Syreeta Renee Greer, Respondent, vs. James Blair, Jr., Appellant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C9-02-1415

 

 

Syreeta Renee Greer,

Respondent,

 

vs.

 

James Blair, Jr.,

Appellant.

 

 

Filed May 20, 2003

Affirmed

Hudson, Judge

 

Hennepin County District Court

File No. AC0113094

 

Syreeta R. Greer, P.O. Box 218, Zimmerman, Minnesota 55398 (pro se respondent)

 

James Blair, Jr., P.O. Box 7528, Minneapolis, Minnesota 55407 (pro se appellant)

 

            Considered and decided by Hudson, Presiding Judge, Kalitowski, Judge, and Minge, Judge.

 

U N P U B L I S H E D   O P I N I O N

HUDSON, Judge

            Appellant James Blair Jr. appeals the district court's finding that he converted respondent Syreeta Renee Greer's personal property and also appeals the amount of damages awarded.  Because we agree that appellant converted respondent's personal property and because the record sufficiently supports the damages awarded, we affirm.

FACTS

In early November 2000 appellant James Blair Jr. received a call from respondent Syreeta Renee Greer requesting his assistance because respondent's parents had asked that she vacate their home.  Appellant is respondent's uncle.  Appellant agreed that respondent could live with him and respondent moved in; but on November 22, 2000, appellant refused her entry.  Appellant was upset because respondent had been gone for two days, thereby breaking the curfew he had established.  Appellant alleges that when he would not let respondent inside, respondent began kicking the doors to the home resulting in $1,400 worth of damage.  Appellant then obtained a temporary restraining order against respondent.  Mutual restraining orders were ultimately issued.

Respondent made three attempts to retrieve her personal property from appellant's home.  On two of these occasions the police accompanied respondent.  Appellant testified that he was not at home either time.  Respondent testified that appellant was at home, but even with the police in attendance, appellant would not give his permission for respondent to enter his home to retrieve her personal property.  Respondent's third attempt occurred in late November or early December 2000.  Respondent's father called appellant to make arrangements to retrieve respondent's personal property.  At that time, appellant told respondent's father that he had a prior commitment, and asked that respondent's father call again later to reschedule.  But according to appellant, respondent's father never made a return call.  Appellant contends that, because of the restraining order, he could not contact respondent's father.  At some point, appellant put respondent's personal property in boxes and placed the boxes in his yard.  The boxes remained in appellant's yard from December 2000 until May 2001, at which time appellant discarded the boxes and their contents because the contents had become molded and mildewed. 

In June 2001 respondent sued appellant in conciliation court.  But the conciliation court concluded that respondent was not entitled to damages.  In response, respondent removed the case to district court.  A trial was held on May 13, 2002.  The trial court concluded that appellant converted respondent's personal property and awarded respondent $1,191 in damages.  This appeal followed.

D E C I S I O N

I

            Appellant argues that the trial court erred when it concluded that he converted respondent's personal property.  Appellant contends that he made a "good faith effort" to return respondent's personal property in late November or early December 2000 by placing it outside his home so that respondent's father could easily retrieve it.  Therefore, appellant argues, he did not deprive respondent of possession of her personal property and thus did not commit conversion.  We disagree.

A reviewing court need not defer to the trial court's application of the law when the material facts are not in dispute.  Hubred v. Control Data Corp., 442 N.W.2d 308, 310 (Minn. 1989).  Conversion occurs when a person willfully interferes with the personal property of another without legal justification, depriving the lawful possessor of use and possession.  DLH, Inc. v. Russ, 566 N.W.2d 60, 71 (Minn. 1997). 

            The record contains police reports documenting two attempts by respondent to retrieve her personal property.  On November 22 and again on November 27 respondent went to appellant's residence with the police and asked appellant that she be allowed to retrieve her personal property.  While appellant testified that he was not at home either time, the trial court obviously believed respondent's testimony that appellant refused to give her permission to enter the home to retrieve her property.  As a reviewing court, we must defer to the trial court's assessment of the credibility of witnesses.  Minn. R. Civ. P. 52.01; Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988).  "Wrongfully refusing to deliver property upon demand by the owner constitutes conversion."  McKinley v. Flaherty, 390 N.W.2d 30, 32 (Minn. App. 1986). 

Here, appellant did not allow respondent to retrieve her personal property as she requested on November 22 or November 27.  Moreover, the record does not show that appellant had a legally viable reason for refusing to allow respondent to recover her property.  Therefore, appellant unlawfully deprived respondent of possession of her personal property and converted it even before it was placed outside.  Appellant alleges that respondent damaged the doors to his home.  Appellant claims that if respondent had paid him $1,400 for the damage, he would have returned her personal property.  But if appellant believed that respondent was responsible for the damage to his doors, his proper remedy was to bring a suit for damages against respondent, not to retain her personal property.

Appellant further contends that respondent "abandoned" her personal property because she made no attempt to retrieve it between December and the following May.  Appellant also argues that a reasonable person would have contacted the police for assistance, given that there were mutual restraining orders. 

Appellant raises this argument for the first time on appeal.  Generally, this court will not consider matters not argued and considered in the trial court.  Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988).  Even if we were to consider appellant's argument, it would still fail on the merits.  Abandonment is the "voluntary relinquishment" of interest in property by the owner with the intent of permanently terminating ownership.  Application of Berman, 247 N.W.2d 405, 408 (Minn. 1976).  Abandonment of personal property cannot occur without "actual or complete relinquishment" by the owner with the intent to part with the property permanently.  Hediger v. Zastrow, 174 Minn. 11, 12, 218 N.W. 172, 172 (1928) (citation omitted). 

Here, respondent did not voluntarily relinquish interest in her personal property.  To the contrary, respondent made three attempts to retrieve her personal property.  Each time appellant interfered with respondent's possessory interest.  It was not unreasonable for respondent to discontinue her efforts to retrieve her property after three failed attempts, especially given that, during two of these attempts, respondent had the assistance of the police.  We conclude that respondent did not relinquish her property to appellant; rather, appellant unlawfully interfered with respondent retrieving it.  Moreover, respondent did not intend to permanently part with her property as evidenced by the fact that respondent sued appellant in conciliation court to obtain the monetary equivalent of the property when she was unable to regain personal possession.

Therefore, we agree with the trial court that appellant converted respondent's personal property.

II

Appellant next argues that the record does not support the trial court's damage award.  We disagree.

We will set aside a damage award only if it is "manifestly and palpably contrary to the evidence."  Levienn v. Metro. Transit Comm'n, 297 N.W.2d 272, 273 (Minn. 1980) (citation omitted).  In reviewing a damage award, this court "must consider the evidence in the light most favorable to the verdict."  Rayford v. Metro. Transit Comm'n, 379 N.W.2d 161, 165 (Minn. App. 1985), review denied (Minn. Feb. 14, 1986). 

"The measure of damages in a conversion case is generally the value of the property at the time of the conversion plus interest from that time."  McKinley, 390 N.W.2d at 33.  Here, respondent provided to the trial court an itemization of the property appellant converted, along with a statement of the property's monetary value.  An owner's testimony as to the value of his or her own property is competent evidence.  Hous. and Redev. Auth., 257 Minn. 233, 235, 100 N.W.2d 719, 721 (1960).  Furthermore, the record indicates that the trial court provided appellant with a copy of this itemization prior to trial to avoid either party violating the mutual restraining order.  While appellant now complains about the amount of damages awarded, the record indicates that appellant did not object to this evidence at trial.  Moreover, the amount of damages awarded is less than the aggregate amount of the items listed, taking into consideration interest and depreciation.  We conclude that the evidence sufficiently supports the amount of damages awarded by the trial court.

Lastly, appellant takes issue with the trial court's characterization of respondent as a tenant.  Appellant contends that respondent was more appropriately a houseguest.  Because respondent's status while she resided in appellant's home has no bearing on the resolution of any of the issues before the court, we will not disturb the trial court's finding.

            Affirmed.