Steele v. Bowden

NO. COA14-573
NORTH CAROLINA COURT OF APPEALS
Filed: 31 December 2014
ANTONIO STEELE,
Plaintiff,

Orange County
v.
No. 12 CVD 1048

TAMMY BOWDEN, ALAMANCE TOWING &
RECOVERY, JOHN DOE I, d/b/a ALAMANCE
TOWING & RECOVERY, and JOHN DOE II,
Defendants.

Appeal by defendant from order entered 29 October 2013 and

judgment entered 12 November 2013 by Judge James T. Bryan in

Orange County District Court. Heard in the Court of Appeals 22

October 2014.

Barry Nakell for Plaintiff.

Perry, Perry & Perry, P.A., 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
 -2-
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
 -3-
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.
 -4-
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
 -5-
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.
 -6-
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

1
As a result of the fact that Alamance Towing and Recovery
was also named as John Doe I, the voluntary dismissal removed
all of the defendants named in the complaint and amended
complaint from this case except Defendant.
 -7-
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
 -8-
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
 -9-
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 [district] court judge may not ordinarily modify,

overrule, or change the judgment or order of another [district]

court judge previously entered in the same case.” In re

Royster, 361 N.C. 560, 563, 648 S.E.2d 837, 840 (2007). In

considering a motion for judgment on the pleadings, the trial

court is required to look to the face of the pleadings to

determine whether the movant is entitled to judgment as a matter

of law, with all of the factual allegations in the nonmovant’s

pleadings being deemed to have been admitted except to the

extent that they are legally impossible or not admissible in

evidence. Governor’s Club, Inc. v. Governors Club Ltd.

Partnership, 152 N.C. App. 240, 247, 567 S.E.2d 781, 786 (2002),

aff’d, 357 N.C. 46, 577 S.E.2d 620 (2003). “By contrast, when

considering a summary judgment motion, the trial court must look

at more than the pleadings; it must also consider additional

matters such as affidavits, depositions and other specified
 -10-
matters outside the pleadings.” Locus v. Fayetteville State

University, 102 N.C. App. 522, 527, 402 S.E.2d 862, 866 (1991).

Thus, “the denial of a motion [for judgment on the pleadings],

which merely challenges the sufficiency of the [pleadings], does

not prevent the court’s allowing a subsequent motion for summary

judgment based on affidavits outside the complaint.” Alltop v.

J.C. Penney Co., 10 N.C. App. 692, 694, 179 S.E.2d 885, 887,

cert. denied, 279 N.C. 348, 182 S.E.2d 580 (1971). As a result,

Judge Bryan’s decision to grant summary judgment in Plaintiff’s

favor did not constitute the overruling of Judge Long’s order

denying Plaintiff’s motion for judgment on the pleadings.

In apparent recognition of this potential defect in her

argument, Defendant contends that the argument that Plaintiff

made in support of his judgment on the pleadings relied on

information that was not contained in the pleadings, thereby

converting Plaintiff’s motion for judgment on the pleadings into

one for summary judgment. See Weaver v. Saint Joseph of the

Pines, Inc., 187 N.C. App. 198, 203, 652 S.E.2d 701, 707 (2007)

(stating that “a motion [lodged pursuant to N.C. Gen. Stat. §

1A-1, Rule 12(b)(6)] is converted to one for summary judgment if

matters outside the pleading are presented to and not excluded

by the court”) (internal quotation marks omitted). “Ordinarily,

if . . . the trial court considers matters outside the
 -11-
pleading[s], the motion shall be treated as one for summary

judgment and disposed of as provided in [N.C. Gen. Stat. § 1A-

1,] Rule 56.” However, in the event that “the matters outside

the pleading[s] considered by the trial court consist only of

briefs and arguments of counsel, the trial court need not

convert the [motion] into one for summary judgment.” Governor’s

Club, 152 N.C. App. at 245-46, 567 S.E.2d at 785 (internal

quotation marks and citations omitted).

At the hearing held for the purpose of considering

Plaintiff’s motion for judgment on the pleadings, both parties

made reference to facts not contained in the pleadings or in

their oral arguments. However, the trial court was not

presented with, and did not review, any evidentiary materials

such as affidavits, deposition transcripts, or documents, in the

course of deciding whether to grant or deny Plaintiff’s motion

for judgment on the pleadings. For that reason, the trial

court’s ruling denying Plaintiff’s motion for judgment on the

pleadings did, in fact, represent a ruling made with respect to

a motion for judgment on the pleadings rather than with respect

to a motion for summary judgment. As a result, the trial court

was not precluded from granting Plaintiff’s summary judgment

motion for either of the reasons stated in Defendant’s brief.

b. Conversion Claim
 -12-
Secondly, Defendant contends that the trial court erred by

granting summary judgment in Plaintiff’s favor with respect to

his conversion claim. More specifically, Defendant argues that

the trial court erred by granting summary judgment in favor of

Plaintiff with respect to his conversion claim on the grounds

that the record disclosed the existence of genuine issues of

material fact concerning the extent to which Defendant had a

lawful right to “repossess” the vehicle. Defendant’s contention

lacks merit.

“[C]onversion is defined as an unauthorized assumption and

exercise of the right of ownership over goods or personal

chattels belonging to another, to the alteration of their

condition or the exclusion of an owner’s rights.” Myers v.

Catoe Constr. Co., 80 N.C. App. 692, 695, 343 S.E.2d 281, 283

(1986). “[T]wo essential elements are necessary in a claim for

conversion: (1) ownership in the plaintiff, and (2) a wrongful

conversion by the defendant.” Bartlett Milling Co., L.P. v.

Walnut Grove Auction & Realty Co., Inc., 192 N.C. App. 74, 86,

665 S.E.2d 478, 489, disc. review denied, 362 N.C. 679, 669

S.E.2d 741 (2008). In cases involving personal property owned

jointly by multiple individuals as tenants in common, “where the

tenant in possession of personal chattels withholds the common

property from his co-tenant, or wrests it from him and exercises
 -13-
a dominion over it, either in direct denial of or inconsistent

with the rights of the latter, an action will lie for

conversion.” Bullman v. Edney, 232 N.C. 465, 468, 61 S.E.2d

338, 340 (1950).

A careful review of the record convinces us that Defendant

has not forecast any evidence that, if accepted as true, would

support a decision in her favor with respect to Plaintiff’s

conversion claim. Simply put, all of the evidence presented for

the trial court’s consideration at the summary judgment hearing

tends to show that Defendant, who owned the vehicle in question

jointly with Plaintiff as tenants in common, took forcible

possession of that vehicle from Plaintiff without Plaintiff’s

consent. Although “it is difficult to draw or trace the shadowy

line that marks the limit to which a tenant in common may go in

the exercise of control over the common property without

subjecting himself to liability for conversion,” Waller v.

Bowling, 108 N.C. 289, 295, 12 S.E. 990, 992 (1891), Defendant

has not identified the existence of any facts that would have

authorized her to forcibly “repossess” the vehicle, and none are

apparent on the face of the record. Simply put, while Defendant

may have had a legal or equitable interest in the vehicle,

Defendant has not cited any authority indicating that she had

the right to forcibly take that vehicle from Plaintiff given his
 -14-
status as a co-owner. As a result, since the undisputed

evidence contained in the record establishes that Defendant’s

conduct did not involve actions near the “shadowy line”

referenced in Waller, the trial court did not err by granting

summary judgment in Plaintiff’s favor with respect to his

conversion claim.

c. Trespass to Personal Property Claim

Similarly, Defendant contends that the trial court erred by

granting summary judgment in Plaintiff’s favor with respect to

his trespass to personal property claim. Once again, Defendant

contends that the record reflects the existence of genuine

issues of material fact concerning the extent to which she had a

right to “repossess” the vehicle. Defendant’s argument is

unpersuasive.

“A successful action for trespass to chattels requires the

party bringing the action to demonstrate that she had either

actual or constructive possession of the personalty or goods in

question at the time of the trespass, and that there was an

unauthorized, unlawful interference or dispossession of the

property.” Fordham v. Eason, 351 N.C. 151, 155, 521 S.E.2d 701,

704 (1999) (internal citation omitted). “The key to assessing

possession under a trespass to chattel claim is determining if

there is a right to present possession whenever so desired or a
 -15-
right to immediate possession.” Id. Moreover, “[i]n a trespass

action a defendant may assert that the entry was lawful or under

legal right as an affirmative defense.” Singleton v. Haywood

Elec. Membership Corp., 357 N.C. 623, 628, 588 S.E.2d 871, 874

(2003). As a result, given that Plaintiff had actual possession

of the vehicle at the time that it was taken, the ultimate

question raised by Plaintiff’s trespass to personal property

claim is whether “there was an unauthorized, unlawful

interference or dispossession of the property.” Fordham, 351

N.C. at 155, 521 S.E.2d at 704.

In her brief, Defendant argues that, as a co-owner of the

vehicle, she had the authority to take possession of the vehicle

from Plaintiff. As an initial matter we must note that, instead

of pointing to the existence of a disputed factual issue,

Defendant’s argument is nothing more or less than a statement of

what she believes the legal effect of the essentially undisputed

facts to be. In light of that fact, the proper course for us to

take in the event that we were to accept Defendant’s argument as

persuasive would be for us to reverse the trial court’s judgment

and remand this case for the entry of judgment in Defendant’s

favor rather than to order a new trial. Thus, the ultimate

issue raised by Defendant’s argument is one of law rather than

one of fact.
 -16-
As we have already noted, a claim for conversion is

available in the event that “the tenant in possession of

personal chattels withholds the common property from his co-

tenant, or wrests it from him and exercises a dominion over it.”

Bullman, 232 N.C. at 468, 61 S.E.2d at 340. Although the

principle set forth in Bullman was enunciated in the context of

a conversion claim, we are unable to see why a different rule

should be applicable in trespass to personal property cases. As

the Supreme Court has stated in the landlord-tenant context, our

laws, instead of permitting someone “to take the law into [her]

own hands,” require that a “remedy . . . be sought through those

peaceful agencies which a civilized community provides to all

its members.” Spinks v. Taylor, 303 N.C. 256, 262, 278 S.E.2d

501, 505 (1981). In the event that we were to accept

Defendant’s implicit assertion that the principle enunciated in

Bullman did not apply in trespass to personal property cases,

“it must necessarily follow as a logical sequence, that so much

[force] may be used as shall be necessary to overcome

resistance, even to the taking of human life,” Spinks, 303 N.C.

at 263, 278 S.E.2d at 505, in the course of the private

“repossession” of an item of personal property, resulting in an

untenable situation in which the parties would be allowed to

engage in an escalating cycle of violence during which each co-
 -17-
owner would be entitled to forcibly take the jointly owned

property from the other co-owner in turn. As a result, instead

of allowing one co-owner to forcibly seize property from another

co-owner, we believe that a co-owner of jointly owned property

“may not [take possession] against the will of the [other

owner],” with “an objection by the [other owner being

sufficient to] elevate[] the [retaking] to a forceful one,”

leaving “the [co-owner’s] sole legal recourse [to be] to the

courts.” Id. at 263, 278 S.E.2d at 505.

The mere taking of an item of jointly held property,

standing alone, is not sufficient to support the maintenance of

an action for trespass to personal property. Instead, since

“[o]ne tenant in common of a personal chattel has as much right

to the possession of it as the other,” “one tenant in common

cannot maintain [an action for] trespass or trover against his

cotenant without showing that the cotenant has destroyed the

joint property.” Lucas v. Wasson, 14 N.C. 398, 399 (1832); see

also Rice v. Bennington County Sav. Bank, 93 Vt. 493, 503, 108

A. 708, 712 (1920) (stating that “[a] joint tenant of personal

property has such title thereto that he may maintain an action

against a co-tenant who sells or destroys the same.”) (citing

Lucas, 14 N.C. at 398). However, since Defendant allowed the

vehicle to be sold for the purpose of satisfying a lien, “such a
 -18-
disposition of it [was] made as to prevent [Plaintiff] from

recovering it.” Thompson v. Silverthorne, 142 N.C. 12, 14, 54

S.E. 782, 782 (1906) (quoting Grim v. Wicker, 80 N.C. 343, 344

(1879))2. As a result, Plaintiff was entitled to maintain a

claim for trespass to personal property against Defendant

despite Defendant’s status as co-owner of the vehicle.

Although Defendant contends that she was entitled to

“repossess” the vehicle based upon an agreement that she had

reached with Plaintiff, her assertion to that effect does not

justify a decision to overturn the trial court’s award of

summary judgment in Plaintiff’s favor. Assuming, without in any

way deciding, that such an oral agreement between the parties

would be enforceable, Defendant’s assertions relating to this

alleged agreement do not suffice to preclude the entry of

summary judgment in Plaintiff’s favor with respect to the

trespass to personal property claim given the absence of any

evidence tending to show that such an agreement ever existed.

According to well-established North Carolina law, when a

moving party has met his burden of showing that he is entitled

2
Aside from the fact that Defendant, rather than Plaintiff,
sent the vehicle for repairs and incurred responsibility for
paying the resulting bill, Defendant never argued in her brief
that Plaintiff’s ability to redeem the vehicle precluded the
maintenance of a claim for trespass to personal property. Viar
v. N.C. Dept. of Transp., 359 N.C. 400, 402, 610 S.E.2d 360, 361
(2005).
 -19-
to an award of summary judgment in his favor, the non-moving

party cannot rely on the allegations or denials set forth in her

pleading, Ind-Com Elec. Co. v. First Union Nat. Bank, 58 N.C.

App. 215, 217, 293 S.E.2d 215, 216-17 (1982), and must, instead,

forecast sufficient evidence to show the existence of a genuine

issue of material fact in order to preclude an award of summary

judgment. Dobson, 352 N.C. at 83, 530 S.E.2d at 835; see also

N.C. Gen. Stat. § 1A-1, Rule 56(e) (providing that, “[w]hen a

motion for summary judgment is made and supported as provided in

this rule, an adverse party may not rest upon the mere

allegations or denials of his pleading, but his response, by

affidavits or as otherwise provided in this rule, must set forth

specific facts showing that there is a genuine issue for

trial”). A careful review of the record has persuaded us that

Defendant adduced no facts at the summary judgment hearing

tending to show the existence of an agreement of the sort upon

which she seeks to rely in opposition to Plaintiff’s motion.

Instead, Defendant simply relied on her assertion that Plaintiff

“defaulted on payments on the 2002 Ford Expedition and the

finance company contacted her for the balance of the loan since

Plaintiff . . . had defaulted.” Thus, given the complete

absence of any evidence tending to show the existence of an

agreement like the one upon which Defendant has attempted to
 -20-
rely, the trial court did not err by granting Plaintiff’s

request for an award of summary judgment in his favor with

respect to his trespass to personal property claim. As a

result, Defendant is not entitled to relief from the trial

court’s summary judgment order on the basis of this contention.

B. Defendant’s Other Claims

1. Oral Testimony at Summary Judgment Hearing

In her brief, Defendant contends that the trial court erred

by depriving her of the right to give sworn oral testimony at

the summary judgment hearing and by refusing to accept the

statements that she made in open court in opposition to

Plaintiff’s summary judgment motion as evidence. Defendant’s

argument is unpersuasive.

As a general proposition, evidence is presented at a

hearing convened to address the merits of a summary judgment

motion “through depositions, answers to interrogatories,

admissions on file, documentary materials, further affidavits,

or oral testimony in some circumstances.” Strickland v. Doe,

156 N.C. App. 292, 295, 577 S.E.2d 124, 128, disc. review

denied, 357 N.C. 169, 581 S.E.2d 447 (2003). Although “[o]ral

testimony at a hearing on a motion for summary judgment may be

offered,” “the trial court is only to rely on such testimony in

a supplementary capacity, to provide a ‘small link’ of required
 -21-
evidence, but not as the main evidentiary body of the hearing.”

Id. at 296, 577 S.E.2d at 129. In addition, the extent to which

oral testimony is admitted at a summary judgment hearing is a

matter within the trial court’s discretion. Pearce Young Angel

Co. v. Don Becker Enterprises, Inc., 43 N.C. App. 690, 692, 260

S.E.2d 104, 105 (1979). “Generally, the test for abuse of

discretion is whether a decision is manifestly unsupported by

reason, or so arbitrary that it could not have been the result

of a reasoned decision.” Frost v. Mazda Motor of America, Inc.,

353 N.C. 188, 199, 540 S.E.2d 324, 331 (2000) (internal

quotation marks and citation omitted).

As the record clearly reflects, Defendant did not submit

any affidavits, depositions, or other evidentiary materials in

opposition to Plaintiff’s request for the entry of summary

judgment in his favor.3 Had the trial court allowed Defendant to

present oral testimony at the hearing, Defendant’s testimony

would not have constituted “supplementary” evidence for the

purpose of “provid[ing] a ‘small link’ of required evidence.”

Strickland, 156 N.C. App. at 296, 577 S.E.2d at 129. Instead,

Defendant’s testimony would have constituted Defendant’s entire

showing in response to Plaintiff’s summary judgment motion. In

light of this set of circumstances, we are unable to say that
3
Plaintiff did, however, submit Defendant’s deposition for
the trial court’s consideration at the summary judgment hearing.
 -22-
the trial court abused its discretion by denying Defendant’s

request that she be allowed to offer oral testimony at the

summary judgment hearing or by failing to consider Defendant’s

unsworn oral statements as evidence and do not believe that

Defendant is entitled to relief from the trial court’s summary

judgment order on the basis of this contention.

2. Counterclaim

Secondly, Defendant contends that the trial court erred by

failing to instruct the jury to address the merits of her

counterclaim, in which she sought reimbursement from Plaintiff

for the payments that she had made on the vehicle-related loan.

Defendant’s contention has merit.4

The trial court is required to submit to the
jury those issues raised by the pleadings
and supported by the evidence. An issue is
supported by the evidence when there is
substantial evidence, considered in the
light most favorable to the non-movant, in
support of that issue. Substantial evidence
is such relevant evidence as a reasonable

4
Although Plaintiff contends that the jury heard Defendant’s
contention that she was entitled to be reimbursed for the amount
of the final loan payment and effectively considered this claim
in the course of rendering its verdict for that reason, we are
unable to accept this contention as valid given that careful
scrutiny of the trial court’s instructions reveals that the jury
was never told that it could consider Defendant’s reimbursement
claim or adjust the amount of damages to be awarded to Plaintiff
to reflect the fact that Defendant made the final payment. As a
result, we are not persuaded by Plaintiff’s argument that
Defendant’s reimbursement claim is adequately reflected in the
jury’s verdict.
 -23-
mind might accept as adequate to support a
conclusion.

In re Estate of Ferguson, 135 N.C. App. 102, 105, 518 S.E.2d

796, 798 (1999) (internal quotation marks and citations

omitted). A litigant is entitled to relief on appeal when the

trial court’s refusal to submit an issue for the jury’s

consideration results in the creation of a bar to the litigant’s

recovery. See Brewer v. Harris, 279 N.C. 288, 298, 182 S.E.2d

345, 351 (1971) (holding that the issue of whether the

defendant’s willful and wanton conduct was sufficient to

preclude the rejection of the plaintiff’s personal injury claim

on contributory negligence grounds).

As an initial matter, we must determine whether Defendant

properly pled a counterclaim seeking reimbursement for the

payments that she made in connection with the vehicle-related

loan in her responsive pleading. According to N.C. Gen. Stat. §

1A-1, Rule 8(a), a pleading that attempts to assert a

counterclaim must contain (1) “[a] short and plain statement of

the claim sufficiently particular to give the court and the

parties notice of the transactions, occurrences, or series of

transactions or occurrences, intended to be proved showing that

the pleader is entitled to relief” and (2) “[a] demand for

judgment for the relief to which he deems himself entitled.”

N.C. Gen. Stat. § 1A-1, Rule 8(a). The fact that the defendant
 -24-
may have failed to explicitly indicate that he or she is

asserting a counterclaim is irrelevant, since N.C. Gen. Stat. §

1A-1, Rule 8(c), provides that, “[w]hen a party has mistakenly

designated a defense as a counterclaim or a counterclaim as a

defense, the court, on terms, if justice so requires, shall

treat the pleading as if there had been a proper designation.”

See also Hunt v. Hunt, 117 N.C. App. 280, 283, 450 S.E.2d 558,

561 (1994).

A careful review of the record establishes that Defendant’s

answer asserted a counterclaim that complied with the provisions

of N.C. Gen. Stat. § 1A-1, Rule 8(a), given that it alleged that

“Defendant had to pay the balance of the loan as the co-signer

in the amount of approximately $1,000 in which the Plaintiff now

owes the Defendant” and requested “[r]eimbursement in the amount

in excess of $5,000 for loan balance, harassment, mental

anguish, malicious damages.” Although Defendant did not

specifically designate this set of statements as a counterclaim,

we believe that considerations of simple “justice require[] that

the trial court treat the defendant’s pleadings as a[n attempt

to assert a] counterclaim,” Hunt, 117 N.C. App. at 283, 450

S.E.2d at 561, and that the trial court erred by apparently

reaching a contrary conclusion.
 -25-
In addition to having sufficiently pled the facts upon

which she relied in support of her counterclaim and request for

an award of relief, Defendant’s allegations alleged a valid

basis for the recovery of damages.

Unjust enrichment is based upon the
equitable principle that a person should not
be permitted to enrich himself unjustly at
the expense of another. [A] person who has
been unjustly enriched at the expense of
another is required to make restitution to
the other. A claim of this type is neither
in tort nor contract but is described as a
claim in quasi contract or a contract
implied in law.

Hinson v. United Financial Services, Inc., 123 N.C. App. 469,

473, 473 S.E.2d 382, 385, disc. review denied, 344 N.C. 630, 477

S.E.2d 39 (1996) (internal quotation marks and citations

omitted). The measure of damages for unjust enrichment is the

reasonable value of the goods and services that the claimant

provided to the other party. Booe v. Shadrick, 322 N.C. 567,

570, 369 S.E.2d 554, 556 (1988). In view of the fact that

Defendant has alleged that she paid off the balance of the loan

relating to the vehicle and that Plaintiff had not reimbursed

her for the payments that she had made, Defendant has pled facts

that, if believed, tend to show that Plaintiff had been

“unjustly enriched at [Defendant’s] expense,” Hinson, 123 N.C.

App. at 473, 473 S.E.2d at 385, and that Defendant should be
 -26-
reimbursed for the $699.62 that she paid in connection with the

vehicle-related loan.

Finally, Defendant adduced sufficient evidence at trial to

support the submission of her unjust enrichment claim to the

jury.5 According to Plaintiff’s Exhibit No. 5, Defendant wrote a

check on 28 March 2011 in the amount of $699.62 to “Santander

Consumer USA Inc.,” and indicated on the memo line that this

check “Paid” “Acct #1750283” “in Full.” According to

Plaintiff’s Exhibit No. 6, which was the payment history

associated with Account No. 1750283, a final payment in the

amount of $699.62 was made to Santander by means of a check

bearing the same number as that shown on Plaintiff’s Exhibit No.

5. In view of the fact that these two exhibits, standing alone,

tend to show that Defendant paid off the vehicle-related loan

and the fact that the parties do not appear to dispute that,

under the domestic settlement between the parties, Plaintiff had

primary responsibility for paying off the vehicle-related loan,

the trial court erred by refusing to submit Defendant’s

counterclaim for the jury’s consideration. As a result, the

lower court’s judgment should be vacated to the extent that it

5
Defendant has not asserted in her brief that she presented
sufficient evidence to support a claim for “harassment, mental
anguish, and malicious damages” and we believe that her
assessment of the state of the evidentiary record concerning
that set of issues is correct.
 -27-
constitutes a rejection of Defendant’s counterclaim and this

case should be remanded to the Orange County District Court for

a trial on the issues raised by Defendant’s counterclaim.

3. Other Issues

Finally, Defendant has raised a number of other issues in

her brief that merit passing attention. First, Defendant has

challenged the form of the special interrogatories that were

submitted to the jury and the manner in which the trial court

instructed the jury concerning various issues. However,

Defendant failed to object to either the verdict sheet or the

jury instructions before the trial court. N.C. R. App. P.

10(a)(1) (stating that, “[i]n order to preserve an issue for

appellate review, a party must have presented to the trial court

a timely request, objection, or motion, stating the specific

grounds for the ruling the party desired the court to make if

the specific grounds were not apparent from the context”) and

N.C. R. App. P. 10(a)(2) (“[a] party may not make any portion of

the jury charge or omission therefrom the basis of an issue

presented on appeal unless the party objects thereto before the

jury retires to consider its verdict”). In addition, although

Defendant appears to be attempting to challenge the jury’s

compensatory and punitive damages award, she merely makes a

passing reference to this set of issues in her brief without
 -28-
citing any authority in support of her position. N.C. R. App.

P. 28(b)(6) (stating that any issue “in support of which no

reason or argument is stated, will be taken as abandoned”).

Finally, Defendant challenges the trial court’s decision, in

ruling on a motion in limine, to preclude the admission of

documents arising from a bankruptcy petition filed by Plaintiff

on 22 November 2011. However, Plaintiff did not attempt to

introduce the documents at trial after the trial court granted

Plaintiff’s motion in limine. Heatherly v. Industrial Health

Council, 130 N.C. App. 616, 620, 504 S.E.2d 102, 105 (1998)

(stating that “[a] party objecting to an order granting or

denying a motion in limine, in order to preserve the evidentiary

issue for appeal, is required to . . . attempt to introduce the

evidence at the trial”) (quotation marks and citation omitted).

As a result, since none of these arguments have been properly

preserved for purposes of appellate review, they provide no

basis for a decision to overturn the trial court’s order or

judgment.

III. Conclusion

Thus, for the reasons set forth above, we conclude that,

although the trial court erroneously refused to allow the jury

to consider Defendant’s counterclaim, it did not err by holding

Defendant liable for conversion and trespass to personal
 -29-
property and awarding compensatory and punitive damages to

Plaintiff based on those claims. As a result, we affirm the

trial court’s judgment in part, reverse the trial court’s

judgment in part, and remand this case to the Alamance County

District Court for a trial on the issues raised by Defendant’s

counterclaim.

AFFIRMED IN PART; REVERSED AND REMANDED IN PART

Judge BRYANT concurs.

Judge ELMORE dissents in part and concurs in part.
 NO. COA14-573

NORTH CAROLINA COURT OF APPEALS

Filed: 31 December 2014

ANTONIO STEELE,
Plaintiff,

v. Orange County
No. 12-CVD-1048
TAMMY BOWDEN, ALAMANCE TOWING &
RECOVERY, JOHN DOE 1, d/b/a
ALAMANCE TOWING AND RECOVERY, and
JOHN DOE II,
Defendants.

ELMORE, Judge, dissenting, in part, concurring, in part.

Because I believe the trial court erred in granting partial

summary judgment in plaintiff’s favor on grounds that the record

does not disclose the existence of a genuine issue of material

fact concerning the extent, if any, to which defendant was

authorized to repossess the 2002 Ford Expedition, I respectfully

dissent.

A. 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 a judgment as a matter of

law.’” In re Will of Jones, 362 N.C. 569, 573, 669 S.E.2d 572,
 -31-
576 (2008) (quoting Forbis v. Neal, 361 N.C. 519, 524, 649

S.E.2d 382, 385 (2007)). “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) (citation

omitted).

B. Defendant’s Challenges to the Summary Judgment Order

I. Conversion Claim

Defendant argues that the trial court erred in entering the

29 October order granting defendant’s motion for partial summary

judgment on the claim of conversion. I agree, because the

evidence suggests that a genuine issue of material fact

concerning the extent to which defendant had a lawful right to

repossess the vehicle is present in the record.

“The tort of conversion is well defined as an unauthorized

assumption and exercise of the right of ownership over goods or

personal chattels belonging to another, to the . . . exclusion

of an owner’s rights.” Vaseleniuck Engine Dev., LLC v.

Sabertooth Motorcycles, LLC, ___ N.C. App. ___, ___, 727 S.E.2d

308, 310 (2012) (quoting Peed v. Burleson’s, Inc., 244 N.C. 437,

439, 94 S.E.2d 351, 353 (1956)). In cases involving tenants in
 -32-
common of chattel “where the tenant in possession of personal

chattels withholds the common property from his co-tenant, or

wrests it from him, and exercises a dominion over it either in

direct denial of or inconsistent with the rights of the latter,

an action will lie for conversion.” Bullman v. Edney, 232 N.C.

465, 468, 61 S.E.2d 338, 340 (1950). However, “it is difficult

to draw or trace the shadowy line that marks the limit to which

a tenant in common may go in the exercise of control over the

common property without subjecting himself to liability for

conversion.” Waller v. Bowling, 108 N.C. 289, 295, 12 S.E. 990,

992 (1891).

The crux of defendant’s argument is that the facts of the

instant case give rise to a genuine issue of material fact as to

whether defendant’s possession of the vehicle was unauthorized.

Again, I agree. Here, the liability for plaintiff’s claim of

conversion hinges on whether defendant’s possession of the

vehicle was authorized or unauthorized under these particular

circumstances.

The record discloses that pursuant to an alleged oral

agreement between the parties, plaintiff was to retain

possession of the vehicle, make timely loan payments, and remove
 -33-
defendant’s name from the vehicle’s title.6 However, plaintiff

did not comply with the terms of the parties’ agreement because

he neither removed plaintiff’s name from the vehicle’s title nor

did he make all loan payments in a timely fashion. Defendant

alleges that she often received calls from creditors regarding

overdue payments on the car loan. Thus, it was plaintiff who

purportedly elected to keep defendant’s name on the vehicle’s

title and plaintiff who allegedly failed to make timely loan

payments. There is evidence in the record to suggest that when

defendant took possession of the vehicle, it was titled in her

name and she had made the final loan payment. Based on this

evidence, there exists in this case a question of whether

defendant came into possession of the automobile rightfully

despite the record evidence that plaintiff did not surrender the

vehicle to defendant voluntarily.

It appears that the trial court determined on its own

accord that defendant had no right to the possession of the

vehicle. However, in ruling on plaintiff’s motion for partial

summary judgment, it was the trial court’s duty to determine

whether a genuine issue of material fact existed, not to

6
I do not hold that an oral agreement exists or that it is
likewise enforceable. I merely recognize that defendant has
alleged that such an agreement was entered by the parties.
 -34-
determine the facts so that no issue existed. In the instant

case, the trial court interpreted the facts as it saw fit.

Defendant has convinced me that a genuine issue of material

fact existed regarding whether she had valid ownership of the

vehicle such that her possession was authorized. Accordingly, I

am of the opinion that the trial court erred in granting

plaintiff’s motion for summary judgment on the claim of

conversion.

C. Trespass to Personal Property

Defendant argues that the trial court erred by granting

summary judgment in plaintiff’s favor with respect to his

trespass to personal property claim. I agree with defendant

that the record reflects the existence of a genuine issue of

material fact concerning whether there was an unauthorized,

unlawful interference or dispossession of the personal property.

A successful action for trespass to chattel requires the

party bringing the action to demonstrate that “[(1)] he had

either actual or constructive possession of the personalty or

goods in question at the time of the trespass, and [(2)] that

there was an unauthorized, unlawful interference or

dispossession of the property.” Kirschbaum v. McLaurin Parking

Co., 188 N.C. App. 782, 786-87, 656 S.E.2d 683, 686 (2008)
 -35-
(citation and quotation omitted). “The key to assessing

possession under a trespass to chattel claim is determining if

there is a right to present possession whenever so desired . . .

or a right to immediate actual possession.” Fordham v. Eason,

351 N.C. 151, 155, 521 S.E.2d 701, 704 (1999) (citation

omitted).

The question before the trial court was whether “there was

an unauthorized, unlawful interference or dispossession of the

property.” Id. I recognize that the mere taking of an item of

jointly held property, standing alone, is insufficient to

support an action for trespass to chattel. Instead, there must

be a showing that a co-tenant who was in unlawful possession of

the personal property also destroyed the joint property or

placed it beyond recovery by means of legal process. Doyle v.

Bush, 171 N.C. 10, 86 S.E. 165, 166 (1915) (citations omitted).

On these facts, I do not believe that defendant’s conduct of

allowing the vehicle to be sold for the purposes of satisfying a

mechanic’s lien necessarily was sufficient to show that

defendant destroyed the personal property for purposes of this

claim. This is because, as discussed above, I am not convinced

that defendant did not have an equal right of possession of the

vehicle given her status as co-owner on these facts.
 -36-
In addition, there is evidence in the record that plaintiff

was afforded the opportunity to recover the vehicle from the

auto mechanic after it had been repaired, but he elected not to

do so. This raises a question of whether plaintiff was in fact

dispossessed of the personal property. Moreover, in November

2011, plaintiff filed for bankruptcy and listed the vehicle as

an item of joint personal property that was currently in

defendant’s possession. He claimed that the vehicle was valued

at $3,940 and sought an exemption for half of that value. Given

this, it appears that plaintiff likely did not consider the

vehicle to be destroyed, but instead he considered it to be in

defendant’s lawful possession. I am of the opinion that there

is a genuine issue of material fact as to whether there was an

unauthorized, unlawful interference or dispossession of the

personal property. Therefore, I conclude that the trial court

erred in granting plaintiff’s motion for summary judgment on

plaintiff’s trespass to personal property claim.

In sum, because I believe the trial court erred in granting

summary judgment in favor of plaintiff with respect to his

conversion and trespass to personal property claims, I

respectfully dissent from the majority’s decision to affirm the

trial court’s judgment in plaintiff’s favor. I would reverse
 -37-
the trial court’s order and remand for further proceedings. I

concur in all other aspects of the majority’s opinion.