NEWMAN (DAVID) VS. THE ESTATE OF JOSEPH K. HOBBIC
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RENDERED: NOVEMBER 20, 2009; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2008-CA-001130-MR
DAVID NEWMAN
v.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE GEOFFREY P. MORRIS, JUDGE
ACTION NO. 05-CI-010954
THE ESTATE OF JOSEPH K. HOBBIC
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CLAYTON, MOORE, AND VANMETER, JUDGES.
CLAYTON, JUDGE: This appeal comes from the award of both compensatory
and punitive damage after a jury trial. Based upon the following, we affirm the
decision of the trial court.
BACKGROUND INFORMATION
Appellant, David Newman, and decedent, Joseph K. Hobbic (the
“decedent”), were involved in a motorcycle business, Kentucky Kustom Cycles,
Inc. (“Kustom Cycles”), beginning sometime around 1975 or 1976. After
Hobbic’s death in 2003, his Estate and Kentucky Kustom Cycles brought an action
against Newman and Kustom Cycles. The primary issue as originally pled
involved the ownership of the motorcycle business. That issue apparently remains
to be resolved. In March 2007, the trial court permitted the filing of an amended
complaint by the Estate to assert a claim against Newman relating to the transfer of
titles of two motorcycles which occurred after Hobbic’s death. This count
involved an allegation that Newman had transferred title of a 1951 Harley and a
1956 Harley which belonged to Kustom Cycles. Specifically, appellees alleged
Newman had either forged Hobbic’s signature on the titles or had someone else
forge it. The instant appeal concerns only the trial of this latter claim.
During trial, Newman moved for a directed verdict arguing that there
was no evidence he had either forged the titles or had someone else forge them.
The trial court denied his motion, however, and the jury found Newman liable and
awarded the Estate $10,500 in compensatory damages and the same amount in
punitive damages. These amounts totaled $21,000, which was the maximum
amount set forth in the jury instructions.
Newman now appeals the verdict contending that the trial court erred
in failing to direct a verdict in his favor, failing to grant a judgment not
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withstanding the verdict (“JNOV”) and in instructing the jury. We will examine
each of these issues in turn.
STANDARD OF REVIEW
In Lewis v. Bledsoe Surface Min. Co., 798 S.W.2d 459, 461 (Ky.
1990), the Kentucky Supreme Court set forth the standard to be applied when
reviewing the denial of a motion for directed verdict:
All evidence which favors the prevailing party must be
taken as true and the reviewing court is not at liberty to
determine credibility or the weight which should be
given to the evidence, these being functions reserved to
the trier of fact. The prevailing party is entitled to all
reasonable inferences which may be drawn from the
evidence. Upon completion of such an evidentiary
review, the appellate court must determine whether the
verdict rendered is “‘palpably or flagrantly’ against the
evidence so as ‘to indicate that it was reached as a result
of passion or prejudice.’”(Citations omitted).
The same standard applies for JNOV motions. In ruling on a JNOV
motion, the trial court is required to consider the evidence in a light most favorable
to the party opposing the motion and to give that party every reasonable inference
that can be drawn from the record. Taylor v. Kennedy, 700 S.W.2d 415, 416 (Ky.
1985). A motion JNOV is not to be granted “unless there is a complete absence of
proof on a material issue in the action, or if no disputed issue of fact exists upon
which reasonable men could differ.” Id. As an appellate court, we are to consider
the evidence in the same light. See Lovins v. Napier, 814 S.W.2d 921, 922 (Ky.
1991); Brewer v. Hillard, 15 S.W.3d 1, 7 (Ky. App. 1999).
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As for jury instructions, they are considered questions of law and have
a de novo standard of review. Hamilton v. CSX Transp., Inc., 208 S.W.3d 272,
(Ky. App. 2006).
“Instructions must be based upon the evidence and they
must properly and intelligibly state the law.” Howard v.
Commonwealth, 618 S.W.2d 177, 178 (Ky. 1981). “The
purpose of an instruction is to furnish guidance to the
jury in their deliberations and to aid them in arriving at a
correct verdict. If the statements of law contained in the
instructions are substantially correct, they will not be
condemned as prejudicial unless they are calculated to
mislead the jury.” Ballback's Adm'r v. Boland-Maloney
Lumber Co., 306 Ky. 647, 652-53, 208 S.W.2d 940, 943
(1948).
Id. at 275.
With these standards in mind, we will examine the issues before us.
DISCUSSION
Newman first argues that the trial court erred in first denying his
motion for a directed verdict and later denying his motion JNOV. He contends that
the averments made in the complaint and first amended complaint did not include
the tort of conversion. Kentucky Rules of Civil Procedures (CR) 8.01 provides
that a pleading set forth “a short and plain statement of the claim showing that the
pleader is entitled to relief and . . . a demand for judgment for the relief to which he
deems himself entitled.”
In the complaint and the amended complaint, the appellees set forth
statements indicating that Newman took possession of the motorcycles through
fraudulent means. Therefore, the appellees included the tort of conversion within
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their pleadings and Newman’s motion for directed verdict was properly denied by
the trial court.
Newman next contends that the trial judge should have granted a
JNOV arguing that the appellees did not set forth evidence to the jury of
conversion. We disagree.
At trial, the appellees offered the testimony of Shawn Blandford, the
purchaser of one of the motorcycles. Blandford testified that he purchased the
1956 motorcycle for somewhere between $1,600 and $1,800. He thereafter made
some repairs to the bike and sold it for $6,000. Blandford testified that the
motorcycle probably was worth even more than the amount for which he had sold
it.
The appellees also offered the certified copies of the records regarding
the sales transactions of the motorcycles. Betty Hobbic, an employee at Kustom
Cycles since 1985 and familiar with the decedent’s signature, testified that the
signature on the titles was not Joe Hobbic’s. Clearly this testimony was sufficient
for the trial court to deny Newman’s motion for JNOV.
Next, Newman contends that the trial court erred in instructing the
jury in a manner unwarranted by either the pleadings or the evidence which
allowed the jury to reach an unwarranted liability verdict against Newman.
Newman contends that the trial court’s liability instruction set out in Jury
Instruction Number Two of the court’s tendered instructions was not based upon
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any liability theory, either pled by the appellees or recognized under Kentucky
Law.
As previously set forth, Newman contends that conversion was neither
pled by the appellees nor proven at the trial. We have already held that the
pleadings were sufficient. We have also held that there was sufficient evidence
presented at trial to withstand a motion for JNOV. The issue now before us is
whether the jury instruction cited by Newman was in error.
Jury Instruction Number Two provided as follows:
You will find for Plaintiff, the Estate of Joe
Hobbic, if you are satisfied from the evidence:
(a) that the Defendant, David Newman, came
into possession of the motorcycles owned by
Mr. Hobbic and
(b) without permission of Mr Hobbic or anyone
acting on his behalf, the Defendant sold
them.
If you find for the Plaintiff under this Instruction,
please proceed to Instruction Number Three. If you find
for the Defendant, please proceed to Verdict Form
Number One.
In order to prove the tort of conversion, a plaintiff must show:
(1)
(2)
(3)
(4)
the plaintiff had legal title to the converted
property;
the plaintiff had possession of the property or the
right to possess it at the time of conversion;
the defendant exercised dominion over the
property in a manner which denied the plaintiff’s
rights to use and enjoy the property and which was
to the defendant’s own use and beneficial
enjoyment;
the defendant intended to interfere with the
plaintiff’s possession;
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(5)
(6)
(7)
the plaintiff made some demand for the property’s
return which the defendant refused;
the defendant’s act was the legal cause of the
plaintiff’s loss of the property; and
the plaintiff suffered damage by the loss of the
property.
Kentucky Ass’n of Counties All Lines Fund Trust v. McClendon, 157 S.W.3d 626,
632 (Ky. 2005) quoting 90 C.J.S. Trover and Conversion § 4 (2004).
At trial, the plaintiff set forth evidence that the property was originally
partially owned by Joe Hobbic. The Estate also proved that Newman took the
property and sold the property without the consent of Joe Hobbic or a
representative of his Estate. There was also evidence that Newman intended to
take possession of the property and to sell it with all proceeds going to himself.
The Estate has proven conversion and the jury instruction set forth above allowed
the jury to decide that such case had been made. Thus, we find Newman’s issue
with Jury Instruction Number Two to be without merit.
Next, Newman contends that the trial court erred in instructing the
jury in a manner unwarranted by either the pleadings or the evidence which
allowed the jury to award an amount of damages based upon speculation or
conjecture. This argument set forth by Newman involves Jury Instruction Number
Three which reads as follows:
If you found for the Plaintiff in Instruction Number
Two, you will determine from the evidence the value of
the motorcycles at the time they were taken and sold by
the Defendant and award the Plaintiff a sum equal to that
amount but not exceeding the amount claimed of
$21,000.00, and fill out Verdict Form Number Two.
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Newman argues that there should have been a sum based upon the amount entered
into evidence.
Newman also argues that the questions asked of the court during jury
deliberations indicate that the jury instruction was flawed. During deliberations,
the jury sent out two questions regarding the amount of damages. First, they
asked, “What is the basis for Plaintiff’s claim for $21,000.00?” Next, the jury
asked, “What is the basis for Plaintiff’s punitive damages claim for $50,000?”
(Video Record 1/22/08 at 04:05:40). The trial court answered, “You have heard all
the evidence.” Id. at 04:06:50.
The motorcycles in question were vintage Harley Davidson’s. As
such, their value is dependent upon the buyer. While an employee of the Property
Valuation Administrator (“PVA”) testified that they were assessed at $4,400 and
$300 in value, Shawn Blandford testified that he sold one for $6,000 and that he
may have been able to get more from the transaction. While the jury verdict of
$21,000 would be the high end of the value of the motorcycles according to the
evidence, we do not find that it a verdict unsupported by the evidence. Thus, we
find that jury instruction number three is not in error.
For the above mentioned reasons, we affirm the decision of the trial
court.
ALL CONCUR.
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Harry B. O’Donnell IV
Louisville, Kentucky
B. Frank Radmacher III
Louisville, Kentucky
Stephen A. Schwager
Louisville, Kentucky
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