{
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  "name": "JACKIE L. ELEY, Plaintiff v. MID/EAST ACCEPTANCE CORPORATION OF N.C., INC., Defendant",
  "name_abbreviation": "Eley v. Mid/East Acceptance Corp. of N.C., Inc.",
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    "judges": [
      "Judges McGEE and TYSON concur."
    ],
    "parties": [
      "JACKIE L. ELEY, Plaintiff v. MID/EAST ACCEPTANCE CORPORATION OF N.C., INC., Defendant"
    ],
    "opinions": [
      {
        "text": "GEER, Judge.\nDefendant Mid/East Acceptance Corporation of N.C., Inc. appeals from an order entered in favor of plaintiff Jackie L. Eley following a bench trial in Hertford County District Court. Plaintiffs claims for conversion and unfair and deceptive trade practices were based on defendant\u2019s otherwise lawful repossession of plaintiff\u2019s truck, which contained a load of watermelons belonging to plaintiff. After defendant caused plaintiff\u2019s truck to be repossessed, the melons, which were still in the truck bed, quickly spoiled in the summer heat, rendering them valueless. On appeal, defendant argues that it is not liable for conversion because it did not engage in the unauthorized assumption and exercise of the right of ownership over plaintiff\u2019s watermelons to the exclusion of plaintiff\u2019s rights. It also argues that it did not commit an unfair and deceptive trade practice under N.C. Gen. Stat. \u00a7 75-1.1 (2003). Because we find that competent evidence exists to support the trial court\u2019s findings of fact and those findings are sufficient to establish conversion and unfair and deceptive trade practices, we affirm.\n\u201c \u2018It is well settled in this jurisdiction that when the trial court sits without a jury, the standard of review on appeal is whether there was competent evidence to support the trial court\u2019s findings of fact and whether its conclusions of law were proper in light of such facts.\u2019 \u201d Keel v. Private Bus., Inc., 163 N.C. App. 703, 707, 594 S.E.2d 796, 799 (2004) (quoting Shear v. Stevens Bldg. Co., 107 N.C. App. 154, 160, 418 S.E.2d 841, 845 (1992)). Upon a finding of such competent evidence, this Court is bound by the trial court\u2019s findings of fact even if there is also other evidence in the record that would sustain findings to the contrary. Hensgen v. Hensgen, 53 N.C. App. 331, 335, 280 S.E.2d 766, 769 (1981). Competent evidence is evidence \u201cthat a reasonable mind might accept as adequate to support the finding.\u201d Andrews v. Fulcher Tire Sales & Serv., 120 N.C. App. 602, 605, 463 S.E.2d 425, 427 (1995). The trial court\u2019s conclusions of law, by contrast, are reviewable de novo. Browning v. Helff, 136 N.C. App. 420, 423, 524 S.E.2d 95, 98 (2000).\nFacts\nPlaintiffs evidence tended to show the following.; Plaintiff was the owner of a 1995 Ford F150 pick-up truck that she had purchased through a loan from defendant, using the truck as collateral. In the summer of 2002, plaintiff missed two consecutive payments on the loan, and defendant made repossession arrangements with Carolina Repossessions. At approximately 4:00 a.m. on 29 July 2002, employees of Carolina Repossessions, Roger Pinkham and his brother, arrived at plaintiffs residence and began to hitch plaintiffs pick-up truck to their tow truck. Plaintiff heard them and went outside to investigate. When she requested to see the paperwork related to the repossession, one of the men briefly showed it to her.\nPlaintiff explained to Pinkham that she was not contesting the repossession of the truck, but that she was concerned about the 130 watermelons in the truck bed. She had purchased and loaded them into the truck on the previous day and had planned to drive them to Maryland for re-sale. In addition to the watermelons, the truck also contained some other personal items belonging to plaintiff, including a coat, an ice chest, and some children\u2019s toys. Plaintiff asked Pinkham if she could unload her melons and other personal property before he towed the truck. Pinkham refused, telling her he was in a hurry because he had to get to his regular job. Pinkham also refused to allow plaintiff to deliver the truck herself later that morning after she had had time to unload the melons.\nPlaintiff called defendant\u2019s office at about 8:00 a.m. the same morning and spoke to defendant\u2019s employee, Joyce White. When plaintiff asked White if she could retrieve her watermelons out of the repossessed truck, White replied, \u201cWhat truck?\u201d Fearing that the melons would quickly spoil in the summer heat, plaintiff, on the same day, filed a complaint alleging conversion in the Hertford County Small Claims Court.\nDefendant\u2019s evidence tended to show that on Wednesday, 31 July 2002, two days after the repossession, one of defendant\u2019s employees called plaintiff and asked her to bring her truck key to defendant\u2019s office, but plaintiff refused. White testified that it was not defendant\u2019s practice to allow public access to the lot where repossessed items were kept; rather, defendant usually sent an employee to the lot to gather up personal property left in repossessed vehicles and bring it to defendant\u2019s office for the owners to collect. White noted that plaintiff\u2019s load of watermelons created an unusual situation, and defendant had asked plaintiff to furnish her truck keys so that defendant could drive the truck to its office and allow plaintiff to unload it there.\nDefendant then mailed plaintiff a letter, stating, \u201cThe watermelons are rotting and the smell is polluting the storage lot. If something is not done with them by 12:00 p.m., Friday, August 2, 2002, we will have to hire someone to dispose of them for us and the fee will be charged to your account.\u201d Although the post office attempted to deliver this letter to plaintiff, she never received it, and it was later returned to defendant\u2019s office.\nOn Thursday, 1 August 2002, the day after defendant mailed the letter, defendant called plaintiff again and asked her to come retrieve her watermelons from the repossessed truck because they were spoiling and creating a mess. Plaintiff informed defendant that since the melons were rotten, she no longer wanted them.\nThe small claims court dismissed plaintiff\u2019s conversion claim in a judgment dated 19 August 2002. Plaintiff filed a timely appeal to the Hertford County District Court. Following a bench trial, the district court entered an order on 12 November 2003, concluding that defendant had converted plaintiff\u2019s property and committed an unfair and deceptive trade practice under N.C. Gen. Stat. \u00a7 75-1.1. The order awarded damages in the amount of $455.00, the value of the watermelons. These damages were then trebled in accordance with North Carolina\u2019s unfair and deceptive trade practice statute, N.C. Gen. Stat. \u00a7 75-16 (2003), for a total liability of $1,365.00. The court also awarded plaintiff $1,562.50 in attorneys\u2019 fees, under N.C. Gen. Stat. \u00a7 75-16.1 (2003). Defendant has appealed to this Court.\nI\n\u201c \u2018Conversion is defined as: (1) the unauthorized assumption and exercise of the right of ownership; (2) over the goods or personal property; (3) of another; (4) to the exclusion of the rights of the true owner.\u2019 \u201d Estate of Graham v. Morrison, 168 N.C. App. 63, 72, 607 S.E.2d 295, 302 (2005) (quoting Di Frega v. Pugliese, 164 N.C. App. 499, 509, 596 S.E.2d 456, 463 (2004)). \u201c[C]onversion may occur when a valid repossession of collateral results in an incidental taking of other property, unless the loan agreement includes the debtor\u2019s consent to the incidental taking.\u201d Clark v. Auto Recovery Bureau Conn., Inc., 889 F. Supp. 543, 548 (D. Conn. 1994); see also Rea v. Universal C. I. T. Credit Corp., 257 N.C. 639, 642, 127 S.E.2d 225, 228 (1962) (holding that plaintiff was entitled to a new trial on his conversion claim when the trial court failed to submit to the jury the question whether, at the time of repossession, plaintiffs car contained tools belonging to plaintiff); Kitchen v. Wachovia Bank & Trust Co., N.A., 44 N.C. App. 332, 334, 260 S.E.2d 772, 773 (1979) (denying a lender\u2019s motion for summary judgment on the issue of conversion when the lender repossessed plaintiff\u2019s mobile home containing some of her personal property in which the lender did not have a security interest).\nDefendant in this case contends that there was no unauthorized assumption and exercise of the right of ownership over the watermelons to the exclusion of the rights of the true owner. In support of this contention, defendant asserts (1) that plaintiff had an opportunity to remove the watermelons before the repossession and (2) that the loss of the watermelons was due to plaintiff\u2019s subsequent failure to supply defendant with her truck key.\nWith regard to the first assertion, defendant argues that there is no competent evidence to support the trial court\u2019s finding that defendant\u2019s agent, Carolina Repossessions, failed to give plaintiff \u201ca reasonable amount of time to unload her watermelons during the repossession.\u201d We disagree. Plaintiff testified specifically that she requested an opportunity to remove her melons from the truck at the time of repossession and that her request was refused. Also, plaintiff\u2019s brother testified as follows:\nA.I got up and went to the door, and [plaintiff] was talking to two men, and one of them was starting hooking up the truck, and I asked her what they were doing. She said, \u201cThey came to get the truck.\u201d I said, \u201cWell, are they gonna let you get the watermelons off?\u201d and while she was standing talking to them, I went back to get dressed to come back, and when I got back out there they had the truck loaded up going down the lane throwing the watermelons all in the lane. That\u2019s when I told her to call the police department and see if they knew anything about it.\nQ. How long would you say it took you to go back and get dressed and come back out?\nA. Two to three minutes. . . .\nQ. What did \u2014 what did Ms. Eley say when you came back and \u2014 and asked her about the watermelons?\nA. She said they\u2019d got \u2014 they\u2019d gone on down the lane, and that\u2019s when I told her to call the police. They were supposed to give you time to get your property out of there.\nEven Mr. Pinkham, one of the repossessors, testified that \u201cwhen I got the truck turned around to leave, [plaintiff] did say that she wanted to get her belongings out of the truck, and I told her that if she wanted to get her belongings she needed to go ahead and get them because I did have to get back to Washington, and after about 15 minutes of being there, I figured that had been enough time for her to get the belongings, so I left. I did have other things to do, and so I pulled out.\u201d\nThe record thus contains competent evidence allowing the trial court to find that plaintiff was not allowed a reasonable time to unload her 130 watermelons. Although it is arguable that the record might also support a finding that plaintiff did have time to unload her melons, but failed to do so, the trial court\u2019s finding of fact otherwise is supported by ample evidence and is, therefore, binding on appeal. Hensgen, 53 N.C. App. at 335, 280 S.E.2d at 769.\nWith regard to defendant\u2019s second assertion regarding plaintiff\u2019s failure to give defendant her truck keys, the trial court made the following pertinent findings of fact:\n9. Ms. Eley contacted Ms. White, of Mid-East Acceptance, on the morning of July 29, 2003 to inquire as to the location of her truck so she could retrieve her watermelons. Ms. White\u2019s reply was \u201cWhat truck?\u201d\n10. Mid-East Acceptance was the bailee of Ms. Eley\u2019s personal property and had an obligation to protect this collateral from harm.\n11. When Mid-East Acceptance contacted Ms. Eley on Juy [sic] 31st to tell her where her truck was located the watermelons were already decomposing.\n12. Mid-East Acceptance placed a condition on the return of Ms. Eley\u2019s property by requiring her to bring them the vehicle ignition key prior to that return.\nSince defendant has not assigned error to these findings of fact, they are binding on this Court. In re Beasley, 147 N.C. App. 399, 405, 555 S.E.2d 643, 647 (2001). These findings of fact establish that the loss was not due to plaintiffs failure to deliver the truck key because the request for the key came too late to preserve the watermelons.\nTaken together, all of these facts combine to support the inference that defendant assumed and exercised the right of ownership over plaintiff\u2019s watermelons without her permission, to the exclusion of her own rightful ownership interest. More colloquially, as plaintiff put it, \u201cIt was too hot. The melons was already there a week. The melons were spoiled. They wouldn\u2019t do me any good. They were their melons. They took the truck, they took the melons. \u2018They were their melons then.\u201d The trial court, therefore, did not err in entering judgment in favor of plaintiff on her claim for conversion.\nII\nDefendant next contends that the trial court erred by concluding that defendant\u2019s actions amounted to an unfair and deceptive trade practice under N.C. Gen. Stat. \u00a7 75-1.1. A practice violates N.C. Gen. Stat. \u00a7 75-1.1 if it is \u201c \u2018(1) an unfair or deceptive act or practice, (2) in or affecting commerce, and (3) which proximately caused injury to plaintiffs.\u2019 \u201d Lake Mary Ltd. P\u2019ship v. Johnston, 145 N.C. App. 525, 533, 551 S.E.2d 546, 552 (quoting Gray v. N.C. Ins. Underwriting Ass\u2019n, 352 N.C. 61, 68, 529 S.E.2d 676, 681 (2000)), disc. review denied, 354 N.C. 363, 557 S.E.2d 538 (2001). Defendant argues only that plaintiff failed to prove the first element: the existence of an unfair or deceptive act or practice.\n\u201cA practice is unfair when it offends established public policy as well as when the practice is immoral, unethical, oppressive, unscrupulous, or substantially injurious to consumers.\u201d Marshall v. Miller, 302 N.C. 539, 548, 276 S.E.2d 397, 403 (1981). Also, \u201c \u2018[a] party is guilty of an unfair act or practice when it engages in conduct [that] amounts to an inequitable assertion of its power or position.\u2019 \u201d Lake Mary Ltd. P\u2019ship, 145 N.C. App. at 533, 551 S.E.2d at 553 (quoting Johnson v. Ins. Co., 300 N.C. 247, 264, 266 S.E.2d 610, 622 (1980), overruled on other grounds by Myers & Chapman, Inc. v. Thomas G. Evans, Inc., 323 N.C. 559, 374 S.E.2d 385 (1988)). Although \u201cwhether a practice is unfair or deceptive is . . . dependent upon the facts of each case,\u201d Moretz v. Miller, 126 N.C. App. 514, 518, 486 S.E.2d 85, 88, disc. review denied, 347 N.C. 137, 492 S.E.2d 24 (1997), \u201c[t]he determination of whether an act or practice is an unfair or deceptive practice that violates N.C.G.S. \u00a7 75-1.1 is a question of law for the court.\u201d Gray, 352 N.C. at 68, 529 S.E.2d at 681.\nHere, the trial court entered an explicit finding of fact stating that \u201c[e]mployees of Mid-East Acceptance used their relative position of power to deprive the Plaintiff of her personal property.\u201d Defendant argues that this finding is unsupported by competent evidence. We disagree because we find ample support in the trial court\u2019s other, unchallenged findings of fact as well as in the evidence admitted at trial. See Lake Mary Ltd. P\u2019ship, 145 N.C. App. at 532, 551 S.E.2d at 553.\nThe trial court found and evidence supports that (1) two men appeared at the female plaintiffs house at 4:05 a.m. with a tow truck and hauled away her truck without giving plaintiff a reasonable time to unload her 130 watermelons; (2) following the repossession, when plaintiff contacted defendant to inquire as to the location of her truck so she could retrieve her watermelons, defendant denied knowledge of the truck; (3) defendant was unresponsive to plaintiffs inquiries about her watermelons; (4) defendant only offered to give plaintiff access to the truck \u2014 by requesting her truck key \u2014 after the watermelons were already rotting and of no value; and (5) defendant has never compensated, nor offered to compensate, plaintiff for the converted property. These unchallenged findings of fact, taken together, are such as \u201ca reasonable mind might accept as adequate\u201d to support the finding that the defendant deprived plaintiff of her property by means of inequitably asserting its relative position of power. Andrews, 120 N.C. App. at 605, 463 S.E.2d at 427. Therefore, we are unpersuaded by defendant\u2019s contention that no competent evidence supports this finding.\nFurther, this Court has already held that comparable findings are sufficient to establish an unfair and deceptive trade practice. See Love v. Pressley, 34 N.C. App. 503, 516-17, 239 S.E.2d 574, 583 (1977) (holding that the evidence supported the existence of an unfair and deceptive trade practice when (1) a landlord converted plaintiffs\u2019 personal property while cleaning the apartment for re-leasing, even though the lease had not yet expired; and (2) the landlord refused to respond to the plaintiffs\u2019 inquiries about the property), disc. review denied, 294 N.C. 441, 241 S.E.2d 843 (1978). Under the circumstances of this case \u2014 involving perishable goods, defendant\u2019s denial of any realistic opportunity to remove the goods, and defendant\u2019s failure to respond to plaintiff\u2019s prompt inquiries \u2014 the trial court properly held defendant liable under N.C. Gen. Stat. \u00a7 75-1.1.\nIII\nThe trial court awarded damages to plaintiff in the amount of $455.00 on her conversion claim, an amount that reflects the trial court\u2019s finding that plaintiffs truck bed contained approximately 130 watermelons valued at $3.50 each. Defendant challenges this award on the ground that there was insufficient evidence of the value of the watermelons. Specifically, defendant contends that plaintiff\u2019s oral testimony as to the value of the watermelons is \u201cnot even adequate in the most basic business setting, and is woefully inadequate in a court of law.\u201d To the contrary, it is well-settled in this state that \u201cthe opinion of a property owner is competent evidence as to the value of such property.\u201d Compton v. Kirby, 157 N.C. App. 1, 18, 577 S.E.2d 905, 916 (2003) (emphasis added) (finding that competent evidence supported a finding that plaintiff\u2019s allegedly converted partnership interest was worth over $50,000.00 when plaintiff sent defendant a letter to that effect).\nHere, when asked how much she had paid for the watermelons, plaintiff opined, \u201cAbout $3.50 apiece.\u201d In accordance with Compton, this testimony is sufficient to support the trial court\u2019s calculation of plaintiff\u2019s damages. Moreover, since we have upheld the trial court\u2019s conclusion that defendant committed an unfair and deceptive trade practice under Chapter 75, we also affirm the trebling of the $455.00 to $1,365.00 in accordance with N.C. Gen. Stat. \u00a7 75-16.\nDefendant also challenges the trial court\u2019s award of attorneys\u2019 fees under N.C. Gen. Stat. \u00a7 75-16.1. Defendant offers no argument as to why the award in this case is improper apart from its contention that plaintiff was not entitled to recover under N.C. Gen. Stat. \u00a7 75-1.1. We, therefore, affirm the trial court\u2019s attorneys\u2019 fee award.\nPlaintiff has filed a motion for attorneys\u2019 fees incurred during this appeal. This Court has previously held that: \u201cUpon a finding that [appellees] were entitled to attorney\u2019s fees in obtaining their judgment [under N.C. Gen. Stat. \u00a7 75-16.1], any effort by [appellees] to protect that judgment should likewise entitle them to attorney\u2019s fees.\u201d City Fin. Co. of Goldsboro, Inc. v. Boykin, 86 N.C. App. 446, 449, 358 S.E.2d 83, 85 (1987). Accordingly, because plaintiff was entitled to attorneys\u2019 fees for hours expended at the trial level, we hold plaintiff is entitled to attorneys\u2019 fees on appeal, especially in light of the limited amount of money at issue in the litigation. Id. at 450, 358 S.E.2d at 85 (noting that because the damages amounted to only $500.00, defense of the judgment would not be \u201ceconomically feasible\u201d in the absence of an award of attorneys\u2019 fees). We remand to the trial court for a determination of the hours spent on appeal and a reasonable hourly rate and for the entry of an appropriate attorneys\u2019 fee award.\nAffirmed and remanded.\nJudges McGEE and TYSON concur.\n. Plaintiff cross-assigned error to the trial court\u2019s award of damages, arguing that the price of $3.50 per melon was too low and did not reflect the market value of the watermelons. Plaintiff did not, however, file an appellant\u2019s brief on this issue, but rather included her discussion in her appellee\u2019s brief. Because this argument is not an alternative basis for upholding the trial court\u2019s order, N.C.R. App. P. 10(d), but rather asks this Court to reverse the order in part, plaintiff was required to file a separate appellant\u2019s brief. Plaintiff\u2019s assignment of error is not, therefore, properly before this Court. See Stanback v. Westchester Fire Ins. Co., 68 N.C. App. 107, 117, 314 S.E.2d 775, 781 (1984) (\u201cBecause plaintiff\u2019s cross-assignment of error does not present an alternative basis upon which to support the judgment, the question argued therein is not properly before this court. The proper method to have preserved this issue for review would have been a cross-appeal. Plaintiff\u2019s cross-assignment of error is overruled.\u201d).",
        "type": "majority",
        "author": "GEER, Judge."
      }
    ],
    "attorneys": [
      "Janet B. Dudley for 'plaintiff-appellee.",
      "William F. Hill, P.A., by William F. Hill and Mary C. Higgins, for defendant-appellant."
    ],
    "corrections": "",
    "head_matter": "JACKIE L. ELEY, Plaintiff v. MID/EAST ACCEPTANCE CORPORATION OF N.C., INC., Defendant\nNo. COA04-790\n(Filed 5 July 2005)\n1. Conversion\u2014 watermelons on repossessed truck \u2014 time to unload \u2014 evidence and findings\nA finding that plaintiff was not allowed a reasonable time to unload 130 watermelons from a truck that was being repossessed was supported by competent evidence in the bench trial for conversion of those watermelons.\n2. Conversion\u2014 watermelons on repossessed truck \u2014 assumption of ownership\nThe findings in a bench trial for conversion of watermelons left in the sun on a repossessed truck supported the inference that defendant assumed and exercised the right of ownership over plaintiffs watermelons without her permission when repossessing her truck, to the exclusion of plaintiff\u2019s rightful ownership interest.\n3. Unfair Trade Practices\u2014 watermelons on repossessed truck \u2014 opportunity to unload\nThe denial of any meaningful opportunity for plaintiff to remove watermelons from her repossessed truck supported the conclusion that defendant had committed an unfair and deceptive trade practice.\n4. Damages\u2014 oral testimony \u2014 value of converted watermelons\nPlaintiffs testimony about what she paid for her watermelons was sufficient to support the court\u2019s calculation of her damages in an action for conversion of watermelons.\n5. Costs\u2014 attorney fees \u2014 appeal\nPlaintiff was entitled to attorney fees on appeal because she was entitled to attorney fees under Chapter 75 in winning a judgment at the trial level; however, the award was remanded for a determination of the hours spent on appeal and entry of a reasonable hourly rate.\nAppeal by defendant from order entered 12 November 2003 by Judge W. Rob Lewis, II, in Hertford County District Court. Heard in the Court of Appeals 2 February 2005.\nJanet B. Dudley for 'plaintiff-appellee.\nWilliam F. Hill, P.A., by William F. Hill and Mary C. Higgins, for defendant-appellant."
  },
  "file_name": "0368-01",
  "first_page_order": 398,
  "last_page_order": 407
}