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

                                                  Orange County
    v.
                                                  No. 12 CVD 1048

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


    Appeal by defendant from order entered 29 October 2013 and

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

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

October 2014.



    Barry Nakell for Plaintiff.

    Perry, Perry & Perry, P.A., by Maria T. Singleton, for
    Defendant.


    ERVIN, Judge.


    Defendant     Tammy       Bowden    appeals   from    an    order   granting

partial summary judgment in favor of Plaintiff Antonio Steele

with respect to the conversion and trespass to personal property

claims that he asserted against Defendant and from a judgment

awarding   Plaintiff      a    total    of   $10,570     in    compensatory   and

punitive damages.      On appeal, Defendant argues that the trial
                                          -2-
court erred by granting partial summary judgment in Plaintiff’s

favor with respect to his conversion and trespass to personal

property claims on various procedural and substantive grounds,

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

summary judgment hearing, refusing to accept the oral statements

that she made in open court in opposition to Plaintiff’s summary

judgment       motion    as   evidence,    refusing     to   submit   the   issues

raised by her counterclaim to the jury, impermissibly presenting

the     jury    with     an   “alternative      verdict”     form,    incorrectly

instructing the jury concerning the law applicable to conversion

and trespass to personal property claims, submitting the issue

of punitive damages to the jury absent evidence that Defendant

had acted maliciously, allowing the jury to award damages to

Plaintiff      despite    the    absence   of   sufficient     evidence     of   the

value    of    the     vehicle   in   question,   and    granting     Plaintiff’s

motion in limine seeking the exclusion of documents that should

have been admitted into evidence.               After carefully considering

Defendant’s challenges to the trial court’s order and judgment

in light of the record and the applicable law, we conclude that

the trial court’s order and judgment should be affirmed in part,

that the trial court’s judgment should be reversed in part, and

that this case should be remanded to the Orange County District
                                 -3-
Court   for   further   proceedings    not   inconsistent   with   this

opinion.

                        I. Factual Background

                        A. Substantive Facts

     Plaintiff and Defendant were married in 2004 and divorced

in 2009.   In January 2005, the two of them purchased a 2002 Ford

Expedition that was financed using a loan that had been obtained

from Santander Consumer USA.     Defendant co-signed the loan with

Plaintiff and the vehicle obtained as a result of the making of

the loan was titled to both parties.

     In the course of the process by which they parted company,

the parties’ entered an oral agreement under which Plaintiff

would retain the vehicle, make timely payment as required by the

loan agreement, and have Defendant’s name removed from both the

title to the vehicle and the loan agreement.         Pursuant to this

agreement, Plaintiff retained possession of the vehicle and made

all of the remaining loan payments except for the final one.

However, Plaintiff did not obtain the removal of Defendant’s

name from the title and the loan agreement or make all of the

payments under the loan in a timely manner.          As a result, an

unpaid balance of $1,989.23 existed at the time that the loan

should have been paid off.
                                             -4-
       Plaintiff       continued        to        make     payments         against       the

outstanding balance under the loan after the date by which the

full    amount     should     have      been       paid    in    a     total    amount    of

$1,374.64, effectively leaving an outstanding balance of $694.62

due    and   owing    under     the     loan       agreement.          Before    Plaintiff

completed the payment process, Defendant made the final payment

by means of a check drawn on 28 March 2011 in the amount of

$699.62.       According to Defendant, Santander contacted her when

Plaintiff failed to make timely payment under the loan and she

eventually made the final payment herself in order to protect

her access to credit.

       After     having     made      the     final       loan       payment,    Defendant

attempted to “repossess” the vehicle from Plaintiff in March

2011   by    hiring    a   towing     company       to    remove      the   vehicle      from

Plaintiff’s        property.          Plaintiff           thwarted      this     attempted

“repossession” by spotting the approaching tow truck and driving

away at a high rate of speed.                However, Plaintiff hit a curb and

damaged      the      vehicle      in       the      course      of      thwarting        the

“repossession.”        Defendant made a second attempt to “repossess”

the vehicle in March or April 2011 and succeeded in obtaining

possession of the vehicle on that occasion.                           Defendant claimed

that she had made these efforts to “repossess” the vehicle in
                                        -5-
order to encourage Plaintiff to reimburse her for the amount of

the final loan payment.

     After obtaining possession of the vehicle, Defendant had an

auto mechanic repair the damage that had occurred during the

first “repossession” attempt.              However, Defendant was unable to

pay the mechanic for the required repairs.                       As a result, the

vehicle   was    sold     as     part   of    the    process      of   enforcing    a

repairman’s lien.

                            B. Procedural History

     On   11    July     2012,    Plaintiff        filed    a    complaint   against

Defendant, John Doe I doing business as                      Alamance Towing and

Recovery, and John             Doe II in which he asserted claims for

conversion and assault and requested an award of compensatory

and punitive damages.           On 20 September 2012, Defendant filed an

answer    in    which     she     denied     the     material      allegations     of

Plaintiff’s complaint, asserted that she had a legal right to

take possession of the vehicle arising from Plaintiff’s failure

to make required loan payments, and requesting “reimbursement”

for the amount of the loan balance.

     On 16 November 2012, Plaintiff filed a motion seeking the

entry of judgment on the pleadings.                 Judge Lunsford Long entered

an   order     denying    Plaintiff’s        motion        for   judgment    on    the

pleadings on 9 January 2013.            On 25 June 2013, Judge Beverly A.
                                         -6-
Scarlett       entered    an   order    allowing       Plaintiff      to   amend     his

complaint to add a claim for trespass to real property.                             On 5

September 2013, Plaintiff filed a motion seeking the entry of

partial summary judgment in his favor with respect to the issue

of liability.        On 29 October 2013, the trial court entered an

order granting Plaintiff’s motion with respect to the conversion

and trespass to personal property claims and ordering that the

amount of damages to which Defendant was entitled on the basis

of his claims for conversion and trespass to personal property

be   determined      by    a   jury.         On      the   same   date,     Plaintiff

voluntarily      dismissed     his     claims     against    Alamance      Towing    and

Recovery and John Doe II.1

     This case came on for trial before the trial court and a

jury at the 29 October 2013 civil session of the Orange County

District Court.          At the beginning of the trial, the trial court

recognized that Plaintiff had withdrawn his assault claim.                            On

30 October 2013, the jury returned a verdict awarding $10,320 in

compensatory damages for Defendant’s conversion of or trespass

to the vehicle and $250 in punitive damages.                         The trial court

entered    a    final    judgment    based      on   the    jury’s    verdict   on    12



     1
      As a result of the fact that Alamance Towing and Recovery
was also named as John Doe I, the voluntary dismissal removed
all of the defendants named in the complaint and amended
complaint from this case except Defendant.
                                        -7-
November 2013.       Defendant noted an appeal to this Court from the

trial court’s order and judgment.

                         II. Substantive Legal Analysis

                            A. Summary Judgment Order

       In her brief, Defendant contends that the trial court erred

by granting summary judgment in Plaintiff’s favor with respect

to    his   conversion      and   trespass    to    personal   property      claims.

More    specifically,       Defendant    contends      that    the    granting   of

Plaintiff’s       summary    judgment    motion      was   precluded    by    Judge

Long’s refusal to enter judgment on the pleadings in Plaintiff’s

favor and that the record discloses the existence of genuine

issues of material fact concerning the extent to which Defendant

was    entitled     to    forcibly   take     the   vehicle    from    Plaintiff’s

possession sufficient to require a jury trial with respect to

the    issue   of   her     liability   for    conversion      and    trespass   to

personal property.          Defendant’s contentions are without merit.

                             1. Standard of Review

       “Our standard of review of an appeal from summary judgment

is de novo; such judgment is appropriate only when the record

shows that ‘there is no genuine issue as to any material fact

and that any party is entitled to judgment as a matter of law.’”

In re Will of Jones, 362 N.C. 569, 573, 669 S.E.2d 572, 576

(2008) (quoting Forbis v. Neal, 361 N.C. 519, 524, 649 S.E.2d
                                         -8-
382,    385   (2007)).        “A   ‘genuine       issue’     is   one    that   can   be

maintained by substantial evidence.                   The showing required for

summary judgment may be accomplished by proving an essential

element of the opposing party’s claim does not exist, cannot be

proven at trial, or would be barred by an affirmative defense.”

Dobson v. Harris, 352 N.C. 77, 83, 530 S.E.2d 829, 835 (2000)

(internal citations omitted).

       2. Defendant’s Challenges to the Summary Judgment Order

          a. Collateral Estoppel and Overruling Prior Order

       As an initial matter, Defendant contends that the trial

court    lacked      the    authority    to       grant    summary      judgment   with

respect to Plaintiff’s claims on the grounds that those claims

had previously been argued and adjudicated before a different

trial judge in violation of the principle of collateral estoppel

and the rule that one judge cannot overrule another judge of

equal authority.           In support of this contention, Defendant notes

that Judge Long denied Plaintiff’s motion for judgment on the

pleadings     with    respect      to   Plaintiff’s        substantive      claims    by

means   of    an   order     entered    on    9    January    2013.        Defendant’s

contention lacks merit.

       “[A] claim cannot be barred by res judicata or collateral

estoppel unless it was litigated to final judgment in a prior

action.”      Jonesboro United Methodist Church v. Mullins-Sherman
                                             -9-
Architects,      L.L.P.,      359    N.C.       593,    601,     614     S.E.2d    268,       273

(2005).       In view of the fact that Judge Long’s order denying

Plaintiff’s motion for judgment on the pleadings was neither

entered in a separate action or constituted a final judgment,

that order does not have collateral estoppel effect.

       Defendant’s        claim     that    Judge       Bryan    improperly        overruled

Judge Long is devoid of merit as well.                         “It is well established

that    one   [district]         court     judge       may   not      ordinarily     modify,

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

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

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

considering a motion for judgment on the pleadings, the trial

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

determine whether the movant is entitled to judgment as a matter

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

pleadings     being       deemed    to     have    been      admitted      except    to       the

extent that they are legally impossible or not admissible in

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

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

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

considering a summary judgment motion, the trial court must look

at more than the pleadings; it must also consider additional

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

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

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

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

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

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

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

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

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

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

denying Plaintiff’s motion for judgment on the pleadings.

       In apparent recognition of this potential defect in her

argument, Defendant contends that the argument that Plaintiff

made    in     support   of   his   judgment    on   the    pleadings   relied    on

information that was not contained in the pleadings, thereby

converting Plaintiff’s motion for judgment on the pleadings into

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

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

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

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

matters outside the pleading are presented to and not excluded

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

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

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

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

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

briefs      and    arguments     of    counsel,    the    trial     court        need    not

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

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

quotation marks and citations omitted).

      At     the     hearing     held     for    the     purpose        of   considering

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

made reference to facts not contained in the pleadings or in

their      oral    arguments.          However,    the     trial        court    was    not

presented with, and did not review, any evidentiary materials

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

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

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

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

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

a motion for judgment on the pleadings rather than with respect

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

was   not    precluded       from     granting    Plaintiff’s      summary       judgment

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

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

granting summary judgment in Plaintiff’s favor with respect to

his conversion claim.         More specifically, Defendant argues that

the trial court erred by granting summary judgment in favor of

Plaintiff with respect to his conversion claim on the grounds

that the record disclosed the existence of genuine issues of

material fact concerning the extent to which Defendant had a

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

lacks merit.

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

exercise   of   the   right    of   ownership     over    goods   or   personal

chattels   belonging    to    another,      to   the    alteration     of   their

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

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

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

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

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

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

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

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

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

tenant in possession of personal chattels withholds the common

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

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

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

338, 340 (1950).

       A careful review of the record convinces us that Defendant

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

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

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

the trial court’s consideration at the summary judgment hearing

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

jointly       with   Plaintiff     as    tenants       in    common,       took   forcible

possession of that vehicle from Plaintiff without Plaintiff’s

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

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

the    exercise      of    control      over     the    common     property        without

subjecting       himself     to    liability      for       conversion,”      Waller     v.

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

has not identified the existence of any facts that would have

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

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

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

Defendant has not cited any authority indicating that she had

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

evidence contained in the record establishes that Defendant’s

conduct       did    not    involve     actions      near    the    “shadowy         line”

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

summary       judgment      in   Plaintiff’s       favor    with    respect     to    his

conversion claim.

                    c. Trespass to Personal Property Claim

    Similarly, Defendant contends that the trial court erred by

granting summary judgment in Plaintiff’s favor with respect to

his trespass to personal property claim.                    Once again, Defendant

contends      that    the    record    reflects      the    existence      of   genuine

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

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

unpersuasive.

    “A successful action for trespass to chattels requires the

party bringing the action to demonstrate that she had either

actual or constructive possession of the personalty or goods in

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

unauthorized,        unlawful      interference       or    dispossession       of    the

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

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

possession under a trespass to chattel claim is determining if

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

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

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

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

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

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

question   raised     by    Plaintiff’s    trespass      to    personal   property

claim     is    whether     “there   was        an     unauthorized,      unlawful

interference or dispossession of the property.”                     Fordham, 351

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

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

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

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

of   pointing    to   the    existence    of    a     disputed   factual   issue,

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

what she believes the legal effect of the essentially undisputed

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

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

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

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

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

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

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

available        in    the    event       that       “the     tenant        in    possession         of

personal chattels withholds the common property from his co-

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

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

principle set forth in Bullman was enunciated in the context of

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

should be applicable in trespass to personal property cases.                                          As

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

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

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

peaceful agencies which a civilized community provides to all

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

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

Defendant’s implicit assertion that the principle enunciated in

Bullman did not apply in trespass to personal property cases,

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

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

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

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

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

untenable situation in which the parties would be allowed to

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

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

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

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

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

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

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

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

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

       The    mere    taking   of   an    item        of    jointly         held    property,

standing alone, is not sufficient to support the maintenance of

an action for trespass to personal property.                                Instead, since

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

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

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

cotenant without showing that the cotenant has destroyed the

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

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

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

property has such title thereto that he may maintain an action

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

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

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

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

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

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

claim     for   trespass        to    personal     property       against      Defendant

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

     Although      Defendant         contends      that     she    was    entitled      to

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

reached with Plaintiff, her assertion to that effect does not

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

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

way deciding, that such an oral agreement between the parties

would be enforceable, Defendant’s assertions relating to this

alleged     agreement      do      not   suffice    to     preclude      the   entry   of

summary     judgment     in     Plaintiff’s        favor    with    respect      to    the

trespass to personal property claim given the absence of any

evidence tending to show that such an agreement ever existed.

     According to well-established North Carolina law, when a

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

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

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

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

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

forecast sufficient evidence to show the existence of a genuine

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

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

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

motion for summary judgment is made and supported as provided in

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

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

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

specific    facts     showing     that    there      is    a   genuine      issue     for

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

Defendant    adduced     no     facts    at   the     summary       judgment   hearing

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

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

Instead, Defendant simply relied on her assertion that Plaintiff

“defaulted     on    payments    on     the   2002    Ford     Expedition      and    the

finance company contacted her for the balance of the loan since

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

absence of any evidence tending to show the existence of an

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

request    for      an    award     of    summary        judgment      in      his    favor    with

respect      to    his     trespass      to     personal        property         claim.       As    a

result,    Defendant         is    not    entitled         to    relief        from    the    trial

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

                            B. Defendant’s Other Claims

                 1. Oral Testimony at Summary Judgment Hearing

      In her brief, Defendant contends that the trial court erred

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

the   summary       judgment       hearing         and    by    refusing         to   accept    the

statements         that    she     made       in    open       court      in     opposition        to

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

argument is unpersuasive.

      As     a    general        proposition,         evidence         is      presented      at    a

hearing convened to address the merits of a summary judgment

motion       “through        depositions,            answers         to        interrogatories,

admissions on file, documentary materials, further affidavits,

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

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

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

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

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

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

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

oral testimony is admitted at a summary judgment hearing is a

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

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

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

discretion is whether a decision is manifestly unsupported by

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

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

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

quotation marks and citation omitted).

      As the record clearly reflects, Defendant did not submit

any affidavits, depositions, or other evidentiary materials in

opposition       to    Plaintiff’s      request   for     the    entry    of    summary

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

present    oral       testimony    at   the   hearing,     Defendant’s       testimony

would     not   have     constituted     “supplementary”         evidence      for     the

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

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

Defendant’s testimony would have constituted Defendant’s entire

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

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

request   that   she   be   allowed      to    offer   oral   testimony   at   the

summary judgment hearing or by failing to consider Defendant’s

unsworn oral statements as evidence and do not believe that

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

judgment order on the basis of this contention.

                              2. Counterclaim

     Secondly, Defendant contends that the trial court erred by

failing   to   instruct     the   jury    to    address   the   merits    of   her

counterclaim, in which she sought reimbursement from Plaintiff

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

Defendant’s contention has merit.4

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

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

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

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

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

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

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

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

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

defendant’s       willful         and      wanton     conduct       was        sufficient       to

preclude the rejection of the plaintiff’s personal injury claim

on contributory negligence grounds).

       As an initial matter, we must determine whether Defendant

properly      pled     a    counterclaim        seeking       reimbursement               for   the

payments that she made in connection with the vehicle-related

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

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

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

the claim sufficiently particular to give the court and the

parties notice of the transactions, occurrences, or series of

transactions or occurrences, intended to be proved showing that

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

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

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

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

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

designated a defense as a counterclaim or a counterclaim as a

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

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

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

561 (1994).

      A careful review of the record establishes that Defendant’s

answer asserted a counterclaim that complied with the provisions

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

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

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

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

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

anguish,       malicious     damages.”      Although     Defendant       did    not

specifically designate this set of statements as a counterclaim,

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

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

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

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

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

which she relied in support of her counterclaim and request for

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

basis for the recovery of damages.

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

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

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

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

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

reasonable value of the goods and services that the claimant

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

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

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

relating to the vehicle and that Plaintiff had not reimbursed

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

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

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

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

vehicle-related loan.

      Finally, Defendant adduced sufficient evidence at trial to

support the submission of her unjust enrichment claim to the

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

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

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

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

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

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

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

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

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

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

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

under the domestic settlement between the parties, Plaintiff had

primary responsibility for paying off the vehicle-related loan,

the     trial   court   erred    by   refusing       to     submit    Defendant’s

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

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

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

case should be remanded to the Orange County District Court for

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

                                 3. Other Issues

       Finally, Defendant has raised a number of other issues in

her brief that merit passing attention.                       First, Defendant has

challenged the form of the special interrogatories that were

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

instructed     the       jury   concerning          various     issues.          However,

Defendant failed to object to either the verdict sheet or the

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

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

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

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

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

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

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

the jury charge or omission therefrom the basis of an issue

presented on appeal unless the party objects thereto before the

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

Defendant    appears       to   be    attempting       to     challenge     the    jury’s

compensatory       and   punitive         damages    award,    she    merely      makes    a

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

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

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

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

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

documents arising from a bankruptcy petition filed by Plaintiff

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

introduce the documents at trial after the trial court granted

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

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

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

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

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

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

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

preserved      for    purposes      of   appellate     review,     they    provide   no

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

judgment.

                                    III. Conclusion

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

although the trial court erroneously refused to allow the jury

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

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

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

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

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

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

counterclaim.

    AFFIRMED IN PART; REVERSED AND REMANDED IN PART

    Judge BRYANT concurs.

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

                     NORTH CAROLINA COURT OF APPEALS

                          Filed: 31 December 2014


ANTONIO STEELE,
     Plaintiff,


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


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


       Because I believe the trial court erred in granting partial

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

does not disclose the existence of a genuine issue of material

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

authorized to repossess the 2002 Ford Expedition, I respectfully

dissent.

                             A. Standard of Review

       “Our standard of review of an appeal from summary judgment

is de novo; such judgment is appropriate only when the record

shows that ‘there is no genuine issue as to any material fact

and that any party is entitled to a judgment as a matter of

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

S.E.2d 382, 385 (2007)).                “The showing required for summary

judgment may be accomplished by proving an essential element of

the opposing party’s claim does not exist, cannot be proven at

trial, or would be barred by an affirmative defense[.]”                         Dobson

v. Harris, 352 N.C. 77, 83, 530 S.E.2d 829, 835 (2000) (citation

omitted).

           B. Defendant’s Challenges to the Summary Judgment Order

     I. Conversion Claim

       Defendant argues that the trial court erred in entering the

29 October order granting defendant’s motion for partial summary

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

evidence     suggests       that    a    genuine      issue    of    material       fact

concerning the extent to which defendant had a lawful right to

repossess the vehicle is present in the record.

       “The tort of conversion is well defined as an unauthorized

assumption and exercise of the right of ownership over goods or

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

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

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

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

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

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

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

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

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

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

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

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

common   property    without    subjecting    himself       to   liability      for

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

992 (1891).

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

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

whether defendant’s possession of the vehicle was unauthorized.

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

conversion    hinges     on   whether    defendant’s    possession        of    the

vehicle was authorized or unauthorized under these particular

circumstances.

    The     record   discloses    that    pursuant     to   an     alleged     oral

agreement     between     the   parties,     plaintiff       was     to   retain

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

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

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

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

alleges that she often received calls from creditors regarding

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

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

title and plaintiff who allegedly failed to make timely loan

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

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

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

evidence,      there    exists    in    this       case     a    question    of    whether

defendant      came    into    possession      of     the       automobile    rightfully

despite the record evidence that plaintiff did not surrender the

vehicle to defendant voluntarily.

    It     appears     that     the    trial       court    determined       on    its   own

accord that defendant had no right to the possession of the

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

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

whether    a    genuine       issue    of    material       fact    existed,       not    to



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

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

       Defendant has convinced me that a genuine issue of material

fact existed regarding whether she had valid ownership of the

vehicle such that her possession was authorized.                         Accordingly, I

am   of   the    opinion        that   the    trial       court   erred       in    granting

plaintiff’s       motion        for    summary      judgment      on     the       claim   of

conversion.

          C. Trespass to Personal Property

       Defendant argues that the trial court erred by granting

summary       judgment     in    plaintiff’s        favor    with      respect       to    his

trespass to personal property claim.                        I agree with defendant

that the record reflects the existence of a genuine issue of

material      fact     concerning      whether      there    was    an    unauthorized,

unlawful interference or dispossession of the personal property.

       A successful action for trespass to chattel requires the

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

either actual or constructive possession of the personalty or

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

there      was        an   unauthorized,            unlawful        interference            or

dispossession of the property.”                  Kirschbaum v. McLaurin Parking

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

possession under a trespass to chattel claim is determining if

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

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

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

omitted).

      The question before the trial court was whether “there was

an unauthorized, unlawful interference or dispossession of the

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

jointly      held     property,    standing      alone,       is    insufficient      to

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

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

the   personal      property      also   destroyed      the     joint      property   or

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

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

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

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

mechanic’s      lien     necessarily      was     sufficient          to     show   that

defendant destroyed the personal property for purposes of this

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

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

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

was afforded the opportunity to recover the vehicle from the

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

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

dispossessed of the personal property.                     Moreover, in November

2011, plaintiff filed for bankruptcy and listed the vehicle as

an   item    of    joint     personal      property    that   was     currently   in

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

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

this, it appears that plaintiff likely did not consider the

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

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

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

unauthorized,       unlawful     interference         or   dispossession    of    the

personal property.           Therefore, I conclude that the trial court

erred in granting plaintiff’s motion for summary judgment on

plaintiff’s trespass to personal property claim.

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

summary     judgment    in    favor     of   plaintiff     with   respect   to    his

conversion        and   trespass      to     personal      property     claims,    I

respectfully dissent from the majority’s decision to affirm the

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

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