Virginia Lawyers Weekly VA Lawyers Weekly
Where appellant, a part owner of a car repair and painting business, sold appellee’s vehicle after obtaining a declaration from the DMV that it had been abandoned, the trial court should have granted appellant’s motion for judgment notwithstanding the jury’s verdict on appellee’s conversion claim.
Background
McCants, the appellee, had his car moved to Maaco in January 2017, for repair and painting. Butler, a part owner of Maaco, told McCants in July 2017 that the car, a Mustang, was ready. Despite numerous attempts to have McCants pick up the vehicle, McCants never reclaimed the Mustang. Butler filed an abandoned vehicle application with the DMV.
“On October 13, 2017, the DMV sent a notice to McCants’s address of record in Michigan, advising that the abandoned vehicle process had been initiated and McCants ‘must reclaim and remove’ the car ‘on or before 10/31/17 to avoid it being sold to a third party or transferred to a demolisher.’
“The notice also advised McCants to contact Butler ‘immediately’ and provided Maaco’s business address and phone number. … McCants denied receiving the notice but stipulated that he had no evidence to dispute that the DMV sent it. …
“McCants never retrieved the Mustang, and Butler subsequently applied for and received a certificate of title to it on November 27, 2017.
“Butler testified that he sold the Mustang for $2,000 in January 2018, but the Maaco mechanic who bought it stated that he paid $3,000. No documentation of the transaction was introduced at trial. McCants did not contact Butler until February 2018[.]”
McCants sued Butler and Maaco for, among other things, conversion. “The jury found Butler and Maaco jointly liable solely on the conversion count and awarded $78,500 in compensatory damages with interest from November 27, 2017.
“The court subsequently denied Butler and Maaco’s motion for judgment notwithstanding the verdict and entered judgment in McCants’s favor.” This appeal followed.
Issues on appeal
“Butler and Maaco contend that the court erred by failing to order judgment notwithstanding the verdict for two reasons.
“First, they argue that McCants lacked standing to pursue a conversion claim because he had waived all property rights in the car pursuant to the Virginia Abandoned Vehicle Act.
“Second, they argue that ‘no evidence was presented to the jury by which the jury could conclude that [Butler and Maaco] did not properly follow the requirements of the Virginia Abandoned Vehicle [Act]’ and therefore, as a matter of law, they could not be liable for conversion.
“Although we find that McCants had standing to assert his conversion claim, we conclude the court erred in affirming the jury verdict in his favor.”
Standing
“Although Butler and Maaco argue that McCants lacked standing because he ‘had no property right in the [Mustang] at the time he filed the lawsuit,’ the question of standing is whether the party had a property interest at the time of the alleged conversion. …
“At trial, McCants presented evidence supporting his claim that the conversion occurred when Butler wrongfully activated the Virginia Abandoned Vehicle Act on or about October 13, 2017.
“There is no dispute that McCants owned the Mustang at the time of this alleged taking: he testified about purchasing the car, he presented an exhibit of title issued in 2016, and he confirmed that he only left the car with Maaco for purposes of repair and repainting work.
“Although McCants lost title by the time he filed his lawsuit, he was entitled to immediate possession of the Mustang at the time of the alleged conversion and thus had standing to assert the claim.”
Conversion
“McCants was required to prove a ‘wrongful exercise or assumption of authority’ over his car that ‘depriv[ed] him of … possession’ or an ‘act of dominion wrongfully exerted … in denial of [his] right, or inconsistent with it.’ …
“McCants claims that the wrongful exercise of control occurred when Butler began the abandoned vehicle process online at the DMV’s website.
“On appeal, Butler and Maaco respond that no evidence was presented from which a jury could conclude that they failed to follow the requirements of the Virginia Abandoned Vehicle Act and, therefore, the court erred in affirming the jury verdict against them. We agree and reverse on that basis. …
“McCants contends that Butler wrongfully activated the AVP [abandoned vehicle application] because Maaco had outstanding work to complete on the Mustang and never charged a storage fee. Regardless, the statute only requires that the vehicle ‘remain[] for more than 48 hours’ on the property ‘without the consent of the property’s owner.’ Code § 46.2-1200(2).
“The evidence established that Maaco no longer consented to the presence of the Mustang on its property. Given that a number of weeks had passed during which Butler was frequently communicating, by various means, that McCants should remove the Mustang from Maaco’s property, it was evident that Maaco had withdrawn consent by the time of Butler’s final text message to McCants on September 25, 2017, to which McCants never responded.
“Well more than 48 hours later, Butler initiated the AVP online, causing the DMV to send a certified letter on October 13, 2017 to McCants’s address of record in Michigan informing him that he had until October 31, 2017 to remove the vehicle. …
“Butler and Maaco did not have to prove that McCants actually received the DMV’s notice, only that it was sent in compliance with the statute. … The Mustang remained unclaimed, and therefore, under the statute, McCants was deemed to have waived ‘all right, title, and interest in the motor vehicle’ as of October 31, 2017. …
“Because McCants failed to prove a ‘wrongful assumption or exercise of the right of ownership’ over the Mustang prior to his loss of the ownership interest … the jury verdict in favor of his conversion claim was plainly wrong and without evidentiary support[.]”
Reversed and final judgment.
CB & PB Enterprises, et al. v. McCants, Record No. 0046-22-2, Jan. 17, 2023. CAV (published opinion) (O’Brien). From the Circuit Court of the City of Richmond (McClenney). Padraic K. Keane for appellants. Dirk McClanahan for appellee. VLW 023-7-019, 10 pp.
