                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 12a1256n.06

                                              No. 11-5831

                            UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT
                                                                                              FILED
MADISON CAPITAL COMPANY, LLC,                         )                                   Dec 06, 2012
                                                      )                            DEBORAH S. HUNT, Clerk
        Plaintiff-Appellant,                          )
                                                      )
v.                                                    )    ON APPEAL FROM THE UNITED
                                                      )    STATES DISTRICT COURT FOR THE
S & S SALVAGE, LLC, and RIVER                         )    WESTERN DISTRICT OF KENTUCKY
METALS RECYCLING, LLC,                                )
                                                      )
        Defendants-Appellees.                         )
                                                      )


        Before: MARTIN and DAUGHTREY, Circuit Judges; MALONEY, District Judge.*


        MARTHA CRAIG DAUGHTREY, Circuit Judge. This appeal arises from an action

brought by plaintiff Madison Capital Company, LLC, based on diversity jurisdiction, against

defendants S & S Salvage, LLC, and River Metals Recycling, LLC, on claims of conversion

of personal property, trespass against personal property, and wrongful withholding. The

plaintiff now appeals the district court’s denial of a motion to alter, amend, or vacate the

court’s original order of summary judgment in favor of the defendants on the conversion

claim and the court’s later sua sponte grant of summary judgment in favor of the

defendants on the claims of trespass and wrongful withholding. The plaintiff also alleges




        *
          The Hon. Paul L. Maloney, Chief United States District Judge for the W estern District of Michigan,
sitting by designation.
No. 11-5831
Madison Capital Co. v. S & S Salvage

error in the district court’s rulings on application of the statute of limitations and the

exclusion of expert testimony. We find no reversible error and affirm.


                     FACTUAL AND PROCEDURAL BACKGROUND


       In February 2005, Community Trust Bank entered into a loan agreement with

Timothy P. Smith and with three mining companies owned by Smith. Pursuant to that

agreement, Smith received $1,500,000 to finance completion of a coal plant and to pay off

existing debt, and another $350,000 “to support working capital needs.” To secure the

loans, Smith pledged as collateral much of the equipment and fixed assets of the

companies, including a Joy Longwall Mining System that was comprised, in part, of 85

Hemscheidt shields – large, metal, underground roof supports each weighing

approximately 15 tons. The parties do not dispute that the bank properly recorded and

perfected its security interest in that collateral.


       Less than five weeks after obtaining the loan from Community Trust, Smith sought

permission from Brett Keene, a commercial loan officer at the bank, to sell portions of the

mining equipment to C.W. Mining, a mining company located in Utah. The bank denied

the request and informed Smith of that fact. Smith later insisted, however, that he received

no such information from the bank and that he thus consummated the sale of mining

equipment, minus the Hemscheidt shields, to the Utah concern. Furthermore, Smith

claimed, the payments from the Utah company were eventually transferred from that

company into Smith’s accounts at Community Trust Bank, indicating that the bank was

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aware, or at least should have been aware, that the collateral securing the loans was no

longer within Smith’s possession.


       At the same time, Smith was seeking to identify a purchaser for the 85 Hemscheidt

shields because those pieces of equipment were being stored on a 20-acre lot that had

been transferred to a subsidiary of the Peabody Coal Company that wanted the machinery

removed. A suitable purchaser could not be located, however, and Smith eventually

agreed to sell the shields for their scrap-metal value. Even though Smith did not recall

discussing the sale of the shields/collateral with anyone at Community Trust, he eventually

did contract with S & S Salvage to have that company haul the 85 shields from the property

and transport them to River Metals Recycling to be scrapped. Once River Metals received

the shields, it cut the machinery into pieces of metal smaller than two-feet by four-feet by

six-inches and shipped the scrap metal by barge to Nucor Steel Company in Cincinnati,

thus effectively destroying the shields as usable mining equipment.


       Once River Metals paid S & S Salvage for delivering the machines, S & S Salvage

cut a check dated December 27, 2005, to Timothy P. Smith for “(American Mining) scrap

shields” in the amount of $87,417.80 and a December 31 check to American Mining in the

amount of $96,992.85. Even though those checks were then deposited into Smith’s

account or the accounts set up for Smith’s companies at Community Trust, no one at the

bank monitored any of the accounts or otherwise questioned the wire transfers coming into

or out of them.


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        Unfortunately, Smith’s sale of the collateral securing his loans did little to alleviate

the financial burdens he and his companies were experiencing. As a result, as stated by

the district court in one of its memorandum orders issued during the pendency of this

litigation:


        [T]he Smith companies took on a new investor in Plaintiff Madison Capital
        Company, LLC (“Madison”). Madison and the Smith companies eventually
        formed American Mining & Manufacturing LLC (“AMM, LLC”) in June 2006.
        AMM, LLC assumed the debt from the earlier [Community Trust] loans to the
        Smith companies and defaulted on that debt sometime in July 2006. After
        the default, [Community Trust] catalogued the collateral in the field and
        learned that several pieces were missing, including the Shields. In
        September 2006, Madison purchased [Community Trust’s] position as a
        secured creditor of the Smith companies by way of an assignment.


Madison Capital Co., LLC v. S & S Salvage, LLC (Madison II), 794 F. Supp.2d 735, 737

(W.D. Ky. 2011).


        Eventually, on November 10, 2008, Madison Capital filed suit against S & S

Salvage, alleging that S & S Salvage improperly converted to its own use property to which

Madison Capital had a superior claim as the assignee of Community Trust Bank. Three

months later, on February 13, 2009, the plaintiff filed an amended complaint, adding River

Metals as a defendant and alleging claims against each of the two defendants for

conversion, wrongful withholding, trespass to personal property, constructive trust, replevin,

and negligence. Following a period of discovery, the parties filed cross-motions for

summary judgment. Madison Capital initially sought judgment in its favor only on its claims



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of conversion and negligence; the defendants requested summary judgment in their favor

on all claims asserted by the plaintiff.


       On January 19, 2011, the district court issued a memorandum opinion and order

that denied Madison Capital’s motion for summary judgment in its entirety. Madison

Capital Co., LLC v. S & S Salvage, LLC (Madison I), 765 F. Supp.2d 923 (W.D. Ky. 2011).

The district court granted the motions of the defendants as they related to the claims of

conversion, negligence, replevin, and constructive trust. The court denied summary

judgment to the defendants, however, on the plaintiff’s causes of action for trespass to

personal property and wrongful withholding. Id. Madison Capital then filed a timely motion

to alter, amend, or vacate portions of that decision, specifically seeking reinstatement of

the conversion claim. On June 15, 2011, the district court denied the plaintiff’s motion in

full and also used that opportunity to rule, sua sponte, that the defendants “are entitled to

summary judgment as to Plaintiff Madison’s remaining trespass and wrongful withholding

claims . . . .” Madison II, 794 F. Supp.2d at 743. Within the requisite 30-day period, the

plaintiff filed a notice of appeal specifying that it sought review of only “the Memorandum

Opinion and Order [Doc. 132] entered in this action on the 15th day of June, 2011 (the final

judgment) (from an order (describing it)).” Consequently, the only issues identified by the

plaintiff that are properly before us on appeal are Madison Capital’s challenges to the

district court’s rulings regarding the conversion, trespass, and wrongful-withholding claims.


                                       DISCUSSION


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       Given the nature of the district court’s June 15, 2011, memorandum opinion and the

limited scope of the review sought by Madison Capital, our analysis of the issues must be

filtered through two separate lenses. Because the plaintiff’s challenge to the dismissal of

its claim of conversion now presents itself only as an attempt to overturn a denial of a

motion to alter, amend, or vacate a prior judgment, we will examine the record to determine

whether the district court abused its considerable discretion in denying that motion. See

Leisure Caviar, LLC v. U.S. Fish and Wildlife Serv., 616 F.3d 612, 615 (6th Cir. 2010). The

remaining challenges that seek reversal or modification of initial decisions regarding the

trespass and wrongful-withholding claims are subject to the traditional de novo standard

of review. See Ciminillo v. Streicher, 434 F.3d 461, 464 (6th Cir. 2006).


       Furthermore, because this case comes before the court pursuant to the diversity-

jurisdiction provisions of 28 U.S.C. § 1332(a), state law governs the substantive issues

presented. See, e.g., Gass v. Marriot Hotel Servs., Inc., 558 F.3d 419, 425 (6th Cir. 2009).

Federal law, however, governs all procedural issues, “including evidentiary rulings made

pursuant to the Federal Rules of Evidence.” V & M Star Steel v. Centimark Corp., 678 F.3d

459, 465 (6th Cir. 2012).


Claim of Conversion


       In its complaint, Madison Capital, as a secured creditor of Timothy P. Smith and

Smith’s mining companies, alleged conversion causes of action against both S & S

Salvage and River Metals. According to the plaintiff’s allegations, Smith sold the metal

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Madison Capital Co. v. S & S Salvage

shields for scrap through business dealings with the two defendants. Because those sales

were not authorized by Community Trust Bank, the plaintiff’s assignor, and because the

shields had been pledged by Smith as collateral for loans he received, the plaintiff

contended that the defendants improperly converted the property to their own use and thus

were liable to Madison Capital for the plaintiff’s loss of use of those pieces of machinery.


       To establish the tort of conversion in Kentucky, the plaintiff bears the burden of

proving that:


       (1) the plaintiff had legal title to the converted property; (2) the plaintiff had
       possession of the property or the right to possess it at the time of the
       conversion; (3) the defendant exercised dominion over the property in a
       manner which denied the plaintiff’s rights to use and enjoy the property and
       which was to the defendant’s own use and beneficial enjoyment; (4) the
       defendant intended to interfere with the plaintiff’s possession; (5) the plaintiff
       made some demand for the property’s return which the defendant refused;
       (6) the defendant’s act was the legal cause of the plaintiff’s loss of the
       property; and (7) the plaintiff suffered damage by the loss of the property.


Meade v. Richardson Fuel, Inc., 166 S.W.3d 55, 58 (Ky. Ct. App. 2005). The district court

did not engage in an analysis of the elements of the tort of conversion in this case,

however, because of its determination that Madison Capital failed to initiate its suit within

two years of the time the assignor or the assignee should have known of the removal of

the machines by the defendants. The district court thus granted summary judgment to the

defendants on the conversion claim because it was untimely.




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       In arguing that the district court abused its discretion in refusing to alter, amend, or

vacate that decision, Madison Capital asserts that the district judge erroneously applied a

two-year, rather than a five-year, statute of limitations to the plaintiff’s conversion claim.

This portion of the plaintiff’s argument is patently without merit.


       It is true that prior to July 15, 1988, Kentucky statutory law provided that “[a]n action

for the taking, detaining or injuring of personal property, including an action for specific

recovery,” could be commenced at any time within five years after the cause of action

accrued. Ky. Rev. Stat. § 413.120(6) (1985). In 1988, however, the Kentucky legislature

deleted subparagraph 6 from section 413.120 and enacted a new section 413.125, which

now provides that “[a]n action for the taking, detaining or injuring of personal property,

including an action for specific recovery shall be commenced within two (2) years from the

time the cause of action accrued.” Ky. Rev. Stat. § 413.125 (1988) (emphasis added).


       The relevant Kentucky statute thus provides in plain language that claims of

conversion must now be initiated within two years of the accrual of the cause of action.

Madison Capital disingenuously argues, however, that the cases to which the district court

cited to support its decision, Rich & Rich Partnership v. Poetman Records USA, Inc., 714

F. Supp.2d 657, 669 (E.D. Ky. 2010), and Tritschler v. Haire, No. 5:07-437-JMH, 2009 WL

1515763, at *4 (E.D. Ky. June 1, 2009), were federal cases, not cases originating in the

state courts of Kentucky, and thus cannot overrule contrary Kentucky court decisions. The

plaintiff then cites three cases from Kentucky’s highest state court, Kentucky-West Virginia


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Madison Capital Co. v. S & S Salvage

Gas Co. v. Burchett, 402 S.W.2d 421 (Ky. 1966), Eline v. Commercial Credit Corp., 209

S.W.2d 846 (Ky. 1948), and Patton v. Coldiron, 281 S.W. 812 (Ky. 1926), to buttress its

argument that the five-year statute-of-limitations period still applies in Kentucky conversion

actions. Quite obviously, however, each of the cases cited by Madison Capital predates

the legislative change in the applicable Kentucky statutes and thus is no longer in concert

with the clearly-expressed intent of the Kentucky legislature.


       Madison Capital maintains that even if the two-year statute of limitations is held to

apply to conversion causes of action in Kentucky, it filed its complaint against the

defendants within that applicable time period. In support of that argument, Madison Capital

contends that both a demand for return of converted property and a refusal of that demand

are elements of the tort of conversion. Thus, if the plaintiff filed its complaint against the

defendants within two years of its demand for return of the shields, its conversion claim

would survive in the face of any timing challenge. Because Madison Capital maintains that

its initial demand letter to S & S Salvage was not sent until July 11, 2008, and its demand

letter to River Metals not until January 14, 2009, the plaintiff asserts that its complaints

against the defendants filed on November 10, 2008, and February 13, 2009, respectively,

were well within even a two-year limitation period.


       The Kentucky Court of Appeals discounted exactly such an argument a century ago,

however. In Joseph Goldberger Iron Co. v. Cincinnati Iron & Steel Co., 154 S.W. 374, 375

(Ky. 1913), the court recognized “that where an actual conversion is alleged, as here, an


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Madison Capital Co. v. S & S Salvage

averment of demand and refusal is not required” because even though such a demand and

refusal can be evidence of a conversion, “any wrongful exercise or dominion over chattels

to the exclusion of the rights of the owner, or a withholding of them from his possession

under a claim inconsistent with his rights, constitutes a conversion.” Stated somewhat

differently:


       The right of action [for conversion] accrues in favor of the owner of goods as
       soon as they are wrongfully taken from the owner’s possession or otherwise
       wrongfully converted. . . . Where the initial possession is lawful, the statute
       does not commence to run while the relation of the parties continues
       unchanged and unrepudiated. If the holding or possession sounds in tort
       from the beginning, a demand and refusal are unnecessary for the purpose
       of determining when the statute of limitations begins to run and, once the
       statute begins to run, no subsequent demand and refusal can start it afresh.


90 C.J.S, Trover and Conversion § 55 (2012) (footnotes omitted) (emphasis added).


       Thus, the lack of a demand for return of the collateral until July 2008 in no way

affected the start of the statute-of-limitations period in this case. Moreover, for practical

reasons also, adoption of the plaintiff’s position on this issue would be counterproductive.

As noted by defendant River Metals in its brief, “If Madison’s position is taken as true,

Madison could wait indefinitely to bring its conversion claim despite its knowledge [that] the

Shields were sold . . . because it had not issued a demand for the return and had not

received a refusal.” The district court, therefore, did not abuse its discretion by refusing

to reinstate the plaintiff’s conversion cause of action on the grounds [that]b the statute of




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Madison Capital Co. v. S & S Salvage

limitations did not begin to run until Madison Capital made its written demand for return of

the collateral on July 11, 2008.


       In a final effort to avoid dismissal of its conversion claim on timeliness grounds, the

plaintiff asserts that it did not discover that a possible conversion had occurred until 2008

and that the limitations period for the filing of suit did not begin until that date. Madison

Capital thus contends that its November 2008 complaint and its February 2009 amended

complaint were filed well within even a two-year statute-of-limitations period. At the very

least, the plaintiff argues, by making that allegation, it has identified a material issue of fact

concerning the date of discovery of the tort that should have precluded the district court

from granting summary judgment to the defendants on the conversion claim.


       That assertion by the plaintiff raises the question, however, whether the discovery

rule applies at all in Kentucky to claims of conversion of personal property. The district

court discussed and applied the discovery rule in its opinions granting summary judgment

to the defendants on the conversion claim and denying the plaintiff’s motion to alter,

amend, or vacate that determination. See Madison I, 765 F. Supp.2d at 932-33; Madison

II, 794 F. Supp.2d at 738-40. On appeal, however, the defendants argue that the district

court actually misapplied the law of Kentucky in intimating that filing of the complaint and

the amended complaint within two years of the discovery of the sale of the shields, rather

than within two years of the actual sale of the shields, would have allowed Madison




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Capital’s conversion claim to proceed. The defendants are correct in their assertion in this

regard.


       The Kentucky Supreme Court has determined that “[a] cause of action will not

accrue under the discovery rule until the plaintiff discovers or in the exercise of reasonable

diligence should have discovered not only that he has been injured but also that his injury

may have been caused by the defendant’s conduct.” Louisville Trust Co. v. Johns-Manville

Prods. Corp., 580 S.W.2d 497, 501 (Ky. 1979). That discovery rule, however, “is available

only in cases where the fact of injury or offending instrumentality is not immediately evident

or discoverable with the exercise of reasonable diligence, such as in cases of medical

malpractice or latent injuries or illnesses.” Fluke Corp. v. LeMaster, 306 S.W.3d 55, 60

(Ky. 2010) (footnote omitted). In fact, in Rockwell International Corp. v. Wilhite, 143

S.W.3d 604, 613 (Ky. Ct. App. 2003), the Kentucky Court of Appeals noted that its

“research has not revealed nor have we been cited to any Kentucky case applying the

‘discovery rule’ in a property damage action.”


       In this case, the plaintiff seeks recovery for the disappearance of 85 15-ton pieces

of metal machinery that were stored on a 20-acre plot of land. Through the exercise of due

diligence, therefore, Community Trust Bank, the issuer of the loans to Smith and the Smith

companies that were collateralized by the shields, should have discovered that the shields

had been moved without authorization from the property on which they were stored.

Moreover, that disappearance should have been discovered through the exercise of due


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Madison Capital Co. v. S & S Salvage

diligence well before the passage of two years from the sale of the shields in December

2005.


        Under established Kentucky law, an assignee like Madison Capital “simply stands

in the shoes of the [assignor], subject to all equities and defenses which could have been

asserted against the chose in the hands of the assignor at the time of the assignment.”

Whayne Supply Co. v. Morgan Constr. Co., 440 S.W.2d 779, 782-83 (Ky. 1969). Thus,

because the defendants assert that Community Trust should have been aware of the sale

of the shields well before the expiration of the two-year filing period for a conversion claim,

Madison Capital is also subject to that same requirement.


        The plaintiff’s conversion cause of action in this case was not based upon latent

injury, latent illness, or fraudulent concealment by the defendants. As a result, the district

court erred in applying the discovery rule when determining the last date on which Madison

Capital could have filed a timely complaint against S & S Salvage and River Metals.


        But, even if the discovery rule had been applied appropriately in this matter, the

plaintiff could not establish that the district court abused its discretion in ruling that the

plaintiff raised no genuine dispute of fact that would indicate that the conversion claim was

filed in a timely manner. Madison Capital contends that loan officer Keene was confused

during his deposition when he testified that Community Trust knew that the shields were

missing more than two years before the plaintiff filed its suit against the defendants.

According to the plaintiff, Keene was not shown during his deposition the letter to C.W.

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Mining upon which his testimony was based, correspondence that would have clarified that

the letter actually discussed the sale of equipment other than the Hemscheidt shields, not

the disappearance of the shields that led to the initiation of this cause of action. As noted

by the district court in its denial of the plaintiff’s motion to alter, amend, or vacate, however:


       [E]ven considering Keene’s statement that he was confused by the August
       23rd letter, Keene’s deposition demonstrates that CTB became aware that
       the Shields were missing sometime between July and September of 2006.
       Looking to Keene’s deposition, there are four separate instances where
       Keene acknowledges that CTB knew the Shields were missing.


       Before the August 23rd letter was discussed at his deposition, Keene
       acknowledged that CTB knew that the Shields were missing. Keene was
       asked:
               Q: Did you ever become aware of the sale of the shields?
               A: Once the loan defaulted and we went out to take a look at
               everything and we were kind of taking inventory of everything,
               we saw that they were gone.


       Thereafter, Keene was told of the August 23rd letter to C.W. Mining and was
       then asked:
               Q: When you learned there was certain equipment missing,
               what equipment did you learn was missing?
               A: If I recall correctly, I think we sent Mr. Bentley back out
               there to inventory everything and I think we discovered – I went
               out there and actually met him, and I don’t remember the dates
               of that. And I think that he pointed out that, you know, that
               those wasn’t [sic] there where he had looked at them before,
               I guess.
               Q: And when you say those, to what are you referring?
               A: To the shields and the longwall.
               Keene was then asked again about the Smith companies’ default:

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             Q: What was the nature of Mr. Smith or his companies’
             default? Was it failure to pay?
             A: Yes, delinquent payment.
             Q: And that happened shortly after the execution of the June
             ‘06 documents?
             A: Based on the timing of the other documents, yes.
             Q: And we already talked about this. That’s what precipitated
             CTB to get out there and look at its collateral?
             A: Correct.
             Q: Other than the shields we’re talking about today and the
             CW equipment, was there any other missing equipment?
             A: Not that I’m aware of.


      Lastly, regarding the assignment of the loans to Madison, Keene was asked:


             Q: And at the time of this assignment, CTB was aware that the
             shields were gone?
             A: That timeframe – Just going by your letter I was having
             trouble recollecting the time. Was the letter from Mr. Receski
             prior to that?
             Q: The letter from Mr. Receski was dated August 23 of ‘06 to
             CW Mining regarding equipment sold to them.
             A: Okay. And what [sic] was the Madison agreement entered?
             Q: The Madison agreement [CTB’s assignment to Madison]
             culminated in September of ‘06.
             A: So, yes, we probably were aware of it at that time.
             Q: And was CTB aware that in particular the shields that we
             are here for today were missing?
             A: That’s my understanding.


Madison II, 794 F. Supp.2d at 738-39 (citations to record omitted).


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       Even more damning for the plaintiff’s challenge to the district court’s dismissal of its

conversion claim on statute-of-limitations grounds is the very language of Community

Trust’s assignment to Madison Capital. In that document, executed on September 29,

2006, more than two years prior to the initiation of this litigation, the bank memorialized its

sale, assignment, conveyance, and transfer to the plaintiff of all rights and interests with

respect to bank credit documents involving the loans to Smith and his companies “including

but not limited to any claims associated with the unauthorized sale of the longwall miner

in which CTB has a security interest . . . .” (Emphasis added.) In light of that language in

an agreement to which Madison Capital was a party, the plaintiff cannot now legitimately

claim that it did not know, or that it should not have known, of its responsibility to ensure

that the 85 Hemscheidt shields had not been sold as of September 29, 2006, the date of

the agreement.


       Because, at the very latest, the plaintiff was aware on that date of the need to

investigate the alleged conversion of the shields, any action in regard to that intentional tort

must have been filed by September 29, 2008. But, because Madison Capital did not file

its complaint against S & S Salvage until November 10, 2008, and against River Metals

until February 13, 2009, the district court did not abuse its discretion in denying the

plaintiff’s motion to alter, amend, or vacate the order of dismissal of the conversion cause

of action on statute-of-limitations grounds, even if the discovery rule had been applied

properly in this case.



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Sua Sponte Grant of Summary Judgment on Selected Claims


       In its June 15, 2011, memorandum opinion and order, the district court also seized

the opportunity to grant, sua sponte, summary judgment to the defendants on Madison

Capital’s claims of trespass to personal property and wrongful withholding of personal

property. Such a decision to grant summary judgment sua sponte is reviewed by this court

under two distinct standards of review. We review the procedural decision to enter

summary judgment sua sponte for an abuse of discretion. Bennett v. City of Eastpointe,

410 F.3d 810, 816 (6th Cir. 2005). The actual summary judgment ruling, however, is

reviewed de novo under the usual summary judgment standards. Id. We first address the

procedural issue, and “[i]f we find no abuse of discretion in the district court’s procedural

decision, we review the decision substantively. If we find a procedural abuse of discretion,

we reverse and remand to provide the district court the opportunity to review all of the

evidence before making a substantive decision.” Id.


       We will not find that a district court abused its discretion in sua sponte granting

summary judgment as long as “the losing party was on notice that [it] had to come forward

with all of [its] evidence . . . [and had a] reasonable opportunity to respond to all the issues

to be considered by the court.” Shelby Cnty. Health Care Corp. v. S. Council of Indus.

Workers Health & Welfare Trust Fund, 203 F.3d 926, 931 (6th Cir. 2000) (internal quotation



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marks and citations omitted). Madison Capital contends, however, that it had no notice of

the district court’s intent to issue an order of summary judgment on the plaintiff’s trespass

and wrongful-withholding claims because, in the court’s January 19 memorandum opinion,

the district judge specifically denied summary judgment to the defendants on those two

causes of action.


       Nevertheless, the district court clearly did not abuse its discretion in determining

later that the plaintiff had notice and a reasonable opportunity to address the propriety of

a summary-judgment ruling on the trespass and wrongful-withholding claims. Without

question, Madison Capital was aware that the trespass claim was being considered by the

district court in conjunction with its motion to alter, amend, or vacate the January 19 ruling

of the court. In fact, in that motion, Madison Capital itself argued that it had “satisfied the

elements of its trespass claim.” The plaintiff, after arguing the merits of that cause of

action, cannot now be heard to complain that the district court chose to address the issue

as well. The district judge clearly did not abuse his discretion in issuing a sua sponte ruling

on Madison Capital’s claim of trespass to personal property.


       A similar discussion of the merits of the wrongful-withholding claim did not occur in

the context of arguing for or against the efficacy of the plaintiff’s motion to alter, amend,

or vacate the January 19, 2011, opinion and order.             Madison Capital still cannot

legitimately claim, however, that it did not have sufficient opportunity to address the legal

theories upon which the district court rested its decision to grant the defendants summary


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judgment on that cause of action. In its January 19 decision, the district court clearly

explained that when, as in this case, the alleged wrong “occurred by way of a wrongful

taking at the outset,” Madison I, 765 F. Supp.2d at 932, a claim for conversion is the proper

way to challenge the deprivation of private property and that “demand and refusal need not

be proved.” Id. By so concluding, the district court served notice of its determination that

any deprivation of personal property in this case occurred at the outset of the parties’

interactions and thus did not involve the legitimate initial possession by the defendants that

would support a claim for a subsequent wrongful withholding. Because the plaintiff thus

had sufficient opportunity to contest the district court ruling that the elements of a

conversion claim had been suggested by the facts of the case, the district judge did not

abuse his discretion in sua sponte choosing to subject the wrongful-withholding claim to

summary-judgment analysis.


       Madison Capital nevertheless argues before this court that the district court’s grant

of summary judgment on its trespass and wrongful-withholding claims prevented the

plaintiff from advancing alternative arguments regarding the liability of the defendants.

However, the only restraint on the advancement of alternative theories by the plaintiff was

Madison Capital’s own failure to allege facts that described anything other than a claim of

conversion. To the extent that the plaintiff thus failed to state claims for trespass and

wrongful withholding by asserting that the only interference by the defendants with the

shields was both total and completely illegal, the district court did not err in granting

summary judgment to the defendants on those claims.

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       Having determined that no such abuse of discretion has been shown in this case,

we next review the district court’s order de novo, utilizing the same standards employed

by the district judge. See Ciminillo, 434 F.3d at 464. We will affirm a grant of summary

judgment “if the movant shows that there is no genuine dispute as to any material fact and

the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). We will find

that a genuine dispute of material fact exists only when, assuming the truth of the non-

moving party’s evidence and construing all inferences from that evidence in the light most

favorable to the non-moving party, there is sufficient evidence for a trier of fact to find for

that party.   A non-moving party cannot withstand summary judgment, however, by

introduction of a “mere scintilla” of evidence in its favor. See Ciminillo, 434 F.3d at 464.


Claim of Trespass to Personal Property


       In challenging the district court’s summary-judgment decision on its claim of

trespass to personal property, Madison Capital asserts that because the statute of

limitations for initiating such a trespass action is five years from the accrual of the injury,

see Ky. Rev. Stat. § 413.120(4), the district court erred in granting summary judgment to

the defendants based upon the expiration of a two-year statute-of-limitations period. For

two primary reasons, one substantive and the other policy-driven, the mere act of

denominating its cause of action as trespass, rather than conversion, does not save the

plaintiff from the adverse consequences of its delay in bringing this suit.




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       First, the substantive difference between the torts of conversion and trespass to

personal property precludes Madison Capital from relying upon the five-year limitation on

filing that is mentioned in Ky. Rev. Stat. § 413.120(4) when asserting its claims in this case.

As recognized by the district court in its July 15 memorandum opinion, “[a] trespass to a

chattel may be committed by intentionally dispossessing another of the chattel or using or

intermeddling with a chattel in the possession of another.” Caldwell’s Kentucky Form Book

(5th ed.), § 126.00 (2011). See Madison II, 794 F. Supp.2d at 740. However, because

conversion is also “an intentional exercise of dominion or control over a chattel,”

Restatement (Second) of Torts, § 222A (1965), commentators have been forced to draw

“a distinction between mere trespass interfering with possession of a chattel, and a

conversion, which must involve some exercise of the defendant’s hostile dominion or

control over it.” Id., § 222A at cmt. a. In differentiating between the two concepts, the

comments in the Restatement (Second) of Torts note:


       In trespass the plaintiff may recover for the diminished value of his chattel
       because of any damage to it, or for the damage to his interest in its
       possession or use. Usually, although not necessarily, such damages are
       less than the full value of the chattel itself. In conversion the measure of
       damages is the full value of the chattel, at the time and place of the tort. . . .
       Conversion is . . . properly limited, and has been limited by the courts, to
       those serious, major, and important interferences with the right to control the
       chattel which justify requiring the defendant to pay its full value.


Id., § 222A at cmt. c.




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       The same distinctions have been recognized in Kentucky. For instance, as stated

in 13 Kentucky Practice Series Tort Law § 7:1 (2011), “[t]respass to chattels involves

relatively minor damages or deprivation, while conversion involves consequences which

justify the right of the plaintiff to recover the full value of the personal property affected.”

Thus, “[if] the interference with the rights of the possessor is serious enough, it will

constitute conversion.” Caldwell’s Kentucky Form Book (5th ed.) § 126.00 (2011). Stated

differently, “if return of the chattel is not possible, or the interference with its use has been

so serious and significant that it is just to require the defendant to pay the full value of the

chattel, then an action for conversion should be brought.” Id.


       Clearly, the complete dismantling and re-forming of the 15-ton shields into pieces

of scrap metal no larger than two-feet by four-feet by six-inches constitutes a serious

interference with, and a total deprivation of, the rights of the owner of the shields. Any

claim for such interference, therefore, must have been brought as a claim for conversion

that is subject to the two-year statute of limitations contained in section 413.125 of the

Kentucky Revised Statutes. Thus, for substantive reasons, the district court correctly

granted summary judgment to the defendants on Madison Capital’s trespass-to-personal-

property claims because those claims were not filed as conversion claims within two years

of the accrual of the causes of action.


       Furthermore, legitimate policy reasons support application of the two-year statute-of-

limitations period to the proffered trespass causes of action. As previously stated, an act


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of conversion entails a more complete, a more prolonged, a more serious deprivation of

the owner’s chattel than does a mere trespass. “Clearly, KRS 413.125 [and its two-year

statute of limitation] applies to a conversion since there is no specific language of

conversion in KRS 413.120(4). It would be illogical to apply a two-year statute of limitation

to conversion, but a five-year statute to trespass to chattels, a tort of lesser culpability.” 13

Ky. Prac. Series Tort Law § 7:1 (footnote omitted).


Claim of Wrongful Withholding


       The principle of law is well-established that “[w]e may not construe a statute in a

manner that renders part of the law superfluous.” United States v. Perry, 360 F.3d 519,

537 (6th Cir. 2004). In other words, “[i]t is a cardinal rule of statutory construction that

significance and effect shall, if possible, be accorded to every word.” Wash. Market Co.

v. Hoffman, 101 U.S. 112, 115-16 (1879). So as not to render either the provisions of Ky.

Rev. Stat. § 413.125 (setting a two-year period for bringing claims of conversion) or

§ 413.120(5) (setting a five-year period for bringing claims of wrongful withholding of

personal property) meaningless, it is thus essential that the concepts of conversion and

wrongful withholding be analyzed differently.         Although Madison Capital purports to

maintain such a distinction between the two torts, in reality, the plaintiff’s pleadings in this

matter blur any substantive difference between the two concepts while still seeking to

benefit from different procedural requirements.




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       As explained in the Restatement (Second) of Torts, § 222A cmt. a, “conversion” has

come to be regarded “as an exercise of the defendant’s dominion or control over the

chattel, as distinguished from a mere interference with the chattel itself, or with the

possession of it.” Thus, when personal property is alleged to have been taken and

destroyed, and when that taking is also improper at the outset, a cause of action for

conversion arises. On the other hand, when a defendant initially holds or possesses

property legally but later fails to turn the property over to its rightful owner upon demand,

a claim for wrongful withholding is proper. The few published Kentucky cases that involve

assertions of wrongful withholding illustrate this differentiation.


       In Crowder v. Barnes Automobile Co., 218 S.W.2d 679 (Ky. 1949), for example, the

plaintiff “sought to recover damages for the alleged wrongful withholding of a new Ford

automobile” by a car dealer who initially had legal title to the vehicle. Id. The Kentucky

Court of Appeals concluded, however, that no withholding had occurred because “the

purchaser acquired no right, title or interest in the property until it was delivered to him and

either the full purchase price paid in cash or a satisfactory deferred payment plan entered

into.” Id. at 680 (emphasis added). Absent the required payment or payment plan,

therefore, Crowder never suffered any deprivation of his property at all.


       Likewise, the plaintiffs in Maximum Machine Co. v. City of Shepherdsville, 17

S.W.3d 890 (Ky. 2000), suffered no serious deprivation of or damage to personal property.

In that case, companies that had paid a business license tax to the City of Shepherdsville


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in 1990, 1991, 1992, and 1993 sued for a refund of those payments after a court declared

the ordinance requiring the tax payment “void due to procedural infirmities.” Id. at 891.

The Kentucky Supreme Court concluded that the unique facts of that case called for the

application of the five-year statute of limitations found in sesction 413.120(5) for actions

for damages for withholding of personal property. No party asserted that any conversion

had occurred, in part because the initial collection of the taxes had not yet been

determined to be illegal. Thus, the choice before the Kentucky courts was not between a

two-year conversion statute of limitations and a longer wrongful-withholding statute of

limitations, but rather between the five-year limitations period of Ky. Rev. Stat. § 413.120(5)

and a two-year statute of limitations on claims for refunds of ad valorem taxes or for taxes

later held to be unconstitutional. See Ky. Rev. Stat. § 134.590(3). Because the business

license taxes at issue in the case were not ad valorem taxes, and because the ordinance

had been invalidated due to procedural infirmities, not its unconstitutional nature, the

shorter time period for filing suit was not applicable.


       Madison Capital’s wrongful-withholding claim in this case, by contrast, does not

allege that the defendants’ possession of the 85 shields was ever legal or proper. To the

contrary, the plaintiff asserts that the defendants’ possession was illegal from the outset

and that S & S Salvage and River Metals exercised such complete control and dominion

over the shields that the only remedy that could compensate the plaintiff for its loss would

be payment of the full value of the property at the time of the taking. Such an assertion is

unquestionably a claim for conversion of personal property, not a claim for wrongful

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Madison Capital Co. v. S & S Salvage

withholding by the defendants of property once possessed with authorization. The district

court was thus correct to grant summary judgment to the defendants and to conclude that

the alleged wrongful-withholding claim in this matter was really nothing but a conversion

cause of action under a different name.1


Exclusion of Testimony of Proffered Expert Witnesses


         In a final appellate challenge, Madison Capital maintains that the district court erred

in excluding the testimony of two witnesses offered by the plaintiff to testify regarding the

scrap metal value of the shields. A brief review of the procedural history of this litigation

shows, however, that this issue is not properly before the court for review at this time.


         On January 19, 2011, the district court issued its decision in Madison I that granted

the defendants summary judgment on a number of the causes of action identified by the

plaintiff. That memorandum opinion and order also denied the defendants summary

judgment on the trespass and wrongful-withholding claims, reserving further action on

those alleged bases for relief for a future date. That same day, January 19, the district

court issued a second memorandum opinion and order granting the defendants’ motion to

exclude the testimony of two of Madison Capital’s “expert witnesses.” See Madison Capital



        1
          Despite the district court’s grant of sum m ary judgm ent to the defendants disposing of all the plaintiff’s
claim s, S & S Salvage and River Metals still contend that the district court erred in failing to rule favorably upon
their request to apply the doctrine of laches to the plaintiff’s causes of action. Obviously, that allegation of
error has been rendered m oot by our determ ination that the district court did not err in granting sum m ary
judgm ent in favor of the defendants on all claim s asserted by the plaintiff in both its com plaint and its am ended
com plaint.

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Madison Capital Co. v. S & S Salvage

Co., LLC v. S & S Salvage, LLC (Madison III), No. 4:08-CV-00134-JHM, 2011 WL 195639

(W.D. Ky. Jan. 19, 2011).


       Three weeks later, Madison Capital filed a motion to alter, amend, or vacate portions

of Madison I. Specifically, the plaintiff sought “to alter, amend or vacate the portion of the

Court’s January 19, 2011 order granting defendants’ motion for summary judgment as to

Madison’s claim for conversion [and moved] the Court to clarify its Order, and to narrow the

scope of trial by holding the Defendants liable for trespass . . . .” (Emphasis added.) On

June 15, 2011, in docket entry 132, the district court denied the motion to alter, amend, or

vacate and further granted summary judgment, sua sponte, on the plaintiff’s trespass and

wrongful-withholding claims.


       On July 8, 2011, Madison Capital filed a timely notice of appeal in which the plaintiff

designated only “the Memorandum Opinion and Order [Doc. 132] (the final judgment) (from

an order (describing it)) entered in this action on the 15th day of June, 2011,” as a basis

of appeal. As described above, that memorandum opinion and order in no way involved

or addressed the issue regarding expert testimony that the plaintiff now seeks to place

before this panel. Pursuant to the provisions of Federal Rule of Appellate Procedure

3(c)(1)(B), a notice of appeal must “designate the judgment, order, or part thereof being

appealed.” Because the order excluding the testimony of two of the plaintiff’s witnesses

was not included in Madison Capital’s notice of appeal, any allegation of error in that ruling

is not properly before us at this time. See, e.g.,Crawford v. Roane, 53 F.3d 750, 752 (6th


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Madison Capital Co. v. S & S Salvage

Cir. 1995) (holding that although “appeal from a final judgment draws into question all prior

non-final rulings and orders,” when a party “chooses to designate specific determinations

in its notice of appeal, only those determinations may be raised on appeal”).


       Furthermore, because the plaintiff’s suit against S & S Salvage and River Metals

also engendered certain as-yet-unresolved cross-claims and third-party claims between

the defendants and between S & S Salvage and Timothy P. Smith, Madison Capital filed

a motion in the district court “to certify the June 15, 2011 Memorandum Opinion and Order

[Doc. 132] as a final, appealable judgment pursuant to Fed. R. Civ. P. 54(b).” The district

court granted that motion, certifying only “that its Memorandum, Opinion and Order dated

June 15, 2011, is a final and appealable order, and that there is no just reason to delay

appellate review.” Madison Capital Co., LLC v. S & S Salvage, LLC (Madison IV), No.

4:08-CV-00134-JHM, 2011 WL 3678796, at *2 (W.D. Ky. Aug. 22, 2011). Again, in light

of that order, only the conversion, trespass, and wrongful-withholding decisions included

in the June 15 memorandum opinion are properly before us at this time. There is,

therefore, neither need nor jurisdiction to address in this appeal the plaintiff’s claim

regarding the exclusion of alleged expert witnesses.


                                      CONCLUSION


       For the reasons set out above, we AFFIRM the judgment of the district court.




                                           - 28 -
