{ "id": 4160161, "name": "UNITED LEASING CORPORATION and SHIELD FAMILY PARTNERSHIP, III, Plaintiffs v. JOSEPH F. GUTHRIE and KELLY PITTMAN, Defendants", "name_abbreviation": "United Leasing Corp. v. Guthrie", "decision_date": "2008-09-16", "docket_number": "No. COA08-169", "first_page": "623", "last_page": "635", "citations": [ { "type": "official", "cite": "192 N.C. App. 623" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "630 S.E.2d 925", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12636037, 12636038, 12636039 ], "year": 2006, "opinion_index": 0, "case_paths": [ "/se2d/630/0925-01", "/se2d/630/0925-02", "/se2d/630/0925-03" ] }, { "cite": "622 S.E.2d 512", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12634526 ], "year": 2005, "pin_cites": [ { "page": "520", "parenthetical": "citation and quotation omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/622/0512-01" ] }, { "cite": "599 S.E.2d 45", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12631471 ], "year": 2004, "opinion_index": 0, "case_paths": [ "/se2d/599/0045-01" ] }, { "cite": "358 N.C. 543", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 12631460, 12631464, 12631499, 12631468, 12631471, 12631472, 12631474 ], "year": 2004, "opinion_index": 0, "case_paths": [ "/se2d/599/0040-01", "/se2d/599/0042-03", "/se2d/599/0907-01", "/se2d/599/0043-01", "/se2d/599/0045-01", "/se2d/599/0046-01", "/se2d/599/0048-02" ] }, { "cite": "646 S.E.2d 579", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12638852 ], "year": 2007, "pin_cites": [ { "page": "582", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/646/0579-01" ] }, { "cite": "635 S.E.2d 75", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12636924, 12636925, 12636926, 12636927 ], "year": 2006, "pin_cites": [ { "parenthetical": "unpublished" } ], "opinion_index": 0, "case_paths": [ "/se2d/635/0075-01", "/se2d/635/0075-02", "/se2d/635/0075-03", "/se2d/635/0075-04" ] }, { "cite": "46 S.E.2d 302", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1948, "pin_cites": [ { "page": "302", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "228 N.C. 530", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627211 ], "year": 1948, "pin_cites": [ { "page": "531", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/228/0530-01" ] }, { "cite": "448 S.E.2d 285", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "287" } ], "opinion_index": 0 }, { "cite": "116 N.C. App. 420", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524354 ], "year": 1994, "pin_cites": [ { "page": "422" } ], "opinion_index": 0, "case_paths": [ "/nc-app/116/0420-01" ] }, { "cite": "409 S.E.2d 611", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "330 N.C. 123", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2510071, 2509388, 2513238, 2511407 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/nc/330/0123-02", "/nc/330/0123-03", "/nc/330/0123-01", "/nc/330/0123-04" ] }, { "cite": "402 S.E.2d 653", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "660" } ], "opinion_index": 0 }, { "cite": "102 N.C. App. 370", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524196 ], "pin_cites": [ { "page": "381" } ], "opinion_index": 0, "case_paths": [ "/nc-app/102/0370-01" ] }, { "cite": "360 N.C. 478", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3794309, 3795468, 3793391, 3793363, 3790687, 3792351 ], "year": 2006, "opinion_index": 0, "case_paths": [ "/nc/360/0478-02", "/nc/360/0478-05", "/nc/360/0478-03", "/nc/360/0478-01", "/nc/360/0478-04", "/nc/360/0478-06" ] }, { "cite": "174 N.C. App. 644", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8352951 ], "year": 2005, "pin_cites": [ { "page": "655", "parenthetical": "citation and quotation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/174/0644-01" ] }, { "cite": "356 S.E.2d 578", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "585", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "319 N.C. 534", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4749057 ], "year": 1987, "pin_cites": [ { "page": "546", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/319/0534-01" ] }, { "cite": "577 S.E.2d 118", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "opinion_index": 0 }, { "cite": "356 N.C. 671", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511526, 1511463, 1511303, 1511288, 1511164 ], "year": 2003, "opinion_index": 0, "case_paths": [ "/nc/356/0671-05", "/nc/356/0671-02", "/nc/356/0671-04", "/nc/356/0671-03", "/nc/356/0671-01" ] }, { "cite": "571 S.E.2d 252", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2002, "pin_cites": [ { "page": "253-54", "parenthetical": "citation and quotation omitted" }, { "page": "253", "parenthetical": "citation and quotation omitted" }, { "page": "253-54" } ], "opinion_index": 0 }, { "cite": "153 N.C. App. 788", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9251716 ], "weight": 2, "year": 2002, "pin_cites": [ { "page": "791", "parenthetical": "citation and quotation omitted" }, { "page": "791" } ], "opinion_index": 0, "case_paths": [ "/nc-app/153/0788-01" ] }, { "cite": "265 S.E.2d 189", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "190" } ], "opinion_index": 0 }, { "cite": "300 N.C. 186", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560050 ], "year": 1980, "pin_cites": [ { "page": "187" } ], "opinion_index": 0, "case_paths": [ "/nc/300/0186-01" ] }, { "cite": "572 S.E.2d 428", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "opinion_index": 0 }, { "cite": "356 N.C. 434", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511169, 1511387, 1511370, 1511183, 1511131 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/nc/356/0434-04", "/nc/356/0434-05", "/nc/356/0434-02", "/nc/356/0434-03", "/nc/356/0434-01" ] }, { "cite": "567 S.E.2d 174", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "pin_cites": [ { "page": "176" }, { "page": "176" } ], "opinion_index": 0 }, { "cite": "151 N.C. App. 697", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9082078 ], "weight": 2, "pin_cites": [ { "page": "699" }, { "page": "699" } ], "opinion_index": 0, "case_paths": [ "/nc-app/151/0697-01" ] }, { "cite": "80 S.E. 963", "category": "reporters:state_regional", "reporter": "S.E.", "weight": 2, "year": 1914, "pin_cites": [ { "page": "965", "parenthetical": "\"Verdicts and judgments should not be lightly set aside upon grounds which show the alleged error to be harmless or where the appellant could have sustained no injury from it.\"" } ], "opinion_index": 0 }, { "cite": "165 N.C. 27", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8656942 ], "year": 1914, "pin_cites": [ { "page": "31", "parenthetical": "\"Verdicts and judgments should not be lightly set aside upon grounds which show the alleged error to be harmless or where the appellant could have sustained no injury from it.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/165/0027-01" ] }, { "cite": "276 S.E.2d 914", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "302 N.C. 220", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565121, 8565096, 8565035, 8565009, 8564983 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc/302/0220-05", "/nc/302/0220-04", "/nc/302/0220-03", "/nc/302/0220-02", "/nc/302/0220-01" ] }, { "cite": "273 S.E.2d 727", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "731" } ], "opinion_index": 0 }, { "cite": "50 N.C. App. 269", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 2674036 ], "year": 1981, "pin_cites": [ { "page": "273" } ], "opinion_index": 0, "case_paths": [ "/nc-app/50/0269-01" ] }, { "cite": "72 S.E. 383", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1911, "opinion_index": 0 }, { "cite": "156 N.C. 307", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11271252 ], "year": 1911, "pin_cites": [ { "page": "315" } ], "opinion_index": 0, "case_paths": [ "/nc/156/0307-01" ] }, { "cite": "286 S.E.2d 889", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1982, "pin_cites": [ { "page": "892", "parenthetical": "citing Wyatt v. Railroad, 156 N.C. 307, 315, 72 S.E. 383 (1911); Power & Light Co. v. Merritt, 50 N.C. App. 269, 273, 273 S.E.2d 727, 731, disc. rev. denied, 302 N.C. 220, 276 S.E.2d 914 (1981)" }, { "page": "892" } ], "opinion_index": 0 }, { "cite": "55 N.C. App. 706", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527865 ], "year": 1982, "pin_cites": [ { "page": "711", "parenthetical": "citing Wyatt v. Railroad, 156 N.C. 307, 315, 72 S.E. 383 (1911); Power & Light Co. v. Merritt, 50 N.C. App. 269, 273, 273 S.E.2d 727, 731, disc. rev. denied, 302 N.C. 220, 276 S.E.2d 914 (1981)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/55/0706-01" ] }, { "cite": "246 S.E.2d 569", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "573", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "37 N.C. App. 520", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553841 ], "year": 1978, "pin_cites": [ { "page": "524", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/37/0520-01" ] }, { "cite": "591 S.E.2d 905", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "913" } ], "opinion_index": 0 }, { "cite": "162 N.C. App. 549", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8918883 ], "pin_cites": [ { "page": "561" } ], "opinion_index": 0, "case_paths": [ "/nc-app/162/0549-01" ] }, { "cite": "184 N.C. App. 344", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8185730 ], "year": 2007, "pin_cites": [ { "page": "348", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/184/0344-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 75-1.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "179 N.C. App. 656", "category": "reporters:state", "reporter": "N.C. App.", "year": 2006, "pin_cites": [ { "parenthetical": "unpublished" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 1006, "char_count": 26306, "ocr_confidence": 0.737, "pagerank": { "raw": 9.391800689533997e-08, "percentile": 0.5154404754871809 }, "sha256": "1ac55f280ec79c2de5f35416d15450ca22ccb04491278a7b6d38d848deba194c", "simhash": "1:86e3552a360e8dc4", "word_count": 4085 }, "last_updated": "2023-07-14T14:54:33.452279+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges CALABRIA and ELMORE concur." ], "parties": [ "UNITED LEASING CORPORATION and SHIELD FAMILY PARTNERSHIP, III, Plaintiffs v. JOSEPH F. GUTHRIE and KELLY PITTMAN, Defendants" ], "opinions": [ { "text": "TYSON, Judge.\nJoseph F. Guthrie (\u201cJoseph Guthrie\u201d) appeals judgment entered on remand from this Court, which awarded United Leasing Corporation and Shield Family Partnership, III (collectively, \u201cplaintiffs\u201d) treble damages based upon their unanswered allegations of conversion, fraud, and unfair or deceptive acts or practices. Plaintiffs cross-appeal an order entered, which awarded plaintiffs nominal damages against Kelly Pittman. We affirm.\nI. Background\nPlaintiffs filed a complaint against Joseph Guthrie, Tami Guthrie, Judy Guthrie, Kelly Pittman, Lance Pittman, Joseph Guthrie Family Trust, Growth Opportunities Inc., and Showcase America Inc. (collectively, \u201cdefendants\u201d) based upon a series of allegedly improper business transactions. Plaintiffs alleged claims for conversion, fraud, unfair or deceptive acts or practices, and civil conspiracy. Plaintiffs also sought contribution and indemnity.\nThe facts leading to this action are as follows: on 8 October 1998, United Leasing Corporation (\u201cULC\u201d) loaned $500,000.00 to United American Company (\u201cAmerican\u201d), a company under the operation and control of Joseph Guthrie. In exchange, ULC received a promissory note and a security interest in American\u2019s inventory. In November 1998, Joseph Guthrie used Kelsie Properties, LLC to obtain a lease with Parker-Raleigh Development XX (\u201cParker-Raleigh\u201d) for a storefront location for American. The lease granted Parker-Raleigh a security interest in the inventory already subject to the security interest in favor of ULC. Although Kelsie Properties, LLC was owned in equal portions by Shield Family Partnership, III and Joseph Guthrie Family Trust, Joseph Guthrie failed to inform Shield Family Partnership, III of this transaction. During the course of the lease, Joseph Guthrie failed to pay the rent due in a timely manner and often paid with checks drawn on accounts with insufficient funds.\nOn 24 November 1999, ULC and American entered into an agreement for the peaceful repossession of the collateral. Within this agreement, Joseph Guthrie, on behalf of American, admitted that it had defaulted on its promissory note dated 8 October 1998. The parties agreed that the value of the inventory would be maximized if American continued \u201cto conduct business and make sales in the ordinary course of business.\u201d ULC further agreed to \u201callow such a continuation of the. conduct of business and sales ... on the condition that [American] pay only its necessary operating expenses from the proceeds of such sales and, thereafter, on a weekly basis, turn over to [ULC] all net proceeds of such sales.\u201d Joseph Guthrie admittedly failed to comply with this agreement.\nOn 23 May 2000, ULC \u201cpurchased\u201d American\u2019s entire inventory pursuant to its interest under the promissory note and security agreement. At that time, Joseph Guthrie \u201cabsconded with [the] valuable inventory, converting such inventory to his own use or to the use of Growth Opportunities, Inc. and/or Showcase America, Inc.\u201d Joseph Guthrie authorized his agents to transport portions of the inventory from Raleigh to his other stores in Richmond, Virginia and Wilmington, North Carolina in order to \u201cshield, hide and launder the inventory and proceeds from the inventory\u2019s sale.\u201d\nOn 26 May 2000, Parker-Raleigh enforced a lockout provision contained in their lease with Kelsie Properties d/b/a American. Parker-Raleigh subsequently demanded ULC pay $37,499.37 in back rent prior to the release of its inventory. ULC filed suit to recover its inventory and.Parker-Raleigh responded by filing counterclaims against ULC and third-party actions against Joseph Guthrie, Kelsie Properties, and Edward Shield, the President of ULC, alleging fraud, negligent misrepresentation, and unfair or deceptive acts or practices. Parker-Raleigh sought to obtain a judgment in an amount in excess of $1,000,000.00. To settle the matter, ULC agreed to pay Parker-Raleigh $360,000.00 on behalf of Kelsie Properties and themselves.\nOn 16 April 2003, plaintiffs filed their complaint against defendants. On 17 November 2003, the trial court granted defendants\u2019 motion to dismiss for lack of personal jurisdiction over defendants Tami Guthrie, Judy Guthrie, and the Joseph F. Guthrie Family Trust, but denied it as to Joseph Guthrie, Kelly Pittman, and Lance Pittman.\nOn 16 March 2004, the clerk of court filed an entry of default against the remaining defendants for failure to file a responsive pleading within the time allotted pursuant to N.C. Gen. Stat. \u00a7 1A-1, Rule 12(a). On 2 April 2004, defendants filed a motion to set aside the entry of default. On 30 April 2004, the trial court entered an order denying defendants\u2019 motion and granting plaintiffs\u2019 motion for default judgment in the amount of $515,000.00 plus court costs. Defendants appealed to this Court. See United Leasing Corp. v. Guthrie, 179 N.C. App. 656, 635 S.E.2d 75 (2006) (unpublished).\nDefendants argued the trial court erred by failing to set aside the entry of default and entering default judgment against them. This Court affirmed the entry of default, but held the trial court abused its discretion by entering default judgment in the amount of $515,000.00 because it \u201crelied exclusively on allegations made in plaintiff[s\u2019] complaint in determining the amount of damages.\u201d On 3 October 2006, this Court remanded this case to the trial court for a hearing on damages. After the initial appeal, plaintiffs settled their claims against Lance Pittman, leaving Joseph Guthrie and Kelly Pittman as the active defendants.\nOn 16 July 2007, Joseph Guthrie and Kelly Pittman filed a motion in limine to exclude documents and information not disclosed in discovery and to exclude lay opinion testimony regarding the value of the inventory. The trial court took this motion under advisement. On 23 July 2007, the trial court conducted a hearing on damages in accordance with this Court\u2019s previous opinion. Based upon the evidence submitted, the trial court found: (1) plaintiffs failed to show they suffered any injury or damage to which they would be entitled to contribution; (2) Joseph Guthrie had converted $150,000.00 of plaintiffs\u2019 inventory; (3) Joseph Guthrie\u2019s fraudulent misrepresentations damaged plaintiffs in the amount of $500,000.00; and (4) Joseph Guthrie\u2019s actions constituted unfair or deceptive acts or practices pursuant to N.C. Gen. Stat. \u00a7 75-1.1.\nThe trial court concluded that the damages of $150,000.00 for conversion and $500,000.00 for fraud were \u201coverlapping\u201d and declared the total judgment to be $500,000.00. The trial court then trebled plaintiffs\u2019 damages. Judgment was entered against Joseph Guthrie in the amount of $1,500,000.00. The trial court entered a separate order regarding Kelly Pittman, which concluded that plaintiffs were entitled to recover nominal damages from her in the amount of $25.00. Joseph Guthrie appeals and plaintiffs cross-appeal.\nII. Issues\nJoseph Guthrie argues the trial court erred by: (1) admitting the lay opinion testimony of Lance Pittman and Marcus Barnes to establish plaintiffs\u2019 damages for conversion and fraud and (2) adopting verbatim the proposed findings of fact and conclusions of law forwarded by plaintiffs\u2019 counsel. Joseph Guthrie further argues plaintiffs failed to prove the amount of their damages with reasonable certainty and that the judgment entered against him is excessive and bears no relationship to plaintiffs\u2019 evidence.\nOn cross-appeal, plaintiffs argue the trial court erred by failing to hold Kelly Pittman jointly and severely liable for the conversion of plaintiffs\u2019 inventory.\nTTT- Joseph Guthrie\u2019s Anneal\nA. Motion in Limine to Exclude Lav Opinion Testimony\nJoseph Guthrie argues the trial court abused its discretion in admitting lay opinion testimony from Lance Pittman (\u201cPittman\u201d) and Marcus Barnes (\u201cBarnes\u201d) regarding the value of the converted inventory.\n1. Standard of Review\n\u201cWe review a trial court\u2019s rulings on motions in limine and on the admission of evidence for an abuse of discretion.\u201d State v. Hernendez, 184 N.C. App. 344, 348, 646 S.E.2d 579, 582 (2007) (citations omitted). Under an abuse of discretion standard, we reverse a trial court\u2019s decision \u201conly upon a showing that it was so arbitrary that it could not have been the result of a reasoned decision.\u201d Gibbs v. Mayo, 162 N.C. App. 549, 561, 591 S.E.2d 905, 913 (citation and quotation omitted), disc. rev. denied, 358 N.C. 543, 599 S.E.2d 45 (2004).\n2. Analysis\ni. Pittman\u2019s Testimony\nJoseph Guthrie argues that Pittman\u2019s testimony was inadmissible because (1) he was not qualified as an expert witness; (2) he was merely a \u201cproject manager\u201d and not the \u201cowner\u201d of the inventory; and (3) he did not know the year, make or model of any of the inventory. We disagree.\nThe measure of damages for wrongful conversion is the fair market value of the chattel at the time and place of conversion, plus interest. Russell v. Taylor, 37 N.C. App. 520, 524, 246 S.E.2d 569, 573 (1978) (citations omitted). This Court has held that \u201c[l]ay opinions as to the value of [] property are admissible if the witness can show that he has knowledge of the property and some basis for his opinion.\u201d Whitman v. Forbes, 55 N.C. App. 706, 711, 286 S.E.2d 889, 892 (1982) (citing Wyatt v. Railroad, 156 N.C. 307, 315, 72 S.E. 383 (1911); Power & Light Co. v. Merritt, 50 N.C. App. 269, 273, 273 S.E.2d 727, 731, disc. rev. denied, 302 N.C. 220, 276 S.E.2d 914 (1981)).\nHere, Pittman testified by videotaped deposition that he had worked for various companies owned by Joseph Guthrie, including American. Pittman held the position of \u201cproject manager\u201d and \u201chelped set up new stores whenever [Joseph Guthrie] acquired a company, or [found] a new building, or moved inventory around to the stores for sales, helped hire managers, sales people, [and] set up dumpster companies.\u201d Pittman also testified to his familiarity with the inventory at the various store locations and its pricing.\nIn mid 2000, part of Pittman\u2019s job duties was to assist with the \u201cshutdown\u201d of American\u2019s Raleigh location. Pittman loaded inventory from the Raleigh store into a twenty-four foot box truck approximately five to six times. One truck load of inventory was taken to Wilmington, North Carolina and the remaining truck loads to Richmond, Virginia. Based on his experience working for American, Pittman estimated the aggregate value of the inventory moved from the Raleigh store amounted to $150,000.00.\nPittman\u2019s deposition testimony tended to \u201cshow that he ha[d] knowledge of the property and some basis for his opinion\u201d regarding the value of said property at the time of its conversion. Id. at 711, 286 S.E.2d at 892. Joseph Guthrie has failed to show the trial court abused its discretion in admitting Pittman\u2019s lay opinion testimony. Joseph Guthrie also failed to produce any evidence tending to vary or contradict Pittman\u2019s valuation of the converted inventory.\nii. Barnes\u2019s Testimony\nJoseph Guthrie also argues the trial court abused its discretion by admitting Barnes\u2019s lay opinion testimony regarding the value of the converted inventory. We disagree.\nBarnes was contracted by Joseph Guthrie to appraise the inventory of the American stores in February 2000. Barnes requested American provide him with an aging report, cost data, and retail values. Barnes was to \u201cmake a physical inspection of the Norfolk store, spot-check the inventory and then provide a force-liquidation value on all of the locations based on this inventory which they were to provide.\u201d Based on Barnes\u2019s inspection, the estimated value of the inventory located at American\u2019s Raleigh store was $770,315.85 as of 17 February 2000. Barnes\u2019s appraisal reports were submitted to the trial court.\nAt the hearing, Joseph Guthrie\u2019s counsel specifically objected to this testimony as irrelevant and further argues this assertion on appeal. Presuming arguendo Barnes\u2019s testimony is irrelevant, Joseph Guthrie has failed to show its admittance constituted prejudicial error. See Steely v. Lumber Co., 165 N.C. 27, 31, 80 S.E. 963, 965 (1914) (\u201cVerdicts and judgments should not be lightly set aside upon grounds which show the alleged error to be harmless or where the appellant could have sustained no injury from it.\u201d).\nHere, the trial court disregarded Barnes\u2019s testimony in its determination of damages. In its order, the trial court specifically concluded:\nJoseph Guthrie represented to Marcus [Barnes], as of February 17, 2000, that the inventory in the Raleigh store had a value of $770,315.85. This value closely resembles the sum of the two values shown on the inventory lists for Raleigh and Durham that were attached to the UCC-ls filed on November 3, 1998. This Court finds it improbable, even under the best circumstances, that the inventory ever had such a value; instead, Joseph Guthrie used these figures to entice financing.\n(Emphasis supplied). The trial court then concluded, based on Pittman\u2019s deposition testimony, that value of the converted inventory amounted to $150,000.00. Because Barnes\u2019s testimony and appraisal value was specifically disregarded in the trial court\u2019s determination of damages, Joseph Guthrie has failed to show the admittance of Barnes\u2019s testimony was prejudicial. Id. This assignment of error is overruled.\nB. Damages\nJoseph Guthrie argues plaintiffs failed to prove the amount of any damage with reasonable certainty. We disagree.\n1. Standard of Review\n\u201cThe standard of review on appeal from a judgment entered after a non-jury trial is whether there is competent evidence to support the trial court\u2019s findings of fact and whether the findings support the conclusions of law and ensuing judgment.\u201d Cartin v. Harrison, 151 N.C. App. 697, 699, 567 S.E.2d 174, 176 (citation and quotation omitted), disc. rev. denied, 356 N.C. 434, 572 S.E.2d 428 (2002). The trial court\u2019s conclusions of law are reviewable de novo on appeal. Humphries v. City of Jacksonville, 300 N.C. 186, 187, 265 S.E.2d 189, 190 (1980).\n2. Analysis\nAt the outset, we note that \u201c[t]he effect of an entry of default is that the defendant against whom entry of default is made is deemed to have admitted the allegations in plaintiff\u2019s complaint, and is prohibited from defending on the merits of the case.\u201d Hartwell v. Mahan, 153 N.C. App. 788, 791, 571 S.E.2d 252, 253-54 (2002) (citation and quotation omitted), disc. rev. denied, 356 N.C. 671, 577 S.E.2d 118 (2003). A defendant\u2019s \u201conly recourse is to show good cause for setting aside the default and, failing that, to contest the amount of the recovery.\u201d Id. at 790-91, 571 S.E.2d at 253 (citation and quotation omitted) (emphasis supplied). \u201cIt is a well-established principle of law that proof of damages must be made with reasonable certainty.\u201d Olivetti Corp. v. Ames Business Systems, Inc., 319 N.C. 534, 546, 356 S.E.2d 578, 585 (1987) (citation omitted). However, \u201cproof of an absolute mathematical certainty is not required.\u201d CDC Pineville, LLC v. UDRT of N.C., LLC, 174 N.C. App. 644, 655, 622 S.E.2d 512, 520 (2005) (citation and quotation omitted), disc. rev. denied, 360 N.C. 478, 630 S.E.2d 925 (2006).\nHere, Joseph Guthrie asserts \u201csix (6) independent reasons why plaintiffs\u2019 evidence failed to prove damages with reasonable certainty^]\u201d including the following:\nif Pittman retrieved the \u201cinventory\u201d from Raleigh prior to 23 May 2000, plaintiffs suffered no harm because ULC did not own the \u201cinventory\u201d until 23 May 2000.\n[O]n December 15, 1999, ULC/Shield directed Joseph Guthrie to retrieve the inventory from [American\u2019s] stores and transport it to Richmond, Virginia. Plaintiffs could not have suffered any harm from retrieval and transportation of the \u201cinventory\u201d because Joseph Guthrie was acting with authority and at the direction of Shield.. . .\n[Plaintiffs\u2019 failure to prove when the \u201cinventory\u201d was converted also dooms their damage claim because the documentary and unchallenged evidence establishes that ULC abandoned any and all interest in any \u201cinventory\u201d in \u201cJuly or August 2000.\u201d . . .\n[Although the superior court found that \u201cJoseph Guthrie, contrary to his representations in the Peaceful Repossession Letter, sold the inventory for his own benefit\u201d, [sic] plaintiffs offered no evidence of a single sale of any \u201cinventory\u201d after November 24, 1999 \u2014 the date of the Peaceful Repossession Letter \u2014 in support of their claim of damages.\nBecause these assertions attempt to contest the merits of the case and not the amount of recovery, they are not properly before us and we do not address them. Hartwell, 153 N.C. App. at 791, 571 S.E.2d at 253-54.\nJoseph Guthrie\u2019s remaining contentions are as follows: first, he argues that because it was \u201cstipulated\u201d that the inventory shipped to Wilmington was not converted, the trial court was left to guess the value of the converted inventory versus the non-converted inventory. However, the record contains no such stipulation. Pittman\u2019s lay opin-' ion testimony was sufficient to establish the aggregate value of the converted inventory.\nSecond, Joseph Guthrie argues \u201cthe superior court\u2019s judgment Of fraud is 100% predicated upon a series of bizarre non sequitors and speculations!)]\u201d Joseph Guthrie asserts the record is devoid of any evidence to support the trial court\u2019s conclusion of law that plaintiffs were entitled to $500,000.00 in damages based upon Joseph Guthrie\u2019s fraudulent misrepresentations. We disagree.\nIn its order, the trial court made the following findings of fact:\nIn this case, [ULC] had provided Joseph Guthrie and his company, [American], a loan of $500,000 to purchase inventory located in Durham, Raleigh and Wilmington, North Carolina. There is no dispute that [ULC] wired money and that [American] received the inventory. On November 24, 1999, Joseph Guthrie signed a Peaceful Repossession Letter. In that letter, Joseph Guthrie admitted that [American] defaulted on the $500,000 promissory note. He further agreed to personally guarantee its payment. Joseph Guthrie also made a number of misrepresentations in which he promised, both individually and on behalf of [American], to sell the inventory and provide the proceeds to [ULC] on a weekly basis. He did not. ...\nBut for Joseph Guthrie\u2019s misrepresentations, [ULC] would have had the opportunity to secure all of the inventory, to avoid a default with the landlord and to sell the inventory in a more orderly fashion. As stated above, although the Court does not find it credible that the inventory had a value of $770,315.85, it does find competent evidence that [ULC] lent $500,000 to [American] and that [American] defaulted on that note.\nThe trial court concluded that based on the foregoing findings, plaintiffs were damaged in the amount of $500,000.00. Competent evidence in the record, including the admitted allegations in plaintiffs\u2019 complaint, support the trial court\u2019s findings of fact. These findings support the trial court\u2019s conclusion of law and ensuing judgment. Cartin, 151 N.C. App. at 699, 567 S.E.2d at 176. This assignment of error is overruled.\nC. Excessive Judgment,\nJoseph Guthrie argues the trial court erred by entering a judgment against him that was \u201cexcessive,\u201d \u201cunfounded,\u201d and bears no relationship to plaintiffs\u2019 damages. Joseph Guthrie reiterates the same argument as we decided immediately preceding this section. For the reasons stated above, this assignment of error is overruled.\nD. Judgment Entered\nJoseph Guthrie argues the trial court committed reversible error when it adopted verbatim the findings of fact and conclusions of law proposed by plaintiffs\u2019 counsel. We disagree.\nThis Court has repeatedly held that \u201c[w]here the trial court adopts verbatim a party\u2019s proposed findings of fact, those findings will be set aside on appeal only where there is no competent evidence in the record to support them.\u201d Weston v. Carolina Medicorp, Inc., 102 N.C. App. 370, 381, 402 S.E.2d 653, 660 (citations omitted), disc. rev. denied, 330 N.C. 123, 409 S.E.2d 611 (1991); see also Rierson v. Commercial Service, Inc., 116 N.C. App. 420, 422, 448 S.E.2d 285, 287 (1994). Here, competent evidence in the record supports the trial court\u2019s findings of fact and its findings of fact support its conclusions of law. This assignment of error is overruled.\nIV. Plaintiffs\u2019 Cross-Anneal\nOn cross-appeal, plaintiffs argue the trial court erred by failing to hold Kelly Pittman jointly and severally liable for the conversion of plaintiffs\u2019 inventory. We disagree.\nThe trial court found that Kelly Pittman converted the property of ULC as a matter of law. The trial court\u2019s finding of fact was predicated upon the following allegation contained in plaintiffs\u2019 complaint deemed admitted after default:\n41. Upon information and belief, since 23 May 2000, Joseph Guthrie, Judy Guthrie, Tami Guthrie, Kelly Pittman and Lance Pittman have converted the inventory to their own use. The Guthries and the Pittmans employed the use of their companies, Growth Opportunities, Inc., Showcase America, Inc. and the Pittman\u2019s company, Etc., in order to shield, hide and launder the inventory and proceeds from the-inventory\u2019s sales.\nThe trial court further found the allegation in the complaint insufficient to establish Kelly Pittman \u201cacted in concert\u201d in committing the conversion and only aw\u00e1rded plaintiffs nominal damages. Plaintiffs have failed to show any error in the trial court\u2019s analysis.\n\u201cIt is a generally accepted rule that where two or more persons unite or intentionally act in concert in committing a wrongful act, or participate therein with common intent, they are jointly and severally liable for the resulting injuries.\u201d Garrett v. Garrett, 228 N.C. 530, 531, 46 S.E.2d 302, 302 (1948) (citations omitted) (emphasis supplied). However, no allegations in plaintiffs\u2019 complaint tend to show Kelly Pittman acted in concert with others while converting the property of ULC. Id. The preceding allegation is only sufficient to establish Kelly Pittman converted ULC\u2019s inventory. Plaintiffs\u2019 complaint does contain the following allegations in their fourth cause of action, civil conspiracy:\n53. Joseph Guthrie, Tami Guthrie, Judy Guthrie and the Joseph Guthrie Family Trust engaged in conspiracy to defraud [ULC] and Kelsie Properties.\n54. Joseph Guthrie, Tami Guthrie, Judy Guthrie employed the use of the Joseph Guthrie Family Trust, Growth Opportunities, Inc. and Showcase America, Inc. to further their plan to defraud and convert goods belonging to [ULC],\n55. As co-conspirators, Joseph Guthrie, Tami Guthrie, Jud[y] Guthrie and the corporate defendants Growth Opportunities, Inc. and Showcase America, Inc. are jointly and severally liable for the damages herein stated.\n56. As a direct cause of the conspiracy between Joseph Guthrie, Tami Guthrie, Jud[y] Guthrie, Growth Opportunities, Inc. and Showcase America, Inc., [ULC] was damaged in an amount in excess of $440,000.\nNoticeably absent from these allegations is any reference to Kelly Pittman. Plaintiffs have failed to show the trial court erred when it concluded plaintiffs were only entitled to recover nominal damages against Kelly Pittman. This assignment of error is overruled.\nV. Conclusion\nJoseph Guthrie failed to show the trial court abused its discretion in admitting lay opinion testimony from Lance Pittman and Marcus Barnes regarding the converted inventory\u2019s value. Competent evidence in the record, including the admitted allegations in plaintiffs\u2019 complaint, supports the trial court\u2019s conclusion of law that plaintiffs were entitled to $500,000.00 in damages based upon Joseph Guthrie\u2019s fraudulent misrepresentations. This evidence supports the findings of fact and conclusions of law proposed by plaintiffs\u2019 counsel in its order and adopted by the trial court.\nPlaintiffs failed to allege Kelly Pittman acted in concert in converting the inventory of ULC. The trial court properly concluded plaintiffs were entitled to recover only nominal damages against Kelly Pittman. The trial court\u2019s judgment entered against Joseph Guthrie and order regarding Kelly Pittman are affirmed.\nAffirmed.\nJudges CALABRIA and ELMORE concur.", "type": "majority", "author": "TYSON, Judge." } ], "attorneys": [ "Lewis & Roberts, RL.L.C., by John S. Austin, for plaintiffs.", "Nicholls & Crampton, RA., by Kevin L. Sink, and Steven S. Bliss, for defendant Joseph F. Guthrie." ], "corrections": "", "head_matter": "UNITED LEASING CORPORATION and SHIELD FAMILY PARTNERSHIP, III, Plaintiffs v. JOSEPH F. GUTHRIE and KELLY PITTMAN, Defendants\nNo. COA08-169\n(Filed 16 September 2008)\n1. Evidence\u2014 lay opinion \u2014 value of converted inventory\nThe trial court did not abuse its discretion in a conversion claim by admitting lay opinion testimony about the value of the inventory of a closed business. The deposition testimony of one witness tended to show knowledge of the property and some basis for his opinion, and the testimony of another was specifically disregarded in the court\u2019s determination of damages.\n2. Damages and Remedies\u2014 default judgment \u2014 assertions about damages \u2014 disregarded\nDefendant\u2019s assertions about damages in a fraud and conversion claim were disregarded where a default judgment had been entered and the assertions went to the merits and not the amount of recovery.\n3. Damages and Remedies\u2014 evidence \u2014 admitted allegations\nCompetent evidence in the record (including admitted allegations in the complaint) supported the trial court\u2019s findings as to damages in a conversion and fraud action, and those findings supported the trial court\u2019s conclusion of law and the ensuing judgment.\n4. Judgments\u2014 findings and conclusion \u2014 adoption of party\u2019s proposal\nThe trial court in a conversion and fraud action did not err by adopting plaintiffs\u2019 proposed findings and conclusions that were supported by competent evidence.\n5. Pleadings\u2014 acting in concert not alleged \u2014 joint and several liability not found\nThe trial court did not err by failing to hold defendant Pittman jointly and severally liable for conversion of inventory during the closing of a business, and properly concluded that plaintiffs were entitled to only nominal damages from Pittman, where plaintiffs did not allege that Pittman acted in concert with others while converting the inventory!\nAppeal by defendant Joseph F. Guthrie and cross-appeal by plaintiffs from order and judgment entered on or after 28 August 2007 by Judge Donald W. Stephens in Wake County Superior Court. Heard in the Court of Appeals 27 August 2008.\nLewis & Roberts, RL.L.C., by John S. Austin, for plaintiffs.\nNicholls & Crampton, RA., by Kevin L. Sink, and Steven S. Bliss, for defendant Joseph F. Guthrie." }, "file_name": "0623-01", "first_page_order": 651, "last_page_order": 663 }