Opinion
No. COA12–1079.
2013-04-2
Michael Anthony WILLIAMS, Plaintiff v. CW PETERS, LLC d/b/a Oleander Exxon and Wayne's Towing Service; Grace United Methodist Church; Calvin Edward Gray and Cecelia Ellen Gray, Defendants.
Michael Anthony Williams, pro se, Plaintiff-appellant. Yates, McLamb & Weyher, L.L.P., by Jennifer D. Maldonado, and David M. Fothergill, for Defendant-appellee CW Peters, LLC d/b/a Oleander Exxon and Wayne's Towing Service.
Appeal by plaintiff from order entered 24 May 2012 by Judge W. Allen Cobb, Jr., in New Hanover County Superior Court. Heard in the Court of Appeals 30 January 2013. Michael Anthony Williams, pro se, Plaintiff-appellant. Yates, McLamb & Weyher, L.L.P., by Jennifer D. Maldonado, and David M. Fothergill, for Defendant-appellee CW Peters, LLC d/b/a Oleander Exxon and Wayne's Towing Service.
ERVIN, Judge.
Plaintiff Michael Anthony Williams appeals from an order granting summary judgment in favor of Defendant CW Peters, LLC,
with respect to Plaintiff's conversion, unfair or deceptive trade practice, and negligent infliction of emotional distress claims. On appeal, Plaintiff argues that the trial court's decision to entertain Defendant's summary judgment motion amounted to an improper reversal or modification of an order entered by another superior court judge in favor of a different defendant; that Defendant's actions in towing Plaintiff's car from the premises of Grace United Methodist Church and subsequently releasing the car to Plaintiff's mother constituted a conversion of Plaintiff's property; and that Defendant's failure to comply with certain statutory and ordinance provisions pertaining to operation of a towing business established the validity of Plaintiff's conversion and unfair or deceptive trade practice claims. After careful consideration of Plaintiff's challenges to the trial court's order in light of the record and the applicable law, we conclude that the trial court's order should be affirmed.
On 19 July 2011, Judge Marvin K. Blount III entered summary judgment in favor of Defendant Grace United Methodist Church. On 22 May 2012, Judge Jay D. Hockenbury granted summary judgment in favor of Defendants Calvin and Cecelia Gray. As a result, all references to “Defendant” in this opinion should be understood as references to Defendant CW Peters, LLC, d/b/a Oleander Exxon and Wayne's Towing Service.
I. Background
A. Substantive Facts
On the morning of 13 April 2009, Plaintiff was stopped by officers of the Wilmington Police Department while driving his white BMW. At that time, Plaintiff pulled into the parking lot of Grace United Methodist Church, which is located at 401 Grace Street. After Plaintiff stopped, the officers removed an expired registration tag from Plaintiff's vehicle, arrested him on an unrelated federal warrant, and took him into custody. At Plaintiff's request, the officers allowed Plaintiff to leave his car in the church's parking lot.
Following his arrest, Plaintiff was detained in the New Hanover County Detention Center. On 17 April 2009, after Plaintiff's car had been parked on the premises of the church for about 96 hours, Cris Mowrey, a church trustee, called Defendant, a towing company, for the purpose of having Plaintiff's car removed from the church parking lot. Based upon this request, Defendant took possession of Plaintiff's vehicle, towed it to a storage lot, and notified the Wilmington Police Department that this action had been taken.
On 18 April 2009, Plaintiff, who was still in custody, wrote to his mother, Cecelia Gray, for the purpose of seeking her assistance in retrieving his car; specifically, Plaintiff requested that she provide him with his brother's address so that Plaintiff could ask his brother to have the car taken to a BMW dealership. On 23 April 2009, after learning that Plaintiff's brother would not be able to retrieve the car, Ms. Gray paid $580.00 in accrued towing and storage fees, at which point Defendant towed Plaintiff's car from the storage lot to Mr. and Ms. Gray's home. Subsequently, Ms. Gray informed Plaintiff that she had decided to have the car towed to her house in order to avoid rendering Plaintiff liable for additional storage fees. In response, Plaintiff thanked her “for securing [his] car.”
On 8 June 2009, Plaintiff entered a plea of guilty to one count of mail fraud and was sentenced to twenty months imprisonment. While in federal prison, Plaintiff wrote to Defendant for the purpose of seeking “recovery of the vehicle or demand for payment for its unlawful sale” and corresponded with Ms. Gray and the church about the circumstances under which his car had been towed from the church parking lot and released to Ms. Gray. On 6 October 2010, after his release from federal prison, Plaintiff visited Defendant's garage in order to ask for “retrieval of his vehicle.” In September 2011, Plaintiff removed his car from the Grays' garage.
B. Procedural History
On 1 April 2011, Plaintiff filed a complaint against Defendant, the Grays, and Grace United Methodist Church. Although Plaintiff's complaint is not structured around specific causes of action, it may fairly be read to state claims sounding in conversion and negligent infliction of emotional distress. In addition, at the hearing on Defendant's summary judgment motion, defense counsel informed the trial court that she believed that Plaintiff was also seeking damages for alleged unfair and deceptive trade practices, although such a claim is not explicitly alleged in Plaintiff's complaint.
Although Plaintiff also asserted a claim under 42 U.S.C. § 1983 in his complaint, he evidently abandoned this claim, which has not been discussed in Plaintiff's filings before this Court.
On 11 May 2011, Defendant filed a motion seeking dismissal of Plaintiff's complaint pursuant to N.C. Gen.Stat. § 1A–1, Rule 12(b)(6). On 9 November 2011, Plaintiff filed a motion for summary judgment. The two motions were heard and denied on 7 December 2011. On 22 December 2011, Defendant filed an answer in which it denied the material allegations of Plaintiff's complaint, asserted various affirmative defenses, and sought dismissal of Plaintiff's complaint.
On 26 March 2012, Defendant filed a motion seeking summary judgment in its favor. On 10 April 2012, Plaintiff filed a response objecting to consideration of Defendant's summary judgment motion on the grounds that it “would be impossible for the Court to hear and rule on this motion without modifying, amending, or overruling” Judge Blount's 18 July 2011 order granting summary judgment in favor of the church. A hearing was conducted with respect to Defendant's summary judgment motion and Plaintiff's objection to considering that motion on 7 May 2012. At the beginning of the hearing, Plaintiff urged the trial court to refrain from considering Defendant's motion on collateral estoppel and judicial estoppel grounds, with this argument predicated on Plaintiff's contentions that some of Defendant's evidence was inconsistent with the order granting summary judgment in favor of the church, that defense counsel had “created her own fact issues in this matter,” and that the doctrine of judicial estoppel was “in place to make sure that the parties do not benefit from their own fraud against the court.” After rejecting Plaintiff's request and considering the parties' arguments, the trial court entered an order on 24 May 2012 granting Defendant's summary judgment motion and stating that:
The Court considered the arguments of counsel for CW Peters, LLC and arguments of the Plaintiff, pleadings, and Affidavits contained in the file and submitted by Defendant CW Peters, LLC in support of its Motion. All parties present had reasonable opportunity to present all material pertinent to a motion for summary judgment. Plaintiff filed no Affidavits in defense of Defendant CW Peters, LLC's Motion.
It appeared to the Court that there is no genuine issue as to any material fact and that Defendant CW Peters, LLC is entitled to judgment as a matter of law on all causes of action filed by Plaintiff against Defendant CW Peters, LLC.
Plaintiff noted an appeal to this Court from the trial court's order entering summary judgment in Defendant's favor and “denying Plaintiff's objections of Collateral Estoppel and Judicial Estoppel.”
II. Legal Analysis
A. Standard of Review
Summary judgment is properly granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show 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.” N.C. Gen.Stat. § 1A–1, Rule 56(c). “All inferences of fact from the proofs offered at the hearing must be drawn against the movant and in favor of the party opposing the motion.” Boudreau v. Baughman, 322 N.C. 331, 343, 368 S.E.2d 849, 858 (1988) (citing Page v. Sloan, 281 N.C. 697, 706, 190 S.E.2d 189, 194 (1972). “A party moving for summary judgment may prevail if it meets the burden (1) of proving an essential element of the opposing party's claim is nonexistent, or (2) of showing through discovery that the opposing party cannot produce evidence to support an essential element of his or her claim.” Lowe v. Bradford, 305 N.C. 366, 369, 289 S.E.2d 363, 366 (1982) (citations omitted).
“[O]nce the party seeking summary judgment makes the required showing, the burden shifts to the nonmoving party to produce a forecast of evidence demonstrating specific facts, as opposed to allegations, showing that he can at least establish a prima facie case at trial.” Gaunt v. Pittaway, 139 N.C.App. 778, 784–85, 534 S.E.2d 660, 664,disc. review denied, 353 N.C. 262, 546 S.E.2d 401 (2000), cert. denied, 353 N.C. 371, 547 S.E.2d 810,cert. denied, 534 U.S. 950, 122 S.Ct. 345, 151 L.Ed.2d 261 (2001). According to N.C. Gen.Stat. § 1A–1, Rule 56(e), “[s]upporting and opposing affidavits [proffered in connection with a summary judgment motion] shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.” As a result:
“[A]affidavits or other material offered which set forth facts which would not be admissible in evidence should not be considered when passing on the motion for summary judgment.” “Hearsay matters included in affidavits should not be considered by a trial court in entertaining a party's motion for summary judgment. Similarly, a trial court may not consider that portion(s) of an affidavit which is not based on an affiant's personal knowledge.” ... “A verified complaint may be treated as an affidavit if it (1) is made on personal knowledge, (2) sets forth such facts as would be admissible in evidence, and (3) shows affirmatively that the affiant is competent to testify to the matters stated therein.”
Wein II, LLC v. Porter, 198 N.C.App. 472, 476–77, 683 S.E.2d 707, 711 (2009) (quoting Strickland v. Doe, 156 N.C.App. 292, 295, 577 S.E.2d 124, 128–29,disc. review denied,357 N.C. 169, 581 S.E.2d 447 (2003) (internal citation omitted); Moore v. Coachmen Industries, Inc., 129 N.C.App. 389, 394, 499 S.E.2d 772, 776 (1998); and Page, 281 N.C. at 705, 190 S.E.2d at 194 (citing N.C. Gen.Stat. § 1A–1, Rule 56(e)). On appeal, a trial court's decision to grant summary judgment is reviewed on a de novo basis. Va. Electric and Power Co. v. Tillett, 80 N.C.App. 383, 385, 343 S.E.2d 188, 191,cert. denied, 317 N.C. 715, 347 S.E.2d 457 (1986).
B. Preliminary Legal Issues
As a preliminary matter, Plaintiff states his “position” regarding certain issues, which we will briefly address in the interest of completeness. None of these “positions” justify a reversal of the trial court's order.
First, Plaintiff asserts that he “is entitled to reversal” of the trial court's order on the grounds that it violated the fundamental legal principles that “no appeal lies from one Superior Court judge to another” and that, “ordinarily[,] one judge may not modify, overrule, or change the judgment of another Superior Court judge previously made in the same action.” State v. Woolridge, 357 N.C. 544, 549, 592 S.E.2d 191, 194 (2003) (internal citation omitted). Although Defendant contends that the trial court's order “clearly overruled or nullified” Judge Blount's order granting summary judgment in favor of the church, we do not find any merit in this contention.
At the hearing on Defendant's summary judgment motion, Plaintiff argued that evidence tending to show that Defendant towed Plaintiff's car at the request of a representative of the church was inconsistent with an affidavit submitted by the church in support of its earlier motion for summary judgment, in which a church representative asserted that she had been unable to identify the person who had called Defendant to request the towing of Plaintiff's car.
More specifically, Plaintiff argued before the trial court that Defendant's summary judgment motion should not be entertained given that the church's director of operations (1) had initially submitted an affidavit stating that the church staff had no recollection of the circumstances under which Plaintiff's car had been towed and that a representative of Defendant recalled only that a male caller had asked that Plaintiff's vehicle be towed and (2) had subsequently submitted a supplemental affidavit stating that, while the church had no record indicating who had called Defendant for the purpose of having Plaintiff's car towed, “Cris Mowrey was a member, volunteer and trustee for the Church.” In spite of the vigor with which he has argued his “position,” Plaintiff has failed to articulate how the order granting summary judgment for Defendant “overruled or nullified” the order granting summary judgment for the church, and we find no validity in Plaintiff's contention after carefully reviewing the relevant documents ourselves. As a result, we conclude that the supplemental affidavit did not contradict the earlier affidavit, so that Plaintiff is not entitled to appellate relief on the grounds that the trial court's order “overruled or nullified” Judge Blount's order granting summary judgment in favor of the church.
Although Plaintiff asserted at the hearing held with respect to Defendant's summary judgment motion that the church “denied having [his] vehicle towed” in its initial affidavit, the language of the relevant affidavit simply asserts that the church was unable to identify who made the call from the church to Defendant and does not, for that reason, support Plaintiff's assertion.
Secondly, Plaintiff asserts that his failure to submit one or more affidavits in response to Defendant's showing does not necessarily entitle Defendant to summary judgment. Admittedly, Plaintiff's failure to submit any evidentiary materials in opposition to Defendant's motion did not obviate the need for Defendant to demonstrate the absence of a genuine issue of material fact. However:
when the moving party by affidavit or otherwise presents materials in support of his motion, it becomes incumbent upon the opposing party to take affirmative steps to defend his position by proof of his own. If he rests upon the mere allegations or denial of his pleading, he does so at the risk of having judgment entered against him.... [In addition, N.C. Gen.Stat. § ] Rule 56 [ (e) ]precludes any party from prevailing against a motion for summary judgment through reliance on conclusory allegations unsupported by facts.
Lowe, 305 N.C. at 370, 289 S.E.2d at 366 (emphasis in original) (citing Nasco Equipment Co. v. Mason, 291 N.C. 145, 152, 229 S.E.2d 278, 283 (1976)). As a result, in the event that Defendant presented affidavits and other evidentiary materials tending to show the absence of any genuine issue of material fact, Plaintiff was required to either produce evidence establishing that there were, in fact, issues requiring resolution by a jury or to demonstrate that he was entitled to judgment in his favor based upon the evidentiary materials submitted by Defendant in order to prevent the entry of summary judgment in Defendant's favor. Thus, the fact that, as a general proposition, Plaintiff was not required to submit one or more affidavits in response to Defendant's summary judgment motion is essentially irrelevant to a determination of the validity of the trial court's order.
Thirdly, Plaintiff contends that he retained property rights in his car after his arrest; that a person in custody may, in certain circumstances, “constructively possess” his vehicle; and that “the relationship established by N.C. Gen.Stat. § 44A with the transfer of ‘legal possession’ of property constitutes a bailment.” Assuming, for purposes of discussion, that Plaintiff's understanding of the applicable legal principles is correct, we are unable to see how these principles have any bearing on the issues of whether Plaintiff forecast sufficient evidence to support a conversion or unfair and deceptive trade practices claim. As a result, we conclude that Plaintiff's “position” with respect to these legal principles, even if valid, does not establish the appropriateness of denying Defendant's summary judgment motion.
C. Conversion
In the first argument advanced in his brief, Plaintiff asserts that the trial court erred by entering summary judgment in favor of Defendant with respect to his conversion claim on the grounds that, since Defendant towed his vehicle from the church's parking lot without obtaining written authorization from the “owner or lessee” of the church, it “did not acquire legal possession [of his car] as defined by N.C. Gen.Stat. § 44A–1;” that, during the six days that Plaintiff's car remained in its possession, Defendant failed to notify him that his car had been towed; and that Defendant's decision to release his car to Ms. Gray after she paid the towing and storage fees and presented the letter in which Plaintiff sought Ms. Gray's assistance in retrieving his car did not show reasonable diligence. These arguments have no merit.
“Conversion is defined as: (1) the unauthorized assumption and exercise of the right of ownership; (2) over the goods or personal property; (3) of another; (4) to the exclusion of the rights of the true owner.” Di Frega v. Pugliese, 164 N.C.App. 499, 509, 596 S.E.2d 456, 463 (2004) (citing Nelson v. Chang, 78 N.C.App. 471, 476, 337 S.E.2d 650, 654 (1985), disc. rev. denied, 317 N.C. 335, 346 S.E.2d 501 (1986)). “ ‘[T]he general rule is that there is no conversion until some act is done which is a denial or violation of the plaintiff's dominion over or rights in the property .’ “ Bartlett Milling Co. v. Walnut Grove Auction & Realty Co., 192 N.C.App. 74, 86, 665 S.E.2d 478, 488–89 (quoting Lake Mary Ltd. Part. v. Johnston, 145 N.C.App. 525, 532, 551 S.E.2d 546, 552,disc. rev. denied, 354 N.C. 363, 557 S.E.2d 539 (2001) (internal quotation marks and citation omitted)), disc. review denied,362 N.C. 679, 669 S.E.2d 741 (2008).
In view of the fact Plaintiff's conversion claim stems from the towing and storage of his BMW, we first review N.C. Gen.Stat. § 20–219.2, which governs the towing of abandoned vehicles and provides, in pertinent part, that:
(a) It shall be unlawful for any person other than the owner or lessee of a privately owned or leased parking space to park a motor or other vehicle in such private parking space without the express permission of the owner or lessee of such space if the private parking lot is clearly designated as such by a sign no smaller than 24 inches by 24 inches prominently displayed at the entrance thereto, displaying the name and phone number of the towing and storage company[.] ... A vehicle parked in a privately owned parking space in violation of this section may be removed from such space upon the written request of the parking space owner or lessee to a place of storage[.] ... Any person who removes a vehicle pursuant to this section shall not be held liable for damages for the removal of the vehicle to the owner, lienholder or other person legally entitled to the possession of the vehicle removed[.] ...
....
(a2) Any person who tows or stores a vehicle subject to this section shall inform the owner in writing at the time of retrieval of the vehicle that the owner has the right to pay the amount of the lien asserted, request immediate possession, and contest the lien for towing charges pursuant to the provisions of [N.C. Gen.Stat. § ] 44A–4.
....
(b) Any person violating any of the provisions of this section shall be guilty of an infraction and upon conviction shall be only penalized not more than one hundred dollars ($100.00) in the discretion of the court.
....
(d) The provisions of this section shall not be interpreted to preempt the authority of any county or municipality to enact ordinances regulating towing from private lots, as authorized by general law.
In addition, Article VII of the Wilmington Municipal Code provides, in pertinent part, that: § 5–110.—Definitions.
Abandoned motor vehicle: A motor vehicle that ... (3) is left for longer than two (2) hours on private property without the consent of the owner, occupant or lessee of the property[.] ...
§ 5–111(a).
It shall be unlawful for the registered owner ... of a motor vehicle to cause or allow such vehicle to be abandoned as the term is defined herein....
§ 5–116.
No person [T]he provisions of Article 7A of Chap0 (section 20–219.9 et seq.) of the North Carolina General Statutes concerning notice, hearing and other procedures shall be applicable when vehicles are towed pursuant to this article.
....
§ 5–116.3.
No person shall be held to answer in any civil or criminal action to any owner ... of an abandoned ... motor vehicle, for disposing of such vehicle as provided in this chapter.
§ 5–122(a)
A violation of Division 1 of Article VII of this chapter shall constitute [ ] an infraction punishable by a penalty of one hundred dollars ($100.00)....
Thus, the relevant statutory and municipal ordinance provisions provide that, subject to compliance with certain terms and conditions, a motor vehicle left in a private parking lot without permission may be towed at the request of the parking lot owner.
In support of its request for summary judgment, Defendant submitted a number of affidavits shedding light on the circumstances surrounding the towing of Plaintiff's car and the release of Plaintiff's car to Ms. Gray. Debbie Ashe, the church's director of operations, provided two affidavits. In the first, which was filed 29 June 2011, Ms. Ashe stated, among other things, that:
4. I have surveyed all of the staff of the Church and no one has any recollection of having the vehicle towed.
5. Upon information and belief, [Plaintiff] was arrested and his vehicle was left in the parking lot of the Church during a weekend in April of 2009. The parking lot is no longer as it was at that time, having been replaced by a new building. However, when the area was a parking lot, it was marked with signs indicating that vehicles parked and left without authorization could be towed.
6. [Plaintiff] alleges in his Complaint that he was legally parked in a visitor's space, but no one with the Church has ever had any contact with [Plaintiff], other than with regard to his claim ... [. Defendant] was not a visitor of the Church but simply parked his vehicle there when he was arrested.
....
8. I spoke recently with the owner of Wayne's Towing, who indicated he did not recall who ca1led him to have [Plaintiff's] car towed, only that it was a male.
On 26 March 2012, Ms. Ashe filed a supplemental affidavit in which she stated, in part, that:
8.In April of 2009, Wayne's Towing Company was a company called by the church to tow vehicles which were parked in the parking lot without permission.
9. The church is unaware of any incident or complaint of a car being towed from the parking lot belonging to the church without a tow company first being contacted by someone at the church.
....
11. The Church does not have a record of who called Wayne's Towing and asked that the car be removed from the visitor's parking place.
13. In April 2009, Cris Mowrey was a member, volunteer and trustee for the Church.
In addition, Defendant submitted a “tow sheet” indicating that Defendant had received a phone call from Mr. Mowrey on 17 April 2009 asking that Plaintiff's car be towed from the church premises and an affidavit executed by Donna Wolfe, the Records Supervisor for the Wilmington Police Department, on 26 March 2012 indicating that “Wilmington Police Department records indicate that on April 17, 2009 at 15:30 Wayne's Towing Service reported to the Wilmington Police Department that it had towed a BMW from 401 Grace Street, Wilmington, NC.” and that the report was “filed in accordance with City Code 5–121.7 concerning towing trespassing vehicles.” Finally, Defendant submitted another Wilmington Police Department record showing that Defendant had reported that Plaintiff's car had been towed from the church lot pursuant to Municipal Code § 5–121.7 on 17 April 2009. Thus, the record contained ample evidence relating to the towing of Plaintiff's car.
In addition, Defendant forecast considerable evidence concerning the circumstances under which it released Plaintiff's car to Ms. Gray. On 2 December 2011, Ms. Gray filed an affidavit stating, among other things, that:
2. I am the mother of the Plaintiff[.]
3. In April 2009, I received a letter dated April 18 2009 from [Plaintiff.]
4. The letter informed me that my son was incarcerated and requested that I contact his brother and my son, Dewann, and request that Dewann locate and secure [Plaintiff's] vehicle[.]
5. I contacted Dewann and was informed that he did not have the financial means to secure [Plaintiff's] vehicle.
6. ... I drove to Wilmington to locate and secure [Plaintiff's] vehicle....
7. .... [I] visited the church described in [Plaintiff's] letter and spoke with a representative of the church who indicated that the car would have been towed by Wayne's Towing.
8. I contacted Wayne's Towing and inquired about whether or not they had towed [Plaintiff's] vehicle and whether or not the vehicle was still in their possession. Upon being informed that the vehicle was still in the possession of Wayne's Towing, I requested that they release the vehicle to me so that [Plaintiff] would not continue to incur daily storage fees.
9. An employee of Wayne's Towing inquired whether or not I had authorization from [Plaintiff] to secure the vehicle. I informed this employee that [Plaintiff] was incarcerated, that he could be incarcerated for up to 27 months, and that he had requested in a letter that I ask his brother, Dewann to secure the vehicle.
10. I further informed this employee that ... I was willing to pay the charges incurred to date and pay to have the vehicle towed to my home ... and placed in my garage.
11. I was informed by the employee that the vehicle would not be released to me until I produced the April 18, 2009 letter.
12. Upon showing the April 18, 2009 letter, the vehicle was placed in my garage by Wayne's Towing where it remained until September of 2011 when my son had it removed.
13. Upon securing [Plaintiff's] vehicle in April 2009, I immediately wrote him and let him know that I had secured his vehicle[.] ...
....
15. On May 16, 2009, I received a letter from [Plaintiff] thanking me for securing his vehicle[.]
....
17. In a letter dated May 27, 2009, [Plaintiff] indicated that he appreciated me making the sacrifice I did and pledged to pay me back the sums I advanced to secure his car....
....
20. At all times I believed I was authorized to secure [Plaintiff's] vehicle and I indicated the same to Wayne's Towing.
In addition, Clifford Wayne Peters, Defendant's principal, filed an affidavit stating that:
6. On or about April 17, 2009, [Plaintiff's] automobile was towed from Grace United Methodist Church and was stored at a fenced and alarm protected storage lot ... [in] Wilmington, North Carolina until it was delivered to [Ms. Gray] on or about April 23, 2009.
7. In April 2009, it was represented to [an employee] ... that [Plaintiff] could be incarcerated for up to 27 months and would be unable to personally retrieve his vehicle until he was released.
8. At the time I was in possession of [Plaintiff's] vehicle, I would have charged the per-diem rate ... which would have resulted in a bill of at least $16,425 for a 27 month period.
9. It is my belief that the release of [Plaintiff's] automobile to Mrs. Gray was reasonable due to his incarceration and based on his request in the letter dated April 18, 2009[.]
As a result, Defendant forecast evidence tending to show that (1) Plaintiff's car had been abandoned in the church parking lot, so that it could be legally towed; (2) in 2009 the church utilized Defendant for the purpose of removing abandoned vehicles from church premises; (3) on 17 April 2009, Mr. Mowrey, acting on behalf of the church, called to have Plaintiff's car towed from the church's parking lot; (4) after towing Plaintiff's car to a nearby storage facility, Defendant informed the Wilmington Police Department about the towing of Plaintiff's car; (5) Plaintiff wrote a letter to Ms. Gray for the purpose of requesting her assistance in retrieving his car; and (6), after Ms. Gray showed Plaintiff's letter to an employee of Defendant and paid the accrued towing and storage fees, Defendant delivered Plaintiff's car to Ms. Gray's home. As a result, Defendant forecast ample evidence, which Plaintiff made no effort to rebut, establishing that it had not, at any time, acted in a manner which amounted to a denial of or interference with Defendant's ownership rights in the white BMW, thereby justifying an award of summary judgment in its favor with respect to Plaintiff's conversion claim.
In seeking to persuade us to reach a different result, Plaintiff contends that Defendant failed to comply with certain statutory and municipal ordinance provisions which govern the operation of a towing business. For example, Plaintiff asserts that Defendant failed to obtain a written authorization from the “owner or lessee” of the church prior to towing his car or to notify Plaintiff that his car had been towed as required by N.C. Gen.Stat. § 20–219.2(a). As we understand his argument, Plaintiff believes that Defendant's alleged failure to comply with all of the legal requirements imposed on a towing company establishes its liability for conversion. Plaintiff's argument is without merit.
In Kirschbaum v. McLaurin Parking Co., 188 N.C.App. 782, 656 S.E.2d 683 (2008), the plaintiff, whose car had been towed from the defendant's parking lot, argued that the trial court had erroneously granted summary judgment in favor of the defendants with regard to his trespass against personal property claim in reliance upon certain criminal statutes, including N.C. Gen.Stat. § 20–219.2. In rejecting the plaintiff's argument, this Court held that “[p]laintiff's reliance [on N.C. Gen.Stat. § 20–219.2] is misplaced” given that N.C. Gen.Stat. § 20–219.2 “defines the State's right to prosecute private citizens who trespass in private parking lots, but does not and cannot define the rights between two private citizens when one citizen trespasses upon the real property of the other.” Kirschbaum, 188 N.C.App. at 787, 656 S.E.2d at 686–87. In like manner, the statutory and ordinance provisions upon which Plaintiff relies “do[ ] not and cannot define” Defendant's liability to Plaintiff for the civil tort of conversion. As a result, we, like our colleagues in Kirschbaum, conclude that any failure on Defendant's part to strictly comply with the statutory and municipal ordinance provisions governing the towing of vehicles in Wilmington does not suffice to establish Defendant's liability for conversion.
In addition, Plaintiff challenges Defendant's decision to release his car to Ms. Gray on the grounds that a “reasonably diligent corporate citizen” would have made a more thorough effort to verify that he had, in fact, authorized Ms. Gray to assume possession of his car before allowing her to take possession of it. To the extent that Plaintiff is asserting that Defendant negligently released his car to Ms. Gray, we note that Plaintiff did not allege any negligence-based claim in his complaint. In addition, we conclude that Plaintiff has failed to show that Defendant acted unreasonably, given the relevant circumstances, at the time that he released Plaintiff's car to Ms. Gray or that Defendant's decision to release Plaintiff's car to Ms. Gray involved any violation of or interference with Plaintiff's right to dominion over his own property. Thus, the nature and extent of Defendant's examination of Ms. Gray's right to assume possession of Plaintiff's car does not support an inference that Defendant is liable to Plaintiff for conversion.
Finally, Plaintiff urges that, by deposing Ms. Gray and submitting certain evidence for the trial court's consideration, Defendant's counsel was “committing a fraud on the facts and a fraud on the Court” and was “attempt [ing] to ‘create’ permission on behalf of The Church or ‘manufacture’ [his] consent” to the retrieval of his car from Defendant's storage facility. After reviewing the record, we are unable to determine that Defendant's counsel has done anything other than adduce evidence sufficient to defeat Plaintiff's claim, which Plaintiff has completely failed to rebut. As a result, we conclude that Plaintiff's accusations against Defendant's counsel are utterly without merit and believe, instead, that Defendant's counsel has shown admirable professional restraint during the course of this litigation. Thus, for the reasons set forth above, none of Plaintiff's challenges to the trial court's decision to grant summary judgment in Defendant's favor with respect to Plaintiff's conversion claim have merit.
D. Unfair and Deceptive Trade Practices
Secondly, Plaintiff argues that the trial court erred by granting summary judgment in favor of Defendant with respect to his unfair and deceptive trade practices claim. In support of this contention, Plaintiff asserts that Defendant's failure to comply with certain unspecified regulations pertaining to the “seizure and disposal of ‘bailed property’ “ constitutes an unfair or deceptive trade practice. Plaintiff's argument is devoid of merit.
In seeking to demonstrate the validity of his position, Plaintiff points out that a defendant's violation of consumer protection statutes may, in certain circumstances, constitute an unfair or deceptive trade practice and asserts that Defendant “violated every single state, federal, and local ordinance regarding seizure and disposal of ‘bailed property’ except ... Section 5–121.7 of the Wilmington City Code.” Although “violation of a consumer protection statute may, in some instances, constitute a per se violation of the UDTPA,” In re Fifth Third Bank, ––– N.C. App ––––, ––––, 719 S.E.2d 171, 176 (2011), cert. denied,––– N.C. ––––, 731 S.E.2d 687 (2012), N.C. Gen.Stat. § 20–219.2 is, as we have already indicated, a criminal, rather than a consumer protection, statute. As a result, given Plaintiff's failure to identify any “consumer protection statute” that Defendant violated or to demonstrate that any of Defendant's actions were either unfair or deceptive, we conclude that the trial court did not err by granting summary judgment in favor of Defendant with respect to Plaintiff's unfair and deceptive trade practices claim.
E. Remaining Issues
On 9 January 2013, Plaintiff filed a reply brief in which he expressly abandoned his negligent infliction of emotional distress claim, thereby obviating any necessity for us to address the validity of the trial court's decision to grant summary judgment in Defendant's favor with respect to that claim. On the same date, Defendant filed a motion asking this Court to strike Sections I and II of Plaintiff's reply brief. After carefully considering the arguments that have been advanced in support of this request, the Court, in the exercise of its discretion, denied Defendant's motion on 14 January 2013.
III. Conclusion
Thus, for the reasons set forth above, we conclude that the trial court did not err by granting summary judgment in favor of Defendant with respect to Plaintiff's conversion and unfair and deceptive trade practices claims. As a result, the trial court's order should be, and hereby is, affirmed.
AFFIRMED. Judges BRYANT and ELMORE concur.
Report per Rule 30(e).