Warren v. Ford Motor Credit Co., No. 81-7948

CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)
Writing for the CourtBefore JOHNSON and ANDERSON; EDWIN F. HUNTER, Jr.
Citation693 F.2d 1373
Parties35 UCC Rep.Serv. 306 Glen WARREN and Peggy Warren, Plaintiffs-Appellees, v. FORD MOTOR CREDIT COMPANY and Larry Diefenderfer, Defendants-Appellants.
Decision Date27 December 1982
Docket NumberNo. 81-7948

Page 1373

693 F.2d 1373
35 UCC Rep.Serv. 306
Glen WARREN and Peggy Warren, Plaintiffs-Appellees,
v.
FORD MOTOR CREDIT COMPANY and Larry Diefenderfer,
Defendants-Appellants.
No. 81-7948.
United States Court of Appeals,
Eleventh Circuit.
Dec. 27, 1982.

Page 1374

Rushton, Stakely, Johnston & Garrett, N.T. Braswell, Robert A. Huffaker, Montgomery, Ala., for defendants-appellants.

Steven F. Schmitt, Tallassee, Ala., Nomberg, McCabe & Fulford, Donald C. McCabe, Daleville, Ala., for plaintiffs-appellees.

Appeal from the United States District Court for the Middle District of Alabama.

Before JOHNSON and ANDERSON, Circuit Judges, and HUNTER *, District Judge.

EDWIN F. HUNTER, Jr., District Judge:

This is a diversity action. It involves repossession and sale of a 1972 Ford automobile. Plaintiffs, Glen Warren and his wife Peggy Warren, charge the defendants, Ford Motor Credit Company (FMCC) and Larry Diefenderfer, with two counts of conversion--one for wrongfully repossessing and selling the automobile, and another for failing to notify the Warrens that the automobile had been repossessed and would be sold. The trial jury, rendering a general verdict, awarded $1,350 as compensatory damages and $54,100 in punitive damages.

Defendants moved, under Rule 50(b), for a judgment notwithstanding the verdict, and in the alternative for a new trial and/or remittitur. The trial court denied all defense motions. This appeal followed.

STANDARDS OF REVIEW

The decision in Boeing v. Shipman, 411 F.2d 365 (5th Cir.1969, en banc), articulates the standard by which to judge the propriety of a judgment notwithstanding the verdict:

The Court should consider all of the evidence--not just that evidence which supports the non-mover's case--but in a light and with all reasonable inferences most favorable to the party opposed to the motion. If the facts and inferences point so strongly and overwhelmingly in favor of one party that the Court believes that reasonable men could not arrive at a contrary verdict, granting of the motion is proper. On the other hand, if there is substantial evidence opposed to the motions, that is, evidence of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motions should be denied, and the case submitted to the jury. A mere scintilla of evidence is insufficient to present a question to the jury. A mere scintilla of evidence is insufficient to present a question for the jury. The motions for directed verdict and judgment n.o.v.

Page 1375

should not be decided by which side had the better of the case, nor should they be granted only when there is a complete absence of probative facts to support a jury verdict. There must be a conflict in substantial evidence to create a jury question. However, it is the function of the jury as the traditional finder of the facts, and not the Court, to weigh conflicting evidence and inferences and determine the credibility of witnesses. Id. at 374-75.

A district court's denial of a new trial is reviewed under a different standard:

"[T]he operative factors underlying review of a ruling on a new trial motion are deference to the trial judge, who has had the opportunity to observe the witnesses and to consider the evidence in the context of a living trial rather than upon a cold record, deference to the jury's determination of weight of the evidence and quantum of damages, and the constitutional allocation to juries of questions of fact ..." Massey v. Gulf Oil Corp., 508 F.2d 92, 94, 95 (5th Cir.1975).

With the proper standards of review in mind, we have reviewed the record and now recite the facts.

In December, 1973, Wilson Baldwin purchased a used 1972 Ford automobile from Bondy's Ford. The purchase was effected by a retail installment contract entered into by Baldwin and Bondy's calling for twenty-four monthly payments and giving Bondy's a security interest in the automobile. Bondy's assigned its interest to the defendant, Ford Motor Credit Company.

Baldwin lived in a trailer next door to the plaintiffs, Glen and Peggy Warren. Baldwin used as his mailing address the same address as the Warrens. He was in the United States Army, and in 1974 was transferred to an overseas duty station. Prior to being transferred, Baldwin offered to give the automobile to Peggy Warren in exchange for her making the remainder of the payments. Thereafter, Peggy Warren, with the assistance of her husband, made all payments.

The installment contract called for 24 monthly payments. Payments were due on the 10th of each month. The first was due on January 10, 1974, and the last on December 10, 1975. The Warrens were often late with their payments. On at least three occasions extensions were granted. As a result, the overall period of payment under the contract was extended so that the last--the 24th payment--was due on March 10, 1976.

In January of 1976 the automobile was damaged by fire and was taken to Ed Sterling Ford of Enterprise, Alabama for repairs. On February 13, 1976, the Warrens made a monthly payment in the amount of $112.86, and on the same day $100 was paid by the Warrens to Ed Sterling toward the repair estimate of $676. Then, on March 10, 1976, while still at the shop for repairs, the automobile, primarily at the direction of Diefenderfer, was repossessed by FMCC. This repossession was without knowledge to the Warrens.

Notice of the intended disposition sale was mailed to Baldwin at the Warren address. Diefenderfer knew Baldwin was not there and that he was in the military service. No notice was sent to the Warrens advising them of the intended disposition sale. The notice to Baldwin was received by the Warrens' 16 year old daughter. The Warrens never received or saw the letter.

On March 20th, Peggy Warren, without knowledge that the automobile had been repossessed, made what she thought would be the final payment under the contract. Nevertheless, FMCC put the repaired automobile up for sale as noticed, and on April 9th issued a bill of sale of the vehicle. The Warrens subsequently learned of the repossession and sale.

The case is based on two counts of conversion, which is defined as "a wrongful taking ... or an illegal assumption of ownership, or an illegal use or misuse." Ott v.

Page 1376

Fox, 362 So.2d 836, 839 (Ala.1978). The first count asserts that defendants converted the automobile by wrongfully repossessing and selling it. The second count is pegged on the failure to notify the Warrens that the automobile had been repossessed and would be sold. FMCC and Diefenderfer challenge the sufficiency of the evidence as to both counts.
COUNT I

The validity of the first count--conversion by wrongful taking and selling--turns on whether FMCC had legal title to the automobile, and thus the right to possession of it on March 10th. If the February 10, 1976 payment was delinquent, and as a result the retail installment contract in default, then under Alabama law FMCC had legal title and the accompanying right to repossess; whereas, if the February 10, 1976 installment had been paid, then the contract was not in default, and FMCC had no legal title and its repossession was wrongful and amounted to a conversion.

"To constitute conversion, there must be a wrongful taking or a wrongful detention or interference, or an illegal assumption of ownership, or an illegal use or misuse. Webb v. Dickson, 276 Ala. 553, 165 So.2d 103 (1964); and State Farm Mutual Automobile Insurance Co. v. Wagnon, 53 Ala.App. 712, 304 So.2d 216 (1974). The gist of the action is the wrongful exercise of dominion over property in exclusion or defiance of a plaintiff's rights, where said plaintiff has general or special title to the property or the immediate right to possession. Jones v. Americar, Inc., 283 Ala. 638, 219 So.2d 893 (1969)." Ott v. Fox, 362 So.2d 836, 839 (Ala.1978).

We have here a classic case for a jury's determination--a courtroom swearing match where plaintiff said "I did" and defendants said "my records show you did not." The jury believed the plaintiff. There, our inquiry ends.

Defendants argue on appeal that Wilson Baldwin defaulted under the contract when he transferred the automobile to the Warrens. It can not be disputed that in March, 1974 (when Baldwin transferred his interest) that plaintiffs took the vehicle subject to the perfected security interest of FMCC. However, the defendants knew of this transfer of ownership and possession of the vehicle. Instead of declaring the contract to be in default, they collected the payments from the Warrens and extended payments on the account whenever requested to do so. From March, 1974 until March 10, 1976, defendants decided it would not be in their best interest to declare the contract in default due to the transfer of the vehicle. It was not until after this law suit was filed that this particular claim of default was raised. The claim of default due to transfer of the vehicle to the Warrens was not argued by the defense at trial. There was no request for any jury instructions as to the transfer of the vehicle constituting a default. The court did not charge the jury on this issue. No objection was made to the court's charge. In our opinion defendants...

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  • T.D.S. Inc. v. Shelby Mut. Ins. Co., No. 83-3622
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • May 24, 1985
    ..." 'the maximum limit of a reasonable range within which the jury may properly operate.' " Warren v. Ford Motor Credit Co., 693 F.2d 1373, 1380 (11th Cir.1982) (quoting Keyes v. Lauga, 635 F.2d 330, 336 (5th Cir.1981) ); accord, Lassitter, 349 So.2d at 627. That part of the judgmen......
  • Bernstein v. Sephora, Div. Of Dfs Group L.P., No. 99-02010-CIV-JORDAN.
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Southern District of Florida
    • January 11, 2002
    ...award exceeds the maximum limit of a reasonable range within which the jury may properly operate." Warren v. Ford Motor Credit Co., 693 F.2d 1373, 1380 (11th Cir.1982) (internal quotation marks omitted); see also Goldstein v. Manhattan Indus., Inc., 758 F.2d 1435, 1448 (11th Cir.1985) ......
  • Estate of Jackson v. Phillips Petroleum Co., Civ. A. No. 82-1404-AH.
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Southern District of Alabama
    • December 10, 1987
    ...causes" and ordered a remittitur as a condition to the denial of a new trial. See id. at 562. In Warren v. Ford Motor Credit Co., 693 F.2d 1373 (11th Cir.1982), the court acknowledged that Alabama law controlled the substantive question of excessiveness and that the applicable law forb......
  • Hall v. Norfolk Southern Ry. Co., Civ. A. No. 1:91-cv-1772-MHS.
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Georgia
    • July 23, 1993
    ...the Court may condition the denial of a motion for new trial on plaintiff's acceptance of a remittitur. Warren v. Ford Motor Credit Co., 693 F.2d 1373, 1380 (11th Cir. 1982); Lowe v. General Motors Corp., 624 F.2d 1373, 1383 (5th Cir.1980); Braun v. Soldier of Fortune Magazine, 757 F.Supp. ......
  • Request a trial to view additional results
20 cases
  • T.D.S. Inc. v. Shelby Mut. Ins. Co., No. 83-3622
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • May 24, 1985
    ..." 'the maximum limit of a reasonable range within which the jury may properly operate.' " Warren v. Ford Motor Credit Co., 693 F.2d 1373, 1380 (11th Cir.1982) (quoting Keyes v. Lauga, 635 F.2d 330, 336 (5th Cir.1981) ); accord, Lassitter, 349 So.2d at 627. That part of the judgmen......
  • Bernstein v. Sephora, Div. Of Dfs Group L.P., No. 99-02010-CIV-JORDAN.
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Southern District of Florida
    • January 11, 2002
    ...award exceeds the maximum limit of a reasonable range within which the jury may properly operate." Warren v. Ford Motor Credit Co., 693 F.2d 1373, 1380 (11th Cir.1982) (internal quotation marks omitted); see also Goldstein v. Manhattan Indus., Inc., 758 F.2d 1435, 1448 (11th Cir.1985) ......
  • Estate of Jackson v. Phillips Petroleum Co., Civ. A. No. 82-1404-AH.
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Southern District of Alabama
    • December 10, 1987
    ...causes" and ordered a remittitur as a condition to the denial of a new trial. See id. at 562. In Warren v. Ford Motor Credit Co., 693 F.2d 1373 (11th Cir.1982), the court acknowledged that Alabama law controlled the substantive question of excessiveness and that the applicable law forb......
  • Hall v. Norfolk Southern Ry. Co., Civ. A. No. 1:91-cv-1772-MHS.
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Georgia
    • July 23, 1993
    ...the Court may condition the denial of a motion for new trial on plaintiff's acceptance of a remittitur. Warren v. Ford Motor Credit Co., 693 F.2d 1373, 1380 (11th Cir. 1982); Lowe v. General Motors Corp., 624 F.2d 1373, 1383 (5th Cir.1980); Braun v. Soldier of Fortune Magazine, 757 F.Supp. ......
  • Request a trial to view additional results

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