towing and Recovery and John Doe II.¹

This case came on for trial before the trial court and a jury at the 29 October 2013 civil session of the Orange County District Court. At the beginning of the trial, the trial court recognized that Plaintiff had withdrawn his assault claim. On 30 October 2013, the jury returned a verdict awarding $10,320 in compensatory damages for Defendant's conversion of or trespass to the vehicle and $250 in punitive damages. The trial court entered a final judgment based on the jury's verdict on 12 November 2013. Defendant noted an appeal to this Court from the trial court's order and judgment.

II. Substantive Legal Analysis

A. Summary Judgment Order

In her brief, Defendant contends that the trial court erred by granting summary judgment in Plaintiff's favor with respect to his conversion and trespass to personal property claims. More specifically, Defendant contends that the granting of Plaintiff's summary judgment motion was precluded by Judge Long's refusal to enter judgment on the pleadings in Plaintiff's favor and that the record discloses the existence of genuine issues of material fact concerning the extent to which Defendant was entitled to forcibly take the vehicle from Plaintiff's possession sufficient to require a jury trial with respect to the issue of her liability for conversion and trespass to personal property. Defendant's contentions are without merit.

1. Standard of Review

"Our standard of review of an appeal from summary judgment is de novo; such judgment is appropriate only when the record shows that ‘there is no genuine issue as to any material fact and that any party is entitled to judgment as a matter of law.’ " In re Will of Jones, 362 N.C. 569, 573, 669 S.E.2d 572, 576 (2008) (quoting Forbis v. Neal, 361 N.C. 519, 524, 649 S.E.2d 382, 385 (2007) ). "A ‘genuine issue’ is one that can be maintained by substantial evidence. The showing required for summary judgment may be accomplished by proving an essential element of the opposing party's claim does not exist, cannot be proven at trial, or would be barred by an affirmative defense." Dobson v. Harris, 352 N.C. 77, 83, 530 S.E.2d 829, 835 (2000) (internal citations omitted).

2. Defendant's Challenges to the Summary Judgment Order

a. Collateral Estoppel and Overruling Prior Order

As an initial matter, Defendant contends that the trial court lacked the authority to grant summary judgment with respect to Plaintiff's claims on the grounds that those claims had previously been argued and adjudicated before a different trial judge in violation of the principle of collateral estoppel and the rule that one judge cannot overrule another judge of equal authority. In support of this contention, Defendant notes that Judge Long denied Plaintiff's motion for judgment on the pleadings with respect to Plaintiff's substantive claims by means of an order entered on 9 January 2013. Defendant's contention lacks merit.

"[A] claim cannot be barred by res judicata or collateral estoppel unless it was litigated to final judgment in a prior action." Jonesboro United Methodist Church v. Mullins–Sherman Architects, L.L.P., 359 N.C. 593, 601, 614 S.E.2d 268, 273 (2005). In view of the fact that Judge Long's order denying Plaintiff's motion for judgment on the pleadings was neither entered in a separate action or constituted a final judgment, that order does not have collateral estoppel effect.

Defendant's claim that Judge Bryan improperly overruled Judge Long is devoid of merit as well. "It is well established that one...