Darcars v. Borzym
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Dar cars Mo tors o f Silver S pring, Inc. v. M arcin Borzym, No. 33 September Term, 2003. [Tort Law - Conversion and punitive damages, held; the evidence was sufficient to support the jury s finding of actual malice and to support an award of punitive damages, where the representatives of the car dealer, which had converted the customer s property, had dismissed the customer s inquiries about the property, cursed at the customer, and told him to get lost and call your attorney. ] [Tort Law - Rev iewing an aw ard of punitive damages, he ld; in determining whe ther a plaintiff has presented sufficient evidence to support an award of punitive damages, th e review ing cou rt shall co nsider th e clear and co nvincin g evid entiary stan dard.] [Tort Law - Punitive damages, held; a plaintiff seeking punitive damages has no obligation to estab lish a de fenda nt s abilit y to pay.] IN THE COURT OF APPEALS OF MARYLAND No. 33 September Term, 2003 DARCARS MOTORS OF SILVER SPRING, INC. V. MARCIN BORZYM Bell, C.J. *Eldridge Raker Wilner Cathell Harrell Battaglia, JJ. Opinion by Battaglia, J. Filed: February 9, 2004 *Eldridge, J., now retired , participated in the hearing and conference of this case while an active member of this Court; after being recalled pursuant to the Constitution, Article IV, Section 3A, he also participated in the decision and adoption of this opinion. Darcars Motors of Silver Spring, Inc., petitioned this Court to review an award for punitive damages in favor of Marcin Borzym, who prevailed in a jury trial on a claim of conversion against D arcars. We conclude that the evid ence was sufficient to support the jury s finding that actual malice motivated the tort. Further, we hold that Borzym had no duty to present evid ence of D arcars finan cial condition in support of his pursuit of a punitive damage award. I. Background In late March of 2000, Marcin Borzym, who was 21 years old at the time, visited Darcars several times to consider purchasing a 1999 BMW 323i, which he had seen advertised in a newspaper for $27,500. The first of these visits took place on Sunday, March 26, when Borzym met with a salesperson , Juste Bah ula, a nd te st dro ve th e BM W. B orzym returned to Darcars the following Monday to negotiate the purchase of the car. Again, he met with Bahula, who discussed various aspects of the potential purchase and accepted a personal check fo r $3,000 f rom Bo rzym as a symb ol of his w illingness to ne gotiate serio usly. 1 Two days later, Borzym stopped by Darcars for further neg otiations after B ahula telephoned him. Borz ym and Ba hula discussed a lower purchase price of $26,000 because there was a scra tch on one of the wh eel rims, and Darcars p ermitted B orzym to take the BMW for inspection by another dealer. On Thursday, after the inspection was completed without any problems discovered, B orzym returned the B MW to Darca rs. B orzym then informed Darcars th at he wou ld come back to the dealer the next day to purchase the BMW. 1 Darcars never cashed the check and, at some point, returned it to Borzym. Bor zym returned to purchase the car during the evening of Friday, March 31. To complete the purchase, Borzym met with a finance manager of Darcars, Douglas Q uander, who was responsible for negotiating the amount of the down-payment and other payment terms, including financing rates. B orzym handed $2,500 in cash to Quander as a downpayment. In addition, Quander had Borzym complete and sign several documents, including (1) a credit application, (2) a purchase order, (3) a retail installment contract, (4) a supplementary agreeme nt to a cond itional sales co ntract, (5) an a pplication fo r a certificate of title, and (6) an agreement to provide accidental physical damage insurance.2 Borzym, however, did not leave with the BMW that night, because he was unable to provide information about a State Farm automobile insurance policy that he believed would cover the BMW. When h e returned, o nce again , to the dealer early Saturday morning, he provided the insurance inform ation an d left w ith the B MW . On Sunday, Borzym realized that he had not received any documents reflecting the BMW purchase, so he returned to Darcars, picked up copies of th e paperw ork, and lef t without inc ident. On Monday morning, Darcars representatives began to question the accuracy of some of the information contained in the sales documents. That day, Robin Stein, a financial services manager from Darcars, and Q uander contacted Borzym by phone to tell him that there was a problem with his automobile insurance information and that he needed to provide 2 The purchase order, signed by both Quander and Borzym, ind icates that a ca sh deposit of $2,500 was submitted with the order and was credited to the purchase price of $26,000. The retail installment contract, however, shows that a $5,000 deposit had been received. -2- information of a different policy. Borzym responded to their requests by obtaining a new policy and informing Stein about that policy information on Tuesday morning. Later that afternoon, Stein called back several more times, however, complaining of further discrepancies in the paperwork and asking Borzym to re turn to Da rcars as soo n as he co uld so they co uld reso lve the is sue. Quander also called T uesday aftern oon in ho pes of pe rsuading B orzym to me et with him as soon as possible to address the discrepancies in the paperwork. He was so eager to meet Borzym that he offered him a $500 car service credit if Borzym would come into the dealership. In addition, Quander told Borzym that he was willing to meet him on Tuesday at 10:00 p.m. at Borzym s h ealth club. No mee ting took place on T uesday, however. Bor zym had no further contact with Darcars until the morning of Thursday, April 6, when he walke d to the gara ge whe re he had p arked the BMW and was surprised to see a truck from a repossession company towing the car from the garage. Borzym asked the driver why the BMW was being repossessed, and the driver told him that there was a problem with the dealership and tha t he should go there to resolve it. Inside the BMW when it was repossessed were, according to Borzym, his laptop computer, which he valued at approx imately $1 500, an d his co llection o f music CDs, w hich he valued at $300 . Bor zym called Darcars immediately and spoke to Stein. When he asked why the BMW had been repo ssessed, she refused to give him a reason ov er the phon e but told him to come to the dealer to discu ss the matter. Borzym complied, making it to Darcars later that -3- evening to meet with Stein and two other representatives of Darcars, a sales manager and the head of Da rcars se curity. One of the Darcars representatives told Borzym that the car had been repossessed because Borzym didn t pay anything. Borzym insisted that he had paid $2,500. He asked for the return of either the BMW w ith his belongings, the laptop and CDs, or the return of his deposit and his belongings. One of the Darcars representatives replied, Forget about it. G et out of here. . . . [C ]all yo ur attorney. T he re pres enta tive t old B orzym that the BMW had been taken to a different lot, and as for the lapto p and C Ds, he sho uld [j]ust f orget ab out it, just g et out of the off ice, [an d] get lo st. Followed by Darcars staff, Borzym walked outside, where he met his father. When Borzym s father learned what had happened with the BMW and his son s belongings, he became upset and confronted Darcars staff. One of the p erso nnel who had me t with Bo rzym began waving goodbye and making f un of the Borzyms. T his prompted Borzym s father to walk closer to the staff member, but a security officer stepped in the way. The staff member then began cursing out the Borzyms, accusing them of being thieves. Darc ars did not return the $2,500 cash down-payment, nor did Borzym recover the laptop and CDs that had been taken during the repossession. Alleging causes of action for breach of contract, conversion, fraud, illegal repossession and punitive damages, Borzym sued Darcars o n May 8, 20 00, in the C ircuit Court for Montgomery County. The Circuit Court dismissed his claims of fraud, illegal repossession and punitive damages, and Borzym amended his complaint to allege only breach -4- of contract, conversion, punitive damages, and illegal reposs ession. Before trial, the court granted summa ry judgment to Darcars o n the illegal repossessio n claim, and , during trial, Borzym abandoned his claim of breach of contract. Only Borzym s claim that Darcars converted Borzym s $ 2500 do wn-paym ent, laptop, and CDs w ent to the jury, which on April 3, 2001, returned a $4,300 verdict3 in favor of Borzym and made a specific finding that 3 To reach a com pensatory damage verdict of $4300, the jury added $1800, the value of Bor zym s laptop and CDs, to the alleged cash down-payment of $2500. We question whether the $2500 cash payment should have been recovered in conversion, however. As a general rule , money, i.e., curren cy, is not subject to a claim of conversion unless the plaintiff seeks to recover specific segregated or identifiable funds. Allied Investment Corp. & Allied Venture Partnership v. Jasen, 354 Md. 547, 564 , 731 A.2d 957, 966 (1999); Lawson v. Comm onwea lth Land Title Ins. Co., 69 Md. App. 476, 481-82, 518 A.2d 174, 176-77 (1986); see also Lim baugh v . Merrill Lynch, Pierce, Fenner & Smith, Inc., 732 F.2d 859, 862 (1984) (applying Alaba ma law and sta ting that , genera lly, an action for the conversion of cash will not lie unless the cash is s pecific mo ney capable o f identificatio n ); ATD Corp. v. Daimlerchrysler Corp., 261 F. Supp. 2d 887, 898 (E.D. Mich. 2003) (stating that, under Ohio law, an ac tion for con version of cash lies on ly where the m oney involve d is earmarked or is specific money capable of identification . . . and where there is an obligation to keep intact and deliver this specific money rather than to merely deliver a certain sum ). Unlike with the laptop and CDs that were identifiable items over which Darcars exercised c ontrol, Darcars did not hav e an obligation to return the specific bills used for the dow n-paym ent. Ra ther, once Darcars repossessed the BMW, Darcars owed a debt of money, which could have been satisfied by payment by check or other currency besides the spec ific b ills th at Bo rzym tendered. It is doubtful that a claim of conversion was available to Borzym as a means to recover the $2500. Con sequ ently, Borzym sh ould have maintained the action for breach of contrac t to recover the cash payment. His brea ch of contract claim, how ever, never reached the jury because the trial judge, mid-trial, decided not to instruct the jury on breach of contract and narrowed the claims to one of conversion. Whether this occurred at Borzym s request, by agreem ent of th e parties , or by ord er of the judge, sua spon te, is not clear from the record. What is clear, how ever, is that D arcars did n ot argue be fore the C ircuit Court, the Court of Special Appeals, or this Court that cash could no t be the subject of conversion. Moreover, neither Borzym nor Darcars have claimed in this proceeding that the conversion claim, itself, was faulty or that the award of compensatory damages should be set aside. We, -5- Darcars had acted with actual malice, warranting punitive damages. After hearing testimony on the amount of punitive damages, the jury returned a punitive damage award of $100,000. The Circuit Court reduced that award to $25,000 after Darcars filed a Motion for Judgment Notwithstanding the Verdict and/or Motion for Remittitur. Darcars thereafter appealed. The Court of Special Appe als affir med th e judgm ent of th e Circu it Cour t. Darcars Motors of Silver Spring, Inc. v. Borzym, 150 Md. App. 18, 818 A.2d 1159 (2003). The intermediate appellate court addressed three issues: (1) whether the evidence was sufficient to support a finding of actual malice, (2) whether Borzym adequately pled a claim for punitive damage s, and (3) w hether the e vidence o f Darcars financial c ondition was sufficient to support the $25,000 punitive damage award.4 As to the f irst issue, the cou rt held that circumstan ces of the c ase allowed an inference to be draw n that Darc ars acted w ith actual malice when it converted Borzym s down-payment, laptop, and CDs. A ccording to the Court of Special Appeals, one incident that stood out as suggesting malice was the conversation in w hich a Da rcars employe e told Borzym to [f]orget about it, [g]et out of here, [c]all your attorney, and [g]et lost. Id. at 51, 818 A.2d at 1177. The court also found it notable that Darcars did not assert a claim of right to the $2,500 or that it had an therefore, have no o ccasion to d isturb the jury s ve rdict on those g round s. See Maryland Rule 8-131(b) (limiting the scope of this Court s re view, gen erally, to those issue s raised in the petition for certiorari or cross-petition). 4 Bor zym also filed a cross appeal in which it claimed tha t the Circuit C ourt abuse d its discretion in reducing the jury s punitive damage award o f $100,00 0 to $25,00 0. The Court of Special A ppeals held that the Circuit Court used appropriate discretion in reducing the award , and B orzym d id not ch allenge this rulin g in any cross-pe tition fo r certiora ri. -6- honest belief th at it was entitled to the $2,5 00 at issu e. Id. at 52, 818 A.2d at 1178. W ith respect to the secon d issue, the co urt conclud ed that Bo rzym s pleadin gs constituted an adequate demand for punitive damages and alleged facts that would support a claim of actual malice. Id. at 57, 818 A.2d at 1181. Thirdly, as to the amount of the punitive damages, the court identified evidence in the record that Darcars was profitable and financially sound and that the dealer sold over 1000 cars per year at prices ranging from $32,000 and $61,000. This evidence, the court held, was sufficient to support the relatively modest punitive dama ge aw ard of $ 25,000 . Id. at 58-59, 818 A.2d at 1182. We granted Darcars petition for a writ o f certior ari, Darcars v. Borzym, 376 Md. 49, 827 A.2d 112 (2003), which presented the following questions: 1. Whether the Court of Special Appeals erred in holding that the evidence presented to support a conversio n cla im by a preponderance of the evidence was legally sufficient to support the finding of actual malic e by clear and convincing evidence required fo r a punitive d amages v erdict? 2. Whether the C ourt of Sp ecial App eals erred in h olding that the substantive clear and convincing burden of proof ap plicable to punitive damages claims has no bearing on the Court s legal determination of the sufficiency of the eviden ce to support those claims? 3. Whethe r a defend ant s ability to pay an a ward of punitive damages is an essential element of a plaintiff s claim for punitive damages in which the plaintiff bears the burden of proof and the plaintiff failed to meet that burden in this case? We hold that the evidence presented at trial was sufficient to sustain a finding of actual malice. We further hold that, in determining the legal sufficiency of evidence supporting -7- actual malice, a trial court must consider the clear and convincing standard of proof. Moreover, Borzym had no obligation to present evidence of Darcars financial condition; therefore, the award of punitive damages stands. II. Discussion A. The Evidence is Sufficient to Support a Finding of Actual Malice Darcars contends that the Court of Special Appeals erred in holding that the evidence presented in this case was sufficient to support a finding of actual malice by clear and convincing evidence . In Darcars view, the e vidence m inimally supports a claim of conversion. Darcars asserts that there was absolutely no evidence that any of its actions were based on any evil m otive, intent to in jure, or fraud , and that, w ithout more, the jury had to speculate or guess to reach the conclusion that the conversion had been motivated by actual malice. Darcars further takes issue with the Court of Special Appeals reliance on Darcars failure to raise defenses of claim o f right or h onest belief that it was e ntitled to the $2,500 down-payment, as it posits that such defenses are not necessary to avoid the imposition of punitive damages in a conversion claim. In response to Darcars arguments, Borzym argues that clear and convincing evidence of actual malic e supports h is claim for punitive damages. The tort of conversion, according to Borzym, has been committed with actua l malice if the evidence shows that the defendant consummated the conversion willfully and with knowledge of the wrong. In Borzym s opinion, Darcars d emonstra ted know ledge of th e wrong fulness of the conv ersion wh en its -8- representative refused to return Borzym s belongings and stated, [f]orget about it. Get out of here . Call your attorney. G et lost. Conversion is an intentional tort, consisting of two elements, a physical act combined with a certain state of mind. The physical act can be summarized as any distinct act of ownersh ip or dominion exerted by one person over the personal property of another in denial of his right or inco nsistent with it. Allied Investment Corp. v. Jasen, 354 Md. 547, 560, 731 A.2d 957, 963 (1999) (quoting Interstate Ins. Co. v. Logan, 205 Md. 583, 588-89, 109 A.2d 904, 907 (1 954)). This act of ownership for conversion can occur either by initially acquiring the property or by retaining it longer than the rightful possessor permits. As we explained in Merchants Nat l Bank v. Williams, 110 Md. 334 , 351-52, 72 A. 11 14, 1117 (1909 ): Conve rsion, in the sense of th e law of tro ver, consists e ither in the appropriation of the property of another, or in its destruction, or in exercising dominion over it in defiance of the own er s rights, or in withholding the possession from him under an adverse claim of title, and all who aid, command, assist, or participate in the commission of such unlawful acts are liable. Later, in Wallace v. Lechman & Johnson, Inc., 354 M d. 622, 732 A.2d 86 8 (1999), w e again discussed the types of acts that may give rise to a claim of conversion: [T]he gist of a conversion is not the acquisition of the property by the wrongdoer, but the wrongful deprivation of a person of property to the possession of which he is entitled. Nor need there exist a forcib le dispossessio n of prop erty to constitute an act of the defendant a conversion. A conversion may consist of a wrongful, tortious or unlawful taking of property from the possession of another by theft, trespass, duress, or fraud and without his consent or approbation, either express or implied. -9- Id. at 633, 732 A.2d at 874 (quoting Saunde rs v. Mullinix , 195 Md. 235, 240, 72 A.2d 720, 722 (1950)). In th is case, the jury fo und that D arcars act o f retaining Borzym s $2500 down-p ayment, laptop and music C Ds amo unted to an unlawful exercise of dominion over that p rope rty. Besides the physical act of exerting unlawful control, there is an intent element to the tort of conversion, and a wide range of different states of mind qualify. At a minim um, a defendant liable of conversion must have an intent to exercise a dominion or control over the goods which is in fact inc onsisten t with th e plaintif f s righ ts. Keys v. C hrysler Cr edit Corp., 303 Md. 397, 414, 494 A.2d 200, 208 (1985 ). The def endant m ay have the re quisite intent even though he or she acted in good faith and lacked any consciousness of wrongdoing, as long as there was an intent to exert control over the property. For example, [a] purchaser of stolen goods or an auction eer who sells them in th e utmost go od faith become s a conve rter, since the au ctioneer s ac ts are an interference with the control of the property. Id. We have said that, when conversion occurs in these circumstances, punitive damages are not app ropriate . K & K Management v. Lee, 316 Md. 137, 174-79, 557 A.2d 965, 983-85 (1989) (holding that, although the defendant was liable for conversion, punitive damages were unjustified b ecause of an absen ce of actua l malice); Food Fair Stores, Inc. v. Hevey, 275 Md. 50, 56, 338 A.2d 43, 47 (1975) (reversing a n award for pu nitive damages w here the defendant believed that it was entitled to the converted property and, therefore, committed -10- the conversio n withou t any evil or bad intention); Siegman v. Equitable Trust Co., 267 Md. 309, 316, 2 97 A.2d 758, 761 (1972) (holding that the plaintiff was not entitled to punitive damages because the conversion occurred not out of an evil motive but as a result of the defendant s mistake of law). Conversion, of course, also may occur when the defendant s intent reaches the level of actual malice. See Middle States Holding Co., Inc. v. Thomas, 340 Md. 699, 702, 668 A.2d 5, 7 (1995 ); K & K Management, 316 Md. at 174-79, 557 A.2d 98 3-85; Food F air Stores, 275 M d. at 56, 338 A.2d at 47 ; Siegman, 267 Md. at 316, 297 A.2d at 761. We have held that, where a defend ant commits a tort with a ctual malice, a jury may award the plaintiff punitiv e dam ages. Montgomery Ward v. Wilson, 339 Md. 701, 736, 664 A.2d 916, 933 (1995); Ellerin v. Fairfax Savings, F.S.B., 337 Md. 216, 241, 652 A.2d 1117, 1129 (1995); Alexander & Alexander, Inc. v. B. Dixon Evander & Assocs., Inc., 336 Md. 635, 652, 650 A.2d 260, 269 (1994); Owen s-Illinois v. Zen obia, 325 Md. 420, 463, 601 A.2d 633, 654 (1992). Punitive damages are aw arded [based] up on the heinous natu re of the defendan t s tortious conduct, Zenobia , 325 Md. at 454, 601 A.2d at 649, and they serve the purpose of punishing the particular tortfeasor and deterring conduct similar to that which underlay the tort. Id.; see Philip M orris, Inc. v. A ngeletti, 358 Md. 689, 773-74, 752 A.2d 200, 246-47 (2000); Bowden v. Caldor, 350 Md. 4, 22, 710 A.2d 267, 276 (1998); Owens-Corning Fiberglas s Corp. v. G arrett, 343 M d. 500, 5 37-38 , 682 A .2d 114 3, 1161 (1996 ). In recent years, the law of punitive damage s has unde rgone sign ificant deve lopment. -11- See, e.g., Montgomery Wa rd, 339 Md. at 736, 663 A.2d at 933; Ellerin, 337 Md. at 241, 652 A.2d at 1129; Alexander & Alexander, 336 Md. at 652, 650 A.2d at 269; Zenobia , 325 Md. at 463, 601 A.2d at 65 4. The leading case in this effort is Owen s-Illinois v. Zen obia, in which Judge Eldridg e, writing for the Court, made it clear that a jury may award punitive damages only when a plaintiff has demonstrated by clear and convincing evidence that the defendant acted with actual malice. 325 Md. at 460, 601 A.2d at 652. We have defined the term actual malice as conduct of the defendant characterized by evil motive, in tent to injure, ill will, or fraud. Id.; see Bowden, 350 Md. at 23, 710 A.2d at 276; Scott v. Jenkins, 345 Md. 21, 33, 690 A.2d 1000, 1006 (19 97); Ellerin, 337 Md. at 228-29, 652 A.2d at 1123. With respect to the clear-and-convincing standard of proof, w e regarded it as approp riate in the assessment of punitive damages because of their penal nature and potential for debilitating harm. Zenobia , 325 Md. at 469, 601 A.2d at 657. Our opinions in recent punitive damage cases have examined the intent element of various torts, other than conversio n, and def ined the type o f wrong ful motive that may qualify as actual malice. In Zenobia , this Court ex plained w hat is meant by actual malice in the context of products liability, emphasizing that negligence alone, no matter how gross, wanton, or outra geous , will no t satisfy [th e] stand ard [of actual m alice]. 325 Md. at 463, 601 A.2d at 654. Rather, evidence supports a finding of actual malice if it shows by clear and convincing evidence that the defendant made a bad faith decision . . . to market a product, knowing of the defect and dan ger, in conscious or deliberate disreg ard of the threat -12- to the safety of the consumer. Id. (emphasis added). In Ellerin, the Court considered the availability of punitive damages where the defendant had committed fraud. 337 Md. at 234, 652 A.2d at 1126. We examined whether fraud inherently involves the state of mind and conduct which is ordinarily required for the allowability of punitive damage. Id. at 229, 652 A.2d at 1123. We reemphasized that only evidence of actual malice supports an award of punitive damages: Maryland law has limited the availability of punitive da mages to situations in which the defendant s conduct is characterized by knowing and deliberate wrongdoing. Id. at 228, 233, 652 A.2d at 1123, 1125. Because on e could co mmit frau d with on ly reckless disreg ard for the truth, we concluded that not all instances of fraud warra nt the im position of pun itive dam ages. Id. at 235, 652 A .2d at 11 26. Ne verthele ss, a plaintiff satisfies the element of actual malice and supports a punitive damage award when the evidence shows that the defendant committed fraud with actual knowledge of falsity, coupled with [an] intent to deceive. Id. at 234, 652 A.2d a t 1126. In Montgomery Wa rd, a case involving the tort of malicious prosecution, we reaffirmed the notion that only evidence of actual malice supports an award of punitive damages. 339 Md. at 735-36, 663 A.2d at 933. We stated that, in a claim of malicious prosecution, punitive da mages m ay be award ed only if there is clear and convincing evidence of the defendant s wrongful or improper motive for instigating the prosecution without probable cause. Id. It was not enough for the plaintiff in tha t case to prese nt evidenc e only -13- of a lack of probable cause, because that alone would allow a punitive damage aw ard where there is an inadequacy of investigation. Id. at 735, 663 A.2d at 93 3. Inadequacy of investigation does not mean that [the defendant s] motive was anything other than bringing a thief to justice, a motiv e that do es not e quate to actual m alice. Id. Like in the context of products liability, fraud, and malicious prosecution, the availability of punitive damages for the tort of conversion depends on the intent of the tortfeasor. While a plaintiff may obtain a compensatory damage award by proving merely that the defendant, without bad faith, intended to exert un lawful dominion over the plaintiff s prop erty, punitive damages may be awarded only if the defendant demonstrated actual malice in carrying out th e convers ion. The term actual malice in the context of conversion requires little explanation beyond the definition we have established in our previous cases: consciousness of the wrongdoing or conduct of the defendant characterized by evil motive, in tent to injure, ill will, or fraud. Zenobia , 325 Md. at 460, 601 A.2d at 652; see Bowden, 350 M d. at 23, 710 A.2d at 27 6; Scott, 345 Md. at 33, 690 A.2d at 1006; Montgomery Ward, 339 Md. at 735-36, 663 A.2d at 933; Ellerin, 337 Md. at 228-29, 652 A.2d at 1123. Where the defendant converts property with a consciousness of the wrongfulness of that conversion, he or she possesses the requisite improper motive to justify the imp osition o f punitiv e dam ages. The evidence presented in this case is suf ficient to demonstrate that Darcars had an improper motive in converting Borzym s $2,500 cash down-payment, laptop, and music CDs. -14- When Borzym met w ith Darcars employees to discuss the re possession of the BM W and to inquire about his down-payment, laptop, and C Ds, a Da rcars represe ntative told him to Forget about it. Get out of here. . . . [C]all your attorney and get los t. Darcars did not make the BMW available to Borzym to retrieve his belongings, and even after Borzym had left the dealership office, Darcars representatives continued their inappropriate beh avior. Outside the office, when Borzym s father learned of his son s troubles and approached Darcars officials, they b egan sarcastic ally w avin g goodbye to the Borzyms, and on e Darcars employee cursed out the father and son and accused them of being thieves. Evidence of this conduct provides a sufficient basis for the jury s conclusion that Darcars representatives acted with actual malice in the unlawful retention of Borzym s prop erty. The evidence of Darcars employees pretentiously dismissing Borzym s inquiries about his property, cursing, and then com menting, get lost and c all your attor ney, suggests malice. That evidence, combined with evidence of the heated exchange between Darcars personnel and Borzym, certainly could lead to the conclusion that the conversion of the property was, in effect, a retaliation for Borzym s failure to resolve the dispute on Darcars terms. Accordingly, the evidence was sufficient to support the jury s finding of actual malice. B. Actual Malice Must Be Supported by Clear and Convincing Evidence This Court s holding in Zenobia left no question as to what level of proof is required for a plaintiff to establish actual malice in support of a claim for punitiv e dam ages. A -15- party seeking punitive damages must prove actual malice by clear and convincing evidence. 325 Md. at 469, 601 A.2d at 657. As we stated in Zenobia : Use of a clear and convincing stand ard of pro of will help to insure that punitive dam ages are pr operly award ed. We h old that this heightened standard is appropria te in the assessment of punitive damages beca use of their penal nature and potential for debilitating harm. Consequently, in any tort case a plaintiff must establish by clear and convincing evidence the basis for an award of pun itive dam ages. Id. In the case now before us, after holdin g that the ev idence in th is case wa s legally sufficient to support a finding of actual malice, the Court of Special Appeals deviated from the central issues. It expressed the view that the clear and convincing standard of proof has no bearing on a court s determination of the sufficiency of the evidence supporting actual malice. Stated somewhat differently, it held that a trial judge should not consider the heightened standard in deciding whether a plaintiff had met the burden of production on the issue of actual m alice, which , if met, would allow the question of actual malice to reach the jury. In the intermediate appellate court s view, clear and convincing evidence relates only to the burden of persuasion the level of certainty at which the jury must be convinced that actual malice motivated the tort. Darcars argues that this holding contradicts precedent from both this Court and the United States Supreme Court. We agree. The Supreme Court case of Anderson v. Liberty Lobby, Inc., 477 U.S. 2 42, 106 S . Ct. 2505, 91 L. Ed. 2d 202 (1986), speaks most directly to this issue. Anderson involved a libel -16- suit of the variety described in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964), under which liability is established only upon a finding of actual malice by clear and convincing evidence. The inquiry before the Anderson Court was whether the Court of Appea ls erred in holding tha t the heighten ed eviden tiary requiremen ts that apply to proof of actual malice in this New York Times case need not be considered for the purposes of a motion for summary judgment. Anderson, 477 U.S . at 247, 106 S. Ct. 2509, 9 1 L. Ed . 2d at 21 1. The Court discussed the an alogous scenario of a motion for acquittal in a criminal case, where the beyond-a-reasonable-doubt standard applies and . . . the trial judge asks whether a reasonab le jury could find guilt beyond a reasonab le doubt. Id. at 252, 106 S. Ct. at 2512, 91 L. Ed 2d at 214. Comparing this to a decision to allow the question of actual malice to go to the jury, the Court stated that a trial judge should con sider whether a reasonab le factfinder could conclude . . . that the plaintiff had shown actual malice with convincin g clarity. Id. (emphasis added). The Court explained: Thus, in ruling on a motion for summary judgment, the judge must view the evidence presented through the prism of the substantive evidentiary burden. This conc lusion is mandated by the nature of the determination. The question here is whether a jury could reasonably find either that the plaintif f proved his case by the quality and quantity of evidence required by the governing law or that he did not. Whether a jury could reasonab ly find for either party, however, cannot be defined except by the criteria governing what evidence would enable the jury to find for either the plaintiff or the defendant: It makes no sense to say that a jury could reasonab ly find for either p arty without some benchmark as to what standards govern its -17- deliberations and within what boundaries its ultimate decision must fall, and these standards and boundaries are in fact provid ed by the applica ble evid entiary stan dards. Id. at 254-55, 106 S. Ct. at 2513, 91 L. Ed. 2 d at 215 -16. The Court also stated that the trial court must consider the substantive evidentiary burden at both the directed verdict and summary judgment stages. Id. at 255, 106 S. Ct. at 2514, 91 L . Ed. 2d at 216 . In su mmary, the Court stated: [A] court ruling on a motion for summary judgment m ust be guided by the New York Times clear and convincing evidentiary standard in determining w hether a genuine issue of actual malice exists that is, whether the evidence presented is such that a reasonable jury might find that actual malice had been show n with co nvin cing clari ty. Id. at 257, 1 06 S. C t. at 2514 -15, 91 L. Ed. 2 d at 217 . Our cases support a conclusion consistent with Anderson. Recently, in White v. State, 363 Md. 150, 767 A.2d 855 (2001), we considered the sufficiency of the evidence supporting a conviction for cocaine possession in light of the beyond-a-reasonable-doubt standard of proof. The function in reviewing evidentiary sufficiency, we explained, is to determine whether the verdict was supported by sufficient evidence, direct or circumstantial, which could convince a rational trier of fact of the defendant s guilt of the offenses charged beyond a reasonable doubt. Id. at 162, 7 67 A.2 d at 862 . Furthe rmore, [a]lthough a conviction may rest on circumstantial evidence alone, a conviction may not be sustained on proof amounting only to strong suspicion or me re probab ility. . . . [The evidence] must do more than raise the possibility or even the p robability of guilt. It must afford the basis for an inference of guilt beyond -18- a reasonab le doubt. Id. at 162-63, 767 A.2d at 862 (citations omitted). Based on these principles after reviewing the requireme nts for the crim e of posse ssion of co caine, we reversed W hite s conviction because the circumstantial evidence upon which the State s case rested was insufficient as a matter of law to support, beyond a reasonable doubt, that [White] exercised dominion or control over the cocaine . . . . Although [the evidence] might form the basis for a strong suspicion as to [White s] culpability, the evidence, and reasonable inferences drawn therefrom, does not reach the sta ndard of guilt beyond a reasonab le doubt. Id. at 167, 767 A.2d at 864. The test for sufficiency of the evidence in criminal cases, itself, demonstrates that the heightened standard o f proof p lays a part in the o utcome o f this legal de termination. The test, as recited in Will v. State, 329 Md. 370, 620 A.2d 295 (1993), is whether the evidence either shows directly or supports a rational inference of the facts to be proved, from which a trier of fact could be convinced, beyond a reasonable doubt, of the defendant s guilt of the offense charged. Id. at 376, 620 A.2d at 297 (quoting Wilson v. State, 261 Md. 551, 564, 276 A.2d 21 4 (1991). It a ppears fro m this formulation that more f acts are needed for a judge to find evidentiary sufficiency under this test than w here a claimant needs proof merely by a prepon deranc e of the eviden ce to sh ow, fo r instanc e, civil ne gligenc e. Thus, contrary to the opinion of the Court of Special Appeals, the burden of production fluctuates depending on the b urden o f persu asion in a given case. -19- Because meeting the burden of production requires different quanta of evidence depending on the burden of persuasion, a judge must account for and consider the appropriate burden of persuasion in deciding whether to allow the jury to decide an issue. A judge mu st not let the jury dec ide a crimina l defenda nt s guilt if the evidence could not establish that the elements have been met beyond a reasonable doubt. A judge must grant a civil defendant s motion for judgment as a matter of law if the plaintiff failed to present evidence that could persuade the jury of the elements of the tort by a preponderance of the evidence. Likewise, a judge must not allow the ju ry to consider the issue of actual malice unless the evidence could establish actual malice clearly and convincin gly. When discussing punitive damages, this Court has taken the position that a determination of evidentiary sufficiency of actual malice requires consideration of the clear and convincing standard. In ACan dS, Inc. v. Godwin, 340 Md. 334, 388, 390, 667 A.2d 116, 142-43 (1995), we affirmed th e trial court s determination that plaintiffs had not presented sufficient e vidence o f actual m alice to allow the jury to consider the issue. The plaintiffs, victims of asbestos-related disease, had prevailed in their personal injury and wrongful death claims for compensatory damages against ACandS, Inc., an insulation contractor. Id. at 345, 667 A.2d at 121. The plaintiffs argu ed that punitive damag es were warranted because the defendant acted with actual malice by marke ting produ cts containing asbestos in bad faith. Id. at 387, 667 A.2d at 141-42. Following our review of the evidence of bad faith, we stated that the variety of inferences drawn from that evidence -20- prevents [it] from rising to the clear and convincing standard of required for a finding of bad faith marketing. Id. at 388, 667 A.2d at 14 2. Clearly considering the heightened burden of persuasion required for proving actual malice, we concluded that [t]here is a want of clear and convincing evidence that ACandS marketed asbestos products in bad faith, knowing of the danger to bystanders, and in conscious or deliberate disregard of the threat to the safety of bystanders. Id. at 390, 667 A.2d at 143. In a related asbesto s case, ACandS, Inc. v. Asner, 344 Md. 155 , 686 A.2d 250 (1996), we again relied on the clear and convincing standard in rejecting the plaintiffs claims of punitive-damage liability. In Asner, we reviewed the trial judge s decision to submit the issue of pun itive dam ages to the jury. Id. at 161, 686 A.2d at 253. Because most of the evidence presented in Asner was exactly the same as that which the Court reviewed in Godw in, we held that it wa s insuff icient to s end to th e jury. Id. at 182, 686 A.2d at 263. The additional punitive-da mage ev idence pre sented did not substantially assist the plaintiffs in reaching the clear and convincing standard for actual malice. Id. at 184, 686 A.2d at 264. Moreover, the plaintiffs analysis of the evidence had no merit because it ignore[d] the requirement that actual malice be proven by clear and convincing evidence. Id. at 186, 686 A.2d at 265. Owens-Corning Fiberg las Co rp. v. Garrett, 343 Md. 500, 537-51, 682 A.2d 1143, 1161-68 (1996), provided us with another occasion to review whether certain evidence was sufficient to allow the plaintiffs claims for p unitive damages to re ach the jury. Like in -21- Godw in and Asner, the clear and convincing burden of persuasion guided our determination that the que stion of ac tual malice should no t have reached the jury. We stated: On the record before us, . . . we cannot say that the evidence of actual malice was legally sufficient under a clear and convincing evidentiary standard to submit the question of punitive damages to the jury. Id. at 551, 6 82 A.2 d at 116 8. These punitive-damage cases are consistent with this Cou rt s review of the eviden tiary sufficiency in fraud cases, whe re liability must be proven by clear and convincing evidence. See VF Corp. v. Wrexham Aviation Corp., 350 Md. 693 , 715 A.2d 188 (1998). In VF Corp., we held: Our review of the record convinces us, particularly in light of the clear and convincing standard of proof, that there was insufficient evidence of either the knowledge element or the intent to dece ive elem ent for t he tort co unt to h ave be en sub mitted to the jury. Id. at 706, 715 A.2d at 194. The heightened standard of proof, therefore, affected our legal determ ination o f evide ntiary suf ficienc y. Our conclusion that the clear and convincing standard influences the determination of the eviden tiary sufficiency of actual ma lice should not be con strued to m inimize the ro le of the jury. As the Supreme Court stated in Anderson: Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge, whether he is ruling on a motion for summary judgment or for a directed verdict. The evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor. [We do not] suggest that the trial courts should act other than with caution in granting summary judgment or that the trial court may not deny summary judgment -22- in a case where there is reason to believe that the better course would b e to procee d to a full trial. 477 U.S. at 255, 106 S. Ct. at 2513, 91 L. Ed. 2d at 216 (citations omitted). Nevertheless, when called upon to decide the sufficiency of the evidence in support of an award of punitive damages, judges must consider that the claimant must prove actual malice by clear and convincing evidence. Notwith standing o ur disagree ment with the Court o f Special A ppeals on this issue, we do concur with that court s judgment, as we discussed in Part A, supra, that the evid ence p resente d in this c ase wa s suffic ient to su pport a finding of actu al malic e. C. Plaintiff Has No Burden to Present Evidence of a Defendant s Financial Condition Darcars further argues that the jury and trial court could not make an informed determination as to the appropriate amo unt of punitive dam ages, because Bo rzym did not present sufficient e vidence o f Darcars financial co ndition or ab ility to pay. Accordin g to Darcars, Borzym had a bu rden to present clear and c onvincing eviden ce not only that Darcars was liable for pu nitive dam ages, but also that Darca rs had the f inancial ability to pay the punitiv e dam age aw ard. Bor zym counters that the jury awarded punitive damages based on competent evidence of D arca rs fi nancial c ondition . In ad ditio n, Bo rzym maintains that the punitive damage award o f $25,000 was not e xcessive an d was rea sonably calcu lated as a de terrent. Courts currently allow, but do not compel, a plaintiff to present evidence of a defendant s financial condition. Where the plaintiff seeks punitive damage s, the trial court, -23- may elect, but is not required, to bifurcate the trial so that the jury determines compen satory claims separate from the claim of punitiv e dam ages. Zenobia , 325 Md. at 473-74 n.29, 601 A.2d 633, 659 n.29. In Zenobia , we descr ibed this prac tice, which tria l courts frequ ently employ in light of Maryland Code, ยง 10-913(a) of the Courts and Judicial Proceedings Article (1974, 2002 Repl. Vo l.) (prohibiting the admission of ev idence of the defe ndant s financial means in personal injury actions unless the jury has found first that punitive damages are suppo rtable unde r the facts ): [ T]he trial cou rt will instruct the jury on the compensatory claims and on the defendant s potential liability for punitive damages. Then, once the jury has made a finding of liability for punitive damages, the trial court will further instruct the jury concerning the calculation of a punitive damage award. Id. We stated plainly in Zenobia , how ever , that the b ifurcate d pro cedu re is n ot mandatory: If there were two sepa rate damage s trials in every case, much of the evidence at the trial solely on the issue of punitive damages would duplicate the evidence a dmitted at the compe nsatory damages trial. Many of the same witness would have to be recalled to repeat their testimony before the jury. In light of the fact that this duplication would burden both witnesses and jurors as well as waste judicial resources, we believe that ma ndatory bifurcation is undesirable. Id. Although this bifurcated procedure is not required, the general practice has been to withhold evidence of a defendant s ability to pay punitive damages un til and unless the jury awards compensatory damages and decides to award punitive damages. Montgomery Ward v. Wilson, 101 Md. App. 5 35, 551 , 647 A .2d 121 8, 1226 (1994 ), rev d on other grounds, 339 -24- Md. 701, 664 A.2d 91 6 (1995); see Cole v. Sullivan, 110 Md. App. 79, 86, 676 A.2d 85, 89 (1996). In describing the rationale behind this practice, the Court of Special Appeals stated: When and if the jury awards compensatory damages, then the trial judge can instruct fully on punitive damages after the presentation of evidence of the defendant s ability to pay. There is but one jury and one trial, although the presentation of financial evid ence is delayed until the appropriate time. Thus, the trial truly is not divided into two parts, and witnesses need not be recalled. Id. at 551, 647 A.2d at 1226. Once liability for punitive damages has been established, however, evidenc e of a def endant s ab ility to pay punitive da mages sh ould be consid ered. Id. at 550, 647 A.2d at 1226. Our cases have neve r required clear and convincing evidence of a defendan t s financial condition to support an award of punitive damages. In Bowden, we made clear that evidence of a defe ndant s financial condition is relevant in determining whether a jury s award of pun itive dam ages is e xcessiv e. Bowden, 350 M d. at 28- 29, 710 A.2d at 278-79. We identified nine legal principles or considerations w hich shou ld guide a trial c ourt in determining if a pun itive dam age aw ard is ex cessive . Id. at 25-26, 27-41, 710 A.2d at 277, 278-85. Among the nine factors, we included the requirement that the amount of punitive damages should no t be disprop ortionate to . . . the defendant s ability to pay. Id. at 28, 710 A.2d at 278. In describing this factor, we recognized that [t]he purpose of punitive damages is not to bankrupt or impoverish a defendant. Id. We were clea r, howev er, that the fac tors are not cr iteria that must b e established but, -25- rather, guideposts to assist a court in reviewing an award. As to the nine principles or factors, we said not all . . . are pertinent in every case involv ing court review of punitive damage awards. Id. at 41, 710 A.2d at 285. In addition, the nine principles are not intended to be exclusive or all-encompassing, and [o]ther principles may appropriately be applicable to judici al review of pun itive dam ages aw ards un der par ticular cir cumsta nces. Id. Sound reasoning supports our view that a plaintiff has no obligation to establish a defendant s ability to pay punitive damages. Compelling a plaintiff seeking punitive damages to present evidence of a defendant s financial condition could, on the one hand, require a plaintiff with limited financial resources to wage a complicated discovery campaign against a monetarily sated defendant. On the other hand, it would license the plaintiff to conduct extensive p re-trial discovery of the defendant s finances to support a measure of damages that may never be awarded. Not only could the latter result in a severe invasion of the defendant s privacy, but it could also unnecessarily cost the defendant a great deal of time and m oney to c ompile all of its f inancia l inform ation. Moreover, placing a burden on plaintiff to introduce evidence of a defendant s financial condition will enhance the risk that a jury will place undue em phasis on the defendant s wealth. If that should occur, the jury may become more prone to use information of a wealthy defendant s finances to justify an award of punitive damage s dispropo rtionately higher than the gravity of the defendant s wrongdoing. As we stated in Bowden, merely -26- because a defendant may be able to pay a very large award of punitive damages, without jeopardizing the defen dant s finan cial position, do es not justify an award which is disproportionate to the heinousness of the defendant s conduct. 350 Md. at 28, 710 A.2d at 279. Based on these reasons, we see no reason to alter the way in which evidence of a defenda nt s ability to pay is presented. Conseq uently, a plaintiff d oes not be ar a burden to present evidence of a defendant s financial condition in support of its pursuit of punitive damages. Our approach comports with the significant number of other jurisdictions that have addressed the issue. See, e.g., Smith v. Lightning Bolt Productions, Inc., 861 F.2d 363, 373 (2 nd Cir. 1988) ( The incompleteness of the record as to [the defe ndant s] ne t worth is no t a basis for reducing the punitive damages award against h im . . . . ); Tolliver v. Amici, 800 F.2d 149, 151 (7 th Cir. 1986) (rejecting the a rgumen t that a punitive damage s award s hould be reversed because the plaintiff failed to introduce sufficient evidence of the d efendant s net worth); Evans v. Thompson, 762 P.2d 754, 754-55 (Colo. App. 1988) (observing that evidence of a defendant s financial condition is not a prerequ isite to an award of exe mplary damages ); Rinaldi v. Aaron, 314 So. 2d 762, 765 (Fla. 1975) (holding that evidence of [a defendant s financial] worth is not a requisite to [a punitive damage] award ); Wilson v. Colston, 457 N.E .2d 1042 , 1044 (Ill. Ap p. Ct. 1983 ) (holding th at a plaintiff m ay obtain an award for [punitive] damages without introducing evidence of th e defendant s mo netary resources ); Nugent v. Kerr, 543 N.W.2d 688, 691 (Minn. Ct. App. 1996) (stating that -27- evidence of a defendant s financial condition . . . is not necessarily an essential elem ent to prove entitlement to [punitive] d amages ); Wagner v. McDaniels, 459 N.E .2d 561, 56 4 (Ohio 1984) (stating that evidence of a defendant s net worth is not required before punitive damages may be awarded ); Anderson v. Latham Trucking Co., 728 S.W.2d 752, 754 (Tenn. 1987) ( [T]he plaintiff or the defendant . . . may offer proof of the financial condition of a defenda nt, . . . but it is not essential or mandatory that the record contain any such evidence to sustain an award of punitive damage s. ); Hall v. Wal-Mart Stores, Inc., 959 P.2d 109, 112 (Utah 1998) (declining to adopt a rule requiring the plaintiff to present evidence of the defendant s relative we alth as a prerequisite to an award of punitive da mages); Fahrenberg v. Tengel, 291 N.W.2d 516, 527 (Wis. 1980) ( Failure to sh ow net w orth does n ot invalidate the award of punitive damages, but eliminates one factor by which the reasonableness of the award can be gauged. ). The Circuit Court applied the correct procedures in this case. After the jury found Darcars liable for compensatory damages and that B orzym wa s entitled to punitive damages, the Circuit Court allowed Borzym to present evidence regarding the amount of punitive damages. During this phase of the trial, Borzym, for the first time, elicited testimony relating to Darcars fin ancial condition and argued that it was able to pay $500,000 in punitive damages. Darcars offered no evidence during that part of the proceedings. The judge then instructed the jury accord ing to Section 10:12 of the Maryland Civil Pattern Jury Instruction. The jury determ ined , specific ally, th at Darca rs co nverted Borzym s pro perty with actual -28- malice and, as a result, Borzym was entitled to punitive damages of $100,000, which the trial court later reduced to $25,000 . Borzym had no o bligation to establish that Darcars had the financial ability to pay the award. Consequently, we shall affirm the award of punitive damages. JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED; COSTS IN THIS COURT AND IN THE COURT OF SPECIAL APPEALS TO BE PAID BY PETITIONER. -29-
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